RSS Feed

Tag Archives: court of protection

Seeking costs against the Public Guardian in a financial safeguarding case

 

The Public Guardian and CT and EY 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/51.html

 

As District Judge Lush observed, this is the first reported case where a costs order has been sought against the Public Guardian.

 

By way of quick background, CT is 85 and had a stroke a year ago, which later led to a diagnosis of dementia. There has been a considerable family schism, and CT is close to his daughter EY but not close to much of the rest of his family.

 

A month after his stroke, he entered into a Lasting Power of Attorney arrangement, appointing EY as his sole attorney.

 

In July 2014, the Public Guardian, having received a referral that EY was misusing the Lasting Power of Attorney, conducted an investigation and made an application to the Court of Protection under s48 of the Mental Capacity Act 2005 for declarations about whether CT had capacity and if not what directions / declarations should be made about his affairs.

 

  1. The application was accompanied by a witness statement made by David Richards, an investigations officer with the OPG, who said that:

 

 

(a) in September 2013 CT’s son and daughter-in-law had raised concerns with the OPG.

 

(b) on 13 June 2013 CT had severed the joint tenancy of the matrimonial home and the adjoining property, which he and his wife also own.

 

(c) CT had ceased paying the utility bills on the matrimonial home; had stopped transferring housekeeping money to his wife, and had closed their joint bank account.

 

(d) in September 2013 CT applied to the Land Registry to register the matrimonial home in his sole name.

 

(e) on 30 September 2013 a Court of Protection General Visitor, Emma Farrar, saw him at Grays Court Community Hospital. She thought that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so.

 

(f) Havering Social Services had raised a safeguarding alert.

 

(g) the OPG asked EY for an account of her dealings.

 

(h) EY replied her father still had capacity and that the OPG’s enquiries were an invasion of his privacy.

 

(i) in January 2014 the OPG commissioned a visit from a Court of Protection Special Visitor (Dr T.G. Tennent, DM, FRCPsych) but EY and her partner, who is employed by Moss & Coleman Solicitors, refused to let him visit CT.

 

(j) Dr Tennent was, nevertheless able to examine CT’s medical records, and in his report, dated 31 March 2103, he came to the conclusion that CT had capacity (a) to make the LPA and (b) to sever the joint tenancies, but that it was “impossible to offer any opinion as to Mr Todd’s current capacity in relation to the queries (c) to (j).”

 

 

There then follows a somewhat complex history, but the substance of it was that the expert who examined CT, Professor Jacoby, was of the view that CT’s capacity fluctuated, but that there were times and had been times when he had had capacity to make his own financial decisions (and thus the LPA wasn’t being used at all at those times)

 

  1. Professor Jacoby prefaced his assessment of CT’s capacity with the following preliminary remarks:

 

 

 

“I shall deal with the separate capacities as set out in my instructions which were taken from the directions order of 20 August 2014. Before doing so I wish to stress that I am relying on CT’s mental state as I observed it on 2 October 2014. However, I believe his mental state fluctuates both as regards his dementia and his episodes of delirium. I should make the following preliminary remarks:

 

 

(a) When he is delirious, in my opinion, he does not have any of the capacities listed below.

 

(b) When he is not delirious, but his dementia is more prominent, his capacities are weaker than when he is at his best.

 

(c) When he is at his best he does retain some capacities as described below.

 

(d) When he is at his best he is able to communicate his decisions, and I shall not comment further on this fourth limb of section 3(1) of the Mental Capacity Act 2005.

 

(e) When at his best I believe that his capacities can be enhanced by assistance in line with the judgment of Gibson LJ in Hoff et al v Atherton [2003] EWCA Civ 1554, in which he stated “it is a general requirement of the law that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as may have been given [my italics]) to understand the nature and effect of the particular act (see, for example, Re K (Enduring Powers of Attorney) [1988] Ch 310 at p. 313 per Hoffmann J.).” As I understand it, although I may be corrected by the court, giving assistance to persons with marginal capacities in order to enhance them is within the spirit of the Mental Capacity Act 2005.”

 

 

  1. Professor Jacoby concluded his report as follows:

 

 

 

“In my opinion, when CT is at his current best and not in an episode of delirium, he retains the capacity to manage his affairs and to revoke or make an LPA, but that his capacities would be enhanced by disinterested advice. His capacity to litigate is not totally lacking but is, in my opinion, below a sufficient threshold, and he would, therefore, require a litigation friend.”

 

If CT had capacity at the time when he made decisions to sever the tenancy, stop paying money to his estranged wife and so on, then this was not a matter for the Court of Protection. As we know, if a person has capacity, then they can make decisions for themselves that another person might consider foolish or ill-conceived.

 

EY sought that the application be dismissed and sought that the Office of the Public Guardian should pay the costs.

 

  1. On 14 August 2014 EY filed an acknowledgment of service, accompanied by a witness statement, in which she objected to the application and said that:

 

 

 

“The evidence in the attached witness statement shows unequivocally that CT had the capacity to make complex decisions in relation to his finances and property in September 2013. He underwent a further capacity assessment in November 2013 prior to discharge from hospital after nearly six months treatment and he was again assessed as having the capacity to make the very difficult and important decision as to his destination and future place of residence following his discharge. There has been no stroke activity since the incident in May 2013, nor any other event which might cause or signal a material change in his capacity since the last test was carried out some nine months ago. There is therefore no valid reason why he should not be presumed to have capacity at this time.”

 

 

  1. EY proposed that “the application be dismissed and the OPG be ordered to pay the respondents’ costs (including the costs of taking legal advice).”

 

 

In most financial disputes, the person who loses the case is at risk of being ordered to pay the other side’s legal costs. It is a little different in Court of Protection cases.

 

Firstly, the Court of Protection have a general discretion (subject to other Rules) Section 55(1) MCA 2005 provides that “Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are at its discretion.”

 

In terms of those Rules, they are set out in the Court of Protection Rules 2007 – they can be simplified like this:-

 

  • Normally if the proceedings relate to property of a vulnerable person, the costs of the proceedings are paid by that person or his estate
  • That starting point can be departed from if the Court thinks it is justified, and can take into account the conduct of the parties.
  • Conduct can include a wide variety of things, including before proceedings began.

 

 

Property and affairs – the general rule

 

 

  1. Where the proceedings concern P’s property and affairs the general rule is that the costs of the proceedings, or of that part of the proceedings that concerns P’s property and affairs, shall be paid by P or charged to his estate.

 

 

Departing from the general rule

 

 

  1. – (1) The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified the court will have regard to all the circumstances, including:

 

(a) the conduct of the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) the role of any public body involved in the proceedings.

 

(2) The conduct of the parties includes:

 

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular issue;

(c) the manner in which a party has made or responded to an application or a particular issue; and

(d) whether a party who has succeeded in his application or response to an application, in whole or in part, exaggerated any matter contained in his application or response.

 

(3) Without prejudice to rules 156 to 158 and the foregoing provisions of this rule, the court may permit a party to recover their fixed costs in accordance with the relevant practice direction.

 

 

 

In this situation, EY argued that the Office of the Public Guardian had really jumped the gun – they had brought a case based on EY misusing the Lasting Power of Attorney, when closer investigation would have shown that the decisions complained of had been made by CT himself. If the Public Guardian had conducted the investigation properly, there would have been no application and thus CT and EY would not have incurred any legal costs.

 

District Judge Lush felt that things were more complicated than that – the assessment of capacity had shown that CT’s capacity fluctuated and thus there had been times when EY was (or ought to have been) exercising the Lasting Power of Attorney.

 

The Judge also felt that EY had been obstructive in the investigation, causing some of these problems as a result of her own actions.

 

  1. EY makes the point that she was not using the LPA because CT still had capacity, but even this is disingenuous. Professor Jacoby states in his report that “He is subject to recurrent episodes of delirium. … When he is delirious, in my opinion, he does not have any of the capacities listed below.” She should have been using the LPA during the recurrent episodes when CT lacked capacity.

 

 

  1. The point is made that CT’s capacity should have been presumed. The precise wording of section 1(2) of the Mental Capacity Act is that “a person is assumed to have capacity unless it is established that he lacks capacity.” The Court of Protection General Visitor believed that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so. The reason why the OPG asked a Special Visitor to see CT was so that a specialist could look for objective evidence that would be sufficient, on the balance of probabilities, to establish whether CT had capacity or not and, accordingly, whether the Court of Protection had jurisdiction or not.

 

 

  1. EY would not allow the Court of Protection Special Visitor to examine CT because she mistrusted anything to do with the OPG. The Special Visitor’s report would have been provided to CT free of charge, from public funds, but EY insisted on instructing an independent expert, instead. This resulted in the proceedings being more expensive and protracted than they need have been.

 

 

  1. I have no real concerns about the OPG’s conduct. Any investigation will seem heavy-handed to the person under the spotlight, but the OPG’s conduct was by no means disproportionate and does not even approach the threshold identified by Mr Justice Jonathan Baker in G v E (Costs). The OPG certainly did not act in blatant disregard of the Mental Capacity Act processes or in breach of CT’s rights under the European Convention on Human Rights. Having regard to all the circumstances, it would be unjust to penalise the OPG by way of a costs order.

 

 

 

Bearing in mind the usual rule, the legal costs of all of the proceedings would be met by CT. The Judge, having been invited to look at costs, had to consider whether that approach would be fair and just, given the actions of EY.

 

(This must have caused a bitter taste – having asked for the Public Guardian to pay the costs, EY found herself at risk of having to pay a portion of the costs herself)

 

  1. There is no doubt about it. EY and her partner refused, without reasonable cause, to let the Special Visitor visit CT or even speak to him over the phone. Dr Tennent’s report of 31 March 2014 stated:

 

 

 

“Over the course of these conversations EY referred everything to her partner. Quite politely they told me that CT did not want to see me but would not permit me to speak directly with him. They would not provide me with the name or address of CT’s current general practitioner. As I understood it, they were of the view that although CT had made an LPA he was still capable of managing his own affairs and they were not using the LPA and therefore the OPG should not be involved with his affairs. They told me that they were in correspondence with the Office of the Public Guardian about the matter and that until this had been resolved they did not want me to visit their home.”

 

 

  1. EY’s insinuation that a Court of Protection Special Visitor is neither independent nor impartial is both unwarranted and offensive.

 

 

  1. For me, the most striking feature of Professor Jacoby’s report was the repetition of a theme, which, like Ravel’s Boléro, rises in a continuous crescendo.

 

 

  1. In response to question (2) he said:

 

 

 

“Again, I consider that he would benefit from disinterested advice before making this decision.”

 

 

  1. He deliberately highlighted the word ‘disinterested’ by italicising it.

 

 

  1. In response to question (4), he said:

 

 

 

“Where more complex decisions are required he would, in my opinion, benefit from disinterested advice.”

 

 

  1. In his reply to question (5), Professor Jacoby said:

 

 

 

“I consider that at his best CT does retain the capacity to give instructions to his attorney in relation to his property and affairs, and that he would benefit from disinterested advice for more complex decisions.”

 

 

  1. In his conclusion, which I have set out in paragraph 23, he said:

 

 

 

“… his capacities would be enhanced by disinterested advice.”

 

 

  1. And in response to question (4) again, the professor actually ventured to say that:

 

 

 

“I am not making any comment here about the quality of the advice he now gets from EY because this is beyond my remit and I have no information on it anyway. However, because he is now dependent on her for his day to day care he might be more likely to accept her advice without more careful consideration.”

 

 

  1. I have never before read a report on someone’s capacity that has contained so many references to the need for ‘disinterested advice’. The only interpretation of this can be that Professor Jacoby believed that, although CT still has capacity in certain areas, he is being influenced by his daughter, and her advice is anything but disinterested.

 

 

[

 

The Judge decided that it would be wrong for CT to be ordered to pay EY’s legal costs, and EY would be responsible for her own costs

 

 

Decision

 

 

  1. If I were to apply the general rule for costs in a property and affairs case (rule 156), I would be required to order CT to pay the costs of these proceedings.

 

 

  1. The Public Guardian was seeking no order as to his own costs, whereas EY was seeking an order that her costs should be paid by the Public Guardian.

 

 

  1. For the reasons given above, and having regard to all the circumstances, I consider that a departure from the general rule is justified and I shall order EY to pay her own costs because her conduct, before and during the proceedings, has been aggressive and disingenuous and has resulted in both sides’ costs being far greater than they would otherwise have been.

 

 

  1. The overall effect is that I shall make no order for costs, though, having agreed to commission a report from a single joint expert, the Public Guardian and EY are jointly liable to pay a half of Professor Jacoby’s fee of £2,200 (£1,850 + VAT) for reading the documents, travelling from Oxfordshire to Essex, examining CT, and writing his report.

 

 

 

There is scope for a costs order to be made against the Office of the Public Guardian, if they behaved unreasonably in the course of the litigation, but this was not the case for it.

 

As my old law tutor used to say about Equity – “he who comes to Court must come with clean hands”

 

Beware the PLO my son! the jaws that bite, the claws that catch (Is the PLO coming to Court of Protection?)

 

Having opened with Lewis Carroll, I’ll digress to Bruce Springsteen – if you practice in the Court of Protection –  “You’d better not pout, you’d better not cry, you’d better watch out, I’m telling you why – the PLO is coming to town”

 

Cases A and B (Court of Protection : Delay and Costs) 2014

http://www.bailii.org/ew/cases/EWCOP/2014/48.html

Mr Justice Peter Jackson  (I know, it is supposed to be Jackson J, but when there are two Jackson J’s, that just causes confusion) gave a judgment in two linked Court of Protection cases that had gone on an inordinate length of time and cost an inordinate amount of public money, and ended with this exhortation to the President  (who of course wears those two hats of President of the Family Division And President of the Court of Protection)

 

The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?

 

I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.

 

Brace yourselves, Court of Protection folk, for “streamlining” and “case management” and “standardised documents” most of which will make you wish that you had taken a different career path – for example, rather than “Law” that you had decided to become a practice subject for CIA agents working on their interrogation techniques.

The Judge has a point here, we absolutely would not tolerate cases involving a vulnerable 8 year old taking 5 years* (*although see case after case of private law children cases that drag on for years and years) and costing this sort of money.

 

  1. In Case A, the proceedings lasted for 18 months. In round figures, the estimated legal costs were £140,000, of which about £60,000 fell on the local authority, £11,000 on a legally-aided family member, and £69,000 on the young man himself, paid from his damages.
  2. In Case B, the proceedings lasted for five years. In round figures, the estimated legal costs were £530,000, of which about £169,000 fell on the local authority, £110,000 on a family member (who ran out of money after three years and represented himself thereafter), and £250,000 on the young man himself, paid for out of legal aid.
  3. These figures are conservative estimates.
  4. Each case therefore generated legal costs at a rate of approximately £9,000 per month.

 

The Judge draws a comparison between taxi drivers and advocates (and not the usual “cab-rank principle” one)

  1. Just as the meter in a taxi keeps running even when not much is happening, so there is a direct correlation between delay and expense. As noted above, the great majority of the cost of these cases fell on the state. Public money is in short supply, not least in the area of legal aid, and must be focussed on where it is most needed: there are currently cases in the Family Court that cannot be fairly tried for lack of paid legal representation. Likewise, Court of Protection cases like these are of real importance and undoubtedly need proper public funding, but they are almost all capable of being decided quickly and efficiently, as the Rules require.
  2. In short, whether we are spending public or private money, the court and the parties have a duty to ensure that the costs are reasonable. That duty perhaps bites particularly sharply when we are deciding that an incapacitated person’s money should be spent on deciding his future, whether he likes it or not.

 

It is very hard to argue against that, and there can be little worse than burning through a vulnerable person’s money in order to protect them from financial or alleged financial abuse (see for example Re G, and the “94 year old woman subject to gagging order” case)

 

What drives up those costs? The Judge identified two major things – a search for a perfect solution, rather than a decent solution that carries with it some imperfections, and a tendency to deal with every concievable issue rather than to focus on what really matters.

 

A 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 Section 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.

Likewise, there is 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. As Mrs Justice Parker said in Re PB [2014] EWCOP 14:

“All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources and other court users.”

  1. There is also a tendency for professional co-operation to be dissipated in litigation. This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.
  2. The problem of excessive costs is not confined to the Court of Protection. In his recent judgment in J v J [2014] EWHC 3654 (Fam). Mr Justice Mostyn referred to the £920,000 spent by a divorcing couple on financial proceedings as “grotesque”. In V v V [2011] EWHC 1190 (Fam), I described the sum of £925,000 spent by a couple who had not even begun their financial proceedings as “absurd”. Yet everyday experience in the High Court, Family Court and Court of Protection shows that these are by no means isolated examples: in some case the costs are even greater. There is a danger that we become habituated to what Mostyn J called “this madness”, and that we admire the problem instead of eliminating it.
  3. The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings.

 

I hope that if there is going to be a committee or working group on solving some of the problems in the Court of Protection that they can co-opt Mr Justice Peter Jackson and District Judge Eldergill onto it – both of them are extremely sensitive and sensible Judges and the Court of Protection could do a lot worse than have its future steered by them.

No point being the richest woman in the graveyard

Re JI (revocation of lasting power of attorney) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/36.html

 

This was a Court of Protection decision by Senior Judge Lush, who I’ve reported on a lot and who is a Judge that always does a good judgment.

 

It was a case of alleged financial abuse of a vulnerable person by a member of their family appointed to look after their money for them. I know that the Court of Protection has its critics – myself included sometimes, but without them, this woman would have been bled dry by this relative, her own daughter.

 

JL was born in 1938 and lives in her own home in Essex. JL has Alzheimer’s disease.

 On 8 October 2013 she executed a digital LPA for property and financial affairs and, as far as I am aware, this is the first occasion on which the court has considered a digital LPA in the context of an application to revoke the appointment of an attorney.

 

 The LPA was drawn up by JL’s daughter AS online and, perhaps not surprisingly, JL appointed AS to be her sole attorney. She did not receive any independent advice about the creation of the LPA, though AS claims that she fully explained the document to her mother before she signed it.

 

 A friend of the family witnessed JL’s signature and acted as the certificate provider. The function of the certificate provider is to certify that:

 

(a) the donor understands the purpose of the LPA and the scope of the authority conferred under it;

 

(b) no fraud or undue pressure is being used to induce the donor to create the LPA; and

 

(c) there is nothing else which would prevent the LPA from being created by the completion of the prescribed form.

 

Over a period of time, it became apparent that JL was living in squalor and not having her financial needs met – although she had capital funds to provide for her, she was not being given the money she needed.

 

(a) Essex County Council reported its concerns to the OPG on 24 April 2014.

 

(b) Copies of JL’s bank statements revealed that there had been a number of excessive and uncharacteristic withdrawals from her funds.

 

(c) From 18 January to 9 April 2014 there had been twenty-five cheque withdrawals ‘paid to cash’ totalling £4,290. These payments averaged £171 and were withdrawn every few days.

 

(d) Over the same period JL’s only capital asset other than her home had halved in value to £10,669 and, at the current level of expenditure, her funds would be entirely depleted within nine months.

 

(e) The investigator at the OPG spoke over the phone to JL’s social worker, Sharon Morris, who stated that a man, who had recently been released from prison, had offered JL £100 to perform a sexual act for him.

 

(f) JL had told Sharon Morris that her attorney kept her so short of money that she considered prostitution as the only way of resolving the problem.

 

(g) In particular, JL said she needed the money so that she could pay the train fare from Sheffield for her son to visit her (£100) and to compensate him for the overtime he would otherwise have earned but for the visit (£80).

 

(h) AS, on the other hand, claimed she gave her mother £600 a month spending money.

 

(i) JL was paying £32 a month for her daughter’s T-Mobile phone contract, but many other bills were left unpaid and she owed £946 to Npower.

 

 

The daughter objected to being removed as an Attorney and for Essex to be appointed in her stead. The Court heard evidence and had to apply the tests of the Mental Capacity Act.

 

 

I am, indeed, satisfied that AS has behaved in a way that contravenes her authority and is not in JL’s best interests.

 

(a) She admits that she failed to keep proper accounts and financial records.

 

(b) Her explanation for the dramatic increase in JL’s expenditure was “there is no point in her being the wealthiest woman in the graveyard.”

 

(c) She profited from her position by using her mother’s money to pay her own mobile phone bill.

 

(d) There is evidence that she placed JL under pressure regarding this matter.

 

As this had been a Lasting Power of Attorney set up online, with no independent person explaining things to JL (who had capacity at that time – or at least, one hopes so – part of the danger of doing it online is that she doesn’t necessarily meet with anyone independent to confirm that), it becomes even more important that the Attorney who signs the document saying that it has all been explained to JL actually does this proper job of explanation. Otherwise it looks like a snow job.

 

I shall consider these reasons in a little more detail. First, AS admits that she failed to keep proper records and accounts. At the hearing she said she did not know she had to keep accounts and that she had not read the declaration in Part C of the prescribed form of LPA, which she had signed. It says:

 

 

“I understand my role and responsibilities under this lasting power of attorney, in particular:

I have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.”

 

This admission is damning enough, but it gives rise to additional concern about the circumstances in which the LPA was created. If AS failed to read Part C, it makes it hard to believe her assertion that she had carefully read and explained to her mother the contents of Part A of the LPA – the part that the donor is required to complete.

 

 

AS’s retort that there was no point in her mother being the wealthiest woman in the graveyard is trite and misses the point. JL is far from being a wealthy woman and what funds she has should be applied for her benefit and in her best interests. She lives in squalor. When Social Services initially visited her on 1 July 2013 they observed animal faeces on the carpets from her dog and three cats. Her food had a layer of mould on it, but she was nevertheless reheating and eating it, and she had neither washed nor changed her clothes for six months.

 

[But hey, as long as the daughter’s mobile phone bill is getting paid, everything is fine, right?]

 

Finally, as regards AS exerting pressure on JL, in her witness statement dated 26 September 2014 JL’s social worker, Sharon Morris, said:

 

 

“JL has discussed concerns regarding her relationship with her daughter AS with me on several occasions. JL can get very anxious when at times she cannot contact her for days. She does not answer her calls or the door when she visits. On the occasions she does meet with her daughter she reports that she shouts at her and pressurises her for money.”

 

I have to say that from my own observation of AS’s demeanour at the hearing that she came over as forceful and persistent and I imagine it would be difficult for a lonely, vulnerable woman with a cognitive impairment to resist complying with her wishes and demands.

 

 

The Court, quite rightly, removed AS as an Attorney. It is always a shame when this sort of thing happens, because the best people to look after a vulnerable person and manage their finances are relatives, where possible. But it is vital that those relatives realise that their responsibility is to spend JL’s money on her, and meeting her needs, and not using their vulnerable mother as a personal piggy bank.

 

I am satisfied that (1) AS has behaved in a way that contravenes her authority and is not in JL’s best interests, and (2) JL lacks capacity to revoke the LPA herself, and I shall revoke the LPA for her.

 

 

With regard to the appointment of a deputy for property and affairs, I consider that it would be in JL’s best interests to appoint the authorised officer for property and affairs deputyships of Essex County Council as her substantive deputy. He is already acting as her interim deputy by virtue of my order of 10 June 2014 and JL has expressed a preference that he should continue to manage her funds.

 

Tin-foiled again. Conspiracy and the Court of Protection

The Court of Protection case of A Local Authority v M and Others has it all.  A huge schedule of potential findings, a real barney as to whether a young man’s parents have been the victims of terrible circumstances and cover ups and abuse or whether they have been abusing their son, Andrew Wakefield (of all people),  homeopathic medicine, a conflict between “mainstream medical thinking” and “mainstream autism thinking”, a witness list of 91 witnesses including a request that a High Court Judge be called to give evidence, and not forgetting a period of time in which the parents wrapped various household electrical objects up in tinfoil.

 

It is a very involved and detailed judgment, and I’ve quoted from it extensively. There’s a lot that I haven’t included  (the judicial analysis of the efforts made to be fair to the parents and take into account that they were acting in person is very thorough and a good working model for other cases in the future, for example)

 

http://www.bailii.org/ew/cases/EWCOP/2014/33.html

 

This is the background

 

 

  • M is a 24-year-old man who has been diagnosed with autism and a learning disability, although, as discussed below, that diagnosis is a matter of controversy. For the first 18 years of his life he lived at home with his parents – his mother, hereafter referred to as E, and father, A – where he was by all accounts generally looked after very well. His parents were and are devoted to him and have devoted much of their lives to his care. He attended local special schools and enjoyed a wide range of activities.
  • Until his late teens the family had no contact with the local authority. At that point, however, social services became involved because his parents were looking for a residential placement where he could continue his education. There is no evidence up to that point of any conflict between members of his family and those professionals with whom they came into contact. From that point, however, the picture changed and there has been almost continuous conflict, in particular between M’s mother, E, and the local authority. M’s parents assert that they have been subjected to a malicious campaign aimed at removing M from their care. The local authority asserts that M has been subjected to a regime characterised by excessive control exercised by E over every aspect of M’s life. More seriously, the local authority alleges that E has fabricated accounts of M’s health problems and subjected him to unnecessary assessments and treatments, as well as imposing on him an unnecessarily restrictive diet, with a range of unnecessary supplements. There have been several court proceedings concerning the family, culminating in this case, brought by the local authority in the Court of Protection, seeking orders as to M’s future residence and care. The local authority makes a series of allegations on which it asks the court to make findings. All those allegations are hotly disputed by the parents and this has necessitated a lengthy fact finding hearing. This judgment is delivered at the conclusion of that hearing.

 

 

This is what the Judge said about the central debate  (E being the mother of the 24 year old, and A being the father)

 

70. In the course of the hearing it became clear that E, and perhaps also A, see themselves as the victims of a network of three conspiracies. First, they assert that there has been a systematic conspiracy by the medical profession to conceal the truth about the effects of the MMR vaccine and its links with autism. Secondly, they assert that the employees of this local authority have fabricated a case against them with the aim of removing M from their care for financial reasons, to acquire control of his benefits and limit the amount of money the authority has to spend on him and, furthermore, has drawn into this conspiracy all the other professionals involved in this case – the staff at Y House, X College and N House and some of the doctors – all of whom they say are financially dependent on the renewal of future contracts with the local authority. Thirdly, they assert that the Official Solicitor, far from representing M properly in these proceedings, has used them as an opportunity to pursue an agenda of undermining the prospects of future litigation about the MMR vaccination and to that end has deliberately chosen experts (Dr Carpenter and Professor Williamson) whose views are known and who have been involved in similar cases in the past. They assert that the Official Solicitor and the local authority have attempted to attract political favour by bringing the MMR issue into this litigation.

 

71. I will return to this issue at the end of this judgment at this stage, I merely observe that, if the parents’ assertion about conspiracies is correct, it would amount to gross misfeasance in public office and the biggest scandal in public care and social care in modern times.

 

 

A core part of the parents case was that after their son had his MMR injection, he developed autism, and indeed at one point it was asserted by them that he had been in a persistent vegetative state for six months as a result.  The parents said that where the medical records did not bear this out, this was because they had been tampered with.

 

7. On 12th January 1991, aged just under 18 months, M was given the measles, mumps and rubella (“MMR”) vaccination. There is no record in his GP notes of any adverse reaction. In fact, there is no report of any adverse reaction to the MMR in any record relating to M for the next nine years. From 2000 onwards, however, M’s parents, and in particular his mother, have given increasingly vivid accounts of an extreme reaction to the injection experienced by M. There are descriptions of M screaming after having the injection, followed by six hours of convulsions, screaming and projectile vomiting. It is the parents’ case that the mother told their GP that he had had a bad reaction to the MMR but was told by him that she was an over-anxious mother and must be imagining it. When E called the GP a second time and said she was calling the emergency services, she was told not to do this, but went ahead because M was going in and out of consciousness. The paramedics and the GP had arrived at the same time, at which point M’s temperature was 104. The GP had told the paramedics to leave. Before going, they had told her that this was a case of meningeal encephalitis. The GP had been verbally abusive to E. The above account, given to Dr. Beck, a psychologist instructed as an expert witness in these proceedings, is similar to that given by the mother to a variety of professionals. She also gave a detailed description of M’s reaction to the MMR in the course of her oral evidence. One note in an “auditory processing assessment report” dated 31st October 2002 records E alleging that, following the MMR, M had remained in, “A persistent vegetative state for six months.”

 

8. The parents’ “chronology of health issues” prepared for these proceedings states that between January and June 1991 M was prescribed anti-inflammatories, antibiotics, antihistamines, decongestants and pain relief. There is no medical record of any such prescription, save for the decongestant. It is the parents’ case that the medical records have been tampered with in some way to conceal the true picture. They produced two copies of the medical records which purported to show a gap of some eight months between December 1990 and August 1991. In fact, the original records show that the next consultation after the MMR took place on 26th April 1991. It is the parents’ case that a page of the medical records was missing from the copies with which they had been supplied previously. The GP note of the consultation on 26th April 1991 records that E was concerned that M was a nasal breather and had thick mucous. He was prescribed a decongestant. The note also records that he had been uncooperative at the hearing test that day. According to E, in the summer of 1991 he started to receive homeopathy, reflexology and cranial osteopathy

 

It emerged that these parents had been involved in the Andrew Wakefield research that linked the MMR vaccine with autism (a claim that has not been able to be replicated by any other reputable researcher, and research that it later transpired was funded with a view to bringing litigation, and research that ended up with Andrew Wakefield being struck off.  Notwithstanding that, a number of people still believe him to be correct (I will point out that I am absolutely NOT one of them).  As one of the experts said to the Judge on some websites he is still talked of as a maligned hero.”

 

As M grew older, his difficulties increased and his mother E was reporting that he had been violent towards her as a result of his many medical conditions.

 

 

21. In his teenage years M started to demonstrate more difficult behaviour. He started having temper tantrums on a scale with which his parents struggled to cope. In her final statement E described this as “an unavoidable personality change” brought about because he was “dominated by testosterone and mercury.” Also in her final statement, E asserted that M became violent towards her at this time and as a result she got quite a “lengthy A&E record” because, in her words, “just about every rib in my body was broken, three with double breaks and my stomach muscle lacerated from my ribcage.” In 2007 M was prescribed lorazepam and then resperidone and was referred to the community mental health team. In August 2007 the parents wrote to that team stating that they had decided that it was not in his best interests for them to continue to be assessed by them. They stated:

 

“The medical profession does little to recognise the chronic medical disease that autism truly is … It is for this reason that we have consistently adopted a biochemical intervention approach and engaged a variety of privately funded specialists, all of whom have made a tremendous difference to the improvement to M’s quality of life and proven that autism is a treatable medical condition. Due to the constant rejection and dismissal of our conviction that we have continually faced, we have chosen only to tap into the NHS for diagnosis of secondary medical complications of a more general nature, local dietary advice and, where specialist expertise was available, in the form of Dr Andrew Wakefield.”

 

 

22 Meanwhile, E was continuing her campaign about the link between the MMR vaccine and autism. On 6th March 2008 she wrote a long letter to the Lord Chancellor and Secretary of State for Justice, the Right Honourable Jack Straw, MP complaining about the failure of the Legal Services Commission to fund the litigation, and making allegations of a conflict of interest against the judge who had dismissed the application against the Commission, asserting that the legal services and the judiciary had betrayed “our” children, warning that as a result they had been placed on “a permanent collision course with each and every public agency” and stating that they would take a number of measures to address their grievances. On 8th May 2008 she received a lengthy reply from the Head of Civil and Family Legal Aid, which was included in the documents produced by E and A in the course of the hearing, stating, inter alia:

 

“Due to the severity of these illnesses and that they were of the wider public interest, the Legal Services Commission initially invested £15 million in this case. Despite this investment, medical research has yet to prove a recognised link between the MMR vaccine and autistic spectrum disorder. Additionally, no link has been proved by any other medical body. There remains no acceptance within the worldwide medical authorities that MMR causes the symptoms seen in these children. Therefore, the litigation was very likely to fail. It was for this reason that the Legal Services Commission decided that it would not be correct to spend a further £10 million of public money funding a trial that is very unlikely to succeed, and withdrew funding for this case.”

The author of the letter added that a confidentiality clause surrounding the judicial review prevented him disclosing the exact reasons why funding had been withdrawn, but pointed out that the solicitors acting for the claimants were aware of the reasons and were at liberty to disclose them to the applicants.

 

The parents sought help from the Local Authority in caring for M

 

 

  • By this point M’s parents, who had hitherto managed without any assistance from social services, had contacted the local authority as plans needed to be made for M’s future when he left school. E and A identified a college in East Anglia which they thought would be the right option for M. Difficulties arose, however, as to the funding of this placement and M’s parents issued proceedings against the local authority, claiming that it was unreasonably refusing to fund the package of education and social care. The local authority’s case before me is that the placement could not proceed because the Learning and Skills Council was unable to fund the educational component of the placement because the establishment had not been approved by OFSTED and the local authority was unable to pay for the residential component of the placement because it had not been approved by the Care Quality Commission. In July 2008, M left school and, with the local authority’s support, attended a life skills development course locally for a year while the dispute between the local authority and his parents was resolved. The local authority has estimated that the package of care and support offered to M during this year cost the authority around £55,000. Negotiations between the local authority, the Learning and Skills Council and his parents continued and ultimately his parents identified an alternative college in the south of England – hereafter known as X College – which the Learning and Skills Council agreed to fund.
  • M started attending X College in September 2009. For the first few weeks he was driven to the college every day. In October he moved into a residential unit nearby with the assistance of the local authority – hereafter referred to as Y House. At first this placement went well but problems soon arose. E made a series of complaints about the standard of care given to M, including that he suffered repeated episodes of ringworm, other fungal infections, conjunctivitis and ear infections, including a burst eardrum. As a result, E spent three weeks staying in a nearby hotel to provide support for M. She was also concerned that certain assurances given about Y House prior to M’s arrival had not been fulfilled. In particular, having been told that the House, which was a new project, was intended for young people of M’s age, she was alarmed to find that older people with more extensive disabilities were accommodated there. Relations between E and the staff at Y House deteriorated. The staff expressed concern about the level of control over M exercised by his mother. She provided a strict dietary programme for M to be followed by the staff, regular health bulletins on his return to the unit after weekends at home and a list of all the treatments and supplements to be given to him. By this point, according to a list prepared by E and A, the range of biomedical interventions being supplied to M included a probiotic, six vitamin supplements, four mineral supplements, five trace elements, fatty acids, amino acids, enzymes and a range of homeopathic remedies. E and A said that this combination had been arrived at through the advice of the gastroenterology department of the Royal Free Hospital, the Autism Research Unit at Sunderland University, the Autism Treatment Trust in Scotland and a privately funded naturopath. They said that the reason for M taking this combination of supplements was “to address the autistic enterocolitis he suffers from.”

 

There was then some other litigation with E and A judicially reviewing the Learning and Skills Council about funding of a placement for M, that litigation being settled by the Learning and Skills Council

 

On 12th March 2010, E made an application to the Court of Protection to be appointed as M’s deputy (i.e this Court of Protection litigation was initiated by her).

 

It would be fair to say that the family and the Local Authority were not getting on well

 

 

28. In the summer of 2010, E and A made a formal complaint against the local authority comprising of a range of individual complaints about the placement, care provision and care management. According to E and A, the complaints made on this occasion amounted to a total of 236 individual complaints. At the hearing before me the local authority asserted that the total number of complaints made was many times more than those made in any other case. Some of the complaints were directed at MS and as a result she was withdrawn from the case. At the end of June, M’s case was transferred to a different locality team within the local authority and allocated to a team manager – JR – and a senior practitioner – LG. Those senior social workers have remained responsible for M’s case to the present day. The complaints were investigated by an independent practitioner. Nearly all of these complaints were not upheld. In his conclusion the investigator observed, inter alia:

 

“First and foremost, although a few of the complaints have been upheld, they arise from a genuine desire by E and A to do the very best they can for M and obtain the very best services that they can … They feel that their mission has meant having to fight every inch of the way against health and legal services and more recently social care services. This has no doubt influenced the extent to which they are able to work in partnership with the statutory agencies. As E and A have such clear ideas about all aspects of M’s life and believe that the conclusions they have reached about him are correct, it is understandable that they have difficulty in accepting the views of others where those differ from their own. In the current circumstances E and A are required to work alongside professionals in social care, medical services and residential care services. Those professionals will also have M’s best interests at heart, but may hold differing views about what is in his best interests. Where the professionals have wished to pursue their own views and approaches, they have found that they have had to be very clear and assertive. This has brought about an even more assertive approach in response and commonly this has led to communications which border on the unacceptable. Many of the complaints appear to arise from such circumstances.”

 

29. E and A did not accept the outcome of this investigation and asserted, inter alia, that the investigator had not been truly independent of the local authority and had not investigated the complaint properly.

 

There’s then a LONG history of medical issues, problems and investigations over the next three years, and I did promise that I would get to the tinfoil bit.

 

On 3rd March, KH informed the local authority that E had told him that she believed that M was suffering from an adverse effect to electromagnetic energies and she was wrapping electronic items in his bedroom in tin foil to protect him. On 12th March, according to KH, E told him that they had taken M to accident and emergency two days earlier because he was in an immense amount of pain. He had been diagnosed with what appeared to be brain seizures. On 19th March, according to KH, E said that M was now on three types of pain relief – paracetamol, ibupfofen and codeine – and this seemed to help. She thought he was suffering from either migraine clusters or brain seizures. On 4th April, JR and LG made an unannounced visit to the home. What happened on this visit is disputed. The social workers’ evidence is that they spoke to A but that E refused to come down to see them as she was busy upstairs and dealing with M. A told them he would ensure that M came to no harm. The social workers did not see M on this visit.

Around this time M developed a small wound on his leg. His mother, having read two articles in the newspapers, came to the conclusion that he was suffering from Lyme disease. She consulted her GP, Dr W, who tried to reassure her that this was unlikely to be the case, but at her insistence tests were carried out in this country and subsequently at a clinic in Germany. This analysis revealed that M had one chemical marker consistent with Lyme disease. Dr W continued to reassure the mother, on the basis of his own experience of Lyme disease, that the overall clinical picture did not fit this diagnosis

It would appear to be at around this time that professionals moved from seeing E and A as very anxious carers of a young man with very serious health needs to beginning to look at whether M had such health needs or whether there was an element of factitious illness syndrome being played out here.

 

 

  • On 18th July 2013 the local authority started these proceedings in the Court of Protection seeking orders (1) permitting the authority to remove M from his parents’ home and either return him to Z House or place him in independent or supported living; (2) that he should not take supplements or medication unless prescribed by a doctor or considered necessary by his carers; (3) that professionals and care staff were not required to follow E’s instructions regarding M’s care and (4) removing E as his deputy. In the application the authority identified concerns about M being isolated from professionals, his apparent distress at his mother’s behaviour, the fact that he had been removed from Z House without agreement, the degree of control exercised by E over his life, the difficulties in E’s relationship with professionals and the allegation that had been made that E “may have Munchausen by proxy.”
  • On 23rd July, M attended the graduation ceremony at X College. On 25th July, District Judge Mort gave directions, including the reappointment of the Official Solicitor as litigation friend. E subsequently applied for the summary dismissal of the local authority’s applications, contending, inter alia, in a lengthy exposition of her case, that it was “a shameful and reckless attempt [at] retribution by persecution of us as a family” and made with the purpose of “sabotaging” the costs application outstanding from the previous court proceedings, and to detract from the complaints and other litigation which she and A had brought against the authority. Attached to E’s application for summary dismissal was a further document described as an “overview of M’s health”, listing the background of dental attention, including a reference to the x-ray of July 2012, which “indicated the swelling above UL6, advised to be sinuses”, a list of twenty illnesses and symptoms that M was said to have suffered since October 2012 and a further list of thirty-one illnesses, symptoms and treatments that he was said to have suffered, exhibited or taken in the past four months, including: “on movement body temperature drops/hands and feet freeze and become rigid”, “swelling of joints, hands and feet”, “projectile vomiting”, “excruciating pain and in waves, intensity and frequency likened to cluster headaches/migraines”, “uncontrollable temperatures”, “stabbing pain in the groin, “difficulty in urinating”, “uncontrollable sneezing”, “unable to have any volume/sounds on”, “simplest of movement causes exhaustion”, “on constant pain relief”, “now on concentrated oxygen for up to six hours a day”, “biomedical natural supplements have become life supporting.”. It was said that in the previous four months M had seen

 

“our GP on a weekly basis, an ENT specialist, a neuro-autonomic diagnostic specialist, a neuro-psychologist, a neuro-physicist, his neuropsychiatrist and his biomedical nutritionist.”

It was further said that M

“underwent an MRI brain scan and an EEG on the 2nd of May 2013, referred by neuro-physicist, and as a result of possible brain stem dysfunction, suspected internal destruction of his nerve endings and heightened/over-exaggerated reflex response and his nervous system was so obviously trapped in flight mode.”

It was said that his immune system had been “chronically compromised” as a result of his infection with bacteria associated with Lyme disease. E added that:

“blood is not interrogated further in this country, unlike the European laboratory in Germany. In this country there is a reliance upon a GP to clinically diagnose and treat this most debilitating disease but that does not allow for the fact that GPs prefer to avoid doing so, for reasons we are now endeavouring to determine. Meanwhile, our son continues to deteriorate at an alarming rate.”

It was said that E was having to massage his hands and feet for up to six hours a day. E added:

“the loss of this circulation and sensation has since been diagnosed as rheumatoid arthritis induced by his immune system turning in on itself and known as auto-immune dysfunction.”

Amongst other claims made, E also asserted that it had been suggested that M could be suffering from an electro-sensitivity disorder and as a result they had terminated all wireless transmissions in the house. E set out her case in detail as to what she had been told about the problems in M’s mouth, referring to a complete breakdown of all life support and systems, a black shadow on which the left sinus was sitting and an intolerable level of pain.

 

Andrew Wakefield crops up again here, it being said that when M had a tooth removed it was kept by mother in the freezer to send to him for analysis (ironically, one of the dental establishments involved here was the Tooth Fairy Surgery)

 

 

  • On 5th August 2013, M underwent surgery under general anaesthetic in which the two teeth were removed. The hospital notes for this admission reveal that, in summarising M’s medical history, E said that he had “tested positive for Lyme disease.” The two teeth were subsequently given to E, who stored them in her home freezer with a view, it is said, to send them for testing in America by Mr (formerly Dr) Wakefield. In a further email to Ms Haywood dated 11th August, E spoke graphically of the implications for M of the delay in treating the abscesses:

 

“This would not only explain the excruciating pain that [M] has experienced, and possibly on/off since October 2011 … that would have been horrendous for [M] to have had to cope with over the last year and just unbearable without intravenous pain relief. They also easily explained the neurological and blood poisoning problems that M has been suffering. Left undetected they can be fatal. Hence, they have said they have caught [M] in time but not soon enough to stop the bacteria produced by these abscesses from eating away at the body and affecting all life supporting systems. Apparently, the soft facial tissue is attacked first, along with the soft tissue of the heart and the lungs while they swell the brain and cause abscesses on it. While all this going on, apparently at the same time they eat the bone structure of the body – the knuckles and fingers and toes, the wrists, ankles, elbows, knees, shoulders and hips – as they make their way up the bones. So, all of this was well underway with [M].”

Miss Haywood was continuing to prescribe various protocols for M, and on 6th September she prescribed a general nutritional supplements protocol and a “Lyme disease protocol”.

 

[Let’s not forget here that the only medical professional who had given a view on Lyme disease was saying that M did not have Lyme disease]

 

On 3rd March 2014, the expert report had come in, and formed the view that this was a factitious illness case and M was removed into a residential home pending investigation and the Court determination of the case.

 

 

  • On 3rd March 2014, Dr Beck delivered her report to the solicitor representing the Official Solicitor, Miss Nicola Mackintosh. Dr Beck concluded that E suffers from factitious disorder imposed on others and that M is the victim of that disorder. She added that she could not:

 

” … rule out the possibility that E may pose a risk of harm to M in order to prevent her loss of control over him as a source for attention for herself.”

These conclusions led the Official Solicitor and the local authority to be concerned, first, that M might be at risk of harm remaining in E’s care and, secondly, and immediately, that he might be at heightened risk of harm when the report of Dr Beck was disclosed to the mother. The Official Solicitor made an application to me for directions in relation to the disclosure of the report to E and A. By the time the application came on for a hearing the local authority had applied for the immediate removal of M from the care of E and A and this was supported by the Official Solicitor. At the conclusion of that hearing on 6th March, I authorised M’s removal the following day, into an emergency placement at an establishment – hereafter referred to as “N House” – run by an organisation – hereafter referred to as “C Limited” – some sixty miles from the family home and in a different County, and ordered that he should reside there until further order.

 

Factitious illness cases (or what used to be called Munchhausen Syndrome By Proxy) are difficult cases. They are particularly difficult when the alleged victim does also have genuine medical conditions. They are difficult to run in care proceedings, when everyone has the benefit of free legal advice and representation. In the Court of Protection, these parents were on their own. They were representing themselves. An added complication was that part of the parents case was that they wanted to run a case that the MMR vaccine causes childhood autism  (bear in mind that when the Legal Services Commission as they then were, were envisaging funding the litigation on that issue alone, they’d set aside TEN MILLION POUNDS as a reasonable sum to thrash that issue out)

 

 

  • Asked to prepare a witness schedule, E filed a document which appeared to indicate that she wished to call, or at least rely on the evidence of, 91 witnesses at the hearing, including Keith J, who had heard part of the litigation involving MMR, and their MP, the Right Honourable Mr Michael Fallon, and for 48 witnesses to be required to attend for cross-examination.

 

  • One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy.
  • In total, the court papers filled some 33 lever arch files (court documents and file records) plus two further lever arch files of documents produced by E and A during the hearing. No doubt if the parents had been represented, it might have been possible to reduce this material into a core bundle, as I did myself at the conclusion of the hearing. Even those 35 files may not represent the totality of the disclosable documents that might have been produced. For example, no health visitor records were produced for the period of M’s early years. At a very late stage E alluded to the possibility that she may have copies of these records somewhere in the loft at her home. Furthermore, and despite my explaining the rules about disclosure on more than one occasion, I am not entirely satisfied that E and A have complied with their obligation to disclose all relevant documents, including those that do not support their case. At one point E’s medical records were produced and, when E objected to their disclosure on grounds of confidentiality, I conducted a public interest immunity examination to determine which pages of the records were relevant. In the event, I concluded that only 16 pages fell into that category, but E insisted on challenging the disclosure of some of those pages on the grounds that they would assist the other parties. This illustrates another consequence of parties appearing without representation in these cases, namely that the courts may have to devise new rules as to disclosure.
  • The list of 139 witnesses who the parents seemed to suggest should or might have to give evidence was, fortunately, considerably reduced. Even so, 32 witnesses gave oral evidence at the hearing: four members of the local authority social services team (LG, the current social worker, JR, the team manager, MS, the former case worker and MW, the head of adult services); MH, the chief executive of X College; staff involved with the running of Y House (CS, the first manager, PL, his successor, and RR, the regional operations manager of the agency); staff involved in running Z House (CH, the manager, and KH); staff involved in running N House (AA, the owner of the agency that runs that home, and AR, a care worker at that property); three friends of E and A with experience of caring for autistic people, one of whom is herself on the autistic spectrum; JB, a carer employed by E and A when M was at home; the family GP, Dr W; the family dentist, DC, and the locum who worked at the surgery, Ms Malik; practitioners who had been consulted by E in connection with M’s treatment (Shelley Birkett-Eyles, occupational therapist, Dr Julu and Juliet Haywood, the nutritional therapist); expert witnesses, namely Dr Beck, Mr McKinstrie, Dr Carpenter, Professor Williamson, Dr Adshead, Dr Aitkin and Mr Shattock, all instructed by E and A; M’s sister, S, and, finally, his parents, E and A themselves.

 

The parents stated that no fewer than 13 of those professionals had lied to the Court and that the allegations of factitious illness had been cooked up by professionals to pay them back for the successful judicial review litigation about funding a placement for M at college, and that the case had been fabricated for financial reasons rather than any genuine concern by professionals that M was at risk.

 

An interesting issue was in relation to three witnesses called by the family whose expertise was in alternative medical treatments. They had been providing assessments and treatment for M, who was an adult, with no understanding of whether he was consenting or had capacity to consent.

 

  • he last group of witnesses about whom I wish to make specific mention before turning to the evidence are the three alternative medical practitioners called by E and A: Shelley Birkett-Eyles, Dr Julu and Ms Haywood. Mrs Birkett-Eyles is an occupational therapist and Director of Hemispheres Movement for Learning Limited, a private occupational therapy practice specialising in the assessment and treatment of children and young adults with learning and developmental difficulties. She has seen M on several occasions since 2010 and, amongst other things, ran a training day at X College on the topic of sensory processing. Dr Peter Julu describes himself as a specialist autonomic neurophysiologist and consultant physician. Juliet Haywood is a nutritional therapist who has been advising E on M’s diet for the past four years.
  • My impression of Mrs Birkett-Eyles was that she was a responsible practitioner working within the proper confines of her particular field, although, as will be clear later, the reliability of her opinion as to treatments given to M was challenged by Dr Carpenter. I was more concerned about the evidence given by Dr Julu and Ms Haywood.
  • Dr Julu told the court in oral evidence that his field of interest is not yet part of mainstream medical training in England and that he is the only autonomic neurophysiologist in Europe. I was not satisfied from his evidence that his purported specialism is a legitimate field of medicine and, again, the reliability of his assessments and treatment recommendations for M were challenged by Dr Carpenter. In her supplemental closing submissions filed this morning, E said that the lack of knowledge amongst those challenging Dr Julu’s evidence is “startling, as it is easily accessible on the internet.”
  • Ms Haywood, whose professional qualification is a diploma from the College of National Nutrition, has played a major role in advising E in recent years. The papers contain a number of emails passing between E and Ms Haywood and it is clear from reading them that there are others which have not been disclosed. I am satisfied that in the course of her involvement with the family Ms Haywood has given advice that went well beyond her expertise. One glaring example was Lyme disease when, on her advice, given after seeing a photograph of a mark on M’s leg, E sent urine samples abroad for further testing. Subsequently, Ms Haywood confidently expressed an opinion on the interpretation of the results of those tests. She has no chemistry or other qualification that equips her to do so. I was also concerned that Ms Haywood had prescribed the dietary protocol for M without seeing him and with no independent knowledge of his medical history, content to rely solely on what she was told by E; for example, that M had a chronic gut disorder. In contrast to Mr Shattock’s Sunderland Protocol, which recommends the systematic testing of diets and supplements individually, Ms Haywood was content to prescribe a dietary programme without testing each individual component separately. She did not agree with the NICE guidelines as to the impact of diet on autism. She had forthright views on many things, saying, for example, at one point that she did not like Cancer Research UK. I was left with a profound anxiety about Ms Haywood’s influence on E and her role in the treatment that M has received.

 

 

None of the three witnesses had received any training on the Mental Capacity Act 2005 and it was clear from their evidence that none of them had given proper consideration to the question whether M had capacity to consent to their assessments or the treatment they were prescribing. The family GP, Dr W, also admitted in his oral evidence that he only made a detailed study of the Act and the Code of Practice when he was told that he would be giving evidence in this case, and he identified a number of learning points about the Mental Capacity Act arising out of his involvement in these proceedings. Mr Bagchi reminded me in his closing submissions of the concerns expressed in the House of Lords’ Select Committee on the Mental Capacity Act 2005 Post-Legislative Scrutiny Report on the implementation of the Act, dated 30th March 2014, about the general lack of awareness by the general public and professionals of the principles and workings of the legislation. This case has highlighted the urgent need for all health professionals, including those practising in alternative and complimentary medicine, to familiarise themselves with the Act so that they can apply its principles and procedures when they treat a person who lacks capacity, as most of them will at some point.

 

[I had a quick look on the internet, as recommended by E, into autonomic neurophysiology, and found this paper submitted by Dr Julu himself – in which to my mind he is asserting that there is scientific proof for the efficacy of homeopathy. So he is either an eternal optimist, someone who is not necessarily as scientifically rigorous as one might hope*,  or he is about to win a Nobel prize. I could not possibly comment as to which is more likely  http://www.publications.parliament.uk/pa/cm200910/cmselect/cmsctech/memo/homeopathy/ucm2002.html ]

In summarising the capacity issues in the case, the Judge begins with “M’s diagnosis is a matter of some controversy”  – which is a masterpiece of understatement.  The Judge boils it down to M having had childhood autism.

Reaction to the MMR

 

  • The issue of M’s reaction to the MMR vaccination and whether it was the cause of his autism lies at the heart of this case. E and A insist that M had a devastating reaction to the MMR, that his autistic traits date from that time and that this provides clear evidence in support for the Wakefield theory. On the other hand, it is alleged by the Official Solicitor, in particular, but also supported by the local authority, that E and A have fabricated the account of M’s reaction to the vaccine and thereby falsely sought to establish a link between the vaccine and his autism.
  • As I stated more than once during the hearing, this case is not an inquiry into whether there is a link between the MMR vaccine and autism. The relevance of this issue is whether the account given by E, in particular, of M’s reaction to the MMR, is true. Nonetheless, it is necessary to outline briefly the expert evidence that I have received about the possibilities of a link.
  • I have already described the history of the controversy in the summary above. The prevailing medical view is as set out information published by the World Health Organisation – actually produced by E in the hearing – which states that:

 

“The overall evidence clearly indicates no association of MMR vaccine with either inflammatory bowel disease or with developmental delays, including autism.”

This accords with the opinion given by Dr Carpenter. Nevertheless, there is a substantial body of opinion to the contrary, including parents of autistic children and some alternative medical practitioners.

 

  • Dr Carpenter reached the conclusion in his report that the diagnosis of M’s autism as having been induced by the MMR vaccine is inconsistent with the independent contemporary evidence and, therefore, not viable. He notes that M’s parents did not link his apparent regression to the MMR injection until after the publication of Dr Wakefield’s paper in 1998. Dr Carpenter has carried out, as requested, a full analysis of the medical records and found that the first account of M deteriorating immediately after the MMR vaccination was not given until 2001. E’s subsequent accounts of M’s reaction to the vaccination – of a child developing normally prior to the vaccination and thereupon having seizures, screaming fits and declining into a vegetative state for six months – is incompatible with the other records. There is no mention of adverse effects or any reference to a bad MMR reaction in the GP records. Dr Carpenter notes that a few months after the MMR, the GP records show M being described as hyperactive, which Dr Carpenter points out is inconsistent with the account of his being in a vegetative state. When a change of GP took place a few months later, there was no note of any recent adverse event being recounted to the new doctor. If M had been in a severely regressed state at this time, Dr Carpenter would have expected this to have been mentioned to the new GP. Furthermore, 21 months after the MMR, when giving a detailed account of his development to Dr Baird, no mention was made by the parents of any deleterious reaction to the MMR. On the contrary, their account concentrated on an earlier deterioration after an illness at age 10 months – seven months before the MMR was administered. In cross-examination by E, Dr Carpenter said that any adverse reaction to the MMR vaccination which had caused a regression in M’s development would have been recorded in his 24 month developmental check and it was not. What was recorded was not regression, but a lack of progress.
  • After the allegation of an adverse reaction to MMR was eventually recorded in 2001, it became more dramatic in subsequent accounts. Thus, in 2001 the description was: “Distressed after injection. Had fever. Eyes glazed, dilated and fixed.” E’s account became more florid over time, with references to screaming, jolting, spasming and a persistent vegetative state. In her final statement she said that: “M died within six hours of the MMR.” In the witness box she gave a full account of the events on the day on which the MMR was administered and M’s reaction to it. E acknowledges in her final statement that she uses certain words and phrases in her own particular way. For example, for her the phrase “vegetative state” means “slipping in and out of consciousness, not responding and appearing lifeless.” And her use of the word “died” to describe what happened to M means “stopped breathing and lost consciousness”. For E, her use of these words and phrases is as valid as the way in which they are used by medical professionals.
  • For some time E has alleged that part of M’s medical record is missing. The inference that she invited the court to draw was that pages had been deliberately removed to conceal contemporaneous records of his reaction to the MMR. It is now clear that no part of the records have been removed. One page of the records was missing and copies produced by E and A, but the original record was intact. I am not going to speculate on the reason why the copies produced by E and A are incomplete.
  • If M had an experienced an extreme reaction to the vaccine, as now alleged, it is inconceivable that E and A would not have sought medical advice and thereafter told all doctors and other medical practitioners about what had happened. As I put it to E in the course of the hearing, there are only three possible explanations for what has happened. The first is that E did give the account to Dr Baird and all the other practitioners at every appointment, but each of them has negligently failed to record it. The second is that she gave an account but all the practitioners have chosen not to include it in their records. That is what E maintains has happened, alleging that the whole of the medical profession is deliberately concealing the truth about the MMR vaccine. The third is that E has fabricated, or at least grossly exaggerated, her account.
  • Mass negligence can obviously be discounted. In my judgment, it is also completely fanciful that the whole of the medical establishment had decided to act deceitfully in the way alleged by E. I therefore conclude that the account given by E as to M’s reaction to the MMR is fabricated.
  • For the purpose of this case, it is unnecessary to make any finding as to why it has been fabricated. It is unnecessary to explore whether E truly believes that M reacted in the way she now alleges. It is notable that A also, apparently, adheres to the same account, although he is noticeably more reticent in his evidence about it. The key point for the purposes of this case is that E has fabricated her account of a crucial aspect of M’s medical history and thereafter relied on this false account to direct the course of his future treatment.

 

Lyme disease

 

  • The clear evidence of Dr W, the family GP, was that M did not have Lyme disease. Although he was not instructed as an expert witness, it is significant that Dr W’s clinical practice has included experience in rural areas where he has come across cases of this condition, which is caused by a tick bite. He advised that it is a diagnosis based on biochemical testing in the context of the overall clinical picture. I therefore conclude that he has the expertise to give a definitive opinion as to whether M was suffering from it, and I accept his evidence that M was not.
  • E, on the other hand, did not accept Dr W’s view and persisted in obsessively pursuing her theory that M was suffering from this disease. Her unshakeable view was based initially on two newspaper reports of women who were diagnosed with the disease that had gone undetected for some time. She thought the mark on M’s leg had been caused by just such a bite. Her fears were stoked by comments from Ms Haywood, speaking about a matter in which she was completely unqualified, who warned that testing carried out by British laboratories was inadequate. At her suggestion, E therefore insisted that samples be sent abroad. The results suggested that one marker consistent with, though not diagnostic of, Lyme disease was present in one sample. On this basis E maintained that M had indeed had that condition and continued to include it in summaries of his health history. For example, when he was admitted to hospital in August 2013 for the dental extraction, E said that he “had tested positive for Lyme disease”.
  • I accept Dr W’s evidence. M did not have Lyme disease. This is yet another example of E giving a false account of M’s medical history. In this regard she was supported by Ms Haywood, who showed no doubt in the witness box about her ability to express an opinion about Lyme disease without having any appropriate qualifications.

 

 

 

Tooth abscess/sinus problems

 

  • On 21st June 2012, E took M to the family dentist’s surgery suffering from pain. The regular dentist, DC, was not at work, so M was examined by a locum, Ms Malik, who works regularly at the surgery. Ms Malik had not originally been scheduled to give evidence at the hearing before me but was located at the last minute and duly called by the Official Solicitor.
  • Ms Malik’s computerised record of the examination stated that M had complained of pain and that E had been informed by his support worker that he had not been eating well on the previous day. On examination she found slight tenderness in tooth upper left 6. An x-ray was taken and revealed that he had an area of periapical infection. Ms Malik was shown the x-rays in the witness box and confirmed the diagnosis. The records indicate that she told E that M needed to be assessed urgently for extraction or root canal treatment under general anaesthetic and that E said that she would like to monitor it for now as M was unable to have a local anaesthetic. The records further indicate that Ms Malik offered antibiotics for M, but E declined. Ms Malik said that she had told E to make a further appointment to see DC when he returned to the surgery.
  • It is E’s case that Ms Malik has given a false account of this examination. E says there was no mention of any periapical infection or abscess, but instead Ms Malik had told her that there was a problem with M’s sinuses. She denies that there was any talk of root canal treatment or extraction or that antibiotics were offered. E put this version to Ms Malik in oral evidence, who emphatically stood by her evidence: she had not mentioned sinuses.
  • Two days later after M was examined by Ms Malik, E called an out of hours doctor about M because he had pain and facial puffiness. When M was examined by the doctor, E reported that he had been seen by a dentist who, according to the doctor’s record, said he had sinusitis. In court, E denied using the word “sinusitis” but said that she had told the doctor that the dentist had said there was a problem with his sinuses. According to the doctor’s note, on examination the doctor did not detect any definite tenderness in the sinuses, but after E said that M would not definitely say if there was tenderness, the doctor recorded the diagnosis as “likely sinusitis” and prescribed antibiotics. When M returned to X College and Z House on the Monday after Ms Malik’s examination, a diagram was provided (now at page N202 in the bundles) showing the sinuses and recording that the x-rays taken on 21st June had indicated no tooth or gum infection or decay, no nerve irritation, but swelling of the sinuses and pressure from a ruptured wisdom tooth. This was completely at odds with what Ms Malik said she had advised E. On 27th July 2012, M was seen by a different dentist at a surgery close to Z House. On examination nothing untoward was detected. It seems likely, as suggested in evidence by Ms Malik, that the antibiotics prescribed by the out of hours doctor on 23rd June temporarily alleviated the symptoms. E requested that no radiographs be taken at the examination on 27th July. In oral evidence, Ms Malik told the court that a clinician would need to see x-rays to diagnose the presence of abscesses.
  • In due course, on 23rd May 2013 – some 11 months after Ms Malik’s examination – E took M to a different surgery not far from the family home called The Tooth Fairy Holistic Centre, where x-rays confirmed the presence of periapical areas in upper left 6 and 7, indicating the presence of abscesses – confirmed by a surgeon to whom M was then referred and who then subsequently extracted the teeth under general anaesthetic.
  • E’s case is that Ms Malik is lying about her examination on 21st June 2012 and that she somehow altered the communication on the computer record. I completely reject that submission. I found Ms Malik to be an utterly truthful and a reliable witness. At one stage in the hearing, E suggested that the records had been falsified and Ms Malik had lied to the court because DC was concerned about his surgery being sued for negligence. For that reason, DC was called by the Official Solicitor, although in the event E did not put it to him that he had falsified the records. When DC gave evidence, he described Ms Malik as an excellent clinician to whom he had entrusted his patients as locum for many years. I accept Ms Malik’s account of the examination and what she said to E. Amongst the many revealing details is her note that E had told her that M could not have a local anaesthetic. It has been E’s case that she is allergic to local anaesthetics following an incident when she was younger, for which there was no independent evidence, and that this has been inherited by M. Ms Malik’s note, therefore, contains something that E must have told her.
  • It follows that this is yet another example of E giving a false account of part of M’s medical history and thereafter relying on this false account to direct the course of his future treatment.
  • In this instance, it is possible to trace the consequences for M of this fabricated account. In ignoring Ms Malik’s advice, failing to make an urgent appointment with DC on his return, taking M to another dentist, failing to give a full or accurate account to that other dentist and expressly declining further x-rays which would have been likely to reveal the abscesses, E was solely responsible for allowing M’s infected mouth to go untreated for over a year, thereby condemning him to further pain and suffering as the area of infection gradually got worse. Throughout the period of 14 months between Ms Malik’s examination and the eventual surgery to extract teeth, M suffered pain, repeatedly described by E, which Ms Malik advised in evidence was probably caused by the abscesses. Meanwhile, as I find, E pursued other increasingly extreme theories for the causes of M’s pain, none of which has any basis in fact, at a time when she knew or ought to have known that the cause of the trouble was the dental infection which she was concealing.
  • On any view, this was deplorable and dangerous behaviour. M was and is a highly vulnerable young man, totally incapable of communicating his needs. E was his deputy and carer. He was dependent on her. She failed to protect him and acted in a way that was plainly contrary to his interests.

 

Other examples

 

  • The history shows other examples where E gave descriptions of M’s health, notably to KH, but also to others, for which there was no independent supporting evidence. These include that M had lost sensation in his hands and feet; that he was suffering from an adverse effect to electromagnetic energies; that he had been diagnosed with what appeared to be brain seizures; that his urinary system had shut down; that he was finding it difficult to walk very far; that M’s immune and nervous system were down; that he had tumours in his gum sockets; that he had been diagnosed with chronic blood poisoning; that he had a black shadow sitting on his left sinuses that he had black gunge oozing from every orifice. Other diagnoses put forward by E and dismissed by Dr Carpenter were: rheumatoid arthritis; heavy metal poisoning (based again on an isolated test result when such a diagnosis turns on repeated elevated levels); and a defective blood brain barrier. I share Dr Carpenter’s astonishment at reading E’s account of how M had attended a cranial osteopathy appointment which:

 

” … had focused on the contorted membranes between the two frontal lobes, apparently where the optical and auditory brain stems sit. The twist in the central membrane was significant for most of the treatment to be spent on it and it would appear to have come from M’s head overheating, obviously trying to release body heat.”

 

  • Many of these were repeated, along with others, in the document entitled, “Overview of M’s health” which E attached to the application at the start of these proceedings seeking the summary dismissal of the local authority’s application. I find that these were all false, or at least grossly exaggerated accounts of M’s symptoms. During the period June 2012 to September 2013, when this crescendo of false and exaggerated reporting took place, M was subjected to a large number of different tests, examinations and assessments, a number of which were invasive and all of which took up his time which would have been better occupied elsewhere.
  • It is unnecessary to go into these or other examples in any greater detail. The local authority’s case on this aspect is plainly proved. I find that E has stated that M is suffering from numerous conditions, the overwhelming majority of which are not true, and has subjected M to unnecessary tests and interventions, and/or lied about his illnesses or tests.
  • Relying on the professional view of Dr Beck, supported by Dr Adshead, it is asserted by the local authority that this amounts to factitious disorder imposed on others. I shall return to this assertion at the end of the judgment. Before doing so, it is appropriate to consider the other findings sought by the local authority.

 

 

In relation to the alternative therapy treatments given to M, at the behest of his parents, the Judge was sympathetic that for carers of a person with autism, the fact that there is no cure makes them willing to seek help from anywhere they can and that there are plenty of people willing to provide such help for a fee. The Judge was at pains to point out that this was not a hearing to rule on the efficacy or otherwise of  any individual form of treatment or therapy. What was of relevance here was the sheer volume of them and the intrusive impact on M’s day to day life

 

 

  • By and large, it is the sheer range and number of the treatments and their indiscriminate use on an incapacitated person that gives rise to concern, rather than the risk of any harm befalling the individual. I accept Dr Carpenter’s evidence that there is no evidence that cranial osteopathy, rheumatology, colloidal silver or homeopathy generally are clinically beneficial. In the case of some treatments, they may have been harmful. I accept, for example, Dr Carpenter’s evidence that there may be concern about the use of auditory integration therapy. He quoted NICE as finding no good evidence that such therapy works. Research Autism quoted research evidence to say that such therapy was not helpful in improving perceptions of autism, although it may be of limited use in the help with sensory problems. Dr Carpenter was concerned, however, that people with hearing loss or infection or damage to the inner ear should not be treated in this way. Dr Carpenter observed that, for M, who has recurrent ear problems, such therapy was potentially dangerous. Equally, he was concerned about the use of oxygen therapy. In his report, his concern was about the use of hyperbaric oxygen therapy, which is associated with risks to ear and teeth, and would have been potentially risky to M. Throughout the hearing, E stated that the oxygen therapy had not been hyperbaric, although I note in her final statement E said at paragraph 245 that M “uses a hyperbaric oxygen chamber for health reasons.” The main concerns about oxygen therapy in M’s case were, first, the sheer degree of interference with the life of an incapacitated adult required to have oxygen administered to him for up to six hours a day and, second, the question of the theoretical process for the therapy provided by Dr Julu – neurodevelopmental dystautonomia – which is not mentioned in any international classification known to Dr Carpenter.
  • I accept Dr Carpenter’s opinion that there is no evidence that any of these treatments were individually beneficial for M and that collectively they were intrusive and contrary to his best interests. M’s life was increasingly dominated by the programme of treatment to the exclusion of other activities. I find that E has implemented a programme of diet, supplements and treatments and therapies indiscriminately, with no analysis as to whether they are for M’s benefit, and on a scale that has been oppressive and contrary to his interests. She has exercised total control of this aspect of M’s life.
  • I stress, again, that I am not making any definitive findings on the efficacy of alternative treatments generally. That is not the subject of these proceedings, which are about M. I do, however, find that: (1) there is no reliable evidence that the alternative treatments given to M have had any positive impact on people with autism generally or M in particular and (2) the approach to prescribing alternative treatments to and assessing the impact of such treatments on people with autism in general and M in particular has lacked the rigor and responsibility usually associated with conventional medicine.
  • This demonstrates the fallacy of E’s belief that there are two parallel approaches to the diagnosis and treatment of autism – “mainstream medical” and “mainstream autism” – each of which is equally valid. The evidence in this hearing has demonstrated clearly that there is one approach – the clinical approach advocated by Dr Carpenter – that is methodical, rigorous and valid, and other approaches advocated by a number of other practitioners, for which there is no evidence of any positive impact and which (in this case at least) have been followed with insufficient rigor. Whilst each treatment may be harmless, they may, if imposed collectively and indiscriminately, be unduly restrictive and contrary to the patient’s interests. These disadvantages are compounded when, as in several instances in this case, insufficient consideration is given by the practitioners to the question of whether a mentally-incapacitated patient has consented to or wishes to have the treatment.

 

Factitious illness

 

 

  • f it was established that E has exaggerated M’s condition and/or made false claims about illnesses that he does not have and/or given him medication that was unnecessary and/or obstructed a normal relationship with health care professionals, Dr Beck and Dr Adshead both concluded that it would then follow that factitious disorder imposed on other people has taken place. Both Dr. Beck and Dr. Adshead observed that the degree of contradiction between E’s claims and the medical records record indicates a pattern of abnormal illness behaviour which seems to have escalated in the last few years. The nature of the diagnoses put forward are couched in increasingly dramatic narrative terms but are not supported with corroborative medical evidence.
  • Dr Beck believes that the underlying driver for the mother’s factitious disorder is that she is suffering from narcissistic personality disorder. Dr Adshead agrees with Dr Beck that there are significant features of personality disorder in E’s presentation, mainly narcissistic and histrionic features, and, in addition, Dr Adshead suspects that she may have some feature of an emotionally unstable personality disorder. As a psychiatrist, Dr Adshead reported that she had seen no evidence that E suffers from a severe mental illness. Dr Beck and Dr Adshead both thought that M’s health care and his identity as an illness sufferer is a key part of his mother’s relationship with him and that M’s health status clearly dominates that relationship. Dr Beck expressed the view that the mother’s desire to find other people to blame appeared to serve functions for her. First, it distracts from her own shame (self-imposed) and, secondly, it draws attention to her and her own needs. Dr Beck concluded her first report by observing that, whilst she did not doubt that E loves her son, she does not believe that she is capable of putting his needs above her own.
  • Dr Adshead advised that, if the facts are proven that support the accounts of factitious disorder imposed on another, together with a diagnosis of personality disorder, this provokes questions of further future risk and how the relationship between carer and a dependent other should be managed in the future. In her experience, the risk of harm to the dependent other is real, especially if the carer has no insight, although the nature of the harm may not necessarily be severe or dangerous. Having seen there is a real risk, it should be fairly clear that the risk can be managed if E is prevented from being the person responsible for M’s care. Once a carer is removed from the role of a carer, there is usually no danger in the carer and the dependent other spending time together. Dr Adshead advises, however, that in such circumstances there must be a proper health care plan put in place, overseen by a senior health care professional. It is Dr Beck’s recommendation that all of M’s health needs hereafter should be overseen by the local authority. Dr Beck agreed that there would be the real risk of an emotional mental and physical nature were M to return to live with E. She also believed that M’s access to opportunities to make choices and grow as an individual would be curtailed
  • .
  • I accept the opinion evidence given by Dr Beck and Dr Adshead. I find that E’s behaviour amounts to factitious disorder imposed on others. It was suggested by E in the course of the hearing, relying on material available on the internet, that the diagnosis was made without justification, as a means of attacking mothers of children with autism with a view to removing them from their care. I have no reason to believe that there is any basis for this assertion, but it certainly does not apply in this case. I am sure that the diagnosis of factitious disorder in this case is valid.

 

 

CONCLUSIONS

 

  • This court acknowledges the enormous demands placed on anyone who has to care for a disabled child. Even though such carers are motivated by love – and I accept that both E and A love M and are deeply devoted to him – the burdens and strains on them are very great. Every reasonable allowance must be made for the fact that they love their vulnerable son and want the absolute best for him. Every reasonable allowance must be made for the impact of these burdens and strains when assessing allegations about the parents’ behaviour. However, having made every reasonable allowance for those factors, I find the behaviour exhibited on many occasions, by E in particular, was wholly unreasonable. I agree with the insightful observation of the independent investigator appointed to consider the parents’ complaints in 2010 quoted above. E and A do feel that their mission has meant having to fight every inch of the way, against health and legal services and, more recently, social care services. This has influenced the extent to which they are able to work in partnership with statutory agencies. As they have such clear ideas about all aspects of M’s life and believe the conclusions they have reached about him are correct, it is understandable that they have had difficulty in accepting the views of others where they differ from their own. However, their attitude and approach has far exceeded anything that could be considered as reasonable.
  • E’s friends admire her determination to stop at nothing to get M the care, support and long-term achievement he deserves. Unfortunately, I find that this determination has led her to behave in a devious and destructive way, relentlessly criticising, occasionally bullying, repeatedly complaining about those who do not follow her bidding. Throughout this hearing she has repeatedly accused the local authority of pursuing its own agenda. I find that it is she who has an unshakeable agenda to follow her own course in pursuit of her own beliefs about M’s condition and how it should be treated.
  • E’s allegations of multiple conspiracies are a fantasy. It is nonsense to suggest that there has been a conspiracy by large numbers of the medical profession to conceal the truth about the MMR vaccine. It is ridiculous to suggest that the local authority has pursued a vendetta against E and set out to remove M from his family for financial reasons and that the staff at the various residential homes have fallen into line and in some cases perjured themselves under financial pressure from the local authority. It is delusional to suggest that the Official Solicitor has been motivated in this case by an agenda designed to prevent a revival of the claims arising out of the MMR and to that end suborned experts. The tone of these outlandish claims by E has become increasingly more strident as the case progressed, culminating in the documents filed after the conclusion of the hearing in which she expresses outrage at the conduct of the local authority and the Official Solicitor at the hearing on 6th March, in terms that are barely coherent. In their final submissions, E and A have made a number of further attacks on the integrity of the Official Solicitor, all of which I reject. It is unnecessary to go into any further detail. They are wholly misconceived.
  • The critical facts established in this case can be summarised as follows. M has autistic spectrum disorder. There is no evidence that his autism was caused by the MMR vaccination. His parents’ account of an adverse reaction to that vaccination is fabricated. The mother has also given many other false accounts about M’s health. He has never had meningitis, autistic enterocolitis, leaky gut syndrome, sensitivity to gluten or casein, disorder of the blood brain barrier, heavy metal poisoning, autonomic dysautonomia (which, in any event, is not recognised in any classification of medical conditions), rheumatoid arthritis or Lyme disease. As a result of E maintaining that he had these and other conditions, she has subjected M to numerous unnecessary tests and interventions. He did have a dental abscess for which E failed to obtain proper treatment and caused him 14 months of unnecessary pain and suffering. E has also insisted that M be subjected to a wholly unnecessary diet and regime of supplements. Through her abuse of her responsibility entrusted to her as M’s deputy, she has controlled all aspects of his life, restricted access to him by a number of professionals and proved herself incapable of working with the local authority social workers and many members of the care staff at the various residential homes where M has lived. This behaviour amounts to factitious disorder imposed on another. In addition, E has a combination of personality disorders – a narcissistic personality disorder, histrionic personality disorder and elements of an emotional unstable personality disorder.
  • Despite her serious conclusions about E’s personality, it is Dr Beck’s view that these parents have a lot to contribute to their son if they are capable of offering the care and support he needs under the guidance of an overarching programme of care coordinated by the local authority. I agree that they would have an enormous amount to offer their son if they could work in collaboration with the local authority social workers and other professionals in M’s best interests. I have not given up hope that this may be achieved. Such an outcome would be manifestly to M’s advantage. It will not be achieved, however, unless E and A – in particular, E – can demonstrate a fundamental change of attitude. If this does not happen, this court will have to take permanent steps to restrict their involvement in his life.

 

 

 

* If you are thinking that the word ‘quack’ appeared in any of my previous draft wordings for those three options you would be deeply wrong and misguided. Shame on you, you dreadful cynic.

 

 

 

 

 

 

 

Korsakoff’s syndrome, alcoholism and capacity

The Court of Protection in X v A Local Authority 2014  were considering the case of a man who had Korsakoff’s syndrome, this is a disease of the brain almost exclusively seen in very serious alcoholics and it is where the drinking itself has damaged the structure of the brain, one of the manifestations being the difficulty in forming new memories.  This particular man, X, had been a lawyer prior to his problems, and had been a bright, intelligent and articulate man  (despite this, he chose to become a lawyer…)

http://www.bailii.org/ew/cases/EWCOP/2014/B25.html

 

In this particular case, the issue was whether the Court of Protection should decide that X lacked capacity to make decisions for himself, including about where he was to live, and to go on to make decisions for him in his best interests. One of the concerns was that if X were allowed to make his own decisions, he would fall back into alcoholism and cause himself further damage.

 

There was a dispute between professionals as to whether X lacked capacity

 

I move to section 3, the so-called functional test which, in my judgment, is the key point in this case. Section 3(1) says this: “For the purpose of section 2 a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate that decision, whether by talking, using sign language or any other means.” So the test is decision specific and time specific. So if I am to authorise X’s further detention, in other words in effect his deprivation of liberty, then he must currently lack capacity to make a decision as to residence, et cetera.
 

Now the issue is not entirely straight forward with this case. Sadly, his current treating psychiatric consultant, Dr. Al-Kaissy, is absent abroad and so I was unable to hear from her. I have seen, however, an undated mental capacity assessment by her and taken on board what she says in that she is quite sure that he lacks the appropriate executive functioning capacity. It is her view in that report, and also that of the social worker, who has known him for the duration of his illness, Ms Kingdom, that he continues to lack capacity; or rather I do not have an updated report from Dr. Al-Kaissy but the social worker remains of the view that he continues to lack that capacity. By contrast, Dr. Loosemore does not accept that he now lacks the appropriate capacity, a view supported by Lucy Bright, the social worker who, together with Dr. Loosemore, assessed him for deprivation of liberty purposes. I did not hear from Miss Bright but nonetheless I have read what she has to say and I notice that she said that he continues to have a poor short term memory and that he needs prompting in connection with washing and dressing. But she made a number of observations which I shall read. At D108 in the bundle she said this: “Both Dr. Loosemore and I had a lengthy interview with X and as a result of this interview Dr. Loosemore concluded that X has capacity to consent to his care and treatment at the V Care Home. I agree with this finding and, whilst I am aware that [X’s] capacity may fluctuate, it would be difficult to conclude that he lacks capacity from the information he gave and understanding that he displayed during the interview.” She continued to say this: “Given the conclusion reached by Dr. Loosemore that [X] has capacity to consent to his accommodation, care and treatment at the V Care Centre, he is not eligible for the Deprivation of Liberty safeguards and so this process now stops. I am aware others may challenge this finding and, given the variable way in which [X] can present, it may be worth a second opinion being sought, but the Mental Capacity Act is clear that someone’s capacity should be assessed when they are at their best”, and she goes on: “I would suggest that a way forward would be the care providers to draw up a voluntary contract with [X] about his length of stay at the unit including any support that they assess he needs accessing the community and how it can be provided with [X]’s consent. Efforts also need to be made swiftly to identify [X]’s long term accommodation needs and a suitable care package when he moves on from the rehabilitation unit.”
 

Dr. Loosemore reported in the same way and in his conclusion at D86 he says this: “I thought that Mr. [X] had capacity to decide on receiving care and treatment at the V Care Home. Although he did not like the experience of residing in the care home he is willing to stay for a period of assessment. If he were to be formally deprived of his liberty I think he would become distressed and aggrieved.” His conclusion was very plain that X does not lack capacity with regard to residence, et cetera.
 

In the course of oral evidence on Wednesday Dr. Loosemore firmly held to the view that X does not meet the statutory test, the functional test, under section 3 of the Act. He had seen X, he thought, for an hour, though Miss Bright wrote it was in fact 90 minutes. He by coincidence knew him when he was sectioned under section 2 of the Mental Health Act in December 2013 and certainly then he was very unwell. He conceded that X’s capacity could fluctuate, but he observed, as does Miss Bright, that he needs to look at him at his best and he remained of the view throughout cross-examination that X does not lack capacity to make decisions as to residence, et cetera. He did not accept that, because there was a risk that X would resume drinking, that implied a lack of capacity. He had not spoken to the treating psychiatrist, Dr. Al-Kaissy, nor to the key social worker, in the course of forming his independent opinion, nor had he explicitly in the course of the document he completed referred to the factors set out in section 3 of the 2005 Act, but he nonetheless was of the view that X had appropriate understanding and that he can retain information as necessary, and he had completed his analysis on that basis with that conclusion. Although the completed document he had to fill in for the assessment purposes does not permit detailed analysis, nonetheless he was of the view that section 3 does not apply in this case. He conceded of course he did not refer to the section in his report but pointed out that the form F6 does not provide for the section 3 criteria to be referred to. He was satisfied that X can give an account of where he is residing, what his role there and what the benefits of residing there are. X knew he was not about to leave but averred that he did not get on well with the other residents. He was sure that X’s mental state was improving and that he did not require detention at the V Care Home. He agreed that X had seemed reluctant to give up all drinking and enjoys a social drink, as he indicated also in evidence to me; but he also had said that he would abstain entirely if he had to. He conceded that it is always difficult to gauge with those who drink to excess as to the veracity of their promises. People who have a drinking problem make specious promises, he noted. He had not seen the current brief assessment of Dr. Al-Kaissy to which I have referred but he remained of the view that X now has capacity. He accepted of course Dr. Al-Kaissy has seen X regularly but it was his view that he was dealing now with a man very changed from the poor state in which he was presenting on 19th December of last year. Moreover, X had told him he was willing to stay voluntarily for a while and his view is that X is no longer disorientated, confused as to the date, et cetera, and, although he is a little repetitive, he is no longer rambling in his presentation. He described X as not fitting in with the rest of the ward but described him as rational and reasonable, logical in his thought processes. He had now the capacity to reflect on how he was and he agreed with the typed assessment of Miss Bright when considering the standard authorisation. He was shown the report of a neuropsychologist for 7th May but this did not alter his conclusions. I have to say that I found Dr. Loosemore to be a very persuasive witness. His view that X now has capacity was compelling.
 

Ms Andrea Kingdom is a very experienced and very concerned social worker. I have read her statement of 21st May which of course has been overtaken by events. Contrary to Dr. Loosemore’s opinion she thought X continues to lack capacity. There is no doubt of course that she knows him well and is very concerned about him, and I entirely accept that in law I am quite able to reject Dr. Loosemore’s opinion and find that X lacks capacity for the purposes of section 48 so I can make an interim order. She still feels that X has difficulty in retaining information and she was concerned, because he is a highly intelligent man, that he is able to mask his cognitive difficulties. She felt he had unrealistic expectations as to the future, constantly saying he hopes to live again with his first wife and even remarry her and live with her. She was concerned too because he has no real idea as to where he is going to live upon discharge. She is concerned because when he had had leave in the past he has sought to drink on one occasion and then been found standing dangerously near a busy trunk road. On an occasion, when he went out to A House, he sought to obtain alcohol and kept asking for it. She felt Dr. Loosemore had seen X but briefly and that it is after about two hours with him that his present difficulties continue to manifest themselves. She did not accept that X’s insight into his condition has appropriately increased and knew that he would not give up drinking. She was quite worried about him damaging himself. I listened very carefully to Ms Kingdom. I thought her evidence was very kindly and well intentioned. I make no criticisms of her professionally. I accept that there are many matters to be concerned about with regard to X but it is my view that he has shown rather more insight than she attributes to him. Of course she is used to patients who revert to mental illness and difficulties, but I do not accept that she has established the section 3 criteria to my reasonable satisfaction.
 

X gave evidence unsworn at the suggestion of all the advocates in the case. In the course of his brief evidence to me he indicated, first, a wish to live with and, if possible, remarry his first wife. He told me she has been in regular contact with him since he has been hospitalised and, to his surprise and gratification, he thinks their relationship is in the course of being re-kindled, though he does not wish to rush things. He showed a tendency to repeat himself. He told me the information about his ex-first wife four times during the course of his evidence. He told me that he had decided he wishes to stay in the V Care Home until he can obtain either a home with his first wife or rented property and he would need a garden, he said. I felt this was a somewhat incomplete plan but, in fairness to him, he then went on to say that he would make contact with agents to try and find a place to live. He told me he is separated from P, his second wife, and told me that his excessive drinking and then hospitalisation and sectioning had been a “bitter experience”. He was unable to explain why he was found standing by the main road, why he bought alcohol on leave and why he had sought alcohol when he visited A House. Now, I entirely accept that his plans for a reconciliation with his first wife and finding a home with her are vague and perhaps overly optimistic; but for all of that there was a degree of realism in what he said for he said he could not leave the home yet and would stay there till he found a place to go. His concept of his needs was plainly a little vague and I had to put to him that he would need visits from a C.P.N. and social workers to assist him to plan for his life. But I was left with the impression that this is not a man who is masking his illness or his cognitive capacity. His evidence, in my judgment, is more than that of just a man used to presenting a case in court and putting it simply in the best light for its own sake.

 

 

These are difficult issues, and even perhaps philosophically difficult. Does a person who is an alcoholic have capacity to make proper informed decisions about whether or not to drink? Are they balancing up the pros and cons when considering it? Or are they acting under the influence of an addiction or craving more powerful than their will?  Of course, we don’t as a society try to declare that all alcoholics lack capacity to make decisions for themselves, but in that narrow issue – “Can they decide whether to eschew alcohol?”  it is arguable that they don’t have capacity.

But for the purposes of the declaration sought, the capacity issues were much broader, and in those regards, the Court was satisfied that X did have capacity – he might go on to exercise his autonomy badly, he might make poor choices, he might put himself in harms way, but if he has that autonomy, he has the right to make the decisions for himself and live with the consequences.

 

I have carefully and, I hope, sympathetically borne in mind the findings and concerns of Ms. Kingdom. He may drink to excess again, but that, in my view, is an unwise decision rather than a sign of continuing incapacity. I accept, as I have said, his short term memory problems are still there but, if one applies the Re: F decision and the S.M.B.C. v. W.M.P. decisions to which I have referred then I cannot find sufficient evidence to justify a reasonable belief that he lacks capacity in the relevant regard.

 

X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end.

 

The placement of an adult away from their family

This Court of Protection decision LBX v TT and Others 2014  touches on some important issues. It is a case involving a 19 year old girl, and the decision of the Court that she lacked capacity to make decisions for herself and that it would be in her best interests to continue to live in foster care.

 

 

 

http://www.bailii.org/ew/cases/EWCOP/2014/24.html

 

The background to this is that there were allegations of serious sexual misconduct by her step-father, who awaits criminal trial. The case had been set down for what would have been quite a long and tricky hearing, particularly in the Court of Protection, to determine the truth of those allegations.  Since, if they were not true, the best interests decision would be very different, or potentially very different.

That starts to look like care proceedings, but on a vulnerable adult rather than on a child.

An additional complexity is that whilst mother and probably stepfather would have been entitled to free legal advice to fight the case in care proceedings, that’s not the case in the Court of Protection.

 

The Judge, Cobb J, said this  (MJ is mum, JJ stepfather)

At the outset of the hearing on 7 July, MJ and JJ made an application to adjourn the proceedings to obtain legal advice. They told me that they had been advised that they did not qualify for legal aid (on grounds of means) and did not have funds to instruct a solicitor privately. They had tried, without success, to obtain a litigation loan from the bank. I had been advised at the pre-trial hearing that the Bar Pro Bono Unit could not offer counsel for this hearing.
 

I recognise the considerable disadvantage to someone in the position of MJ and JJ appearing unrepresented in proceedings of this kind; their article 6 ECHR rights are imperilled. However, as there seemed no realistic prospect of MJ or JJ obtaining representation in these proceedings, and given the need to reach conclusions at this hearing, I refused the application to adjourn.
 

I was advised that JJ had solicitors acting for him in the criminal proceedings. I caused a message to be communicated to those solicitors over the short adjournment expressing my hope that they would be able to offer JJ some advice. I was very pleased to see Mr Levy at 2pm appearing on a pro bono basis.
 

On the third day of this hearing, MJ attended court with a McKenzie Friend. I considered it appropriate to allow this gentleman to assist MJ, and in doing so, applied the Guidance offered by the McKenzie Friends Practice Guidance Civil and Family Courts (12 July 2010): this Guidance is said to apply to civil and family proceedings in the Court of Appeal (Civil Division), the High Court of Justice, the County Courts and the Family Proceedings Court in the Magistrates’ Courts. I have assumed, and unless advised to the contrary will continue to conduct hearings in my court on this basis, that it applies to proceedings in the Court of Protection.

 

A further problem was the unwillingness of the police to provide any of the source material, which would have been vital to the conduct of any finding of fact hearing. In the event, the finding of fact hearing did not take place, due to MJ’s position at the hearing on 9th June 2014:-

I arranged a hearing on 9 June 2014 to consider the viability of the fact-finding hearing. At that hearing the case took an unexpected turn; MJ and JJ (who were helpfully represented by counsel instructed by the Bar Council Pro Bono Unit) indicated that they intended to remain together as a couple, irrespective of the allegations &/or the outcome of any trial of the allegations, and did not propose to offer TT a home, now or in the long-term. Specifically, they conceded that:
 

 

i) MJ could not envisage a situation in which she would separate from JJ “even if findings were made against him”. 

ii) TT should not return to live with MJ and JJ; she should remain living with KK (MJ: “we cannot offer her a home”).

iii) That the decision that TT should remain with KK is a “long-term decision” on the part of MJ;

iv) JJ was “is not willing to, and will not, have any contact with TT in the future. Contact is defined as direct and indirect contact and facebook/social media messaging”. He further agreed not to attempt to have any contact.

 

 

Within the case, the Official Solicitor (representing the 19 year old, TT) argued that the Court should still conduct the forensic exercise about the allegations and what happened to this young woman, and went further in suggesting that the Court had a duty to do so.

The Official Solicitor, on behalf of TT, contended that I am under a duty, or, if not under a duty should nonetheless exercise my discretion, to hear oral evidence in order that I can determine a solid factual basis for establishing TT’s best interests orders, even on an interim basis. Mr. McKendrick referred me to Re W [2008] EWHC 1188 (Fam) where McFarlane J held at paragraph 72:
 

“It is important that the planning in the future for these children, particularly C, is based upon as correct a view of what happened to R as possible. It is not in the children’s interests, or in the interests of justice, or in the interests of the two adults, for the finding to be based on an erroneous basis. It is also in the interests of all of the children that are before this court for the mother’s role to be fully understood and investigated.”
He contended that the principles outlined above could be appropriately transported from the Family Division to the Court of Protection. I interpolate here to say, as will be apparent later, that I agree.

The Official Solicitor’s argument was developed further thus:
 

 

i) Section 48 provides jurisdiction to make interim ‘best interests’ orders where it is necessary to make those orders “without delay”; this phrase in section 48(c) imports into the section a degree of expectation that this provision should be used very much as an interim measure; 

ii) While the evidential bar is lower on determination of capacity in section 48(a), there is no qualification to the court’s approach on ‘best interests'; therefore unless the case is urgent, there ought to be a reasonable and proportionate enquiry into best interests;

iii) That I should endeavour to resolve the facts so far as I can at this stage; many of the issues will need to be grappled with at some point in time and it is better to do so while the events are fresher in people’s minds; this hearing was set up for that purpose, and the witnesses are available;

iv) MJ has expressed a wish for unsupervised contact in the future: see §9 above. Indeed, the Official Solicitor observes that the Applicant itself accepts that “it is … foreseeable that [MJ] will seek unsupervised contact in the future, after the conclusion of the criminal trial”;

v) That ‘best interests’ decisions should be made on the most secure evidential footing; this is particularly so where

a) interim orders are expected to last for a considerable period (the criminal trial may not be for many months);
b) interim orders are inconsistent with TT’s expressed wishes (see §95-98 below);
vi) Prolonged interference with TT’s Article 8 ECHR rights for unrestricted contact without a clear determination of facts is not proportionate;

vii) That particular caution is required before the Court proceeds to make determinations largely on the basis of concessions offered by an unrepresented party (MJ), particularly where that party is plainly distressed by the issues.

 

 

As a family lawyer, it interests me that lawyers in the Court of Protection are placing reliance on McFarlane J ‘s (as he then was) decision in the family Court in Re W, which is a decision I wholeheartedly agree with, when the Court of Appeal in dealing with family cases are taking quite the reverse view about finding of fact hearings in family cases.  My support for the latter stance is somewhat less than wholehearted.

 

Cobb J goes on to borrow some principles from family law cases to provide guidance for if and when to embark on a finding of fact exercise in the Court of Protection, and these would now be rules or guidelines to follow in such cases

By analogy with the position in family law, the judge would in my judgment be well-served to consider the guidance of Butler-Sloss LJ in the family appeal of Re B (Minors)(Contact) [1994] 2 FLR 1 in which she said as follows:
 

“There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.”
It is acknowledged that the ‘spectrum’ may now be narrower than that described in 1994 following the revisions to rule 22.7 of the Family Procedure Rules 2010, but the principle nonetheless remains, in my judgment, good.

Butler–Sloss LJ went on to define the questions which may have a bearing on how the court should proceed with such an application (adapted for relevance to the Court of Protection):
 

 

i) whether there is sufficient evidence upon which to make the relevant decision; 

ii) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;

iii) whether the opportunity to cross-examine the witnesses for the professional care or other agency, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;

iv) the welfare of P and the effect of further litigation – whether the delay in itself will be so detrimental to P’s well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to reach a decision in relation to P;

v) the prospects of success of the applicant for a full trial;

vi) does the justice of the case require a full investigation with oral evidence?
In deciding whether to conduct a fact-finding hearing at all, I consider it useful to consider the check-list of considerations discussed by McFarlane J in the case of A County Council v DP, RS, BS (By their Children’s Guardian) [2005] EWHC 1593 (Fam) 2005 2 FLR 1031 at [24]. Following a review of case-law relevant to the issue he stated that:
 

“… amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:
(a) the interests of the child (which are relevant but not paramount)
(b) the time that the investigation will take;
(c) the likely cost to public funds;
(d) the evidential result;
(e) the necessity or otherwise of the investigation;
(f) the relevance of the potential result of the investigation to the
future care plans for the child;
(g) the impact of any fact finding process upon the other parties;
(h) the prospects of a fair trial on the issue;
(i) the justice of the case.”
There is some (but not universal) acknowledgement at the Bar in this case that this list (with modifications as to (a) to refer to the best interests of ‘P’ rather than ‘the child’) provides a useful framework of issues to consider in relation to the necessity of fact finding in the jurisdiction of the Court of Protection.

 

Those principles are familiar to family lawyers (or at least they were, before the Court of Appeal took its newer position) but are probably fresh to Court of Protection lawyers.

 

The Court decided not to embark on a full-blown fact finding hearing, but did take evidence on some limited allegations which were of particular import. As part of that judgment, the Judge also clarified that hearsay evidence is permissable in the Court of Protection.

 

Hearsay: The factual allegations which I have been required to investigate rely very extensively on what TT has reported to third parties. She has not been called to give evidence at this hearing (no party proposed that she should), and I have therefore had to rely on a range of hearsay accounts, and on records, and interpretations, of her behaviours.
 

Hearsay evidence is plainly admissible in proceedings of this kind; as McFarlane J made clear in LB Enfield v SA [2010] 1 FLR 1836. While ruling (at §29-30) that proceedings in the Court of Protection under the MCA 2005 must fall within the wide definition of ‘civil proceedings’ under section 11 of the CEA 1995, they are civil proceedings before a tribunal to which the strict rules of evidence apply. He went on to conclude (§36) that:
 

“COPR 2007, r 95(d) gives the Court of Protection power to admit hearsay evidence which originates from a person who is not competent as a witness and which would otherwise be inadmissible under CEA 1995, s 5. Admissibility is one thing, and the weight to be attached to any particular piece of hearsay evidence will be a matter for specific evaluation in each individual case. Within that evaluation, the fact that the individual from whom the evidence originates is not a competent witness will no doubt be an important factor, just as it is, in a different context, when the family court has to evaluate what has been said by a very young child”
In all the circumstances, I guard against accepting without careful consideration of the evidence as a whole, the hearsay evidence of what TT told LT and WT as proof of the substance of what is alleged against MJ; this is particularly so given the unchallenged evidence of Dr Joyce that TT has a “very limited understanding of the oath”.

 

This is, as always with Cobb J, a very detailed and well-structured judgment, and he eventually reaches these conclusions about the declarations sought

 

Conclusions

Having regard to the matters listed above, I propose to make the following orders/declarations:
 

 

i) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to litigate these issues; 

ii) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to make decisions about her care and residence;

iii) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to make decisions about her contact with others;

iv) For the reasons fully set out above at §28 and §30, I declare that there is reason to believe (section 48 of the MCA 2005) that TT lacks capacity to consent to sexual relations;

v) For the reasons fully set out above at §30 and §105, I declare that there is reason to believe (section 48 of the MCA 2005) that it would be in TT’s best interests for any education about sexual relations to await the outcome of the criminal trial (in which JJ is a defendant);

vi) For the reasons fully set out above at §8(ii), and §100-102, I find that it is in TT’s best interests that she should continue to reside with her foster carer KK (and that I should make this order under section 15 of the MCA 2005);

vii) For the reasons fully set out above at §8(iv), §100 and §104, I find that it is in TT’s best interests to have no contact with JJ (and that I make this order under section 48 of the MCA 2005);

viii) For the reasons fully set out above at §100 and §103, I find that it is in TT’s best interests to have restricted supervised contact with her mother; this order is made under section 48 MCA 2005; I propose that this should be at a frequency of about twice per week, although with a degree of flexibility. For the time being, the contact should be supervised at least until the conclusion of the criminal trial. At the conclusion of the criminal trial, urgent consideration will be required in relation to whether on-going supervision of contact is in SS’s best interests.

 

 

It does raise important questions – not least being that if the Court of Protection is going to develop a jurisprudence of quasi-care proceedings about vulnerable adults then shouldn’t the parents/carers of those vulnerable adults have access to free legal advice and representation to deal with what can potentially be very grave issues and (as here) potentially extremely serious findings against them of sexual misconduct?

Can the Court of Protection authorise detention of an adult in a Children’s Home?

There is something of a rule of thumb that if a newspaper headline poses a question, the answer on reading the full article is invariably “No”   (as in  “Can a glass of red wine cure cancer?”  “Were Al-Qaida involved in Diana plot?”

 

Some good examples here

 

http://www.independent.co.uk/news/media/press/the-top-ten-questions-to-which-the-answer-is-no-8788687.html

 

This one though, is a question to which the answer (somewhat inexplicably to the naked eye) is  Yes

 

Liverpool City Council v SG 2014

http://www.bailii.org/ew/cases/EWCOP/2014/10.html

 

In good, dramatic novelist style, Holman J gets stuck into it from the very off, and lets us know in paragraph 2 that this is not some mere dull Court of Protection case, but that something peculiar is about to happen, read on !

 

  • This case raises the following question:

 

 

Does the Court of Protection have power to make an order which authorises that a person who is not a child (ie who has attained the age of 18) may be deprived of his liberty in premises which are a children’s home as defined in section 1(2) of the Care Standards Act 2000 and are subject to the Children’s Homes Regulations 2001 (as amended)?

Both parties and their counsel in these proceedings submit that the answer is “yes”. I agree with them that the answer is “yes”.

 

We go on

 

 

  • I wish to stress at once the scope of that question which I have precisely drafted. This judgment and my answer to the question applies only in the case of a person who is not a child, that is, who has attained the age of 18. This judgment says nothing at all in relation to a person who has not attained the age of 18, and in particular to persons between the ages of 16 and 18. Further, this judgment is only concerned with a person in a children’s home, and says nothing at all with regard to a person who may be detained in a residential school.

 

 

 

  • I also wish to emphasise that both parties and their counsel who are before me in this case are agreed upon the answer to that question and the reasons for the answer. In other words, I have not heard any argument or submissions to the contrary. If, in some other case, on a future date, some party wishes to argue to the contrary, then of course that limitation or reservation upon the value of this ex tempore judgment as a precedent may be noted.

 

I have more of the average human allowance of curiosity to be sure, but my curiosity is piqued by this. It is sounding like some sort of trick question. Let’s go over it piece by piece.

 

The Court of Protection – dealing with a person who has reached the age of 18. Not a child.  They are in a children’s home though.  (we don’t yet know why). The Court of Protection is being asked to authorise their detention (we don’t yet know why). And being asked to authorise their detention in a children’s home (we don’t yet know why)

 

All of my instincts are screaming out at me that the answer to this must be no. Adults don’t get locked up in children’s homes. It just doesn’t happen. If the person is an adult, then the detention is either through the criminal justice system, the mental health act or an authorisation of deprivation of liberty under the Mental Capacity Act  – this one is the last of those, which is why it is in the Court of Protection. But the Court of Protection only deals with adults, so why has a children’s home been dragged into this?

 

I stopped reading the judgment at this point to see if I could guess why. Here’s my crack at WHY – this is a person who has huge problems, lacks capacity, and has been in a particular children’s home for many years, maybe six or seven years. They have only just turned 18 – their liberty has to be deprived, but they are doing so well in the particular children’s home that nobody wants to move them. So, in order to let them stay where they are, the Court has been asked to authorise detention of an adult in a children’s home.  Maybe I am wide of the mark, we shall see.  That’s a plausible-ish WHY, but I’m still baffled on the HOW element. How did the Court of Protection decide that this was lawful.

 

Let’s return to the judgment itself

 

  • The reason why the question has been posed appears to derive from two relatively recent developments. The first development is the recent decision of the Supreme Court in the Cheshire West case. The explanation given in that case by Baroness Hale of Richmond as to the scope or breadth of the concept of a deprivation of liberty has led to a concern that a significant number of people are, or may be, being deprived of their liberty who were not previously thought to have been. As is well known, this has led to a very large number of applications to the Court of Protection in order to seek authorisations for the deprivation of liberty.

 

 

 

  • The second development is a document headed “Deprivation of Liberty – Guidance for Providers of Children’s Homes and Residential Special Schools” dated 12th February 2014 and issued jointly by the President of the Court of Protection and the National Director Social Care OFSTED. It appears that as a result of that guidance document there has been, or is, uncertainty on the part of many lawyers and providers in this field as to the scope or extent of any power of the Court of Protection to authorise, when appropriate, the deprivation of liberty of certain categories of person who are accommodated in children’s homes or residential special schools. As the above defined question indicates, that concern has arisen in the present case, but I know that it is much more widespread as a result of the circumstances which I now describe.

 

 

{Absolutely – the Supreme Court’s decision in Cheshire West means that a range of people who were not thought to be having their liberty deprived actually ARE, and the President has heard a case but is yet to give judgment helping explain what the heck lawyers and Local Authorities and the Courts are going to do with the 10,000 extra cases that are believed to now be deprivation of liberty applications. Some of those cases might arise with young persons who are currently in children’s homes, but haven’t been the subject of Secure Accommodation Orders because they lack capacity to try to abscond

Treasury Solicitors said this ” These issues potentially affect a large number of children and young people who lack capacity but who currently reside in non-secure children’s homes or residential special schools. By way of example only, as at 31st March 2014, there were more than 6,500 over 16 year olds residing in care homes, children’s homes or residential special schools. The Secretary of State has not yet been able to determine the proportion of those 6,500 odd young people who may lack capacity.”    So at the moment, we don’t know how big a problem Cheshire West is for children}

 

Now, the facts of the case in question

 

 

  • It concerns a young woman, SG, who was born in early June 1995. Today she is in fact now 19. She was born in Romania and was apparently rapidly abandoned by her parents and taken to a state orphanage there. The first few years of her life appear to have lacked human affection and natural processes of bonding or attachment. When she was about 4 she was adopted by an English couple, who are, of course, now her parents.

 

 

 

  • As she grew older, it became increasingly plain that she suffers a number of lasting disabilities or disorders. She certainly has learning disability, a disinhibited attachment disorder, and quasi autism. Features of her condition have always been hypersensitivity to external stimuli, and challenging behaviour. More recently there has been a tragic history of self harm. Her childhood has, as a result, been very disrupted. She attended, but was removed from, various schools. She has had to spend long periods in hospitals. More recently she was placed in children’s homes. Challenging behaviour towards staff, absconding, damaging property, episodes of self harm and hitting out at her father have all been recorded.

 

 

 

  • For some time before she actually attained the age of 18 she was accommodated in a certain children’s home in the area and it is in those actual premises that she remains accommodated to this day. However, now that she has attained the age of 18 and is indeed now 19, it is completely recognised by the responsible local authority, in agreement with her parents, that arrangements must be made to enable her to move on to what is described as “supported living” in the community. This will take time to identify and set up, and, I have no doubt, considerable funding issues will need to be addressed. The local authority need to find a provider who will purchase or otherwise make available a suitable property and recruit a sufficient number of staff to care for her and keep her safe. The plan is that some premises will be found in which she can live together with a small number of other young women with similar needs. I have been told in the words of the skeleton argument on behalf of the local authority that:

 

 

“…one provider has already identified a suitable property and indicated a service could be in place for October 2014. It is hoped that securing a property will take no more than six to nine months after appointing the care agency, but it may be much quicker than that.”

As I understand it, it is contemplated that a high level of staffing and supervision will be required under that plan. If (as I assume is likely) it will involve a deprivation of liberty, then, in due course appropriate authorisations will be required.

 

  • Meantime, however, she has continued to live seamlessly in the children’s home where she was living before she attained the age of 18. There, too, she is the subject of very considerable staffing on a 3:1 basis. The staffing includes monitoring her while she is in the bathroom (ensuring her dignity is maintained at all times), locking the front door as a preventative measure, following, observing and monitoring her on visits into the community, and if she “attempts to leave the staff supporting her, they should follow several paces behind her and attempt to maintain conversation.” Items which may be used for self harm will be removed, and she remains supported 3:1 during the day and 2:1 during the night.

 

 

 

  • It is completely accepted by and on behalf of the local authority that that package of existing measures clearly amounts to a deprivation of her liberty as that concept has now been explained, in particular in paragraph 46 of the judgment of Baroness Hale of Richmond in the Cheshire West case, which I do not need to cite for the purposes of this judgment. Having appreciated in the light of the Cheshire West case that they currently do, and propose to continue to, deprive the patient of her liberty, the local authority commenced the present proceedings in the Court of Protection for appropriate authorisations.

 

 

 

 

Okay, I wasn’t that far wrong with my guesses – she is 19, has severe problems and has been in a children’s home doing as well as one could hope – she needs to be moved to another placement, and everyone involved wants her to stay in the children’s home until the RIGHT adult home can be found for her, rather than just moving her into any old adult home and potentially setting her back. That makes sense. But whereas before Cheshire West, professionals could ‘overlook’ that this was an 18 year old living in a children’s home, once the Supreme Court ruled that people like this were being deprived of their liberty, an application to authorise that had to be made.

 

Having done the WHY, we can now deal with the HOW.  But first, why is the HOW potentially difficult?

 

 

  • Section 121(1) of the Care Standards Act 2000, the interpretation section, defines that in that Act “child” means a person under the age of 18. Section 1(2) of that Act provides that: “An establishment is a children’s home… if it provides care and accommodation wholly or mainly for children.” The premises in which the patient in this case currently resides, and was residing before she attained the age of 18, is premises which have provided care and accommodation wholly or mainly for children in that there were at one time several children resident there. It is currently “registered” as a children’s home pursuant to the Care Standards Act 2000 and regulations made under it.

 

 

 

  • I have been told today that as a matter of fact no other person (apart from staff) currently resides in those premises apart from the patient. So, on one view, currently it is not providing care and accommodation even “mainly for children”, as no child resides there at all. However, all parties have proceeded on the basis that, notwithstanding the fact that currently no children reside there, it remains a children’s home for the purposes of the Act and the regulations, and I will proceed on that basis and assumption.

 

 

 

  • Assuming the premises to be a children’s home, the Children’s Homes Regulations 2001 SI [2001] No 3967 are in general terms engaged. Part III of those regulations is entitled “Conduct of Children’s Homes”. Chapter 1 of Part III is entitled “Welfare of Children”. Within Chapter 1, regulations 11 to 24 make a range of provisions with regard to the welfare of children, the food provided to children, communications with children, the protection of children, the behaviour, management and discipline of children, health needs, hazards and safety and other matters.

 

 

 

  • Of most relevance to the perceived problem in the present case is regulation 17A, which is entitled “Restraint”. Paragraph (1) provides as follows:

 

 

“(1) Subject to paragraph (2) a measure of restraint may only be used on a child accommodated in a children’s home for the purpose of-

(a) preventing injury to any person (including the child who is being restrained);

(b) preventing serious damage to the property of any person (including the child who is being restrained); and

(c) in the case of a child accommodated in a children’s home which is a secure children’s home, preventing the child from absconding from the home,

and then only where no alternative method of preventing the event specified in sub-paragraphs (a) to (c) is available.”

 

  • Just pausing there, whilst the regulation is prominent, it will be noted that throughout that part of that regulation the references are entirely to “a child”, that phrase being used five times in that short quotation.

 

 

 

  • The guidance that was issued on 12th February 2014 states at paragraph 3:

 

 

“3. The Court of Protection should be reminded by the parties of the regulations that apply to children’s homes and residential special schools. The Court of Protection does not have the jurisdiction to require any home or school to act in breach of such regulations or to authorise any such breach. Accordingly, the Court of Protection should not make an order authorising a plan for the care and supervision involving the detention of a person, where to do so would involve the children’s home or a residential special school breaching the regulations that apply to it. If compliance with an order of the Court of Protection would involve such a breach of the relevant Regulations it cannot be relied on to justify breach of the Regulations or enforced in a manner that would involve such a breach.”

 

  • Pausing there, that paragraph contains, if I may respectfully say so, no more than a legal truism. Regulations have the force of law, and no court, frankly, in any circumstances that I can readily think of, can authorise a person or body to act in a way that contravenes a regulation, or still less a statute, so as to be in breach of the regulation or statute. On a careful reading of that paragraph of the guidance, it ultimately says no more than that. The question, therefore, in any case is whether what the Court of Protection is otherwise being asked to authorise would amount to a “breach” of some regulation.

 

But one can see that the children’s home is authorised and approved to accommodate children, and in certain very narrow circumstances to restrict the liberty of children. The Act doesn’t give them as a children’s home, any right to restrain an adult or restrict the liberty of an adult.

 

 

  • he guidance continues at paragraph 4 as follows:

 

 

“4. All children’s homes must meet the Children’s Homes Regulations (2001). In this instance, the relevant regulations are:

Regulation 11 (Promotion of Welfare),

Regulation 17 (Behaviour, management and discipline) and

Regulation 17A (Restraint).

As restraint can only be used to prevent a child from leaving a secure children’s home, there is no purpose to be served in seeking an order of the Court of Protection authorising such restraint by a non-secure children’s home because the Court of Protection has no jurisdiction to order or authorise a breach of these regulations.”

 

  • Pausing there, it is possible (I put it no higher than that) that the accuracy of that part of the guidance is more debatable. It may beg the question of whether paragraph 17A(1)(c) of the regulations is a platform or a ceiling. But that is territory into which I simply should not and do not venture in the present case because paragraph 4 of the guidance is directed to “a child” and, as I have stressed, the patient in this case is not a child.

 

 

 

  • Finally, in a section that is avowedly headed “In Summary”, paragraph 13 of the guidance provides:

 

 

“13. Orders of the Court of Protection authorising a deprivation of liberty by non-secure children’s homes or residential special schools should not be sought or made and they should not be advanced or relied on to permit such homes and schools to act in breach of the regulations that apply to them.”

That, of course, is merely a summary, and the content of paragraph 13 is more fully elaborated in paragraphs 3 and 4 from which I have already quoted.

[The reason why this guidance is important is because it makes it plain – that might be too strong a description – it intends to make it plain – that the Court of Protection authorises deprivation of liberty for ADULTS, and the Family Court through s25 Children Act secure accommodation authorises the deprivation of liberty of CHILDREN. The idea is that the Court of Protection should not sidestep s25 Children Act – which has its own protections and safeguards by authorising the detention of children who lack capacity and using the Mental Capacity Act.  So, if SG was 17, the Court of Protection would not be able to tell the children’s home that it was okay to detain her.  And conversely, as she is 19, the Court of Protection can authorise her detention or restriction of her liberty under the MCA. But this person is betwixt. They are an adult in a children’s home. ]

The issue was, does all that guidance mean that the Court of Protection have to butt out (technical term there, but ‘accept that they have no jurisdiction’) for anyone whose liberty is being deprived in a children’s home, as para 13 says?  Or is it nonsense to suggest that para 13 applies to anyone other than CHILDREN?

Holman J takes the latter course, and now finally it all becomes clear (if by clear, you mean – gosh, my head hurts, I feel the need to lay down in a dark room and listen to soothing music)

  • The short and simple point is that the relevant parts of the Children’s Homes Regulations 2001 simply do not apply at all in the case of a person who is no longer a child. It may often happen, as it has happened in this case, that the premises in which a person, now adult, resides or is detained happen also to be a children’s home. But it frankly makes no difference whether the premises themselves are a children’s home or are some dedicated premises that have been provided in the community under the kind of “supported living model” contemplated for this very patient in this very case.

 

  • In my view, the Court of Protection has undoubted power in the present case to make, if appropriate, an order authorising the deprivation of liberty. Further, it is the duty of the person or body, in this case the local authority, who is or are depriving the patient of his liberty, to apply to the court for an authorisation; and, indeed, the duty of the court to make such authorisation as in its discretion and on the fact and in the circumstances of the case it considers appropriate.

 

  • In the present case it is common ground, and there is abundant evidence to support the proposition, that this patient lacks capacity to litigate and to make decisions as to her care and residence, and that it is in her best interests to continue for the time being to reside in the premises which are a children’s home in which she has been residing for some time, and that the deprivation of her liberty which is involved should be authorised.

 

  • So for those reasons I, myself, answer the question posed in paragraph 2 above as “yes”, and there will be an order which records that the court does consider that neither the Children’s Homes Regulations 2001 nor the joint guidance issued by the President of the Court of Protection and OFSTED dated 12th February 2014 prevent the Court of Protection from authorising under the Mental Capacity Act 2005 that a person who is an adult (viz. over the age of 18) may be deprived of his liberty in premises which are a children’s home. There will be appropriate declarations as to the lack of capacity and best interests of the patient and authorising the deprivation of her liberty; and I now transfer this matter back to the Court of Protection sitting in Liverpool where future decision making will be resumed after an appropriate interval by the local district judge there.

 

 

If you thought that the recent case about whether a former head of state had immunity after their death for marrying someone and not paying them any money was (a) complex and (b) a set of circumstances so recherche that they would never arise again if we lived and litigated until the sun ran out of fuel and the stars went out, then this one probably matches it.

 

It does show that the litigation fallout from Cheshire West is the gift that keeps on giving. There was a theory I read once that crossword puzzles were designed by an enemy of Britain, to soak up the brainpower of our most able people so that they would waste time on solving those rather than inventing things to help the War effort. The same may be true of Cheshire West – it may all be a cunning ruse by Baroness Hale to keep all Mental Capacity Act lawyers embroiled in solving what appear to be intractable problems and getting them all to take their eye off something far bigger and more significant.

 

Follow

Get every new post delivered to your Inbox.

Join 2,799 other followers