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Tag Archives: court of protection

Video-recording (life and death)

We’ve been having a lively debate about whether or not parents should be able to record their interactions with professionals, and there’s a piece over at the Guardian about it  http://www.theguardian.com/society/2015/jun/17/social-workers-under-scrutiny-parents-camera

 

I’ve today come across a Court of Protection case, decided by Newton J.

 

St Georges NHS Healthcare Trust and P 2015

Neutral Citation Number: [2015] EWCOP 42

https://www.judiciary.gov.uk/wp-content/uploads/2015/06/cop_khan_26.6.15.pdf

 

[There is also a Reporting Restriction Order in place, meaning that the family or patient should not be named. I had been nervous about the link above having a surname in it, but on making enquiries I’m reassured that it refers to one of the doctors involved, not the family surname]

 

This case involved a very ill man who had had a heart attack and due to a long period of time before being revived suffered hypoxic brain damage. There was agreement that if he had another cardiac arrest he should not be resuscitated.

The hospital had applied to Court for a declaration that they be allowed to withdraw treatment (renal replacement therapy) which would have the impact of causing the man to die. The family were opposed to this and were arguing that the man was showing signs of consciousness.  They were saying that he was in a Minimally Conscious State (MCS) and thus he could, though on a very low level, show some responses. The hospital opinion was otherwise and that the man had no responsiveness and thus no quality of life.

The bit of relevance for us is here:-

The family have always properly and steadfastly maintained and argued their position. But for their politely and cogently articulated stance, it may well have been that renal replacement therapy would have been stopped, and P would already no longer be alive. They endeavoured to support their efforts by the taking of video recordings of occasions when they said that P had responded to verbal communication. That position was strongly opposed by the Health Trust who contended concern about the privacy and dignity of other patients and offered the services of the Trust’s medical photographer. Surprisingly the Court was required to make a decision that they were (a) able to do so and (b) could rely in Court on those recordings. In fact those video recordings provided a watershed insight to the proper conclusion in this case. As I say, but for their persistence, and the consequent anxiety of the Official Solicitor I could have so easily concluded on inadequate evidence, as it transpired, a conclusion that would have led to P’s demise.

 

Breaking this down :-

 

A) The family said that they could see signs of response from the man, and the hospital disagreed

B) The family wanted to film the man, so they could prove that he was showing these signs of response

C) The Hospital opposed this, and the Court had to hear argument about it, and decided that the family could film him

D) The film proved what the family were saying, and were vital in the case

E) The man is still alive, because of that filming process

 

You can’t really get a stronger illustration than that.

 

As a result of the Judge seeing the video recordings, he ordered further assessment, that assessment concluded that the man was indeed in a Minimally Conscious State not a persistent vegetative state. Somewhat oddly, that conclusion led to the hospital asking for other treatments to be withdrawn.  (I can’t quite understand this myself, but the case had clearly got quite polarising)

The hearing has lasted five days over a considerably adjourned period, judgment being delivered on the 6th

 It is a very unsatisfactory way of conducting such a hearing. Having seen the very powerful and affecting video recordings of P myself on day 3 it became abundantly clear that further and proper assessment and enquiry was absolutely necessary and essential. As a result Helen Gill-Thwaites, a specialist occupational therapist, continued and carried out the further assessment using the internationally respected assessment process known as SMART. Additionally Mr Derar Badwan, a leading expert in neuro rehabilitation directed the optimum circumstances for that and his own subsequent opinion to be investigated and formulated. Their united opinion and evidence was that at this stage of assessment it was clear, as the family had always contended, that P was in a minimally conscious state. I confess I am very troubled that in apparent response to that expert opinion the Trust’s reaction (without issuing a further application) was to apply to withdraw a whole raft of other treatments. That inexplicable development seemed to me at best to illustrate the widening the gulf between the family and those who were treating P, at best a hardening of mind. That view was fortified further when it subsequently emerged during the course of evidence (when Dr Dewhurst resumed evidence) that Dr Khan, the consultant neurologist responsible for P’s treatment, had recently changed his mind and now considered that P was in a minimally conscious state and had emailed that view to the Trust’s solicitor. All counsel seemed unaware of that development; certainly the Court was, and it is disappointing that this important information should in fact surface in this way. I do not think this represents bad faith but a reflection of the litigation as a whole. As I have already made clear I do not doubt the very great sincerity of the consultants involved in the care of P, but having regard to the Court’s strong presumption in preserving the sanctity of life and of the overarching principle that should be borne in every case with this background it was a surprising development. The law regards the preservation of life as a strong fundamental principle.

 

The Judge describes what nearly happened here (and the absence of the testing process which is recommended in the guidance) as a ‘cataclysmic injustice’.   It is somewhat rare to see the word ‘cataclysmic’ used and to not immediately conclude that the author is  wildly over-stating things.  This is one of those rare occasions when it was in my opinion merited.  [Bracing myself now for my commentator Andrew informing me that it should be confined to natural disasters or large scale tragedies]

This nugget is astonishing – in these cases, the rate of mis-diagnosis (i.e hospitals deciding that a person is NOT in a Minimally Conscious State and getting that wrong ) is 40%. Forty per cent… Of something as vitally important as that.

I have been told in this and in other cases that misdiagnosis (of people who are said to be in a vegetative state but are in truth in a minimally conscious state) occurs in a remarkably high number of cases, the rate of misdiagnosis is said to be some 40%.

 

It is something of a wake-up call – if medical evidence can be wrong about something so vitally important as whether a man would have any awareness if treatment was withdrawn, then we need to be cautious about it when it is something which is less concrete and more speculative  (such as a person’s ability to change, or whether they might or might not sustain a separation from another person or abstain from substances)

 

It is a very interesting and moving case, and once I am sure that the link does not accidentally give away something that it should not, I will share it with you.

 

 

 

 

Incapacity of the Monarch (but really about Lasting Power of Attorney)

 

A quirky Court of Protection case from Senior Judge Lush, who seems to have the most interesting life – all of the cases are intricate and involving, and often with rich little details. I am quite envious.

Re XZ 2015

http://www.bailii.org/ew/cases/EWCOP/2015/35.html

The nub of it is that XZ, who is in his seventies and is a high net worth individual, instructed solicitors to draw up a Lasting Power of Attorney. He wanted to ensure that if he lost capacity, that his affairs would be managed, but he was also wanting to ensure that if it was a temporary blip that he would recover from, that decisions would not be made in that interregnum period that he might later regret having been made on his behalf.

There were thus some unusual and very carefully crafted clauses (the fact that the Lasting Power of Attorney makes express provision for decisions involving more than $25 million indicates that there are some significant affairs under consideration here)

 

  1. Dominic Lawrance, the solicitor who drafted these provisions, described their purpose as follows:

    “The purpose of these safeguards is to ensure that the attorneys do not act (other than in limited emergency situations) until XZ’s incapacity has:

    (a) been unequivocally confirmed by psychiatric evidence that is subject to review by the Protector; and

    (b) has endured for a minimum period of 60 days.

    This has been designed to prevent:

    (a) the attorneys taking hasty actions with which XZ might disagree if his lack of capacity were to prove temporary; and

    (b) the attorneys acting when there remained genuine scope for doubt as to whether XZ indeed lacked capacity.”

  2. At the hearing on 7 May 2015, Mr Lawrance added that these provisions were:

    “… the product of XZ’s specific instructions. He is generally loath to confer discretions and powers on other people. He likes to be ‘in the driving seat’ and was only willing to sign the LPA if these safeguards were in place.”

 

 

When the LPA was lodged with the Public Guardian’s office, the Public Guardian refused to register it, meaning that it would have no effect. The Public Guardian took the view that these restrictions meant that it was not a properly formed LPA.  That then led to the Court being invited to decide it.

 

And here is where the bit about incapacity of the monarch comes in.  I had not previously encountered this bit of legislation, and I like it.

XZ’s counsel, David Rees, compared these provisions with those in the Regency Act 1937. Both include a requirement that a third party, who is not medically qualified, should agree with the medical evidence before the powers conferred on the delegate become exercisable. Section 2 of the Regency Act prescribes the following procedure in the event of the total incapacity of the Sovereign:

“If the following persons or any three or more of them, that is to say, the wife or husband of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England, and the Master of the Rolls, declare in writing that they are satisfied by evidence which shall include the evidence of physicians that the Sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions or that they are satisfied by evidence that the Sovereign is for some definite cause not available for the performance of those functions, then, until it is declared in like manner that His Majesty has so far recovered His health as to warrant His resumption of the royal functions or has become available for the performance thereof, as the case may be, those functions shall be performed in the name and on behalf of the Sovereign by a Regent.”

 

It is always nice to be able to say “My client asked for these clauses to be in place, because he wanted similar protection to that provided to the Queen”  –  I don’t imagine the chance to say it arises that often, but if you can deploy it, why not?

So, if the Queen (or any future Monarch) lost their capacity to make decisions, the procedure would mean that on advice of physicians, three or more of the following would need to make a declaration of incapacity – currently Prince Philip, Michael Gove (!), John Bercow (!), the Right Honourable Sir John Thomas, the Right Honourable Lord Dyson. And if three or more of them do that, then the Queen’s functions would be removed from her and given to a Regent.  And she’d only get the powers and functions back if three or more of them agreed.

Ladies and gentlemen, that’s a statutory recipe for a coup in Great Britain. If you wanted to have a coup, that’s your legal route map.

[I’m a bit scared that Michael Gove is one third of the way to being able to seize all power from the Queen, if he can just talk two of the others into becoming ultimate rulers of the UK by his side.  At least it isn’t Grayling I suppose. Given that the Lord Chancellor  could sack the Master of the Rolls and Lord Chief Justice and appoint his own people…I should stop thinking about this]

I am scratching my head as to whether the Mental Capacity Act 2005 with its presumption of capacity disintegrates the Regency Act. The Regency Act is not in the list of repeals. But the Mental Capacity Act 2005 is said to cover people, and there’s no clause that says “people other than a reigning monarch”

 

So I already like the case for raising that bit of constitutional intrigue.

Senior Judge Lush had this to say in relation to why the judgment was published

I can’t imagine that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication.

 

That rather dampens my spirits, the Judge telling me that the general public won’t be interested, but it interested me.   [And yes, I should get out more]

So, what’s the decision?

  1. XZ acknowledges that his LPA will be less effective because of these provisions but, nevertheless, he wishes them to remain as an integral part of the registered instrument for his own reassurance and peace of mind. Some people may think that this is unwise, but it is his will and preference and it should be treated with respect. The Public Guardian has no right to make a paternalistic judgment on his behalf and decide that it would be in his best interests for these provisions to be severed.
  2. I agree with Mr Rees’s submission that:

    With respect to the Public Guardian, it is no part of his statutory duties to police the practicality or utility of individual aspects of an LPA. In the context of section 23 and Schedule 1, paragraph 11 of the MCA 2005 the phrase “ineffective as part of a lasting power of attorney” clearly means “not capable of taking effect, according to its legal terms as part of an LPA.” Examples of provisions which would be ineffective as part of a power of attorney would include:

    (a) a provision which purported to permit the attorney to make gifts which go beyond the statutory restrictions found at section 12 MCA 2005.

    (b) a provision which purported to go beyond what a person can do by an attorney (such as make a will or vote).

    (c) a provision which purported to permit the attorney to consent to a marriage on behalf of the donor (see MCA section 27(1)(a).

    Neither the court nor the Public Guardian are concerned with whether a restriction that does not contravene the terms of the MCA 2005 may pose practical difficulties in its operation.”

  3. The Public Guardian’s function under paragraph 11 of Schedule 1 to the Act is limited to considering whether the conditions and restrictions are (a) ineffective as part of an LPA or (b) would prevent the instrument from operating as a valid LPA.
  4. If he concludes that they cannot be given legal effect, then he is under a duty to apply to the court for a determination of the point under section 23(1). Otherwise he has a duty to register the power.
  5. Neither Miss Chandoo’s witness statement nor Miss Davidson’s submissions have identified any specific provision in the Mental Capacity Act 2005, or the LPA, EPA and PG Regulations, or the common law of agency that has been infringed by the provisions in XZ’s LPA.
  6. For these reasons, and pursuant to section 23(1) of the Act, I declare that XZ’s LPA does not contain any provisions which: (a) would be ineffective as part of an LPA; or

    (b) would prevent the instrument from operating as a valid power of attorney.

  7. I also order the Public Guardian to register the LPA.

Costs argument between Official Solicitor and Mail on Sunday

 

The Court of Appeal dealt with an appeal arising from a costs order made by the President in the Re G case.

The Re G case is an incredibly controversial one, which has now been before three High Court Judges and the Court of Appeal, and involves a Court of Protection application to protect the finances of a woman aged ninety four from carers who were urging her to change her will in their favour  OR a Local Authority dragging a ninety four year old into Court and trying to control her life and gag and silence her  (depending on which side of the controversy you stand).

 

I summarised all the controversial litigation in this post here http://suesspiciousminds.com/2014/05/02/journalists-right-to-private-and-family-life-with-her-source/

 

In the very last batch of the litigation, the Mail on Sunday tried to become a party to the Court of Protection proceedings, wanting an input into the letter of instruction to the expert who would be considering whether G had capacity to make her own decision about talking to the Press or whether she did not; and also running the argument that the journalist had an article 8 right to private and family life with G  (you might think that was a curious argument, but the President didn’t actually reject it)

At the end, the Mail on Sunday having lost in all of its applications, the Court ordered that the Mail on Sunday pay 30% of the costs of the Official Solicitor  (let’s quickly remember that all of the Official Solicitors costs are met out of G’s estate, so this was a hearing that cost G money) and 30% of the costs of the Local Authority.

 

The Official Solicitor appealed that order, seeking 100% of its costs. The Local Authority did not appeal the order.

Re G (an Adult) by her litigation friend the Official Solicitor (costs) 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/446.html

 

The Court of Appeal considered that the President had struck the right balance [Or certainly that it could not be said that he had been wrong]. Yes, the Mail on Sunday had lost all of their applications, and G’s estate had incurred costs as a result. But also, important (and previously unlitigated) issues of principle had been raised and now resolved to the benefit of public policy. Therefore, it was right that the Mail on Sunday pay some, but not all of G’s costs.

  1. Given the terms of the rule, the challenge to the President’s exercise of discretion is a bold submission. The President set out his reasons. He applied the framework set out in the rules. He identified those matters to which he gave weight. Given that he had concluded that the Official Solicitor had triggered ANL’s application and that he had not understood the public importance of the media’s general role, a proportionate order was an unsurprising outcome. An appeal against the exercise by a judge of his discretion faces a high hurdle. I shall give just one well known example of that hurdle as described by this court in respect of proceedings in this jurisdiction: Burchell and Ballard [2005] EWCA Civ 358, [2005] CP Rep 36 at [25] per Ward LJ:

    “Appeals against orders for costs are notoriously difficult to sustain. That is because the trial judge has a wide discretion with the result that this court will only interfere with his decision if he has exceeded the generous ambit within which there is usually much room for reasonable disagreement or because, even more unusually, he has erred in principle.”

  2. One only has to consider the exercise of discretion in this case from a perspective other than the Official Solicitor’s to understand the point. It was reasonable for the media to raise an issue of public importance and the Official Solicitor failed to understand that issue. The letters written on behalf of the Official Solicitor were wrong and that was conduct before the application and within the proceedings. In this appeal Mr Patel seeks to explain the Official Solicitor’s stance by postulating that any journalist who intruded into G’s private affairs would have been unjustified given Cobb J’s interim declarations and the Press Complaints Commission Editor’s Code of Conduct, but that involves issues of fact which were not established. ANL’s response was wholly misconceived and that was conduct within the proceedings. ANL achieved one of the ends they pursued which was the issue of public importance relating to the role of the media that was triggered in the manner described.
  3. In my judgment the Official Solicitor succeeded on the application i.e. he won a battle but lost a point of principle. ANL lost the application but achieved clarity in relation to a point of principle. None of this should be taken to be an encouragement to the media to use misconceived applications of this kind but it seems to me to be impossible for the Official Solicitor to succeed in arguing that the President exceeded the broad ambit of his discretion by placing too much emphasis on one factor or too little emphasis on another such that he was wrong.
  4. There is one further argument that tells against the second ground of the appeal and that is whether and to what extent ANL should pay two sets of costs. It is submitted by Mr Patel that this was irrelevant. I disagree. The President cannot be said to have been wrong in principle to raise a question that is within the framework of the rules and the terms of rule 159 CoPR. In doing so he apprehended a general principle applied from the administrative law context. There is ample authority for the proposition that multiple representation where there is no significant difference between the arguments of parties on an application is to be discouraged by a limitation in costs. See, for example, the proposition cited with approval by Lord Lloyd of Berwick in Bolton MDC v Secretary of State for the Environment and Ors [1995] 1 WLR 1177 at 1178:

    “In my judgment in circumstances such as these where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs”

  5. The President would have had that principle well in mind given his decision in R (Smeaton) v Secretary of State for Health [2002] 2 FLR 146 at 245 where he overtly applied the principle.
  6. For these reasons I concurred in the dismissal of the appeal. At the conclusion of the proceedings the court expressed its strong view that this appeal should not have any adverse financial effect upon the assets of G. The Official Solicitor has considered that view and I am grateful to him for his confirmation that G will not bear the costs of this appeal.

I was wondering the other day what had finally happened with this case. I still don’t know, but there must have either been a hearing, or be one coming up soon.

MN (adult) 2015 – Court of Appeal pronouncements

Re MN (an adult) 2015 is a Court of Protection case, heard in the Court of Appeal, which spends nearly half of its length talking about care proceedings, housing and practice directions.

It is very very dense, and in all conscience, I couldn’t ask you to read this unless you are a lawyer or are particularly fascinated by Court of Protection work.  (There’s a brief bit in there of relevance to family lawyers – about whether Courts have the final say on care plans. If you’re pushed for time – despite Neath Port Talbot, they don’t)

Lots of big stuff in there though, including important bit for children cases.  There’s care plans, court power to make Local Authority change their plans, whether declarations are valid, costs and timescales in Court of Protection cases and our old friend bundle sizes.

If you are a lawyer working in the Court of Protection, brace yourself for a huge pile of standardised orders, case summaries, and practice directions, all of which will be carefully and thoughtfully designed to make every aspect of your working life more awkward and time consuming than it was before.  Flaubert once said that writing his novels was like having ones flesh torn off with red hot pincers, but he never had to complete a standardised Case Management Order. He would have considerably softened his view of how hard it was to write his novels, if he had this broader experience of life’s miseries.

If you see an announcement of the Court of Protection Outline being launched, quit your job, and take up gainful employment as someone who tests the sharpness of porcupine quills by bungee jumping onto them face first – you will be much happier in the long run.

[Editor note – somewhat over-selling that, Suesspicious Minds? Perhaps a smidge. ]

The actual point of the appeal is an important one,  and in deciding it, the Court of Appeal say some useful things about care cases and specifically care plans.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/411.html

Let’s deal with the care plan bit first (sorry Court of Protection folks, but actually explaining this will help explain what’s going on later on in the judgment)

 

Historically this has been the deal – the LA submit their care plan (what will they do if the Court grant their order?) and the Court decide whether to grant the order. We then got into something of a tangle in cases where the Court wanted to grant the order, but not on the plan put before them. There have been various stages of that arm-wrestling, but where we got up to recently was Re W (or the Neath Port Talbot case) in which the Court of Appeal (principally Ryder LJ) tried to put the power in the hands of the Court.  [I personally think that flies in the face of Supreme Court authority, but ho-hum]

The President here clarifies the law, and takes a step backwards from the more bullish aspects of the Neath Port Talbot judgment. Underlining mine for emphasis.

  1. Finally, I need to consider the position where the court – that is, in relation to a child the subject of care proceedings, the family court, or, in relation to an adult the subject of personal welfare proceedings, the Court of Protection – is being asked to approve the care plan put forward by the local or other public authority which has brought the proceedings. I start with care proceedings under Part IV of the 1989 Act.
  2. It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
  3. That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
  4. In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

    “be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.”

    Rigorous probing, searching questions and persuasion are permissible; pressure is not.

  5. I should add that the court has the power to direct the local authority to file evidence or to prepare and file a further plan, including, if the court directs, a description of the services that are available and practicable for each placement option being considered by the court. The local authority is obliged to do so even though the plan’s contents may not or do not reflect its formal position, for it is not for the local authority (or indeed any other party) to decide whether it is going to restrict or limit the evidence that it presents: see Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431. As Ryder LJ said (para 79):

    “It is part of the case management process that a judge may require a local authority to give evidence about what services would be provided to support the strategy set out in its care plan … That may include evidence about more than one different possible resolution so the court might know the benefits and detriments of each option and what the local authority would or would not do. That may also include requiring the local authority to set out a care plan to meet a particular formulation or assessment of risk, even if the local authority does not agree with that risk.”

Where Ryder LJ was suggesting that at this point, the Court can mutter darkly about judicial review and invite a party to make such an application  (in effect compelling the Local Authority to either give in or incur horrendous costs in judicial review proceedings with no prospect of recovering those costs from the other side, who will be ‘men of straw’), the President considers that after those attempts at persuasion have failed, the Court has to choose the lesser of two evils.

  1. Despite its best efforts, the court may, nonetheless, find itself faced with a situation where it has to choose the lesser of two evils. As Balcombe LJ said in Re S and D (Children: Powers of Court) [1995] 2 FLR 456, 464, the judge may, despite all his endeavours, be faced with a dilemma:

    “if he makes a care order, the local authority may implement a care plan which he or she may take the view is not in the child or children’s best interests. On the other hand, if he makes no order, he may be leaving the child in the care of an irresponsible, and indeed wholly inappropriate parent.”

    Balcombe LJ continued:

    “It seems to me that, regrettable though it may seem, the only course he may take is to choose what he considers to be the lesser of two evils. If he has no other route open to him … then that is the unfortunate position he has to face.”

  2. In practice courts are not very often faced with this dilemma. Wilson J, as he then was, recognised in Re C (Adoption: Religious Observance) [2002] 1 FLR 1119, para 51, that “a damaging impasse can develop between a court which declines to approve their care plan and the authority which decline to amend it.” But, as he went on to observe:

    “The impasse is more theoretical than real: the last reported example is Re S and D (Children: Powers of Court) [1995] 2 FLR 456. For good reason, there are often, as in this case, polarised views about the optimum solution for the child: in the end, however, assuming that they feel that the judicial processing of them has worked adequately, the parties will be likely to accept the court’s determination and, in particular, the local authority will be likely to amend their proposals for the child so as to accord with it … In the normal case let there be – in the natural forum of the family court – argument, decision and, sometimes no doubt with hesitation, acceptance: in other words, between all of us a partnership, for the sake of the child.”

 

It would remain an unwise Local Authority who continued to disagree with judicial persuasion at that point, but if they do, the Court simply has to choose.  [It is worth noting that the issue that Ryder LJ went to war on – the ability to force a Local Authority to have a care order with a plan of the child being at home, is exactly the situation which is wreaking havoc in Re D – since if it all goes wrong, the parents get no legal aid to argue the case and there’s no easy application to be made to fix things]

 

Moving on, (come back Court of Protection people) , the Court of Protection say that the same provisions apply. The Court can try to persuade a Local Authority to alter their plan, but they can’t compel them to.

In my judgment exactly the same principles as apply to care cases involving children apply also to personal welfare cases involving incapacitated adults, whether the case is proceeding in the Family Division under the inherent jurisdiction or, as here, in the Court of Protection under the Mental Capacity Act 2005. The fact that a care plan is now part of the statutory process in relation to care cases involving children, whereas there is no corresponding statutory requirement for a care plan in an adult personal welfare case is neither here nor there. Care plans are a routine part of the process in adult cases.

 

That’s important, because the fundamental issue in MN was that MN’s family disagreed with the plan that the Local Authority had for him, and wanted the Court to decide that this plan was not in his best interests.

  1. MN, born in 1993, is a young man who suffers from profound disabilities and lacks capacity to make relevant decisions for himself. When MN was 8 years old he was made the subject of a care order on the application of the local authority, ACC. Shortly before his 18th birthday the court approved MN’s move from his residential children’s placement to an adult residential placement, RCH, where he continues to live. The clinical commissioning group, ACCG, took over responsibility from ACC for the funding of MN’s placement at RCH when he turned 18. The present proceedings were brought by ACC and commenced on 25 August 2011. MN’s parents, Mr N and Mrs N, accept, reluctantly, that MN should live at RCH, where they have regular contact with him, but their aspiration remains that he should return to live with them at home.
  2. By the time the matter came on for hearing before Eleanor King J, the issues had narrowed to disputes (i) as to whether Mrs N should be permitted to assist in MN’s intimate care when visiting him at RCH and (ii) as to whether contact should also take place at Mr and Mrs N’s home. As to (i), RCH was not willing for this to be done. As to (ii), ACCG was not willing to provide the necessary funding for the additional carers who would be needed if MN was to have home contact.

You can see from the lead-in that the Court of Appeal weren’t terribly taken with the idea that by deciding that X plan wasn’t in MN’s best interests, the Local Authority could be compelled to redesign the plan for MN.  The Court has to choose from the options which are realistically before it – they have to choose from what’s on the menu, rather than demanding that the chef cook something more to their liking.

 

If the family really think that the LA are unreasonable, then the remedy is judicial review, not getting the Court of Protection to twist the Local Authority’s arm (or make declarations whose value is merely to lay the foundations for a good judicial review case)

 

  1. In my judgment the judge was right in all respects and essentially for the reasons she gave.
  2. The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection has no more power, just because it is acting on behalf of an adult who lacks capacity, to obtain resources or facilities from a third party, whether a private individual or a public authority, than the adult if he had capacity would be able to obtain himself. The A v Liverpool principle applies as much to the Court of Protection as it applies to the family court or the Family Division. The analyses in A v A Health Authority and in Holmes-Moorhouse likewise apply as much in the Court of Protection as in the family court or the Family Division. The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future.
  3. The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement. I agree with the point Eleanor King J made in her judgment (para 57):

    “In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a ‘best interests’ trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient’s best interest.”

  4. Back of the specific authorities to which I have referred there are, in my judgment, four reasons why the Court of Protection should not embark upon the kind of process for which Ms Bretherton and Ms Weereratne contend. First, it is not a proper function of the Court of Protection (nor, indeed, of the family court or the Family Division in analogous situations), to embark upon a factual inquiry into some abstract issue the answer to which cannot affect the outcome of the proceedings before it. Secondly, it is not a proper function of the Court of Protection (nor of the family court or the Family Division) to embark upon a factual inquiry designed to create a platform or springboard for possible future proceedings in the Administrative Court. Thirdly, such an exercise runs the risk of confusing the very different perspectives and principles which govern the exercise by the Court of Protection of its functions and those which govern the exercise by the public authority of its functions – and, in consequence, the very different issues which arise for determination in the Court of Protection in contrast to those which arise for determination in the Administrative Court. Fourthly, such an exercise runs the risk of exposing the public authority to impermissible pressure. Eleanor King J rightly identified (para 59) the need to:

    avoid a situation arising where the already vastly overstretched Court of Protection would be routinely asked to make hypothetical decisions in relation to ‘best interests’, with the consequence that CCGs are driven to fund such packages or be faced with the threat of expensive and lengthy judicial review proceedings.”

    Precisely so.

  5. The present case, it might be thought, illustrates the point to perfection. The proposal was that the judge should spend three days, poring over more than 2,000 pages of evidence, to come to a ‘best interests’ interest on an abstract question, and all for what?

 

That last point segueways into all of the Practice pronouncements.

Let’s start with bundles.

  1. We were told that the trial bundle in the present case ran to five lever arch files and also, which did not surprise me, that this was not atypical in this kind of case. I confess, however, to being surprised – and that is a pretty anaemic word – when told that the bundle contained no fewer than 2,029 pages of evidence. That, I have to say, is an indictment of the culture which has been allowed to develop in the Court of Protection. It must stop. In the family court, the relevant Practice Direction in relation to bundles provides that the bundle must not exceed one lever arch containing no more than 350 pages unless a larger bundle has been specifically authorised by a judge: FPR 2010 PD27A, para 5.1. It might be thought that the corresponding Practice Direction in the Court of Protection, PD13B, should be brought into line. In the meantime, proper compliance with PD13B is essential and should be rigorously enforced by Court of Protection judges. In particular, proper compliance with PD13B, paras 4.2, 4.3, 4.6 and 4.7, which judges must insist upon, will go a very long way to meeting the concerns identified by Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166.
  2. In the Court of Protection, the use of expert evidence is restricted by Rule 121 to “that which is reasonably required to resolve the proceedings.” One of the most salutary and effective of the recent reforms to family justice has been the imposition of a significantly more demanding test by section 13(6) of the Children and Families Act 2014 – “necessary to assist the court to resolve the proceedings justly.” Here, as I have already noted, the bundle contained an astonishing 1,289 pages of expert evidence. The profligate expenditure of public resources on litigation conducted in such an unrestrainedly luxurious manner is something that can no longer be tolerated. As I recently observed in relation to the family court (Re L (A Child) [2015] EWFC 15, para 38):

    “I end with yet another plea for restraint in the expenditure of public funds. Public funds, whether those under the control of the LAA or those under the control of other public bodies, are limited, and likely in future to reduce rather than increase. It is essential that such public funds as are available for funding litigation in the Family Court and the Family Division are carefully husbanded and properly applied. It is no good complaining that public funds are available only for X and not for Y if money available for X is being squandered. Money should be spent only on what is “necessary” to enable the court to deal with the proceedings “justly”. If a task is not “necessary” – if it is unnecessary – why should litigants or their professional advisers expect public money to be made available? They cannot and they should not. Proper compliance with PD27A and, in particular, strict adherence to the bundle page limit, is an essential tool in the struggle to control the costs of family litigation.”

    Consideration requires to be given to the early amendment of Rule 121 to bring it into line with section 13(6).

 

Get ready for 350 page bundles and rigorous scrutiny over expert evidence. If the experience in family proceedings is anything to go by, expect to be spending 10% of your working day f***ing about with bundles.

What else?

 

Timescales

  1. That takes me on to the other point. The time these proceedings took to reach a final hearing was depressingly long. I am very conscious that one must not push too far the analogy between personal welfare proceedings in the Court of Protection and care proceedings in the family court, but they do share a number of common forensic characteristics. Even allowing for the fact – not that it arose in this particular case – that cases in the Court of Protection may involve disputes about capacity which, in the nature of things, do not feature in care cases, there is a striking contrast between the time some personal welfare cases in the Court of Protection take to reach finality and the six-month time limit applicable in care proceedings by virtue of section 32(1)(a)(ii) of the 1989 Act. The present case, it might be thought, is a bad example of what I fear is still an all-too prevalent problem.
  2. We invited counsel to make any comments on this aspect of the matter which they thought might assist. Their historical accounts of the litigation are illuminating and need not be rehearsed but demonstrate that the delays were not caused by any one party nor by any one factor. The truth is that this case, like too many other ‘heavy’ personal welfare cases in the Court of Protection, demonstrates systemic failures which have contributed to a culture in which unacceptable delay is far too readily tolerated.
  3. In the family court the handling of care cases has been radically improved, and the previously endemic problem of delay has been brought under control, by the procedures set out in the Public Law Outline, contained in the Family Procedure Rules 2010, PD12A. Key elements of the PLO are judicial continuity, robust judicial case management, the early identification of issues by the case management judge, and the fixing at the outset by the case management judge of a timetable, departure from which is not readily permitted. Failure to comply with the timetable set by the judge and failure to comply, meticulously and on time, with court orders is no longer tolerated, as defaulters have discovered to their cost (for the applicability of this to the Court of Protection see Re G (Adult); London Borough of Redbridge v G, C and F [2014] EWCOP 1361, [2014] COPLR 416, para 12). Moreover, the parties are not permitted to agree any adjustment of the timetable or any extensions of time without the prior approval of the court: see Re W (Children) [2014] EWFC 22, paras 17-19. In the family court there has been a cultural revolution, from which the Court of Protection needs to learn.

 

[Of course, the best revolutions to learn from are those that actually worked, but I suppose you can learn from an unholy mess of a cultural revolution too]

What else?

Lack of rigour in defining the argument

  1. The first relates to the need, rightly identified by Charles J in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166, paras 31-33, to identify, flag up and address, well before a personal welfare case comes on for hearing in the Court of Protection, (i) any jurisdictional issues and the legal arguments relating to them and, more generally, (ii) the issues, the nature of each party’s case, the facts that need to be established and the evidence to be given. The purpose, of course, is to ensure that each party knows the cases being advanced by the others. Charles J went on (paras 34-46) to elaborate how all this might be achieved.
  2. That judgment was handed down on 26 January 2011. It is depressing to have to note how little of what Charles J had said seems to have percolated through to those involved in the present case.
  3. The proceedings began, as I have said, on 25 August 2011. The hearing before Eleanor King J commenced on 18 November 2013, over two years later. The issues with which Eleanor King J and subsequently this court have been concerned had, to use Ms Bretherton’s phrase, been “bubbling under the surface for some time.” The case was listed for three days. As Eleanor King J described it in her judgment (para 46):

    “[Mr and Mrs N] had anticipated until the morning of the trial that, whilst they make a concession in relation to MN’s residence, there would still be consideration by the Court of Protection of the contact issue. Their expectation was that, over 3 days, witnesses would be called and cross-examined and submissions made prior to the court reaching a ‘best interests’ decision as to whether or not MN should have contact at the home of his parents as the first stage of a gradual progression to either living or spending lengthy periods of time with them there. I understand that they may feel that the ground has been cut from under their feet by what Ms Bretherton referred to as the public authorities’ ‘knock out blow’.”

  4. As the judge records in her judgment (para 18), counsel for ACC in a position statement dated 14 August 2013 had flagged up one issue in the case as being the interface between the Court of Protection and the Administrative Court, and had made it clear that her case was that the Court of Protection is limited to choosing between the available options and making decisions that MN is unable to make by virtue of his incapacity. However, directions were given at a hearing on 28 August 2013 for the filing of further evidence and thereafter, we were told, the parties prepared for a three day trial of the contested issues of fact.
  5. ACC’s stance on the jurisdictional issue was clarified in an email (to which copies of various authorities were attached) sent by ACC’s counsel to the other counsel in the case at 23.02 the night before the hearing was due to start. The judge recorded what followed (paras 22-23):

    “[22] … When the court sat it was told, for the first time, that a jurisdictional issue arose as to whether … the court should, or should not, now embark on a contested ‘best interests’ trial in relation to home contact and of personal care of MN by Mrs N.

    [23] No skeleton arguments on the law had been prepared and none of the position statements filed directly addressed, or even identified this legal argument.”

    The judge (para 47) appropriately paid tribute to Ms Bretherton for being both able and willing to deal with the argument then and there.

[Suesspicious Minds note – never mind credit – Ms Bretherton deserves a 21 gun salute and a parade for being able to walk a Court through all of this complexity without a substantial written document]

 

  1. The judge was rightly critical of how this state of affairs had come about and (para 46) “wholeheartedly endorse[d]” the observations Charles J had made in A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166.
  2. Steps need to be taken to ensure, as best can be, that there is no repetition of this kind of problem.

 

The quest for perfection

  1. This is not the first time that practice in the Court of Protection has attracted judicial criticism: see the judgments of Parker J in NCC v PB and TB [2014] EWCOP 14, [2015] COPLR 118, paras 126-148, and of Peter Jackson J in A & B (Court of Protection: Delay and Costs) [2014] EWCOP 48, [2015] COPLR 1. A & B related to two cases. In one case the proceedings in the Court of Protection had lasted for 18 months, in the other for five years. In his judgment, Peter Jackson J described (para 11) how:

    “the consequence of delay has been protracted stress – described by one parent as “the human misery” – for the young men and their families, with years being lost while solutions were sought.”

  2. He rightly drew attention (para 14) to a particular problem:

    “Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in s 1(5) of the Mental Capacity Act 2005 that ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests’ calls for a sensible decision, not the pursuit of perfection.”

    I agree, and wish to emphasise the point. He went on (para 15) to deprecate, as Parker J had done, “a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved.” Again, I wholeheartedly agree.

 

Declarations

Unless the declaratory order sought comes squarely within the statute, it ought not to be used, says the Court of Appeal. It is a hangover from the inherent jurisdiction days, but the Court of Protection is not in that ‘theoretically limitless powers’ kingdom any longer-  it has the powers that Statute provides it, and no other.

 

  1. There was a certain amount of debate before us as to the use of declaratory orders in the Court of Protection. This is not the occasion for any definitive pronouncement but three observations are, I think, in order.
  2. First, the still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate. It originated at a time when, following the decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, it was believed that the inherent jurisdiction of the Family Division in relation to incapacitated adults was confined to a jurisdiction to declare something either lawful or unlawful. Even before the Mental Capacity Act 2005 was brought into force, that view of the inherent jurisdiction had been shown to be unduly narrow: see St Helens Borough Council v PE [2006] EWHC 3460 (Fam), [2007] 1 FLR 1115. Moreover, the Court of Protection has, in addition to the declaratory jurisdiction referred to in section 15 of the 2005 Act, the more extensive powers conferred by section 16.
  3. Secondly, the Court of Protection is a creature of statute, having the powers conferred on it by the 2005 Act. Section 15 is very precise as to the power of the Court of Protection to grant declarations. Sections 15(1)(a) and (b) empower the Court of Protection to make declarations that “a person has or lacks capacity” to make certain decisions. Section 15(1)(c) empowers the Court of Protection to make declarations as to “the lawfulness or otherwise of any act done, or yet to be done.” Given the very precise terms in which section 15 is drafted, it is not at all clear that the general powers conferred on the Court of Protection by section 47(1) of the 2005 Act extend to the granting of declarations in a form not provided for by section 15. Indeed, the better view is that probably they do not: consider XCC v AA and others [2012] EWHC 2183 (COP), [2012] COPLR 730, para 48. Moreover, it is to be noted that section 15(1)(c) does not confer any general power to make bare declarations as to best interests; it is very precise in defining the power in terms of declarations as to “lawfulness.” The distinction is important: see the analysis in St Helens Borough Council v PE [2006] EWHC 3460 (Fam), [2007] 1 FLR 1115, paras 11-18.
  4. Thirdly, a declaration has no coercive effect and cannot be enforced by committal: see A v A Health Authority, paras 118-128 and, most recently, MASM v MMAM and others [2015] EWCOP 3.
  5. All in all, it might be thought that, unless the desired order clearly falls within the ambit of section 15, orders are better framed in terms of relief under section 16 and that, if non-compliance or interference with the arrangements put in place by the Court of Protection is thought to be a risk, that risk should be met by extracting appropriate undertakings or, if suitable undertakings are not forthcoming, granting an injunction

Objection to appointment of deputy

Another financial affairs decision from my favourite Court of Protection Judge,  Senior Judge Lush.

 

Re PL (objection hearing) 2015

http://www.bailii.org/ew/cases/EWCOP/2015/14.html

 

In this case, PL is a 78 year old man with considerable assets whose health and capacity have deteriorated in part as a result of very heavy consumption of alcohol (three litres of white wine and several glasses of homemade cherry brandy per day)

His oldest son applied to be the Deputy to manage his financial affairs. There were two younger daughters. All of the children were adults. The daughters objected to the son being the Deputy and opposed the application.

As sadly happens in these situations, families quarrel, particularly where money is involved.

The daughters suggested that all three of the children should be deputies jointly.

Mr Morrell, counsel acting for the son, made these representations

  1. Mr Morrell submitted that there were three options available to the court:

    (a) to appoint VL as deputy;(b) to appoint VL and one or both of his sisters as joint deputies; or

    (c) to appoint an independent panel deputy.

  2. He thought that a joint appointment would be fraught with difficulties and even the most minor decision could become a bone of contention. For example, it is now essential, and clearly in PL’s best interests, that a stair-lift is installed, but any discussion of this will inevitably lead to a disagreement. In his witness statement VL expressed the following opinion on a joint appointment:

    “This would be simply unworkable. [My sisters] have already shown that they are not in the slightest bit interested or concerned with my father’s welfare. They are interested in his money. They have already shown no inclination to agree that essential payments be made for his wellbeing and, if they were made joint deputies, I fully expect that they would stand in the way of such essential payment. A good example is the shower. If I had had to obtain their consent before spending my father’s money on this installation, I very much doubt that such consent would be forthcoming. However, the shower is absolutely essential for my father’s health, wellbeing and his own peace of mind. Another good example is the car. My father would simply not be able to attend essential GP and hospital appointments without it.”

  3. “Realistically”, said Mr Morrell, “the only choice is between VL and a panel deputy.” He submitted that the factor of magnetic importance in this case was the fact that VL and SJ have looked after PL extremely well for the last two and a half years, and stated that there was no need to incur the costs of a panel deputy, which, according to the calculations in Re DT [2015] EWCOP 10, would exceed £6,000 during the first year alone.

 

[I know that I am a sad law and word geek, but he had me at “magnetic importance”]

The Court made an order that the son be appointed as the deputy.

Within the hearing, it emerged that none of the parties really understood the serious obligations on a deputy and the controls and safeguards that are in place.  (Anyone who reads these pieces and is familiar with Senior Judge Lush’s body of work will see that this is not unique to this case – it is a regular occurance that deputies seem to work on the basis that ‘me casa su casa’ when it comes to the funds of the vulnerable person, which is absolutely not the case in law.)

  1. The striking feature of this case was that neither the applicant nor the respondents had any idea about the fiduciary duties and practical responsibilities that a deputy is expected to undertake and the roles of the Court of Protection and the Office of the Public Guardian (‘OPG’) in ensuring his compliance.
  2. As I was describing these obligations to everyone at the start of the hearing, I could see from the expressions on their faces that the respondents were reassured that certain safeguards would be imposed, and the applicant looked slightly taken aback at the extent to which he will become publicly accountable for his actions in managing his father’s property and affairs.
  3. Section 19(9) of the Mental Capacity Act 2005 (‘MCA’) provides that: “The court may require a deputy –

    (a) to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions, and

    (b) to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.”

  4. In virtually all cases involving lay deputies, the court requires the deputy both to give security and to submit an annual account or report to the OPG, and this case is no exception.
  5. When someone applies to be appointed as a deputy for property and affairs, they are required to complete a deputy’s declaration (COP4), which contains the following undertaking:

    “I understand that I may be required to provide security for my actions as a deputy. If I am required to purchase insurance, such as a guarantee bond, I undertake to pay premiums promptly from the funds of the person to whom the application relates.”

  6. If an applicant refused to give this undertaking, it is unlikely that they would be considered suitable for appointment as a deputy in the first place. Having said that, the requirement to give security is no reflection on any applicant’s competence, probity or integrity. It is simply an appropriate, effective and proportionate safeguard.
  7. Article 12.4 of the United Nations Convention on the Rights of Persons with Disabilities, which the United Kingdom ratified on 7 August 2009, requires the state to “ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.”
  8. Unfortunately, some deputies take advantage of their position, and family members are the worst offenders. A recent example was the case of Re GM: MJ and JM v The Public Guardian [2013] COPLR 290, and its sequel Re Meek [2014] EWCOP 1, in which Mrs Meek’s late husband’s niece and great-niece abused the limited authority conferred upon them by the court to make gifts.

 

The Judge made use of those provisions and directed that the son provide a security to the Court, which would ensure that there would be no shenanigans.   [Shenanigans is of course a technical legal term, as set out in the case of  Monkey Business Ltd v Jiggery and Pokery 1831]

 

In the order appointing him as deputy I shall require VL to obtain and maintain security of £550,000. The annual premium of 0.2% of that sum (£1,100) will be payable from PL’s estate to secure his assets to that value. The average duration of a deputyship in the Court of Protection is about three and a half years and an outlay of just a few thousand pounds to safeguard assets of up to £550,000 is not unreasonable.

 

[I believe that this is a sort of insurance arrangement, whereby the premiums are paid for out of PL’s assets, but if the Court were to insist on the surrender of the security – as they did in Meek [where the deputies had illegally liberated £204,000 from P’s finances for their own benefit] then the insurance or bond company would recompense PL, and could then pursue VL for that money. It would only arise in the event of Monkey Business, Jiggery Pokery, Tom Foolery or other such things]

 

As my all time favourite Deputy might say  “Phew-ee, Muskee”

Deputy Dawg mulling over his duties under the MCA
Deputy Dawg mulling over his duties under the MCA

 

Failed attempt to revoke an Enduring Power of Attorney

 

As Senior Judge Lush remarks at the beginning of Re DT (2015) it is fairly unusual to dismiss the application of the Public Guardian to revoke an Enduring Power of Attorney. You can often learn a lot more from a single unsuccessful application than you can from reading dozens of successful ones.

http://www.bailii.org/ew/cases/EWCOP/2015/10.html

 

In this case, the man DT had dementia, but had previously made an Enduring Power of Attorney giving control of his financial affairs to his three sons.

DT and his wife are separated, although this separation has not become a judicial separation or a divorce, and she of course remains the mother of the three sons, who are all adults.

The Public Guardian became concerned about the running of DT’s affairs as a result of two substantial issues:-

 

1. The care home fees were in substantial arrears (by the time of the hearing to the tune of nearly £70,000)

2. DT had been expressing very strong views about his wife getting his money and that his money was being spent on her.

Because there was uncertainty whether DT still had capacity to make a number of specific decisions relating to the management of his property and financial affairs, the Public Guardian commissioned a Court of Protection Special Visitor, Dr Rajaratnam Thavasothy, to examine DT. It was not the easiest of interviews and in his report dated 31 March 2014, Dr Thavasothy described it as follows:

“I visited DT on 24.03.14. … Staff warned me that he could scream at me and would not engage and, even if he does engage, it is likely he would not engage for more than a few minutes. At my request the staff had informed him of my visit and the purpose of my visit.I assessed DT in a large room to which he walked unsteadily with the help of staff and sat in a chair. He was well dressed with clean clothes. He was kempt. The staff left him with me and, as I introduced myself, he understood the purpose of my visit and immediately shouted, “I wanted my sons to have the power of attorney, I don’t want my wife to be involved.” I then asked him what he meant by the power of attorney and he became extremely hostile and shouted again reasserting that his wife should not be involved. I distracted him by talking about his interest in films. He then talked at length about film actors from the 1960s to the 1980s, often repeating the same statement over and over again. After diverting his attention I thought I could proceed with the mental state examination, but as soon as I started assessing his mental state, he would scream at me, shouting loudly to the point that staff came into the room to make certain that I was alright. After the staff left I once again distracted him by talking about his various interests, and when I recommenced the mental examination, he once again started screaming and shouted repeatedly that he had had ‘enough’ and wanted me to leave. The staff arrived and I suggested that they could take him out, as he was demanding cigarettes, and that I would see him after he had smoked his cigarette.

When I recommenced the mental state examination, he shouted that he did not wish his wife to be involved and that he wanted his sons to have the power of attorney. When I asked him what he understood about the power of attorney, he once again became very angry, but later I was able to elicit that he wished to convey that all his finances should be managed by his sons. He stated that he trusted them implicitly and did not wish anyone else to be involved. He stated clearly “of course I am happy for my sons to have the power of attorney. My wife does not have the power of attorney.” When I asked him how much money he has, he shouted “I don’t know. The boys have the money and give me whatever money I need. I don’t have to go out anywhere.” As he screamed, ordering me out of the room, I had to terminate the assessment.

Apart from noting that he becomes impulsively aggressive with a very low level of tolerance, and often became frustrated when he found it difficult to answer any question, I did not find any evidence of depression or elation of mood. Though I could not conduct a mini-mental state examination, as he became angry, I am certain that he does present with cognitive deficits which add to his frustration when he finds it difficult to answer simple questions. His long term memory was, however, very good when he detailed the private lives of film stars from films he has seen in the past.

 

There were clearly difficulties with DT’s functioning, particularly his temper control, but bearing in mind that the starting point of the Mental Capacity Act 2005 is to assume that a person has capacity unless demonstrated otherwise, this appears sufficient information to glean that DT – (a) understood what a Power of Attorney was (b) understood that he had one (c) understood that his 3 sons had the Enduring Power of Attorney and (d) was happy with this.

 

  1. The Public Guardian asked the Court of Protection Special Visitor to assess whether DT had the capacity to revoke the EPA himself, and the Visitor confirmed emphatically that he did have capacity. Although, strictly speaking, this information was unnecessary for the purpose of deciding whether to revoke the EPA, I cannot ignore it.
  2. If one thing is certain in this case, it is that DT is perfectly satisfied with his sons’ management of his property and financial affairs under the EPA, and he has no desire to revoke their appointment as attorneys.
  3. Having regard to the contents of the Special Visitor’s report, and in particular the frustration and anger expressed by DT when questions concerning his sons’ management of his affairs were raised, I consider that, if the court were to revoke the EPA, it would cause significant distress to him, which cannot possibly be in his best interests.
  4. I am reminded of the remarks of Her Honour Judge Hazel Marshall QC in Re S and S (Protected Persons) [2008] COPLR Con Vol 1074, where she held that, if P expresses a view that is not irrational, impracticable or irresponsible, “then that situation carries great weight and effectively gives rise to a presumption in favour of implementing those wishes, unless there is some potential sufficiently detrimental effect for P of doing so which outweighs this.”
  5. She went on in to say in paragraph 58 of her judgment:

    “It might further be tested by asking whether the seriousness of this countervailing factor in terms of detriment to P is such that it must outweigh the detriment to an adult of having one’s wishes overruled, and the sense of impotence, and the frustration and anger, which living with that awareness (insofar as P appreciates it) will cause to P. Given the policy of the Act to empower people to make their own decisions wherever possible, justification for overruling P and “saving him from himself” must, in my judgment, be strong and cogent. Otherwise, taking a different course from that which P wishes would be likely to infringe the statutory direction in s 1(6) of the Act, that one must achieve any desired objective by the route which least restricts P’s own rights and freedom of action.”

  6. There is nothing irrational, impracticable or irresponsible in DT’s wish that his sons should continue to act as his attorneys, and I am not satisfied that their conduct has had a sufficiently detrimental effect on DT or his finances to justify overriding his wishes.

 

There was a quirky side issue, which has a direct bearing for Local Authorities. The Public Guardian had asked that the Director of Adult services at Suffolk County Council become the deputy and manage DT’s financial affairs.  The Director had politely declined.

 

Why would that be, you might ask? Well it is this. There is a fixed fee for being a public authority Deputy and that fixed fee bears no relation to what it would cost the LA to actually do the job. The LA gets £700 for the first year, and £585 a year after that.  (Bear in mind that a deputy from a family does it for nothing, but Local Authorities are cash-strapped) If you are appointing a deputy from the private sector, you are paying £200 AN HOUR for someone very experienced and £111 AN HOUR for a trainee solicitor.

 

  1. Section 19(3) of the Mental Capacity Act 2005 states that “a person may not be appointed as a deputy without his consent,” and I am disappointed that, having agreed to act as deputy, Suffolk County Council, subsequently withdrew its consent. This has an enormous impact on the costs involved.
  2. Public authority deputies are allowed remuneration in accordance with Practice Direction 19B, “Fixed Costs in the Court of Protection.” The rates of remuneration have remained static for the last four years, since 1 February 2011. Understandably, this is a bone of contention for cash-strapped local authorities, and partly accounts for an increasing and alarming trend in which councils are refusing to take on deputyship work.
  3. If Suffolk County Council were appointed as DT’s deputy, it would be entitled to an annual management fee of £700 for the first year and £585 for the second and subsequent years.
  4. At the hearing IT asked about the likely costs of a panel deputy, and I suggested that they would be in the region of £200 an hour. Any meaningful calculation is, of course, more complicated than that.

 

The costs of appointing a deputy from the private sector (the Court not being able to appoint someone from the LA if they object) would of course come out of DT’s finances. The Court had to think about whether that was proportionate, given that the 3 sons were doing this task for nothing and that DT was happy with them.

[The Court had been satisfied that the arrears for the nursing home would be paid off and why they had arisen]

  1. As regards the nature, extent and complexity of the affairs that need to be managed and administered, DT’s former matrimonial home will be sold shortly. His share of the gross proceeds of sale will be £70,000. His share of the net proceeds of sale may be a couple of thousand pounds less than that and will be extinguished by the payment of his debt of £69,000 to Suffolk County Council. His remaining capital assets – a half share of a Scottish Widows ISA and a half share of the balance on a Halifax account – amount to just under £8,000. His income is roughly £17,000 a year.
  2. As can be seen from the fixed costs regime described above, generally speaking, costs are higher during the first year immediately following a deputy’s appointment than they are in the second and subsequent years. DT is likely to remain living in an institutional environment for the rest of his life. The family are not at loggerheads with one another and there is no evidence of dishonesty, which would warrant interfering with DT’s Article 8 rights for the prevention of crime.
  3. The average of Bands A to D in National Band One is a charge-out rate of £172 an hour and, if one reckoned that a fairly straightforward case, such as this, would involve at least twenty four hours’ work during the first year (in other words, an average of just two hours a month), one is looking at a baseline of £4,128 to which should be added:(a) VAT (£825.60);

    (b) the cost draftsman’s fee (say £335) plus VAT (£67);

    (c) the premium payable in respect of any security bond required by the court; in this case a single one-off premium of £98, not recurring annually;

    (d) the detailed assessment fee of £225 (which applies where the costs exceed £3,000 including VAT and disbursements);

    (e) the OPG’s initial deputy assessment fee of £100; and

    (f) the OPG’s annual deputy supervision fee of £320.

  4. It is likely, therefore, that in this case, a panel deputy’s costs would be roughly £6,100 during the first year of appointment, and approximately two thirds of that sum in the second and subsequent years. By comparison, DT’s attorneys charge nothing. They don’t even claim travelling expenses when they go and see him, because they visit him as his sons, rather than as his attorneys.
  5. I consider that, in this case, the employment of a panel deputy to manage DT’s property and financial affairs, even if it were necessary (which it is not), would be a disproportionate drain on his limited resources.
  6. Considering all the relevant circumstances and, in particular, the extent to which DT retains capacity and his clear expression of his present wishes and feelings on the matter, I dismiss the Public Guardian’s application to revoke the EPA.

 

A tale of two Telegraphs

 

Two recent stories in the Telegraph about Court cases.

 

The first, here

 

http://www.telegraph.co.uk/comment/11412971/Why-dont-the-family-courts-obey-the-law.htmlr

 

is from a writer that you all know Christopher Booker.

 

Mr Booker’s story here is that a mother in care proceedings lost her child at an interim stage because of ‘one small bruise’ and was not allowed into the Court room during most of the hearings, and that this was because of their lawyers.

 

On a court order, the two boys were taken into care, and over the following months, through several court hearings from which the parents were excluded by their lawyers

 

Last April, the couple were summoned to a final hearing to decide their sons’ future. The mother was represented by lawyers she had been given by Women’s Aid, which works closely with the local authority. As an intelligent woman, studying for a university degree, she and her partner arrived early at the court, for what was scheduled to be a five-day hearing. They were armed with files of evidence and a list of witnesses they wished to call, all of which they believed would demolish the local authority’s case.

But the mother describes how they were astonished to be told by their lawyers that again they would not be permitted to enter the court. Half an hour later, the barristers emerged to say that the judge had decided that their two boys should be placed for adoption. There was no judgment for them to see, and no possibility of any appeal against his decision. This Wednesday the couple will have a final “goodbye session” with their sons, never to see them again.

 

 

Mr Booker names His Honour Judge Jones as the judge behind this story. [He doesn’t quite give him that courtesy, instead assuming that he is on first name terms with a Judge who he’s about to rip apart in a national newspaper]

 

Now, there are two distinct possibilities here.

 

  1. Everything that Mr Booker reports here is true.
  2. What Mr Booker reports is not what happened and something has gotten lost in the telling of the story.

 

As ever with Mr Booker, he doesn’t make it explicit that there’s a single source for his story, but I can’t see a second source anywhere. Now, that doesn’t mean that it won’t turn out to be true, but I’d feel happier when dealing with extraordinary claims to see confirmation of the story from more than one source.

 

We simply don’t know until we see the judgment from His Honour Judge Jones. In fact, if the latter of those two possibilities is true, we may not even recognise the judgment as relating to this case at all.

 

It would be utterly wrong, and utterly appealable, for a Judge to make an Interim Care Order removing a child from parents without letting them into the court-room, and utterly wrong, and utterly appealable for a Judge to make a Care Order and Placement Order without allowing the parents into the Court room and allowing them to have their opportunity to fight the case if they wished to. If this happened, it would be tremendously wrong.

 

If what Mr Booker says is what actually happened, then he is utterly right to rage against it and I would join him in his rage. If I was a betting man, my money would be on the second possibility, and that he has not been given a full and complete account of what happened.

 

HOWEVER, and I will be absolutely fair to him, if he had told the story of the case before HH J Dodds where the parties attended the first hearing and the Judge made three Care Orders in a five minute hearing, I would not have believed that either, and Mr Booker would have been right and I would have been wrong.

 

I would have said so had that happened. He is also right to draw attention to that Court of Appeal decision about HH J Dodds, and it does highlight that sometimes things happen in Courts that fly in the face of everything you believe and that really unfair things can happen to people. If it happens to you, it is small consolation that it is rare and shouldn’t happen, it must be utterly devastating. Some of the people who come to Mr Booker, or any of the other campaigners, are coming with completely truthful accounts of dreadful injustice, and it is important that they have somewhere to turn, someone who will listen to them.

 

As George Orwell said – We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.

 

And although I’m not asserting that Mr Booker or any of the campaigning groups are either rough men, or would be willing to visit violence on anyone, you hopefully get the general thrust of the point. In being willing to listen to the stories of injustice that people tell them, they provide a mechanism for injustice to come to light, and that is an important thing.

 

I hope that Mr Booker is wrong here, but I accept that he could be right, and if he is, it is important that people hear of it.

 

Sometimes Judges do behave in appalling ways. Sometimes social workers do too. So sometimes, the sort of stuff that Mr Booker rages about does happen, and when it does, he is right to be bloody cross. Even if I think that sometimes Mr Booker is the boy who cries wolf, there are wolves in the world, and that boy was eventually right.

 

If and when I see a case from HH Judge Jones that relates to Care Orders, involving Denbighshire Social Services, two boys and a bruise, I will update you. Perhaps Mr Booker is right. If he is, it is a scandal and I will commend him for bringing it to light. If he is mistaken, then no doubt there will be a correction and an apology, not least to a Judge who has been accused of acting in a way that would make anyone reading it think much less of him.

 

 

[Here is an idea, which I’m sure won’t be taken up – if a parent comes to a journalist with a story that sounds extraordinary about the way they were treated in Court, get the parent to sign an authority allowing the journalist to approach the solicitor representing them, and for the solicitor to read the proposed article and tell the journalist whether that’s an accurate depiction of what really happened, or if the facts have got a bit mixed up]

 

 

Second case

 

http://www.telegraph.co.uk/news/health/news/11412861/Judge-refuses-mothers-plea-to-treat-terminally-ill-son-saying-he-should-be-allowed-to-die.html

 

In which Mrs Justice Hogg, sitting in the Court of Protection made a declaration that the hospital could lawfully stop treating an 18 year old with a brain tumour, even though that withdrawal of treatment would end his life and his parents were arguing that the treatment should continue.

 

Now, this is a story which feels much more solid. It is easier to believe when reading it that what it says happens is what happened. (Booker’s story may well turn out to be true, but it has question marks over it that this one does not)

 

The hearing was in public, which makes it a lot easier for a reporter to put out a strong story with sources – in this case, there are quotations from the judgment and comments from both sides, and the report gives the sense of what a difficult decision this must be either way. It also has the sense of being the sort of thing that happens in the Court of Protection – these are the sort of decisions that have to be taken, the evidence heard and issues raised are consistent with the way one might imagine such a hearing to take place.

 

Again, until we get the judgment, it is difficult to analyse whether the Judge was right or wrong in making that decision – we simply don’t have enough of the key pieces of information or to see how the Judge balanced the competing arguments. So when it comes up, I will share it with you, and we can have the debate – hopefully it won’t be long.

 

It is hard not to have an emotional response however, and my sympathies on an emotional level are with the parents. I don’t think there tend to be many such decisions that go with the heart rather than the head (or with the parents rather than the medics) and I tend to think that the wishes of the family ought to carry rather more weight than they often seem to at the moment, as an overall criticism of these decisions rather than saying that the Judge in this particular case got it wrong.

 

It will be interesting to see how the Judge dealt with the right to life issue, article 2 being something that binds the Court as a public body, and that being an unqualified right. There are previous decisions which do sanction this withdrawal of treatment, largely connected to the right to die with dignity

 

It does make me somewhat uncomfortable that where a family want that for a person it is generally resisted, but when the medics want it and the family oppose it, it generally happens. Is the judiciary too deferential to the views of medical professionals? That’s a much wider debate.

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