RSS Feed

Tag Archives: court of protection

It would be difficult to find a more callous and calculating attorney

Yet another financial abuse case. Once again, one where the Deputy or Attorney would have benefited greatly from having one of my coffee mugs with “It’s not your Fucking Money” printed on it.


Re SF 2015


In this case, Sheila who is now 87 had appointed her son Martin to manage her financial affairs through an Enduring Power of Attorney.


Martin had withdrawn from her funds, £117,289.45 for “out of pocket expenses”, whilst not paying his mother’s care home fees which had been mounting up and had reached £29,000 in arrears.

In justifying this, he stated that he had been ‘billing’ at a daily rate of £400 per day, which is what he would charge in his role as a consultant.  This then included billing his own mother for visiting her. Nice.


“In my first witness statement dated 30 March 2015 I stated … that Martin had claimed a total of £49,143.19 since the EPA was registered on 7 August 2009. In Martin’s witness statement he has stated that Hugh James Solicitors sent him a cheque for the amount of £68,146.26. Martin has stated he paid this into his own account in part payment for the costs he had incurred. This amount added to the £49,143.19 amounts to a total of £117,289.45. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses.

Martin states that he charged for the visits he made to Sheila when he would visit to check for signs of physical abuse due to her mistreatment at [her previous residential care home in Llandrindod Wells]. Martin is an attorney under the EPA, which covers property and financial affairs only. Therefore his visits to check for physical abuse, even if they were necessary to safeguard Sheila, were not part of his role as attorney. Therefore, the Public Guardian believes Martin was not entitled to claim expenses for these visits.”



  1. As regards the amount of remuneration he has paid himself, Martin said in his witness statement dated 1 October 2015 that:

    “In my view these are not excessive, considering I have been fighting this battle with Powys LHB since 2004. If I had not spent the large amounts of time on this case, then my mother’s estate would still be illegally paying the full costs of care, and the 2013 compensation would never have been forthcoming. Finally, I have not taken any gifts from the estate (which could have been in the region of £33,000 from 2004 to 2015).

  2. At the hearing Martin said that he had charged his mother a daily rate of £400 for visiting her and for the work he put into the claims against Powys Local Health Board. This was his usual daily charging rate when he was a self-employed independent consultant prior to his retirement.
  3. In response to the Public Guardian’s application generally, Martin said:

    “I see no need to replace myself. I am the sole heir and because of my mother’s dementia and current poor health, there is no need to protect the estate’s financial interests, which are effectively mine.The OPG have now recommended that [a deputy] is appointed from their own panel. I would expect any appointed deputy from the OPG to seek to assist the Police in bringing criminal charges against Powys LHB, and to recover the monies owed from Powys LHB. If this is not part of the remit then appointing will be a waste of time and any costs incurred will be to the detriment of my mother’s estate and my own financial interest in my mother’s estate. However, it is apparent that the OPG do not want to pursue the recovery of monies owed from the Powys LHB. The OPG appears to be acting on behalf of Powys CC and Powys LHB, and as such is effectively colluding in their fraudulent behaviour. Consequently I believe that the OPG is not a fit or proper organisation to protect the interest of my mother’s estate.

    On the face of it, the OPG’s desire for me to repay money from my mother’s estate makes little sense. I am the sole beneficiary of the estate and any restitution I made would come straight back to me on my mother’s death, which considering her present state of health, is likely to be sooner rather than later. “


Once again, we have a Deputy or Attorney mistakenly thinking that becoming a Deputy or Attorney is actually Cate Blanchett for early access to an inheritance that they expect to acquire.  Nor is it, as he claimed, the purpose of the role to safeguard his own inheritance.


All of this led the Judge, Senior Judge Lush to conclude this :-



  1. One would be hard pressed to find a more callous and calculating attorney, who has so flagrantly abused his position of trust.
  2. Martin hasn’t paid his mother a personal allowance since June 2014 because toiletries were free in her previous residential care home and he resents having to pay for them now in the nursing home in which she has been living since February 2013. He even begrudges her having her hair tinted.
  3. The assertion that he hasn’t taken “any gifts from the estate” adds nothing to his credibility. If anything, it highlights his lack of it. He was referring to the £3,000 annual exemption for inheritance tax (‘IHT’) purposes, but Sheila’s estate is well below the threshold at which IHT becomes chargeable and no one is entitled, as of right, to receive a gift of £3,000 each year.
  4. As regards the non-payment of Sheila’s care fees, I agree with the Public Guardian’s stance that “whilst Martin attempts to resolve the dispute (with Powys Local Health Board), it would be in Sheila’s best interests that he continues to pay her care fees.”
  5. There is no evidence to support Martin’s suggestion that “if my mother’s care fees are paid from now onwards, Powys LHB will seek to avoid refunding monies owed.” The letter from Powys Local Health Board to the OPG, dated 12 March 2015, to which I referred in paragraph 21 above, shows that the Health Board has acted in good faith and reimbursed any fees that were overpaid in the past. Martin, on the other hand, has persistently acted in bad faith.
  6. As for his claim for reimbursement of out-of-pocket expenses for acting as his mother’s attorney, paragraph 6 of Part A of the prescribed form of Enduring Power of Attorney, which he and his mother signed on 23 October 2004, stated that:

    “Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). If your attorney(s) are professional people, for example solicitors or accountants, they may be able to charge for their professional services as well. You may wish to provide expressly for remuneration of your attorney(s).”

  7. Sheila did not expressly provide for Martin to be remunerated and if he intended to charge a daily rate of £400 for acting as her attorney, he should have applied to the court for authorisation pursuant to paragraph 16(2)(b)(iii) of Schedule 4 to the Mental Capacity Act 2005. By not doing so, he behaved in a way that contravened his authority and was not in the donor’s best interests.
  8. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses. I would put it more strongly than that. I believe that charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney is repugnant.
  9. Martin suggested that the appointment of a panel deputy would be a waste of time and money because his mother’s estate is effectively already his. I disagree. The panel deputy will, for the first time in eleven years, place Sheila at the centre of the decision-making process, rather than view the preservation and enhancement of Martin’s inheritance as the paramount consideration.
  10. Having regard to all the circumstances, therefore, I am satisfied that Martin is unsuitable to be Sheila’s attorney, and I shall revoke the EPA and direct the Public Guardian to cancel its registration. I shall also direct an officer of the court to invite a panel deputy to apply to be appointed as Sheila’s deputy for property and affairs.



Is he the most callous attorney ever?


Well, in trying to think of a worse one, I can only come up with Harvey Dent from the Batman universe,  the District Attorney who later became a gangster named Two-Face.   [And to be honest, that may be slightly unfair on Harvey  – though possibly not as unfair as Tommy Lee Jones portrayal of him in Batman Forever, in which he was so hammy he needed a bodyguard to protect him from David Cameron between takes ]


Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

Winding your way down on Baker Street

The Court of Protection, in Aidiniantz v Riley 2015 were dealing with a high level of conflict between family members relating to the affairs of an 88 year old woman who lacked capacity to manage her own finances and other matters as to where she should live.


The family had been the creators of the Sherlock Holmes museum in Baker Street, which one imagines does quite well and probably has been doing even better in recent years as both Hollywood, US television and the BBC have each had their very own popular version of the character.


At the hearing, the Judge, Mr Justice Peter Jackson, found that the press were in attendance. It emerged that the press had been sent a press release about the case – that press release was not a neutral one approved by the Court but a partial, tendentious and sensationalised one.


  1. A preliminary point arises about the extent to which the proceedings can be reported. They were heard in private, in accordance with the Rules, at a hearing at which members of the press were in attendance. Two questions now arise: should the press be allowed to report the hearing, and should there be a public judgment naming the parties? Submissions have been made by the parties and by David Barrett and Mario Ledwith, journalists representing the Telegraph Media Group and Associated Newspapers respectively.
  2. It is relevant that on 25 September a media alert was issued by a PR company, notifying members of the media that this hearing would be taking place. The alert is in highly partisan terms, and includes lengthy quotations attributed to Stephen. It was this that brought the journalists to court.
  3. The respondents, having initially denied that they were responsible for the arrival of the press, were then faced with the press alert. They say that it was issued on the instructions of Mr Siddiqi and that the quotes from Stephen are not genuine but were invented by Mr Siddiqi to convey Stephen’s views. They say that they did not know what Mr Siddiqi had done until the hearing was under way.
  4. I have not heard evidence about this aspect of the matter and it is unnecessary to reach a conclusion about it. Mr Siddiqi is described by the respondents as “a long-time friend/associate of the family who has closely followed and advised the family on their affairs.” I am, to say the least, sceptical that he was acting without the knowledge and approval of the respondents, but it makes no difference. Even if Mr Siddiqi did not tell them what he was doing, he knows them well enough to know that he was doing what they wanted. Indeed, Linda made all the points that appear in the media alert when giving evidence.
  5. The relevance of this is that it alerts the court to the risk that the proceedings will be used as a platform to publicise unproven allegations.



The Press were very candid that their interest in the story was not in the arrangements to be made about Grace Aidiniantz, but in the quarrel that was going on between the family – it was the fight that they were interested in.


The Judge had to balance those competing interests – privacy and freedom of the press, our old friends article 8 and article 10 who have been arm-wrestling one another ever since the Human Rights Act was passed.



In the film "Over the Top", the role of Article 10 is played by Mr Stallone

In the film “Over the Top”, the role of Article 10 is played by Mr Stallone


[Hey, if I HAD a google image of Johnny Lee Miller arm-wrestling Benedict Cumberbatch whilst both dressed as Sherlock Holmes, I would have gone with that. I have to work with what I have. Oh, wait…]



This is them just BEFORE the match. Referee out of picture saying "We want a good clean fight"

This is them just BEFORE the match. Referee out of picture saying “We want a good clean fight”


  1. As to the issue of publication of this judgment and the naming of the parties, Mr Tyler QC submits that:

    (1) Real weight should be given to the general rule that the hearing should be in private: Independent News Media Ltd. v A [2009] EWHC 2858.

    (2) There is scant genuine public interest in publication of the current proceedings. The press is avowedly not interested in the issues about Mrs Aidiniantz’s care, but in the family dispute.

    (3) Mrs Aidiniantz’s privacy and dignity should be protected, even though she is incapacitated.

    (4) John has brought these proceedings in good faith, and should not thereby be exposed to vilification by the respondents. His wife and children would also be affected by publicity, as might employees of the family business.

    (5) Litigants generally should not be deterred from approaching the Court of Protection by the fear of consequent publicity.

    (6) Public identification of the parties to this “private family dispute” is unlikely to bring reconciliation closer and is likely to fuel conflict.

  2. The position taken by the journalists is that: (1) This is the latest in a long line of public disagreements between the parties that have been extensively reported in the press, evidenced by news reports from 2013 onwards.

    (2) The disagreement about Mrs Aidiniantz’s health is not in itself of public interest but is the current forum for the ongoing family dispute, which is of public interest, particularly given the family’s business interests.

    (3) Anonymisation of the judgment would make it impossible for the press to report this latest chapter in the very public disagreements between the parties.

    (4) Blanket reporting restrictions are not required to protect Mrs Aidiniantz’s privacy and dignity. There is no intention to report details of her care arrangements or medical condition, beyond saying that she is aged and infirm.

  3. There is in my view good reason for the court to publish its judgment in this case in a form that names the individuals involved:(1) Happily, very few families descend to the level of mutual acrimony that exists in this family. It is in the public interest for the public, if it is interested, to see the consequences. It is in the public interest to know how the court process operates in a recognizable case. It is in the public interest to know what it all costs: in the past year this family has spent £270,000 on this branch of its litigation alone. It is not in the public interest to suppress all that information: on the contrary, knowledge of how one family has behaved may deter another family from behaving likewise.

    (2) In this case, publication of an anonymised judgment would be futile. So much information is already in the public domain that any anonymised judgment would inevitably be linked to the family. The press would be placed in an impossible situation in knowing what it could and could not report.

    (3) It is undesirable that there should be any greater difference of approach than is necessary between two courts dealing with different but related aspects of the same dispute. As recently as 4 June 2015, an extensive public judgment in relation to financial issues was given in the Chancery Division.

    (4) This is not just “a private family dispute”. These parties have repeatedly chosen to air their differences in the courts. There is little likelihood of reconciliation. A public judgment will not make matters any worse for Mrs Aidiniantz than they already are. The parties might even reflect on their future conduct if they know that it may come to public attention.

    (5) Mrs Aidiniantz’s right to privacy and dignity is undoubtedly an important consideration. Even though she herself will not be aware of publicity, her reputation is affected by it being known that she is at the heart of the family discord. However, in the overall circumstances, I do not consider that the publication of this judgment amounts to a significant further intrusion into her privacy. It contains little personal information and makes no criticism of Mrs Aidiniantz: on the contrary, any fair-minded reader would be bound to feel sympathy for an elderly parent in her situation.

  4. The contents of this judgment can therefore be published, but there will be no other reporting of the hearing.



The Judge sets out all of the background, for those who are interested. He then gives his decision, saying that unusually this is a case where in determining what is in Grace’s interests he can give no weight to the views of the family


  1. Discussion
  2. It is not disputed that Mrs Aidiniantz lacks capacity to make decisions about the matters in issue within the meaning of the Mental Capacity Act 2005, and I so find. I also consider that as a result of her circumstances she is a vulnerable person in need of the protection of the court.
    1. It therefore falls to the court to make decisions in Mrs Aidiniantz’s best interests, applying the provisions of s.4 of the Mental Capacity Act 2005. In doing so, it must consider all the relevant circumstances and, in particular, take the following steps:
    • Consider whether it is likely that Mrs Aidiniantz will at some time have capacity in relation to the matter in question.
    • So far as reasonably practicable, permit and encourage her to participate as fully as possible in the decisions affecting her.
    • Consider Mrs Aidiniantz’s past and present wishes and feelings, the beliefs and values that would be likely to influence her if she had capacity, and the other factors that she would be likely to consider if she were able to do so.
  • Take into account the views of anyone engaged in caring for Mrs Aidiniantz or interested in her welfare as to what would be in her best interests.
    1. As to the first three of these matters:
    • While it is possible that if Mrs Aidiniantz’s physical health improves she may recover some degree of decision-making capacity, this is not foreseeable at the present time.
    • Mrs Aidiniantz has participated as fully as possible in the decision-making process by means of the involvement of Mr Gillman-Smith, Ms G and Ms Gieve.
  • Mrs Aidiniantz is someone with strong family values, whose already much-reduced ability to assert herself has long been overborne by the ferocity of the family conflict. She would want to be at home if it were possible. She would want to have normal, easy relations with all her children if it were possible.
  1. The obligation to take into account the views of those caring for Mrs Aidiniantz or interested in her welfare takes me to the heart of the difficulty in this case. I am aware of the views of her four adult children and have set them out above.
  2. Having done that, I have concluded, uniquely, that I should attach no weight at all to their views about their mother’s welfare. These children have, in my view, forfeited the right to have their views taken seriously on the question of what is in their mother’s best interests. They have no insight into her obvious longing for peace. The evidence of John and Linda showed only bitterness and contempt for each other. Neither side sees how important the other is to their mother. None of them reflects on their own behaviour. Instead, every action is dictated by the wish to get the better of the other. I have referred to John’s aggressive efforts to get Stephen and Ruth out of 1 Parkgate Road and his willingness to put his mother in a home he knows nothing about. I have referred to the respondents’ blatant attempts to obstruct John’s contact. As soon as Mrs Aidiniantz’s voice was heard by outsiders, however faintly, they physically removed her; in 2014 it was to Linda’s home, and a year later to the day it was to Florida. That trip was a blatant defiance of the court’s intentions and it is a measure of their lack of insight that the respondents imagine that it would be seen in any other way.
  3. Nor can I attach weight to the views of Ms AH. Normally the views of a professional carer in the midst of a family dispute will be of value, but she has become too emotionally involved and partisan to see where Mrs Aidiniantz’s best interests lie.
  4. I have some sympathy for Mrs Aidiniantz’s sister Ruth, but she is in the same camp as Linda, Stephen and Jennifer and has not been able to moderate their behaviour.Decision
  5. Turning to the issues and taking account of all the circumstances, I conclude that it would not be in Mrs Aidiniantz’s interests to return to 1 Parkgate Road. In the first place, I accept the evidence of Ms G that she needs the care package that is on offer at the nursing home. Two medically qualified staff are needed at all times. Ms AH and those she enlists to help her are unqualified and unsuited to demonstrating the necessary professional standards. Secondly, and more decisively, it is impossible to approve an arrangement that returns Mrs Aidiniantz to her home when her children have turned it into a warzone. If John took over 1 Parkgate Road, things would be no better. Mrs Aidiniantz needs a safe haven from her children’s activities, and that is what she has found in the nursing home. She would not have this respite in a setting that was controlled by either camp.
  6. The family collectively has the means to pay for Mrs Aidiniantz’s care in the nursing home. When promoting their preferred options, both John and Linda said that they would pay for them if necessary but would expect a contribution from the other. Now that the identity of the placement has been resolved, the family should act in accordance with that principle.
  7. As to contact, I will adopt the plan supported by the nursing home and the Official Solicitor for separate daily visiting by both sides of the family. Outings that are acceptable to the home on medical grounds can take place, but I suggest that visits to 1 Parkgate Road are approached with caution.
  8. Each side of the family can bring whoever they want with them during their contact times, provided the home is content with this. There is no more reason to prevent John from bringing his family than to prevent Jennifer from bringing hers. If she is invited by the respondents, Ms AH can visit from time to time, but she will not be resuming her role as a carer. If anyone thinks it is a good idea for Mr Siddiqi to visit, they can share their time with him.
  9. I note that the Official Solicitor proposes that visiting should be restricted to family members and that contact with others can take place on trips outside the home. He expresses concern about the role played by Ms AH and Mr Siddiqi. There is in fact no sign of any harm having come from their few visits to date and, given the way in which the family members themselves behave, I cannot share the view that the exclusion of other partisans would allow Mrs Aidiniantz to feel “free of influence”. The management of the home should be left to manage these issues.
  10. While Mrs Aidiniantz resides at the care home, there is no need for a welfare deputy. The management of the home will protect her day-to-day interests.
  11. Finally, I shall not appoint a property or affairs deputy, nor require the Official Solicitor to carry out further financial inquiries into Mrs Aidiniantz’s affairs. I agree with the Official Solicitor that any financial abuse of the elderly is a serious matter, but that here a third party investigation would be complicated, expensive and unlikely to be of benefit to Mrs Aidiniantz, whose needs are currently being met. I will make the appropriate orders for the reception of her modest pensions. Other disputes about money, property and shares can be pursued by her children elsewhere if that is their choice.Costs
  12. The parties can make submissions on costs, and I will consider them on their merits. I will nonetheless indicate my current thinking in an attempt to foreshorten matters and save further expense.
  13. The parties’ costs are, broadly: John £104,000

    Respondents £110,000

    Official Solicitor £57,000

    The Official Solicitor has been given security from the parties equally for the full amount of his costs. There is no reason why the public should bear any of those and I expect to order that the Official Solicitor’s costs will be met equally by the parties.

  14. As to costs as between the parties, the normal rule is that there should be no order. Each side rightly cautions the court against assuming that because there are so many allegations and counter-allegations it is a case of “six of one and half a dozen of the other”. I make no such assumption but nevertheless reach the conclusion that there is little to choose between these parties in regard to their litigation conduct and their conduct towards their mother. While the respondents’ conduct during these proceedings has been even worse than the applicant’s, it would be unrealistic to separate these matters from the overall history. Any departure from the ‘no order’ principle would probably be in the form of an order that each side should pay the other side’s costs as a mark of the court’s indignation.





"Benedict! HEY Benedict, you bum! What happened to the good clean fight I asked for? That ain't ARM wrestling"

“Benedict! HEY Benedict, you bum! What happened to the good clean fight I asked for? That ain’t ARM wrestling”

An unmusical Mozart – a patient’s right to say no to surgery


The Court of Protection dealt with a challenging case in Wye Valley NHS Trust v B 2015. The case was decided by Mr Justice Peter Jackson, and as ever he brings analysis, kindness and humanity to bear on a very difficult issue in the Court of Protection.


Here a man who clearly lacked capacity to make a fully informed decision, had expressed extreme hostility towards having an operation to amputate his foot. The medical professionals were clear that if he did not have his foot amputated, that the infection in it would spread and eventually kill him.


The Court had to decide whether it was in the man’s best interests to have the operation against his will or whether it was in his interests to respect his autonomy and wishes even though it would have adverse consequences.

A person who has capacity to understand the medical advice and risks and consequences would be able to say no to surgery in any event. What the Judge had to do here was consider what weight to give to the man’s wishes and the context of those wishes being expressed by a person who did not have the capacity to fully weigh up the pros and cons.


  1. Where a patient lacks capacity it is accordingly of great importance to give proper weight to his wishes and feelings and to his beliefs and values. On behalf of the Trust in this case, Mr Sachdeva QC submitted that the views expressed by a person lacking capacity were in principle entitled to less weight than those of a person with capacity. This is in my view true only to the limited extent that the views of a capacitous person are by definition decisive in relation to any treatment that is being offered to him so that the question of best interests does not arise. However, once incapacity is established so that a best interests decision must be made, there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.
  2. This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an “off-switch” for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view.
  3. In this case, the Trust and the Official Solicitor consider that a person with full capacity could quite reasonably decide not to undergo the amputation that is being recommended to Mr B, having understood and given full thought to the risks and benefits involved. However, the effect of their submissions is that because Mr B himself cannot balance up these matters in a rational way, his wishes and feelings are outweighed by the presumption in favour of life. It is, I think, important to ensure that people with a disability are not – by the very fact of their disability – deprived of the range of reasonable outcomes that are available to others. For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront that it would be to others who are more fortunate.
  4. In some cases, of which this is an example, the wishes and feelings, beliefs and values of a person with a mental illness can be of such long standing that they are an inextricable part of the person that he is. In this situation, I do not find it helpful to see the person as if he were a person in good health who has been afflicted by illness. It is more real and more respectful to recognise him for who he is: a person with his own intrinsic beliefs and values. It is no more meaningful to think of Mr B without his illnesses and idiosyncratic beliefs than it is to speak of an unmusical Mozart.
  5. Further, people with Mr B’s mental illness not uncommonly have what are described by others as “religious delusions”. As appears below, he describes hearing angelic voices that tell him whether or not to take his medication. Delusions arising from mental illness may rightly lead to a person’s wishes and feelings being given less weight where that is appropriate. However, this cannot be the automatic consequence of the wishes and feelings having a religious component. Mr B’s religious sentiments are extremely important to him, even though he does not follow an established religion. Although the point does not arise for determination in this case, I approach matters on the basis that his Article 9 right to freedom of thought and religion is no less engaged than it would be for any other devout person.
  6. This is another manifestation of the principle that the beliefs and values of a person lacking capacity should not be routinely undervalued. Religious belief has been described as a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science: R (Hodkin and another) v Registrar General of Births, Deaths and Marriages [2014] AC 610 at [57]. Religious beliefs are based on faith, not reason, and some can strongly influence the believer’s attitude to health and medical treatment without in any way suggesting a lack of mental capacity. Examples include belief in miraculous healing or objections to blood transfusions. There may be a clear conceptual difference between a capable 20-year-old who refuses a blood transfusion and an incapable elderly man with schizophrenia who opposes an amputation, but while the religiously-based wishes and feelings of the former must always prevail, it cannot be right that the religiously-based wishes and feelings of the latter must always be overruled. That would not be a proper application of the best interests principle.
  7. Having commented on the process of evaluating wishes and feelings, I refer to the Law Commission’s current consultation paper No. 222: Mental Capacity and Deprivation of Liberty. It proposes [Proposal 12.2] that s.4 of the Act might be amended so that an incapacitated person’s wishes and feelings should be assumed to be determinative of his best interests unless there is good reason do depart from the assumption. It is said [12.42] that there is insufficient certainty about the weight to be given to a person’s wishes and feelings and that prioritising them would reflect to some degree the approach of the United Nations Convention on the Rights of Persons with Disabilities.
  8. In the above discussion, I have identified some of the circumstances in which the wishes and feelings of incapacitated individuals might be unjustifiably undervalued. However, my respectful view is that the Law Commission proposal would not lead to greater certainty, but to a debate about whether there was or was not “good reason” for a departure from the assumption. To elevate one important factor at the expense of others would certainly not have helped the parties, nor the court, in the present case. All that is needed to protect the rights of the individual is to properly apply the Act as it stands.


For my part, I think that the proposal by the Law Commission would be a beneficial addition for dealing with these cases, putting a rebuttable presumption that a person’s expressed wishes should be followed unless there are strong reasons for the contrary. Whilst many Court of Protection Judges (including this one) have a very healthy respect for autonomy and the wishes of the patient, some still tend to veer towards the wrapping P in cotton wool and the patrician approach.


Lastly, I refer to the principle at s. 4(4) that so far as is reasonably practicable, the person must be permitted and encouraged to participate as fully as possible in any decision affecting him. In this case, given the momentous consequences of the decision either way, I did not feel able to reach a conclusion without meeting Mr B myself. There were two excellent recent reports of discussions with him, but there is no substitute for a face-to-face meeting where the patient would like it to happen. The advantages can be considerable, and proved so in this case. In the first place, I obtained a deeper understanding of Mr B’s personality and view of the world, supplementing and illuminating the earlier reports. Secondly, Mr B seemed glad to have the opportunity to get his point of view across. To whatever small degree, the meeting may have helped him to understand something of the process and to make sense of whatever decision was then made. Thirdly, the nurses were pleased that Mr B was going to have the fullest opportunity to get his point across. A case like this is difficult for the nursing staff in particular and I hope that the fact that Mr B has been as fully involved as possible will make it easier for them to care for him at what will undoubtedly be a difficult time.


[that noise you can hear is me applauding]


The Judge sets out the pros and cons of the best interests decision very well – the judgment is short, and well worth a read for those sections.

  1. Conclusion
  2. Having considered all of the evidence and the parties’ submissions, I have reached the clear conclusion that an enforced amputation would not be in Mr B’s best interests.
  3. Mr B has had a hard life. Through no fault of his own, he has suffered in his mental health for half a century. He is a sociable man who has experienced repeated losses so that he has become isolated. He has no next of kin. No one has ever visited him in hospital and no one ever will. Yet he is a proud man who sees no reason to prefer the views of others to his own. His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is. I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his “fierce independence”, and it is this that is now, as he sees it, under attack.
  4. Mr B is on any view in the later stages of his life. His fortitude in the face of death, however he has come by it, would be the envy of many people in better mental health. He has gained the respect of those who are currently nursing him.
  5. I am quite sure that it would not be in Mr B’s best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure. There is a difference between fighting on someone’s behalf and just fighting them. Enforcing treatment in this case would surely be the latter.
  6. The application, which was rightly brought, is accordingly dismissed.
  7. I conclude by thanking the parties and witnesses for the quality of their contributions and by paying tribute to the high standard of care and treatment that Mr B is now receiving.


Video-recording (life and death)

We’ve been having a lively debate about whether or not parents should be able to record their interactions with professionals, and there’s a piece over at the Guardian about it


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


St Georges NHS Healthcare Trust and P 2015

Neutral Citation Number: [2015] EWCOP 42


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


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

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

The bit of relevance for us is here:-

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


Breaking this down :-


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

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

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

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

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


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


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

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

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


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

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

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


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


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





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


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

Re XZ 2015

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

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


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

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

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

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

    This has been designed to prevent:

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

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

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

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



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


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

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

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


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

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

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

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

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


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

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

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


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

So, what’s the decision?

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

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

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

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

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

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

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

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

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

Costs argument between Official Solicitor and Mail on Sunday


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

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


I summarised all the controversial litigation in this post here


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

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


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

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


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

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

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

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

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

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

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

MN (adult) 2015 – Court of Appeal pronouncements

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

    Balcombe LJ continued:

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

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

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


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


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

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


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

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

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


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


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

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

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

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

    Precisely so.

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


That last point segueways into all of the Practice pronouncements.

Let’s start with bundles.

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

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

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


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

What else?



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


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

What else?

Lack of rigour in defining the argument

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

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

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

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

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

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

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


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


The quest for perfection

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

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

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

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

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



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


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

Get every new post delivered to your Inbox.

Join 3,998 other followers