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Turning the pole vault into a limbo contest – watch Hayden J reset the bar

 
In which I applaud Hayden J for sticking both his neck out, and his finger in the dyke.
Re DM 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3119.html

Re DM was one of those cases where a Local Authority go to Court BEFORE a child is born, to say that they intend to issue care proceedings with a plan of separation at birth and that they want the Court’s permission not to tell the parent of this plan.

This peculiar application, well-described by Hayden J as “anticipated declaratory relief” emerged from the decision of our President in Re D (also Bury MBC and D) 2009 http://www.bailii.org/ew/cases/EWHC/Fam/2009/446.html

That case turned on utterly extraordinary facts.

The mother was serving a custodial sentence in relation to an incident that took place at a supervised contact session with her daughter, in which she had pounced on the child, blindfolded her, gagged her, pinned her to the floor and threatened her with a knife. A Care Order and a Placement Order facilitating adoption had subsequently been made in respect of that child.

In the period that followed that incident, the mother continued to demonstrate a high level of extreme distress and highly challenging behaviour. This included, for example, an attempt to take her own life in highly alarming circumstances, in her cell. Such was the level of harm that she presented to herself that, whilst in prison, she was placed on a regime of 15 minute watch.

The local authority had considered the circumstances with very great care and fretted over what the best way forward might be. A report, one of many that the local authority commissioned, recorded that the mother had expressed the view that all her children would be better off dead than in the care of the Local Authority. ‘Reunification after death’ was something that the mother made frequent reference to; she saw that as the only solution to her dreadful problems.
The Local Authority in that case (Bury) were in a spot. They knew that they intended to issue care proceedings and seek removal of the child once born, and they also knew or considered that telling the mother of that in advance would jeopardise the life of the baby. They therefore took an unusual step of making an application in the High Court under the inherent jurisdiction for a declaration that NOT telling the mother of the plan would not breach their duties to her or her human rights.

The difficulty, of course, is that the mother is not told of the application and has no chance to put her own position before the Court AND of course, when the application for an EPO is made, no doubt that Court is told that in effect the High Court has already nodded approval of the plan.

In Re D it was conceded by counsel on behalf of the Applicant that the power that the court was being asked to deploy were “at the very extremities of convention rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950″. The apparatus of the declaratory relief was put into place, recognising that those moments immediately after the birth of the baby rendered him almost uniquely vulnerable, in circumstances which were likely to be very rare indeed. They were circumstances so extreme, so fraught with potential danger to the physical wellbeing of the child, as to justify that extraordinary level of intervention. It was, and I emphasise, a wholly exceptional case. Such intervention, because it is such a powerful restriction of a woman’s autonomy, must always be regarded as draconian. The Courts and Local Authority must be vigilant to ensure that the wholly exceptional nature of this relief is never lost sight of.

When Bury/Re D was reported, most professionals thought that those circumstances would never arise again. But as I have blogged, these applications have become more common.

And I have been worried that the exceptional and dramatic circumstances of Re D have been translated into similar declarations in much less dramatic circumstances – and that they often involve cases where the mother either lacks capacity or has profound mental health problems (i.e where her vulnerabilities require even more protection from the power of the State)

I am pleased to see that Hayden J agrees with that, and says so.

This is the first reported Re D type application that has been refused, and hopefully that will staunch the flow of these.

My attention has been drawn to a number of recent decisions, which it is contended appear in some way to lower the bar for this radical intervention. These decisions include North Somerset Council v LW, TC & EW [2014] EWHC 1670; NHS Trust 1 & NHS Trust 2 v FG [2014] EWCOP 30 and X County Council v M, F & C [2014] EWHC 2262 (Fam).

In NHS Trust 1 & NHS Trust 2 v FG, Keehan J was persuaded by the Official Solicitor to give guidance generally in relation to the making of urgent applications in respect of women who lack capacity or who appear to lack capacity in the final stages of pregnancy. Those circumstances are very different to the kind of application contemplated here. I do not believe that Keehan J in any way intended to weaken the test set out by Munby J in Re D, which I have been at pains to reinforce. That said nothing I say should infer that respect for and active promotion of the personal autonomy of an incapacitated adult is any less vital. On the contrary it is every bit as exigent.

Applications, such as that contemplated here, will arise only rarely. The facts will always be case sensitive. However, to invoke the declaratory relief initially canvassed, the facts will, as I have said, require a level of ‘exceptionality’ and will be characterised by the ‘imperative demands’ and in the ‘interest of safety’ of the newborn baby in the period immediately following its birth. Beyond this, it is, I believe, unhelpful to try to be more prescriptive.
On the particular case in question
I have no doubt that the professional instincts here were sincere. However, equally, I have no doubt that they were, ultimately, misconceived. This woman will, I am satisfied, have contemplated the real difficulties that are likely to arise upon the birth of this child. I am also satisfied that she will, perhaps to a large extent, have anticipated the local authority’s plans. She is a capacitous woman and she will feel more acutely than any other the sad history of her past. It is idle to pretend otherwise.

Moreover, it is quite possible to keep the mother and baby together in a manner that respects the mutual need each for the other in the period immediately following the birth, which is the spotlight of concern. That can be achieved in a manner which respects both the emotional needs and the safety of the baby, even if that requires a high level of intervention in a plan that might inhibit the kind of interaction that most mothers and babies would enjoy following the birth. This has the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court can hear the inevitable applications.

Though I have described the Local Authority’s application as misconceived I think it is important, nonetheless, to observe that professionals involved in these difficult decisions provide a huge service both to the women and babies they deal with and also to society more widely. This case illustrates the challenges they face and the debt that we all owe to them.

What is wardship?

 

I suspect that there will be a few people, including some journalists, who want to understand what Wardship is today.  (If it is okay, I’m going to try not to say too much about Aysha King specifically today, because the case is now before the Court and hasn’t been decided – the case is now in the High Court, a wardship order has been applied for and the Judge Mr Justice Baker has adjourned the case until Monday, to give the parents time to get lawyers and put their own position before the Court. But I will touch on what these things might mean for the King family at various points)

 

What is wardship?

 

If you aren’t a family lawyer, the only time you’ll have come across someone being a Ward is Dick Grayson being Bruce Wayne’s ward. (which seemed to involve very little in the form of care and nurture and much more in the form of dressing up garishly and fighting armed goons)

Wardship is quite an old phenomenon whereby a High Court Judge makes decisions about what is best for a child and no significant steps can be taken in relation to that child without the Court approving it. They were very common pre Children Act 1989 and were at that stage a creation of common law (i.e the law about Wardship was invented and adapted by Judges, rather than having been a law invented by Parliament and set down in an Act)

 

In fact, pre Children Act 1989 they were often a route for children being taken away from parents and placed into the care of a Local Authority.  (there was a power in the Family Reform Act 1969 to let them do just that, so the power kicked around for twenty years)

 

{Edit – am grateful to David Burrows for advising me that the child becomes a ward of Court on issue of the application, though the Court can of course decide whether that continues once they hear the case}

 

What are the powers of Wardship?

Wardship is part of the High Court’s Inherent Jurisdiction, and as long-term readers will know, the High Court is very fond of using the Inherent Jurisdiction as authority for doing just about anything, and often use the phrase “the powers of Inherent Jurisdiction are theoretically limitless”

 

The Practice Direction 12 D is quite helpful in explaining Wardship

https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12d

1.1
It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2
The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –

(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

 

[You can see that (c) and (e) are pretty relevant to Aysha's case]

Let’s look at it this way – the Children Act is like Batman – there are all sorts of powers and tools and gadgets in there, but they are all prescribed and laid out. You know if you bump into Batman that he has fighting prowess and Batarangs and Shark Repellent. But he can’t suddenly fly or shoot laser beams from his eyes or lift up a train. There are limits to Batman’s capabilities and we know what they are.  The Inherent Jurisdiction is more like Superman –  he can do pretty much anything you can think of (including, if you rely on the movies, flying around the world backwards to turn back time…  LET IT GO, Suesspicious Minds, get over it)

 

And just like Superman, Inherent Jurisdiction has huge power, but it also has Kryptonite

 

What can’t be done under wardship?

 

When the Children Act 1989 was being devised, there were people who wanted to get rid of wardship altogether, but they were finally persuaded to keep it, but to put into the Children Act 1989 a limit to its power.

 

s100 Children Act 1989 Restrictions on use of wardship jurisdiction.

(1)Section 7 of the M1Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2)No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a)so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)so as to require a child to be accommodated by or on behalf of a local authority;

(c)so as to make a child who is the subject of a care order a ward of court; or

(d)for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3)No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4)The court may only grant leave if it is satisfied that—

(a)the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5)This subsection applies to any order—

(a)made otherwise than in the exercise of the court’s inherent jurisdiction; and

(b)which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).

 

 

English please?

 

(i) The Court can’t use wardship to put a child in the care of the Local Authority.  That is important because otherwise it would let Judges put children into care even where the threshold criteria for making Care Orders wasn’t met.    [For Aysha's case, that means that even if the Court make a wardship order, that does not amount to the child coming into care]

(ii) The Court can’t make a wardship order and then say “Local Authority, you make the decisions, I’ll leave it to your discretion”  – if there’s a wardship order, the High Court have to make the individual decisions

(iii) The Court can’t use wardship to do something that could be achieved by any other power in the Children Act   (i.e if you can get the job with Batman, Superman won’t be able to show up and help even if you prefer Superman)

 

Also, although this is not spoken of very often, all of the Human Rights Act provisions apply to wardship cases – so there is the article 6 right to fair trial and the article 8 right to private and family life which means that wardship can only be made if it is PROPORTIONATE and NECESSARY.    [There's an intriguing section of the Supreme Court judgment in Re B, where Lord Neuberger is talking about article 8's "necessary" test and says that for those purposes he adopts Lady Hale's formulation of "nothing else will do"   - that doesn't seem to have been picked up on generally yet to the extent that it was picked up on for Adoption cases]

 

Who can apply for wardship?

 

As you can see from the Kryptonite section, the Local Authority can apply, but ONLY if they can satisfy the Court that there is reasonable cause to believe that failure to apply would be likely to cause significant harm to the child. That is not an easy hurdle to cross – particularly since if that test applies they would have remedies under the Children Act 1989  (Emergency Protection Order, Interim Care Order, Recovery Order)

They can also be issued by a connected person, generally a parent  – and that’s usually where there’s a fear of abduction of the child to another country or an attempt to get the child returned.

Wardship applications can, and have, been issued by hospital Trusts seeking a declaration from the Court about medical treatment for a child, and that’s probably what has happened in Aysha’s case.

It is theoretically possible that the police could apply, but I’ve never come across such a case.  They might be reluctant to do so, since making the child a ward of Court means that the child can’t be interviewed without approval of the Court.

 

When does wardship run out?

 

It runs for as long as the Court want it to last, but the longest it can last is until the child is no longer a child. There aren’t any formal applications to discharge or revoke a Wardship order, but in practice, a person would seek a hearing before the High Court to persuade the High Court that wardship was no longer needed.

 

What about getting free legal advice?

 

This is a tricky question. If there’s an application for care proceedings, then the parent automatically gets what is called “non means, non merit” public funding  – what does that mean? Well, it means that a parent gets free legal advice and representation to fight the case even if they are a millionaire  (non means) or even if someone looking at the case would think that their argument is poor (non merits)

The next tier of public funding is those matters set out in Schedule 1 of LASPO http://www.legislation.gov.uk/ukpga/2012/10/schedule/1/enacted  which can get public funding if they meet a means and merit assessment. Wardship is NOT in there.

Eep. What now?

Well, the final tier is Exceptional funding under s10* of LASPO.  If you are a lawyer, you are already wincing. This allows the Legal Aid Agency to grant free legal advice to exceptional cases where not having free legal advice would breach a person’s human rights.  Hardly ANY of these have been granted.

http://www.familylaw.co.uk/news_and_comment/four-family-law-applications-for-exceptional-case-funding-have-been-granted-between-april-and-june-2014#.VAXrAGOgktV

In the last year, of 821 applications, 8 were granted. And only 4 for family cases.

 

Even if you could get public funding on exceptional circumstances – well the bad news is that that is still means tested.  What does that mean? Well, it means that if you have capital over £8000, you can’t get free legal representation.

(If you are wondering, yes, the Legal Aid Agency would treat all of the King family’s savings, and any donations for the treatment fund as capital.  It is not money that they would disregard or ignore. At the moment, this case is a police/nhs scandal, but it is about to become a legal aid scandal too)

 

What are your options if you CAN’T get free legal advice?

 

You could represent yourself. Not ideal in the High Court, dealing with life-changing and complicated things.

You could arrange a McKenzie Friend. There are some good and helpful ones, but a stand-alone wardship case is really very difficult.

You could contact the bar pro bono unit  (there are lawyers who will represent you for free.  http://www.barprobono.org.uk/

Or you could instruct lawyers paying privately and hope to win the case and get a costs order against the applicant. Cost orders aren’t easy, since if the applicant made the application in good faith and has not behaved dreadfully, it isn’t as simple as just “If there’s no wardship order the other side will have to pay costs”   – having said that, in a case like this, where the parents would be spending money that they want to spend on treatment, there might well be a sympathetic consideration of any costs application.

 

 

 

*{corrected, from s11 LASPO, my mistake. Thanks to David Burrows for spotting it}

Capacity to live with your husband

 

The Court of Protection case of Re PB (2014)

http://www.bailii.org/ew/cases/EWCOP/2014/14.html

 

The case involved a 72 year old woman PB, whom Norfolk CC considered to lack capacity and also felt that she could not safely live in her own home with her husband TB who was 50 and also said to lack capacity.

As ever with the Court of Protection, the first step is to establish whether  a person lacks capacity to make decisions on their own behalf, with the starting point of the Mental Capacity Act 2005 being that they DO unless proved otherwise. A person with capacity is entitled to make poor or foolish decisions, decisions that nobody around them thinks are right. We have autonomy to make our own mistakes, as long as we understand the nature of our decision and what the pros and cons are.

 

We end up with, in the Mental Capacity Act 2005, a clear bright line between someone who has capacity (in which case the Court of Protection have to let them make their own decisions) and someone who does not (in which case the Court of Protection can be asked to make a decision on their behalf striving to do so in their best interests)

Is capaciy really such a clear bright line? This case throws up some doubts for me.

 

Let’s look at what PB herself said to Parker J

 

 

  • PB wrote to me before the hearing. In particular she wrote that “I should like to point out that it is the right of every individual to choose for himself or herself whom to live with and where to live and not to live under the shadow of regimentation and have to live in an institution”.

 

 

 

  • I was asked prior to the hearing, and when I had had no opportunity to assess the background, whether I would see PB at the hearing. I reserved that decision for the trial. At court I was also asked to see TB. I was happy to do so, but stressed that care has to be taken as to how a meeting shall be treated. The protected party does not give an sworn/affirmed account, and in particular if the meeting takes place only in the presence of the judge, with no opportunity to test the evidence, then in my view no factual conclusions save those which relate to the meeting itself should be drawn, in particular with regard to capacity (see YLA v PM and Another [2013] EWHC 4020 (COP) at [35].

 

 

 

  • As it turned out, neither wished to give evidence. They each asked to speak to me in the courtroom with all representatives present. This took place on day three. PB spoke to me first, followed by TB. Each sat close to the bench and was at liberty, as I told them, to talk about what they felt and wanted, and any other topic. They were not cross examined, and I did not ask any questions. I did speak to PB about the medical procedure which she was reluctant to undergo.

 

 

 

  • PB is likeable, highly intelligent, sophisticated and articulate, well-read and knowledgeable. She writes poetry. With regard to marriage she told me “Let no man put asunder” and “once a couple are married – meant to be together”. She denied that she had been ill for 50 years. She stated “I haven’t lived with my siblings for 50 years”.

 

 

 

  • It is obvious to me from all that I have read and heard as well as from the meeting that PB’s intellectual understanding is at a high level. She stated “I understand that this Act only came in in 2005. I wonder whether it’s working out as it should be”.

 

 

 

  • She told me, when asked what she wanted to happen, “I’d like to be free to wander the universe without being told to sit down and be quiet”, “I’d like to get my poetry published”, “I’d like [TB] to be always at my side”, and “I’ve never hit a carer” (the evidence is that she has).

 

 

 

  • TB is also likeable, and he was articulate and sincere. He said “How do you take decisions” “we have a lot of confidence in one another, we should be living together as man and wife”, “The social worker has done a good job”. He wants to go back to F House to be with PB. He volunteered that he had “tapped the manager on the nose”.

 

 

 

  • I accept that whatever their respective problems this couple has a long standing and committed relationship and that they love one another dearly. There is no issue as to their capacity to marry: the marriage was celebrated many decades ago

 

 

 

PB here comes across as intelligent and articulate – the Judge saying that her intellectul understanding is at a high level  (her critique of the Mental Capacity Act is one which is put very well, and which many people share)

 

What did the medical experts say about her capacity?

 

 

  • Particularly since PB presents in a sophisticated manner, as Dr Khalifa told me, it has been an advantage for me to have had the treating physician with long term knowledge to give evidence on the issues. Dr Khalifa stems from Sudan but has worked in Ireland before coming to practice in England as a consultant in old age psychiatry. English is not her first language and her idiomatic understanding has some gaps. That gave rise to a misunderstanding in writing, as will be seen. Her reports were also not clear, taken in conjunction with the joint statement (appended hereto).

 

 

 

  • There is a considerable degree of consensus between the experts:

 

 

i) Dr Barker thinks that the diagnosis is schizo-affective disorder. Dr Khalifa thinks it is residual schizophrenia. I agree, as the doctors agreed, that this makes no difference to their overall views.

ii) Both agree that PB has cognitive problems. Dr Khalifa says that she has compromised executive function stemming from her frontal lobe. This is a known problem in schizophrenia. Dr Barker accepts that she has frontal lobe damage, which he described as “mild brain damage”. Dr Barker also thinks that she has an “ageing brain”.

 

  • Dr Khalifa explained in oral evidence (which she gave the day after Dr Barker) that:

 

 

i) Executive dysfunction is progressive.

ii) It is implicated in planning, judgment, and decision making.

iii) PB has problems with working memory, keeping information “on line”, and manipulating the information to make a decision.

iv) She suffers from “poverty of thought” (a global reduction in her quality of thought where the person keeps returning to the same limited ideas).

v) She shows “negative thinking” and lack of initiative.

vi) She is unable to judge situations.

vii) She has problems in “set shifting”: that is in shifting her choice to a new one in the face of negative feedback, and the ability to stick to a new choice.

viii) She has problems in doing more than one thing simultaneously.

ix) Other problems are of selecting appropriate responses and inhibiting inappropriate ones, of generating plans and resolving problems.

x) She cannot compare the risks and the benefits.

 

  • This formulation had not been put forward by Dr Barker and he was not asked about it, since Dr Khalifa’s formulation was not elicited until she gave evidence. But the upshot is that it was not challenged. Nothing that Dr Barker said was inconsistent with it.

 

 

 

  • Dr Khalifa states that PB suffers from intense anxiety which can reach clinical levels and which prevents her from making a decision. She “gets stuck”, as described by Ms Thompson. Dr Barker thinks that many people without mental health problems have problems making difficult decisions. But he agrees that PB’s anxiety can reach clinical levels so that it constitutes impairment/ disturbance.

 

 

 

  • Broadly, Dr Barker is not certain about the extent to which PB’s decisions may be based on her beliefs about marriage, and to what extent TB’s influence leads her to be incapacitous all the time.

 

 

 

  • Dr Barker states that PB is heavily influenced by her husband. When not with TB she has capacity (in his original report he wrote “has considerable capacity”) but may be incapacitous when with him. He does not know to what extent influence may be taken into account in deciding that she is incapacitous.

 

 

 

  • In his report and evidence he suggested that PB may simply be making a decision based on her commitment to marriage over her own wellbeing which is unwise but which is not caused by her mental impairment. “If she has preferred to ally herself with her husband she may accept the level of squalor”. In cross–examination he said that in his view her decisions “are not solely driven by mental impairment” and “it is difficult to judge whether it is cognitive impairment, or other factors which lead her to make unwise, or incapacitous, decisions when with TB”.

 

 

 

  • He said that assessment of whether she was unable to use and weigh might be skewed if PB had chosen to withhold information. She might have different thought processes but was choosing not to disclose that to him. There is evidence that she understands the issue but she may not want to give evidence which may “damage her cause”. This may be a natural denial.

 

 

 

  • That is the best summary of Dr Barker’s views which I can provide. His views were in fact set out in a number of different formulations. Mr Reeder has set them out in his closing document. I need not review that in detail. Dr Barkers’ final position in evidence was that the issue of PB’s capacity is finely balanced and should be decided by the court. He ‘leans’ to the conclusion that she has capacity to make decisions about residence, care and contact in optimal conditions He wavered somewhat as to whether he thought that PB lacked capacity when not with TB, and eventually concluded that he thought that she might do. “I agree that PB lacks capacity in certain situations, for example because of anxiety, mental disorder or influence. I don’t know if she has capacity in optimal circumstances, but I have not seen sufficient evidence that she lacks capacity then”. Ms Street says that the Official Solicitor “interprets” Dr Barker to have said that he thought that the presumption of capacity had not been rebutted.

 

 

 

  • Dr Khalifa’s consistent position in oral evidence was that PB’s mental illness, anxiety and influence from TB all contribute to her inability to weigh information. She lacks capacity at all times, sometimes at a greater level that at others.

 

 

 

  • Dr Barker had drafted the joint statement after their joint meeting. Dr Khalifa told me, and I accept, that he sent it to her and she signed it without further discussion. They recorded agreement that capacity was “finely balanced”. Dr Khalifa told me that she had misunderstood. She did not consider capacity to be finely balanced. She regarded PB and always has as clearly lacking capacity. Furthermore, although they agreed that PB had “considerable capacity” when not subject to TB’s direct influence (adopting Dr Barker’s phrase, by which he seems to have meant something different) both in her report and the joint statement, she did not mean that PB ever had capacity. She “would not separate influence and major psychiatric disorder.” In any event TB’s influence is pervasive. Whenever PB has to consider decisions about living with him or spending time with him she either cannot recall or use and weight the information or is paralysed by anxiety, or both.

 

 

 

  • The joint statement does not clearly address the capacity issue and Dr Khalifa’s clear view only emerged at court. Dr Khalifa told me also that she had wanted to “harmonise” their views. I accept this. Dr Barker’s view was never clearly enough expressed and it seems to me that she thought that this was the best they could do since there was no prospect of getting any clearer formulation. She was wrong to sign up to an accord when in fact there was none. But I am sure she did not appreciate that this would prolong the debate and the enquiry.

 

 

 

  • Both agree that “whether or not the Court finds that she lacks capacity, she is a vulnerable adult and as such requires protection in the context of her relationship with TB.”

 

 

[I don't personally care much for the last sentence - if PB has capacity, then she has the same autonomy as any of us to make choices and decisions without the State interfering.  I come across this patrician attitude quite a lot, and I'm afraid it is something that makes me bristle. It isn't the job of the State to make decisions for people who are capable of doing that themselves]

 

There are some problems in this – it appears that Dr Barker felt that PB had capacity to make decisions about where she wanted to live ‘in optimal conditions’ and that PB had ‘considerable capacity’ when not subject to TB’s influence.

 

We’ve all come across people who act foolishly in relation to a love affair  (this might be described as the ‘Gail Tilsley effect’ – a person who is normally sensible, cautious and fairly dull, has all of their common sense go out of the window when their head is turned by love.  Is that a lack of capacity?  Sometimes when this is happening to you, you might describe it as not being able to think straight, you might come out of it saying ‘what was I thinking?’  ‘what possessed me to do that?’  – but is it a lack of capacity?

 

The Judge was asked to prefer the evidence of Dr Barker to Dr Khalifa (who had put things on a much more medical footing regarding decision making, as opposed to Dr Barker, who felt that PB’s judgment was clouded when it came to making decisions about her relationship with TB – which would NOT be a lack of capacity for the purposes of the Act). The Judge instead preferred the evidence of Dr Khalifa.

 

 

  • Ms Street and Mr Reeder asked me to prefer the opinion of Dr Barker to Dr Khalifa. I decline to do so.

 

 

i) I do not agree that Dr Khalifa was approaching the task of assessment from a Mental Health Act “diagnostic” standpoint or safeguarding perspective.

ii) Dr Barker’s evidence was speculative, approached more as a philosophical or academic debate than an opinion. As I have commented above he was reluctant himself to factor a consistent body of information from reliable sources as to PB’s thought processes. He focused on his own assessment rather than looking at the history, in particular the stark picture presented by Ms Thompson’s evidence.

iii) His emphasis on PB’s sophisticated, dextrous use of language, which was not in dispute, caused him to lose focus on the issue of using and weighing the information and the inability to take any decision at all: getting “stuck”, “going along with it”, “acquiescent” (a word which struck him by its “sophistication”).

iv) He had no evidence that PB was deliberately concealing information from him, or her motivation if she was. What she said to him was consistent with “sliding away” from the issues.

v) Dr Barker took the individual elements but did not put them together. He did not address the matters in issue. As I have said, the question was not the wish to be with her husband. The issue was not whether she was wise or unwise to regard their trips together as “romantic” or to regard the bonds of marriage as sacred; but whether she is able to decide where and with whom she is to live and how her care is to be managed.

vi) Dr Khalifa broke down the elements then approached capacity on a holistic basis. I found her oral evidence clear and focussed, well argued, cogent and compelling.

vii) I am satisfied that PB suffers from impairment/disturbance which directly results from the psychiatric disorders identified by Dr Khalifa.

viii) I do not accept Dr Barker’s opinion that PB is only under TB’s influence when she is actually with him. I agree with Dr Khalifa that TB’s influence remains effective even when not she is not with him. This is apparent from the conversations recorded above with Ms Nicholas, Ms Masters, and Dr Khalifa.

ix) And finally key issues on which he focussed are, as he accepted, matters of law or of judgment for the court.

 

Because this issue arose as to whether PB’s mental condition and disorder of the mind was causing her lack of capacity, or whether it was a contributing factor together with her feelings towards her husband and her inability to process logical decisions when considering him, there was a legal issue to be resolved

 

 

  • capacity in this context must mean with regard to the “matter in issue”. Furthermore, “for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist (s 2(1)).” The key words “because of” should not be replaced by “referable to” or “significantly relates to”: PC v City of York Council [2013] EWCA Civ 478.

 

 

 

  • Ms Street submits that “because of” in Section 2 MCA 2005 means “is the sole cause of”. Mr Reeder submits that it means “is the effective cause of“. Ms Burnham suggests that it means “is an effective cause of” and submits that there is no material distinction between “the sole cause” and “the effective cause“.

 

 

 

  • Ms Burnham refers by way of analogy to the Equality Act 2010, where the words “because of” have been construed as meaning “a substantial reason”: it need not be the main reason so long as it “an effective cause”. She cites pre- EA 2010 authority: Owen v Briggs and James, 1982 ICR 618 (CA) and O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1997] 1CR 33. I note other analogous areas of statutory interpretation where a purposive construction has been adopted. Under s 423 Insolvency Act 1996, in order to set aside an impugned transaction its “purpose” must have been to defraud creditors. Purpose does not mean sole purpose: substantial purpose or intention is sufficient (Inland Revenue Commissioners v Hashmi) [2000] 2 BCLC 489, 504, [2000] BPIR 974. Under s 37 Matrimonial Causes Act 1973 there is power to set aside a transaction made with the intention to defeat a claim for a financial remedy. The intention to defeat the claim does not have to be the dominant motive in the transaction; if it is a subsidiary (but material) motive then that will suffice: Kemmis v Kemmis (Welland and Others Intervening), Lazard Brothers and Co (Jersey) Ltd v Norah Holdings Ltd and Others [1988] 1 WLR 1307, [1988] 2 FLR 223.

 

 

 

  • I agree with Ms Burnham that where there are several causes it is logically impossible for one of them to be “the effective cause”. I agree that to hold otherwise would lead to an absurd conclusion because even if impairment or disturbance were the most important factor, wherever there were other factors (however little part they might play) the s 2 MCA 2005 test would not apply.

 

 

 

  • There is nothing Convention incompatible in the concept that multiple factors may affect a decision. Otherwise a person with impaired capacity whose disturbance/impairment of mind operates to disable her from weighing and using information would not fall within the protection of the Act.

 

 

 

  • It seems to me that the true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction.

 

 

 

  • The issue is not, as Mr Reeder puts it, whether “the effect of PB’s views about her marriage is itself an impairment or disturbance or results from an impairment or disturbance”.

 

 

 

  • The question is whether PB lacks capacity in respect of the matter in issue by reason of a disturbance or impairment in the mind or brain so that she cannot use and weigh her choices (which may include choices impelled to whatever extent by such beliefs of feelings) so that he/she is unable to understand, retain, or use and weigh them.

 

 

 

  • Ms Street and Mr Reeder also submit that Dr Khalifa approached the test the wrong way round. They submit that the Code of Practice stipulates that the first step is to decide whether there is a disturbance of mind, and the second to decide on capacity whereas McFarlane LJ in PC v City of York [2013] EWCA Civ 478 stated that this should be considered in reverse order. In my view MacFarlane LJ did not purport to lay down a different test: nor did he take the questions in the reverse order, but simply stressed that there must be a causative nexus between the impairment and the incapacity.

 

 

 

  • I do not consider that it matters what order the expert addressed the issues so long as she or he observes the causative nexus. Dr Khalifa identified the impairment or disturbance, which she described compellingly and in detail, and then clearly advised that this caused the inability to use and weigh.

 

 

 

  • When Dr Khalifa was asked whether PB’s inability to use and weigh the information was “due to” her constantly and clearly communicated views about marriage and her role within that marriage as TB’s wife, Dr Khalifa rightly rejected this as the relevant question and repeated her opinion as to PB’s condition and its effect on the ability to use and weigh. I do not agree that this was “ducking the question”. Dr Khalifa said and repeated that it is difficult to separate PB’s impairment or disturbance of functioning of mind and brain from the question of influence.

 

 

 

  • I regard PB’s condition as the cause of her inability to use and weigh. Her inability to challenge TB may at one time have stemmed from a belief in the ties of marriage: I do not know. But now she is unable to use and weigh the information because of the compromise in her executive functioning and her anxiety.

 

 

and the Judge specifically looked at the issue of Overbearing of the Will

 

Influence/overbearing of the will

 

  • In R v Cooper [2009] UKHL 42, [2009] 1 WLR 1786 at [13] the Supreme Court noted that “The commission therefore recommended the functional approach: this asked whether, at the time the decision had to be made, the person could understand its nature and effects…”. However, the commission went on to accept that understanding might not be enough. There were cases where people could understand the nature and effects of the decision to be made but the effects of their mental disability prevented them from using that information in the decision-making process. The examples given were an anorexic who always decides not to eat or a person whose mental disability meant that he or she was “unable to exert their will against some stronger person who wishes to influence their decisions or against some force majeure of circumstances”: para 3.17. (underlining added for emphasis).

 

 

 

  • I do not accept as Ms Street submits that the underlined passage supports the proposition that the impairment or disturbance must be the sole cause of the inability to make a decision. It does support Ms Burnham’s submission that inability to exert the will against influence because of the impairment or disturbance is relevant.

 

 

 

  • I do not accept that pre MCA authority is irrelevant. It has been held that the jurisdiction of the High Court is not usurped where capacity has been lost because of the influence of another or the impact of external circumstances, and only regained because the court has regulated exposure to such influences which if subsequently reasserted will cause capacity to be lost once more Re G (an adult) (Mental capacity: Court’s Jurisdiction) [2004] EWHC 222 (Fam) and a Local Authority v SA and others.

 

 

 

  • In Re A (Capacity: Refusal of Contraception) [2011] Fam 61 at [73] Bodey J specifically found that Mrs A’s inability to use and weigh was the consequence of the influence of a husband to whom she was fiercely loyal. Ms Street says that this decision is not relevant in the instant case since the words “because of” were not the subject of argument. In my view the issue of influence is a general one, and not limited to the causal nexus between impairment or disturbance of functioning of mind and brain and inability to make a decision. In that case the legal focus was the capacity to use and weigh information in order to make the decision. I do not accept that Bodey J was approaching the case on the wrong “inherent jurisdiction” test.

 

 

 

  • In IM v LM the Court of Appeal recorded Peter Jackson J’s observation that the threshold for those who wish to establish that a person cannot make a decision because they are overborne by influences from others must be a high one “in relation to an act which is so very hard to rationalise.” The Court did not further comment on this formulation. I assume that they approved it. There is no suggestion that influence is not a relevant consideration. They specifically approved Bodey J in Re A (Refusal of Contraception).

 

 

 

  • As I have commented the type of decision to be made in this case is quite different from a decision to engage in sexual relations. It requires consideration of quite complicated choices and an assessment of past and future. In any event the influence/pressure of TB is common ground and is overwhelmingly demonstrated.

 

 

 

  • PB is under TB’s influence whether he is physically present or not. Every time she is asked to make a decision about him his influence, in conjunction with her psychiatric condition, cognitive deficits and anxiety, prevents her from using and weighing the information.

 

 

 

  • But in any event by reason of her condition alone, even without the influence of TB, in my view PB lacks capacity to use and weigh. The history over March and April 2013 in particular demonstrates that PB was not able in reality to make any decision at all which related to TB, or to her care needs. And what she has said during the course of these proceedings demonstrates the same process. Her impairment /disturbance is the effective cause, the primary cause of her inability to make a decision.

 

 

 

  • I have had the advantage, which the experts have not, of surveying all the material in this case and in particular the oral evidence of Ms Thompson. PB, notwithstanding her high intellectual capacity and verbal dexterity, and in spite of her superficial and partial acknowledgement of the risks, is simply unable to factor into her thought processes (i.e. use and weigh) the realities of the harm that she will suffer if she resumes living with TB or has uncontrolled contact with him. And perhaps, even more importantly, she is unable to weigh up the risks to her of being in an unsupported environment, with or without him, without a package of care. This is not to be paternalistic, or to fail to allow her to experience an acceptable degree of risk. It is not a question of allowing her “to make the same mistakes as all other human beings are at liberty to make and not infrequently do.”

 

The Judge decided that PB did lack capacity for the purposes of the Mental Capacity Act 2005 and made the declarations sought by Norfolk, which were in effect that PB could be detained in a home against her wishes and that this deprivation of liberty was authorised.

 

An important point to arise was that Parker J had indicated that IF she had decided that PB DID have capacity, she would still have authorised the same actions (keeping PB in a home and apart from her husband) under the inherent jurisdiction. This is a big deal, because if this became law, it would mean that Local Authorities could ask Courts to make decision about ‘vulnerable’ adults who had capacity to make their own decisions. And as we keep hearing ‘the inherent jurisdiction theoretically has no limits”.  I believe that the Official Solicitor intended to appeal on this point of law, and I wish them all the luck in the world – this would be a major development in the law and a major erosion of the principle that people have autonomy to make bad decisions as long as they have capacity.  It would be a bad day for personal liberties in this country if the inherent jurisdiction were to be extended in this way   (on the flip-side, if you believe that the State is there to protect vulnerable people from making mistakes, then it would be a good day. We can agree to disagree on that)

 

 

 

  • I expressed the view at the conclusion of the hearing that if I did not find that PB lacks capacity I would have made an order in the same terms pursuant to the inherent jurisdiction. This is not strictly necessary, but I understand that the Official Solicitor will consider whether to appeal the decision following receipt of the judgment.

 

 

 

  • Miss Street submits that if PB has capacity that the court cannot impose a residence regime. She submits that the authorities only sanction, in essence, an adjunctive, supportive regime to restrain and protect from others.

 

 

 

  • All accept that the inherent jurisdiction can be invoked where capacity is vitiated by constraint, coercion, undue influence and other disabling circumstances which prevent her from forming and expressing a real and genuine consent: see Munby J (as he then was) in Re SA [2006] EWHC 2942 (a forced marriage case). I accept that this can result from improper influence of another person (indeed this is what is asserted here). Vulnerability, I accept, is a description rather than a precise legal formulation.

 

 

 

  • The reported cases are all fact specific. But I do not read them restrictively, as I am urged. In Re G (an adult) (Mental Capacity: Court’s Jurisdiction) [2004] All ER (d) 33 (Oct) Bennett J determined the place of residence of a vulnerable adult who had regained capacity. He held that he could not ignore the consequences if the court withdrew its protection. If the declarations were in her best interests, the court was not depriving G of her right to make decisions but ensuring that her stable and improved mental health was maintained.

 

 

 

  • Macur J, as she then was, in LBL and (1) RYJ and (2) VJ stated that the court has the ability via the inherent jurisdiction “to facilitate the process of unencumbered decision making by those they have determined free of external pressure or physical restraint in making those decisions”. I do not see that formulation as restricting the exercise of the inherent jurisdiction to prevent placement in a care home, subject to deprivation of liberty issues. In Re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) No 2 [2012] WLR 1439, the Court of Appeal confirmed the inherent jurisdiction as a safety net to protect vulnerable adults subject to coercion or undue influence. The inherent jurisdiction exists to protect, liberate and enhance personal autonomy, but any orders must be both necessary and proportionate. Miss Burnham submits that what is proposed is protective and necessary and proportionate and is not a coercive restricting regime. I am inclined to the view that a regime could be imposed on PB if that is the only way in which her interests can be safeguarded. To be maintained in optimum health, safe, warm, free from physical indignity and cared for is in itself an enhancement of autonomy. In Re L injunctive relief was granted against the parties’ adult son. That in itself was an interference with autonomy in one sense (freedom of association) and an enhancement of autonomy in another (protection against coercion).

 

 

 

  • I see no indication that the inherent jurisdiction is limited to injunctive relief. Each case depends on the degree of protection required and the risks involved. And the court must always consider Article 8 rights and best interests when making a substantive order.

 

 

 

  • Ms Street of course submits that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and “lawful pursuant to Article 5 of the Convention”. She cites Lord Hope in R (Purdy) v DPP [2010] 1 AC 345: (i) there must be a legal basis in domestic jurisdiction (ii) The rule must be sufficiently accessible to the individual affected by the restriction and (iii) it must be sufficiently precise for the person to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law.

 

 

 

  • If I made such an order here a regime would be imposed by a court of law through a legal process of which notice had been given and it would be perfectly possible for a person of sufficient capacity to understand its effect. That fulfils the “Purdy” criteria.

 

 

 

  • However Ms Street also submits that there would be no or insufficient connection between the deprivation of liberty and “unsoundness of mind” within the meaning of Article 5. That would be the only basis upon which I could impose restraint.

 

 

 

  • A person who is incapacitous does not necessarily suffer from unsoundness of mind (see again for instance the anorexia cases). I note that deprivation of liberty is specifically authorised under the 2005 Act in cases of incapacity without reference to unsoundness of mind. It has never so far as I am aware been suggested that the DoLs provisions are in breach of Article 5.

 

 

 

  • “Unsoundness of mind” is not the same as “incapacity”. PB has a diagnosed psychiatric condition which compromises her decision making. If it is not established that she lacks capacity this would be on the narrowest interpretation of MCA 2005 (“because of”) and would not impinge upon her diagnosis or her vulnerability, which results from her psychiatric condition.

 

 

 

  • Ms Street concedes that TB’s influence would be highly relevant under the inherent jurisdiction. PB cannot litigate on her own behalf. The Official Solicitor would be entitled to make an application on her behalf for injunctive relief against TB in her best interests. I would be entitled to make an injunction of my own motion under the inherent jurisdiction preventing him from coming into contact with her, if the Official Solicitor declined to do make an application. If such an order were made she would have nowhere to go. In fact she cannot presently return to his flat in any event because of the landlord’s injunction against her.

 

 

 

  • In my view the inherent jurisdiction does extend to orders for residence at a particular place. If that constitutes a deprivation of liberty then in my view the court could authorise it pursuant to the inherent jurisdiction.

 

 

 

  • Assuming that it would not constitute an unlawful deprivation of liberty in my view I would be entitled to make an order for placement against her will pursuant to the inherent jurisdiction. There are serious risks to PB if she is not properly cared for or if she is not protected against TB. Both Dr Khalifa and Dr Barker recognise that reality.

 

 

 

 

 

Secure accommodation and seventeen year olds

 

This is a decision of His Honour Judge Wildblood QC, sitting as a High Court judge

A County Council v B 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4654.html

 

It involved a seventeen year old whose behaviour was such that the Local Authority wanted her to be placed in secure accommodation.  However, given that she was 17, that causes some problems with the statutory provisions.

This is undoubtedly an extraordinary case. It is also one where, on paper, there is every reason to have grave concern for C. The psychiatric evidence that has been prepared by Dr Yates and Dr Leonards ultimately concludes that C is of capable of detention under the Mental Health Act 1983. There are various suggestions about her state of health, including a suggestion that C may have a conduct disorder, which Dr Yates thought has increased in severity. I make no adjudication, of course, in relation to that. The anxiety about C’s vulnerability and potential for harm is entirely genuine and requires analysis of fact at a subsequent hearing. The extraordinary circumstances of this case include, however, the following: (1) C’s age; (2) the fact that she has herself had a child; (3) the fact that, at the time these proceedings started, she was not in local authority accommodation or subject to any other statutory scheme relating to her; (4) the reported degree of vulnerability that she bore.

 

In this particular case, the Local Authority were NOT accommodating C, and would have been in some difficulties in doing so  (they could not obtain a Care Order or Interim Care Order on her, because she was over 17, voluntary accommodation becomes tricky because the grandmother who had a residence order and hence PR was objecting to C being placed in secure accommodation)

The issue therefore was whether the Court had the power, using the inherent jurisdiction, to detain C in secure accommodation.

 

  • The orders that were made in the X District Registry are undoubtedly orders that require the provisions of section 100 of the Children Act 1989 to be considered. By subsection (1) and (2) of that section, it is provided as follows:

 

 

“(1) Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b) so as to require a child to be accommodated by or on behalf of a local authority;

(c) so as to make a child who is the subject of a care order a ward of court; or

(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.”

Where a child is made a ward of court, custody of the child vests in the court. Therefore, an order making C a ward of court, but granting custody of her to the local authority, is, I think, inherently contradictory. Further, the provisions of paragraph 1 of the orders made in the X District Registry, by which care, custody and control were granted to the local authority, must, in the manner of their drafting, be exactly that which is intended should not be ordered by reason of section 100 of the Children Act 1989. The much more difficult points that have arisen and which have occupied my mind for much of the weekend are these: (1) whether it could be said that C was a looked after child within the terminology of the Children Act 1989 at the time of the initiation of these proceedings; (2) whether, absent an order granting care, custody and control of C to the local authority, it would be permissible for the inherent jurisdiction to be used for C to be made a ward of court, and for the court then to direct her detention in secure accommodation.

 

Obviously the Court CAN’T ward C in order to compel the LA to provide her with accommodation, since this is barred in the Act. In this case, the LA were willing to provide that accommodation, so the Court was not compelling them to do this.

 

But, COULD the Court use their inherent jurisdiction in this way?

 

 

  • The case therefore has been argued on the basis that, under the inherent jurisdiction of the court, the court can direct the detention of a minor in secure accommodation. That is a point upon which Miss Campbell has done some considerable research, and has finally persuaded me, and indeed the other advocates, that her submission on this point is correct. It is a demonstration of what skill and hard work can produce.

 

 

 

  • There is case law that of course needs to be considered. I have looked at the decision of Wall J in Re C [1997] 2 FLR 180. That case related to the detention of a minor in a clinic. The facts of the case were, therefore, essentially different. The learned judge however had to consider whether the clinic concerned was secure accommodation, and concluded that it was not. The headnote to the case reads as follows:

 

 

 

“In exercising the court’s inherent jurisdiction over minors, the test to be applied by virtue of section 1 of the Children Act 1989 was whether or not the order sought was in the minor’s best interest.  There was no doubt in the present case that the treatment offered by the clinic was appropriate to C’s needs and that detention was an essential part of the treatment and therefore that the order fulfilled that test. C’s objection to the order, though a matter to be considered, could be overridden for the same reason, particularly in view of the psychiatrist’s opinion that she was unable to weigh treatment information and accordingly lacked the capacity to give valid consent or refusal to the treatment proposed. 

 

The court’s powers under the inherent jurisdiction were not ousted by the statutory scheme laid down by Parliament in section 25 of the Children Act 1989 and regulation 7 of the Children (Secure accommodation) Regulations 1991, because all the evidence as to its regime demonstrated that the primary purpose of the clinic was to achieve treatment, and that the restriction of liberty was only incidental to that end and therefore that the clinic was not “secure accommodation” within the meaning of the Act and the regulations.

 

Accordingly, this was a proper case for the exercise of the inherent jurisdiction. In making an order under that jurisdiction the court would have regard to the scheme laid down by Parliament in the Act so as to ensure that the rights and safeguards provided for the child by section 25 were available and would extend the period of the order made at the previous hearing to a date not later than a specified date.”

 

Therefore, that case is one of some value on this point, but is not determinative of it. Specifically in relation to secure accommodation, Wall J said this:

“C is not a child who is, or who ever has been looked after by a local authority. She has never been in care, nor has she been provided by the local authority with accommodation within section 22(1) of the Children Act. The local authority is not funding the current placement at the clinic. That, however, is not the end of the matter. By regulation 7 of the Children (Secure Accommodation) Regulations 1991, section 25 applies to children who are accommodated by health authorities.”

He went on to consider that. He went on to say:

“The use of the words ‘application to the court under section 25… shall… be made only by…’ clearly limits the persons or bodies who may make applications for secure accommodation orders, and thus restricts the powers of the court to make such orders. It follows that if (1) the clinic is secure accommodation and (2) falls within the category of persons set out in either limb of regulation 2 of the Children (Secure Accommodation) (No 2) Regulations the inherent jurisdiction of the court is ousted and for C to be detained in a clinic, an application under section 25 of the Act will need to be made pursuant to the regulations. I have to say that I find the regulations difficult to construe. Mr Munby conducted a detailed analysis of the regulations in the skeleton argument. I do not propose to repeat that exercise in this judgment, helpful as it was. The critical question seems to me to be, is the clinic secure accommodation? If it is, then the question of the construction of the regulations and their application to the instant case must be addressed. But, if it is not, detention in the clinic is outside the statutory scheme and the major inhibition on the use of the inherent jurisdiction disappears.”

 

  • In the course of argument, Miss Campbell considered that point, and then went on to refer me to the case of Re PS (An Adult) [2007] EWHC 623 (Fam), in which Munby J (as he then was) considered the extent of the wardship jurisdiction and said this:

 

 

“Is there power to detain?

16. It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court’s powers extend to authorising that person’s detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there… 

17. So the jurisdiction is clear. How should it be exercised?”

Munby J (as he then was) went on to say:

“18. Detention in the sense in which it is here being used will inevitably involve a “deprivation of liberty” as that expression is used in Article 5. Since the court is a public authority for this purpose…any exercise of its inherent jurisdiction must…be compatible with the various requirements of Article 5.”

 

  • The interplay between Article 5 of the European Convention and the secure accommodation provisions has been considered by the Court of Appeal in the case of Re K (Secure Accommodation order: Right to Liberty) [2001] 1 FLR 526. Article 5 provides, insofar as relevant, as follows:

 

 

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority.”

The term “educational supervision” has been given a broad definition within the case of Re K (to which I have already referred), and secure accommodation of the sort that arises in this case would not offend the provisions of Article 5, as long as it is demonstrated that it is for the purposes of educational supervision as defined in that case. The consideration of the Convention does not end at Article 5 however. Article 6, of course, provides the right to a fair trial. C is represented at this hearing very ably by Mr Farquharson, and there has been an open and full debate about the merits of the case and the legal jurisdiction for the application. There is no suggestion of unfairness in the trial process. Article 8 of the European Convention is also engaged. It provides that:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary…for the protection of health or morals, or for the protection of the rights and freedoms of others.”

I have omitted certain parts of the Convention Article where they do not bear relevance to this case.

 

  • The right to respect for one’s private and family life must bear with it a right not to be detained in secure accommodation. Secure accommodation can only be justified on a number of legal bases, that amongst them includes the provisions of Article 8(2). For Article 8(2) to be satisfied, the action of the public authority, here the court, must be demonstrated to be in accordance with the law; secondly, necessary for the protection of the rights and freedoms of C; and, thirdly, proportionate. I remind myself, of course, that secure accommodation involves the deprivation of liberty, and thus the liberty of the subject is engaged, and it is also one of the most draconian orders that can be made in relation to the placement of a child within the available armoury of the court. Therefore, very serious issues indeed arise under this provision, and there has to be strong and legal justification for intervention under the secure provisions.

 

 

 

  • The position that has ultimately been achieved at this hearing through the diligence of counsel is that the inherent jurisdiction of the High Court is theoretically limitless. In circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child, with the exception of the requirement that the child is looked after by the local authority, it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation. I accept Miss Campbell’s submission, on reflection, that the guidance and the authorities suggest that where the wardship court does exercise that jurisdiction, it must do so in a way that is compatible with the limitations imposed by statute. But the existence of the jurisdiction to make orders detaining children under the inherent jurisdiction is now established in argument before me, and therefore I conclude, as a matter of law, that it is permissible to order that a ward of court be detained in secure accommodation. The individual facts of individual cases have to be considered, and I am not, by this decision, indicating any conclusions about whether C should be further detained in secure accommodation. That will be for another day.

 

This is, therefore, authority for the proposition that the inherent jurisdiction can be used to authorise the detention of a 17 year old in secure accommodation if it is not possible to achieve the same outcome using section 25 of the Children Act 1989.

 

I have to share my disquiet about this – not that I think that the Judge is wrong in law – the authorities cited do indeed lay those foundations, but about where this takes us.

I really am increasingly uneasy about the expansion of the inherent jurisdiction – and phrases like “the inherent jurisdiction of the High Court is theoretically limitless” don’t reduce that feeling in the slightest.  The problem is that inherent jurisdiction gets used in cases as the “get out of jail free card”  (or the reverse in this case), coming to the rescue where there is a desired result but one that can’t be achieved within the Statute.  That decision then gets cited in the future as authority for ‘theoretically limitless powers” and we keep building up these powers to do things that cause me a considerable amount of anxiety.

 

Don’t get me wrong – if someone in this country has to have ‘theoretically limitless power’,  I’d rather it was High Court Judges than anyone else, but I just don’t think anyone should have limitless power. Nobody.  Limits to power are what help us sleep soundly in our beds.

If the inherent jurisdiction can be used to achieve secure accommodation on someone (who let us not forget is old enough to join the army) then do we end up sidestepping the statutory requirements in s25 – the LA need to meet a rightly high hurdle to seek secure accommodation, but there is no statutory test for the use of inherent jurisdiction in this way.  Parliament set the framework for s25, and could easily, if they had wished, said that the Local Authority could seek such orders up until the young person’s 18th birthday, with any detention after that being through either the Mental Health Act or the Mental Capacity Act.

 

There are compelling reasons of public policy why ‘sham marriages’ are declared non-marriages

 

This is the Court of Protection decision in A Local Authority v SY 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/3485.html

Much of the case involved SY’s difficulties with capacity and plans for her future, which involved her living in a care home – having not consented, this was being treated as a deprivation of liberty (I add in parenthesis that I am pleased to see the Courts taking a common sense pragmatic approach on someone having to live in a home when they don’t consent as being a Deprivation of Liberty DoLS, as I think that was always the spirit of the Mental Capacity Act 2005, though we seem to have drifted from that in the short years the Act has existed)

An additional issue, however, was that SY had entered into a marriage to a man TK.   I have to say, the man TK, doesn’t come out of this well  (I have reordered the judgment here, simply because it scans better in this particular context)

 

    1. TK was born in Pakistan. He came to the United Kingdom on 7 September 2009 as a student. His application to continue his studies was refused and his appeal was dismissed on the basis of a tribunal finding that he had submitted two forged documents and had attempted to deceive the immigration authorities. His rights of appeal were exhausted in June 2011. It is in this context that he began a relationship with SY in August 2011.

 

    1. On or around 15 June 2012 TK was arrested for immigration offences and detained by the UK Border Agency pending his deportation. He claimed asylum on the basis that he feared he would be killed by his family who disapproved of his marriage to a white British woman, namely SY.

 

    1. Following an adult case conference on 20 June 2012, SY moved to her current placement on 27 June 2012. The following day an associate of TK attended the placement and attempted to gain entry for the purpose of seeking SY’s signature on a document allegedly prepared to assist TK with his asylum claim. In light of the risks to SY of harm and exploitation, an urgent authorisation was issued and then a standard authorisation to deprive her of her liberty at the placement was granted.

 

  1. On 17 July 2012 TK’s appeal against the refusal to grant him asylum was dismissed on all grounds. His relationship with SY lay at the heart of the case he sought to mount. The tribunal judge found that “The relationship, if there is one, does not have the necessary qualities of commitment, depth and intimacy which would be necessary to demonstrate family life for the purposes of article 8…”. He later observed that “viewed objectively her best interests are likely to be served by there being no further interference by [TK] and his friends with the care arrangements which social services have put in place”. He was found not to have given a truthful account in his evidence and not to be a credible witness.

 

    1. On 23 January 2012 her then carers notified the authority that she had returned from TK’s property in a nearby city and told them that TK had locked her in his house when he went to work, she and TK had been visited by a ‘lawyer’ about a housing application, that they were to marry in six months time and that TK had taken her to a registry office to obtain a copy of her birth certificate. The carers reported they had overheard TK speaking to SY on the telephone in a controlling and aggressive manner.

 

    1. Social workers attempted to undertake a capacity assessment but SY refused to co-operate. For the same reasons a clinical psychologist, Dr. C, was unable to assess formally her capacity to litigate and/or to make decisions as to residence, contact, marriage and sexual relations but concluded it was unlikely she was able to do so.

 

  1. On 24 May 2012 the authority and the police told TK that SY had a learning disability and was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. Notwithstanding this advice, on 10 June 2012 TK and SY entered into a purported Islamic marriage ceremony at his home.

 

So, the issue in the case was whether the Court of Protection should make a declaration that this marriage was not recognised, as being one that SY had no capacity to consent to.  The eagle-eyed or attentive reader may recall that there was a blog post recently about a Holman J decision, in which he held that the Court had no jurisdiction to make such a declaration  – the difference HERE is that the unfortunate wife in that case COULD have made her own application for nullity but was vulnerable and unwilling, which was what caused the bar to the declaration. Here, there was no possibility that SY had the capacity to make an application in her own right, so the Court would have power to make the declaration.

(It isn’t QUITE as simple as that, because the marriage never purported to be a ceremony to which the Marriage Act applies, so the Court can’t use the powers under that Act – this was clearly an Islamic ceremony. So, to declare it a non-recognised marriage  involves the use of the inherent jurisdiction, and the Court needed to walk through very carefully the existing authorities,  hence the debate and determination below – underlining mine for emphasis)

Discussion – Declaration of Non-Marriage

    1. There is no provision in the 2005 Act to make a declaration in respect of the ceremony in which SY and TK participated on 10 June 2012.

 

    1. The issue is whether the Official Solicitor should make a freestanding application for a declaration or whether the court, of its own motion, should invoke the inherent jurisdiction of the High Court and make a declaration of non-marriage. The parties invite me to take the latter course.

 

    1. The ceremony was conducted at TK’s home by a Mr MA. He is not a registrar and the ceremony did not take place at an authorised place. A document entitled ‘Marriage Certificate according to Islamic Laws’ appears in the court bundle [A35].

 

    1. It is submitted by counsel for the authority and for the Official Solicitor that the ceremony failed to comply with essential requirements of the Marriage Acts 1947-1986 in that:

 

a. it was not conducted in a registered place; and

b. it was not conducted by a registrar or by a priest according to Anglican rites.

    1. Furthermore it is submitted that the evidence indicates that in all probability the ceremony was not intended to attract the status of a marriage under English law being a ceremony undertaken to create a marriage expressly according to Islamic laws.

 

    1. In A-M v. A-M (Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, Hughes J. (as he then was) considered the status of an Islamic marriage ceremony conducted in England. He said, at paragraph 58,

 

“It is clear, however, that the present ceremony did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal consequences. It was not conducted under the rites of the Church of England, nor was there ever any question of an application for, still less a grant of, a superintendent registrar’s certificate, and it was conducted in a flat which was clearly none of the places which were authorised for marriage. The ceremony was consciously an Islamic one rather than such as is contemplated by the Marriage Acts……It is not any question of polygamy which ipso facto takes this ceremony outside s. 11, but the fact that it in no sense purported to be effected accordingly to the Marriage Acts, which provide for the only way of marrying in England. …It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity”.

    1. The self-same facts and considerations apply in this case in relation to the ceremony conducted on 10 June 2012.

 

    1. In the case of Hudson v. Leigh (Status of Non-Marriage) [2009] 2 FLR 1129, a ceremony was undertaken in South Africa which the parties had deliberately modified to avoid strict compliance with local formalities. They intended a civil ceremony would be conducted some weeks later in England, but it never took place. Bodey J. held, at paragraphs 80-84,

 

“As to Mr Leigh’s amended petition, Mr Mostyn has abandoned the secondary prayer in it for a declaration that “…no marriage between the parties subsisted on the 23rd January 2004 or thereafter”. That had seemingly been inserted into the pleading by amendment and as an afterthought so as to try to bring Mr Leigh’s case into S55 (1) (c), as being ‘a declaration that the marriage did not subsist on a date so specified in the application’. I am clear that the making of such a declaration would have been wholly impermissible as being a device to get around S58 (5) (which outlaws any declaration that a marriage was at its inception void) and I would therefore have dismissed that prayer had it stood alone. There remains Mr Mostyn’s application for a declaration that the Cape Town ceremony did not effect a marriage at all….It goes without saying that, if appropriately worded, the mere dismissal of Miss Hudson’s petition for divorce and alternatively for nullity would inform any reasonably knowledgeable interested party that there was not a marriage between herself and Mr Leigh. There would indeed be nothing to prevent a specific recital to that effect. That would not be entirely satisfactory, however, since it would not theoretically bind third parties and problems might arise if either party wanted to marry here or abroad, or otherwise needed to demonstrate his or her status. A declaration, if permissible, would be in the public interest of creating certainty and would be beneficial and convenient for both parties. In my judgment, the making of such a declaration is not outlawed by S58 (5) if and for so long as it is made to declare that there never was a marriage, as distinct from being a declaration (which is not permitted) that a given marriage was void at its inception. When the facts dictate the latter (which, as found here, they do not) then the only route to resolution is nullity. Nor do I find persuasive Mr Le Gryce’s argument about the former practice of the ecclesiastical courts. For so long as the High Court has an inherent jurisdiction, as it does, and has the authority of the RSC to make free-standing Declarations in appropriate circumstances, then such jurisdiction needs within reason to be flexible and to move with the times. I cannot accept that it is stuck in the mid-19th century. Were it so, then countless orders must have been made (for example in the management of life-support systems) without jurisdiction. Accordingly I propose to make a Declaration that the Cape Town ceremony of 23.1.04 did not create the status of marriage as between Miss Hudson and Mr Leigh.”

    1. Bodey J., in a later case, considered the status of an Islamic marriage ceremony conducted in the ‘husband’s’ London flat in the presence of an imam. He held there had been a wholesale failure to comply with the formal requirements of English law and there was nothing that could be susceptible to a decree of nullity under s. 11 of the Matrimonial Causes Act 1973. He made a declaration of non-marriage: El Gamal v. Al Maktoum [2012] 2 FLR 387.

 

    1. On the basis of those authorities I am satisfied that the ceremony which took place between SY and TK on 10 June 2012 did not comply with the formal requirements of the Marriage Acts 1947-1986. I find it was a non-marriage.

 

    1. What is then to be done? The Official Solicitor on behalf of SY could make a freestanding application pursuant to the inherent jurisdiction of the High Court to seek a declaration of non-marriage. Alternatively, the court in these proceedings could, of its own motion, invoke the inherent jurisdiction and make a declaration of non-marriage.

 

    1. In the case of XCC v. AA and Others [2012] EWHC 2183 (COP), Parker J. was invited to make a declaration of non-recognition of a marriage within Court of Protection proceedings by invoking the inherent jurisdiction of the High Court. She said, at paragraphs 54 and 85,

 

“The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne…..I am satisfied that once a matter is before the Court of Protection, the High Court may make orders of its own motion, particularly if such orders are ancillary to, or in support of, orders made on application. Since the inherent jurisdiction of the High Court in relation to adults is an aspect of the parens patriae jurisdiction the court has particularly wide powers to act of its own motion.”

    1. I, respectfully, agree.

 

    1. Parker J. held that the provisions of the 2005 Act were not to be imported in to the inherent jurisdiction evaluation, the decision was not dictated only by considerations of best interests but public policy considerations were also relevant [paragraphs 56-57 and 71-76].

 

    1. It is plain on the facts of this case, especially taking account of the immigration judgment handed down on 17 July 2012 in respect of TK’s asylum appeal, that TK exploited and took advantage of SY for the purpose of seeking to bolster his immigration appeal and his prospects of being permitted to remain in this country. The ceremony he and SY engaged in on 10 June 2012 formed the bedrock of that objective.

 

    1. TK well knew that SY had learning difficulties and was a vulnerable young woman. He knew that the police and the care services were extremely concerned about his involvement with SY.

 

    1. I can reach no other conclusion than he deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation.

 

    1. Fortunately, it would appear that TK’s involvement in SY’s life is not now causing her emotional distress or harm. It was, however, yet another abusive and exploitative episode in her life which could have had serious physical, emotional and psychological consequences for her.

 

  1. In my judgment it is important for SY that a declaration of non-marriage is made in respect of the June 2012 ceremony. There are also, in my judgment, compelling reasons of public policy why sham ‘marriages’ are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation.

 

Over and above the facts of this case, and that judicial steer underlined above (which I suspect will be cited in many of these cases to come), the Court made some interesting observations about the capacity assessment.

 

    1. The assessment of capacity (COP 3) was completed by SY’s social worker, NU. It is a full, detailed and helpful assessment of SY’s capacity to make decisions as to her residence, contact with others, her care needs and to enter into a contract of marriage.

 

  1. I am told by counsel that it is more usual for the assessment of capacity to be undertaken by a medical practitioner or a psychiatrist. The assessment in this case demonstrates that an appropriately qualified social worker is eminently suited to undertake such capacity assessments. I commend the practice which I hope will be followed in appropriate future cases.

 

[I am not entirely sure how I feel about that – I represent and work with social workers and believe that those who work in adult social care do have the necessary expertise and skill to conduct such assessments and that they would strive to make them fair. However, it can be the case that the Local Authority take, and sometimes have to take, a line as to what they consider to be in the best interests of the person. It may be that such a role doesn’t sit entirely comfortably with conducting an assessment to decide whether a person is capable of exercising autonomy or should have decisions about their future made by the State in their ‘best interests’.  (I am not saying that there WOULD be bias or unfairness, but in law, the perception of bias can be as important as the actuality.  R v Sussex Justices being the lead on this – the law must not only be fair, it must be seen to be fair)

 

 

 

Inherently nothing, nothing inherently

A (hopefully short) discussion about the inherent jurisdiction, particularly as it applies to adults.

I wrote about the Court of Protection popping on the High Court hat to make use of the inherent jurisdiction to get around an otherwise impossible jam, in A NHS Trust v Dr A 2013 http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html and it got me pondering.

As a quick summary, the inherent jurisdiction is a creation of the common law, i.e it was decided in cases before the Court rather than laws enacted by Parliament or regulations or codes drawn up by Ministers.  It essentially provides for the High Court to use unspecified but wide-ranging powers to solve a problem that could not otherwise be achieved by use of statutory powers. In the case of Dr A, because Dr A was detained under the Mental Health Act AND lacked capacity, and the treatment that was considered desirable for him was not in relation to his mental illness but his physical wellbeing; the construction of the Mental Capacity Act prohibited the treatment being authorised by the Mental Capacity Act, and it was treatment that couldn’t be legitimately compelled without consent under the Mental Health Act.

 

The Court’s solution was to make use of the inherent jurisdiction – as we know from that case, had they not done so, the man would probably have died, and we also know that the man went on to make a good recovery and was happy not to have died. So it was the right thing to do. But it was, nonetheless, the High Court using broad and unspecified powers to achieve an outcome that was specifically prevented by legislation enacted by an elected Government. Yes, that legislation was probably a mess and it hadn’t been properly thought through, but nonetheless, the High Court did something that the statute had specifically prevented.

So, my question is – Is the Inherent Jurisdiction a useful and helpful tool to have to allow Judges dealing with difficult cases the necessary flexibility to arrive at what they consider to be the right outcome, or is it a method by which Judges can grant themselves powers that have never been specifically handed to them?  Are we accepting that in exposure to real life, statutory laws will always have stress points and flaws and sometimes break completely and it is helpful to have the judicial Polyfilla of the Inherent Jurisdiction to come to the rescue? Or do we consider that if the UK Parliament wanted to make it lawful for Judges to make orders to sterilise patients, to effectively continue Wardship on someone who was an adult, to determine whether a person could marry, to authorise surgery on conjoined twins against the wishes of parents who were competent, to regulate the relationship between vulnerable adults and their adult son, to decide whether a parent’s views about cancer treatment should be overriden for their child, or to authorise force-feeding, that this should be done through statutory laws?   (Those are all genuine cases involving the use of the inherent jurisdiction to make such orders, and some went on to lead to the introduction of statutory mechanisms to resolve these problems)

Of course, if the inherent jurisdiction hadn’t been there, then the Court could have ended up being unable to make the decisions and orders that were deemed to be in the person’s best interests – it would have been no good to any of those individuals that the Government in four or five years time would bring about some legislation on forced marriages, or persons lacking capacity. Don’t we WANT Judges to be able to make the right decisions – they are seized of the facts, they hear the arguments – we wouldn’t want them to have to make a decision that they felt was not right for the individuals concerned merely because the law hadn’t anticipated this set of circumstances and made provision for it?

On the other side, however, it worries me to an extent, firstly because we are now getting into territories where there IS existing legislation to make provision for these things. Both the Mental Capacity Act and the Mental Health Act have very long and detailed provisions for the circumstances in which treatment can be undertaken without consent. Dr A happened to fit within both pieces of legislation – he was detained under the Mental Health Act, and was determined to lack capacity to make decisions about the feeding treatment under the MCA.  Whilst I consider that the final decision that was taken was right, and in Dr A’s best interests, I can’t get away from a nagging feeling that all of those statutory provisions and requirements were sidestepped by a Judge simply deciding that “X should be done, and I will do it under the inherent jurisdiction”

We surely needed the Mental Health Act and Mental Capacity Act so that it was clear (or comparitively clear) under what circumstances the State could interfere with a person’s life and autonomy, what would be required before the State could do so, what the checks and balances would be, what rights the person would have.  All of that seems to me to get a little lost when a High Court Judge can simply decide that they have the power to achieve the outcome they desire?

In children cases, the use of the inherent jurisdiction is moulded into the statute – it says what it cannot be used for, and gives parameters in which the State can invite the Court to use those powers. In adult cases, it is not incorporated or limited.

Sentences like this, from McFarlane LJ  (who I believe to be a fair and just Judge) still make me shudder a little   “It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”  DL V a Local Authority 2012  http://www.bailii.org/ew/cases/EWCA/Civ/2012/253.html

I don’t like the notion that Judges are able to consider that they have carte blanche with these powers unless Parliament expressly take them away.  Because another way of looking at it would be – that when you are deciding on compelling medical treatment for a person who doesn’t consent to it, you are looking at whether it can be authorised under either Mental Health Act, Mental Capacity Act or the doctrine of necessity, and that if it can’t, then it simply can’t be authorised.

Once you consider that in every case where the Court uses its Inherent Jurisdiction they are in effect making a decision that the State knows best and can impose a paternalistic decision upon people overriding their autonomy, it becomes something that is potentially concerning.  I say that not because I think any of the Judges who have used it have ever done so for reasons other than genuine belief that it was in the best interests of the individual; but because I firmly believe that people should have autonomy other than in circumstances specifically set out in statute law.  I would rather preserve Judges as the referee , as the person sifting the evidence, hearing the argument, being arbiters and determiners of whether the State has made out its case for taking decisions away from the individual under statutory powers;  and not stepping onto the pitch and taking part in the match itself.

Do I think that this principle is more important than a Court being able to solve an intransigent problem in an individual case?  That’s harder to say – faced with a life or death situation like Dr A and the statutory law as written meaning that the Court would be powerless to order the treatment which it had already decided was in Dr A’s best interests, it is hard to feel that they should be denied the chance to make the right decision. I perhaps feel that using the inherent jurisdiction to Polyfilla the cracks is ultimately less good for the individual than Judges being able to go back to Parliament and say “Look, you hadn’t envisaged this scenario – I have fixed it just this once, but what do you want Courts to do if it comes up again?@

Deprivation of liberty and force-feeding

The Court of Protection grappled with a difficult issue in A NHS Trust v Dr A 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html

Apologies in advance – this is a long article, it is complex and if you don’t do mental capacity or mental health law you probably don’t need to read it.

The facts of the case involved a Doctor who began manifesting erratic behaviour, for example insisting that anyone in the colour red was a member of the Iranian Secret Police and that a book he was writing disproving evolution would make him famous after his death. Dr A also went on hunger strike, following the confiscation of his passport by the UK Border Agency.

Although one expert was of the view that Dr A’s behaviour was all an attempt to apply pressure to reverse decisions about his asylum case, the vast majority of the experts considered that he had had a genuine breakdown of his mental health.

Without going into the details too much, the Court were satisfied that Dr A was suffering from a delusional disorder impairing the functioning of his brain affecting his ability to use or weigh up information relevant to his decision as to whether or not to accept nourishment.  (And thus in terms, that he did not have the capacity to decide to refuse nourishment)

The Court then weighed up whether it was in Dr A’s best interests to receive nutrition by way of force feeding or not  – this is not a simple decision, and a number of competing factors were weighed up and considered. The Court determined that it would be in Dr A’s best interests to receive nutrition by way of nasogastric tube feeding.

However, an issue then arose about whether, having made the declaration that Dr A lacked capacity, and that force-feeding would be in his best interests, whether the Court actually had jurisdiction to compel it.

  1. I therefore conclude that it is in Dr. A’s best interests for this court to make an order that permits the forcible administration of artificial nutrition and hydration.
  1. I now turn to consider the power of the court to make the order in his best interests. The question emerged in the course of argument as to whether, in the circumstances of this case, the court had the power under the MCA to make an order for the forcible feeding of Dr. A. Subsequently, the investigation and analysis of that question has taken a considerable amount of time, both for the parties’ legal representatives and the court. It is alarming to find that the legal position on this fundamental issue is far from straightforward

 

The fact that the next part of the judgment is headed “Eligibility – a new gap?” will make practitioners in this field very nervous – the last gap went all the way to Europe, and ended up with the Mental Capacity Act and all of the impenetrability that the MCA has become in practice.

The Court had to look at whether force-feeding was a deprivation of liberty, and concluded that yes it was. This may well turn out to be important in other cases involving for example political protests,  Brady-type efforts to end ones own life or persons with eating disorders.

When determining whether the circumstances amount objectively to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds himself. In this case, there is no dispute that subjecting Dr. A. to forcible feeding amounts to a deprivation of liberty. In order to feed him he will be physically restrained by NHS staff against his will while a nasogastric tube is inserted. The restraint continues to prevent him removing the tube. On occasions, in this process, he is sedated. He is not allowed to leave the hospital. The staff are effecting complete control over his care, treatment and movements, and, as a result, he loses a very significant degree of personal autonomy.

The issue then was whether the Court had powers under the MCA to make an order that had the effect of depriving Dr A of his liberty. This becomes very complex, very quickly, even by MCA standards.

  1. 16A(1) of the MCA are clear:

“If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.”

And then a long trawl through Schedule 1A of the MCA which sets out when a person is ineligible to be deprived of liberty under the MCA shows that the MCA can’t be used to deprive a person of their liberty if they are being, or are capable of being , detained under the Mental Health Act.

In the light of the evidence suggesting that the criteria set by section 2 MHA might be met in respect of Dr. A., it seemed to me that it was at least arguable that he was “within the scope of the MHA” and therefore, by virtue of paragraph 5 of schedule 1A of the MCA, ineligible to be detained under the MCA.

The hospital actually detained Dr A under s3 of the Mental Health Act during the interim period between the Judge asking trial counsel how the heck this could be fixed and them coming up with solutions. Did that help?

  1. The consequence of placing Dr. A under section 3 was, however, merely to accentuate the difficulties about the application of section 16A because, although removing him from the ambit of case E of schedule 1A, it put him squarely within case A. On any view, he is both subject to a “hospital treatment regime” within the meaning of paragraph 8(1) of the schedule and also detained in a hospital under that regime. In those circumstances he is, prima facie, ineligible to be deprived of his liberty under the MCA and the Court of Protection may not include in any welfare order any provision which authorises him to be so deprived.
  1. Put boldly in that way, it will be seen that this might make it impossible for someone to be treated in a way that is outwith his “treatment” under the MHA if that treatment involves a deprivation of liberty. To take a stark example: if someone detained under section 3 is suffering from gangrene so as to require an amputation in his best interests and objects to that operation, so that it could only be carried by depriving him of his liberty, that process could not prima facie be carried out either under the MHA or under the MCA. This difficulty potentially opens a gap every bit as troublesome as that identified in the Bournewood case itself.

 

So, you can provide treatment to a person who is, or is capable of being, detained under the Mental Health Act, in accordance with the MHA  BUT if the treatment isn’t capable of being provided under the MHA you cannot then turn to the MCA as being a vehicle for providing that treatment even if the person does not have capacity and the Court has declared that the treatment is in their best interests, because of Schedule 1 A of the MCA.

Sorry, this is going to be  complex, it takes about five pages of going through the Act itself to get to that point – the Judge was so exasperated by what he described as  the ambiguity, obscurity and possible absurdity of the legislation, that he authorised counsel to look at the Parliamentary debates in a Pepper v Hart exercise to see if this idiocy was what Parliament had intended, or whether it was a cock-up.  (Judges hardly ever embark on the exercise of looking at what Parliament said about the construction of the Act  – it’s that Otto von Bismarck  “laws are like sausages – it is better not to see them being made” thing)

  1. The Official Solicitor now suggests three solutions to the problem described above:

(1) The necessary feeding and associated measures can be taken under the MHA. There is therefore no need for an order under the MCA.

(2) If the necessary feeding and associated measures cannot be taken under the MHA, an order can still and should be made under the MCA interpreted in accordance with the Human Rights Act 1998.

(3) If the necessary feeding or associated measures cannot be taken under the MHA or the MCA, an order should be made under the High Court’s inherent jurisdiction.

I shall consider these options in turn.

Authorising the treatment under the Mental Health Act

Understandably, the Official Solicitor cited the Ian Brady case as authority for the suggestion that force-feeding can be authorised under the Mental Health Act.

This is the key passage in the Brady judgment that sanctioned his force-feeding under the MHA  (a decision that frankly, I found a bit ‘iffy’ at the time, going much further than traditional views that one can forcibly treat the mental disorder but not physical disorders under the MHA)

71.   “On any view, and to a high degree of probability, section 63 (MHA) was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder.”

The medical evidence in this case did not back that up

In this case, therefore, the clinicians treating Dr. A. feel strongly that artificial nutrition and hydration and ancillary treatment are, on the facts of the case, treatment for a physical disorder, starvation and dehydration, and not for the underlying mental disorder. Dr. A. is not suffering from an eating disorder. Whilst feeding him may make him feel better, it is not treating him for a mental disorder as it would be were he suffering from anorexia nervosa.

  1. On this point I have found the views articulated by the treating clinicians, and in particular Dr. WJ, persuasive. She does not consider that the administration of artificial nutrition and hydration to Dr. A. in the circumstances of this case to be a medical treatment for his mental disorder, but rather for a physical disorder that arises from his decision to refuse food. That decision is, of course, flawed in part because his mental disorder deprives him of the capacity to use and weigh information relevant to the decision. The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder. This case is thus distinguishable from both the Croydon case and Brady.
  1. I also accept the submissions put forward by Miss Paterson, and acknowledged by the Official Solicitor, that it is generally undesirable to extend the meaning of medical treatment under the MHA too far so as to bring about deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA. I recognise the need for identifying, where possible, a clear dividing line between what is and what is not treatment for a mental disorder within the meaning of the MHA; but I venture to suggest that in medicine, as in the law, it is not always possible to discern clear dividing lines. In case of uncertainty, where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court to approve the treatment. That approach ensures that the treatment given under section 63 of the MHA will be confined to that which is properly within the definition of section 145 as amended. It would help to ensure that patients with mental disorders are, so far as possible, treated informally rather than under section. Finally, it ensures compliance with Article 8 and provides the patient with a more effective remedy than would otherwise be available, namely a forensic process to determine whether the treatment is in his best interests.
  1. I therefore decline to make a declaration that artificial nutrition and hydration can be administered to Dr. A. under the MHA

Authorising the treatment under the MCA, by interpreting it in light of the Human Rights Act

I liked this argument, it is clever. If the MCA as drafted, puts a Court in a position of not being able to protect the right to life of a person who the Court has determined does not have the capacity to refuse treatment which would save his life, the Court ought to interpret the MCA in such a way that it does NOT clash with the article 2 right to life. And using the powerful tool of s3 (1) Human Rights Act to do so

Under section 3(1) of the Human Rights Act:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

 

  1. The second basis on which the Official Solicitor invites the court to authorise the forcible feeding of Dr. A. is under section 16 of the MCA. He submits that the provisions of the MCA read in compliance with the Human Rights Act and the European Convention permit the court to take this course. Mr. Moon and Miss Street submit, first, that, so far as it is possible to do so, the MCA must be interpreted so as to be consistent with the best interests of the person lacking capacity (section 1(5) of the MCA). Unless the court authorises the forcible administration of artificial nutrition and hydration to Dr. A. he will die. The court is thus under an obligation to interpret its powers in a way that ensures his life is saved.
  1. It is submitted by Mr. Moon and Miss Street, however, that the obligations on the court go further. Under Article 2 of the European Convention of Human Rights “everyone’s rights to life shall be protected by law”. Amongst the duties imposed on the State by Article 2 is the so-called “operational duty” requiring the State in certain circumstances to take preventative measures to protect an individual whose life is at risk: Osman v. United Kingdom [1998] 29 EHRR 245.

 

 

But it is still No

  1. The course proposed by counsel, though in some ways attractive, involves reading into section 16A a provision that would have the effect of fundamentally altering its clear meaning. The scheme of the amendments to the MCA, introduced in 2007, is plain. In certain circumstances defined in schedule 1A, the MHA regime takes precedence over the MCA. No argument has been advanced which has persuaded me to disagree with the assessment of Charles J in Re GJ (supra) that the MHA has primacy over the MCA and, in particular, his observation at paragraph 96 of the judgment:

“Case A is a clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.” [my emphasis]

In such circumstances, and notwithstanding the uncompromising words of Lord Nicholls quoted above, any court, particularly a Judge at first instance, must at least hesitate before reading into a statute words that would have the effect of fundamentally altering its meaning and undermining the apparent scheme of the legislation. He should hesitate still further when the proposed reading in has not been the subject of full argument on both sides nor referred to the relevant Government department. Despite the great efforts of counsel, I am far from satisfied that all the consequences of their proposed reading in of words into section 16A have been fully identified. It may be that, with further thought, an alternative reading or reinterpretation may seem prevalent. For example, it may be thought that, if any statute or provision needs to be reconsidered to ensure capability with ECHR in this context, it should be the MHA rather than the MCA.

  1. I acknowledge, of course, my obligation under section 6(1) of the Human Rights Act not to act in a way that is incompatible with that Act. Were it not for the availability of the inherent jurisdiction, I might be more inclined to adopt the course proposed above or to arrange further hearings before making a decision. Happily, however, for the reasons I will now explain, I am satisfied that the powers available to me under the inherent jurisdiction enable me to comply with my obligations under that section.

Inherent jurisdiction then?

The Judge set out the body of authority which endorses the view that the Court hold an inherent jurisdiction in relation to adults just as it does for children, ending with the most recent authority.

90.   Confirmation is provided by the more recent decision of the Court of Appeal in DL v. A Local Authority [2012] EWCA Civ. 253 in which Davis LJ said at paragraph 70:

“Where cases fall precisely within the ambit of the MCA 2005 and are capable of being dealt with under its provisions there is no room for – as well as no need for – invocation of the inherent jurisdiction. However, even in the case of an adult who lacks capacity within the meaning of the MCA 2005, it appears that the inherent jurisdiction remains available to cover situations not precisely within the reach of the statute.”

  1. The issue is considered at greater length in the judgment of McFarlane LJ who, in reaching the same conclusion, pointed out the MCA contains no provision restricting the use of the inherent jurisdiction in terms of those found in section 100 of the Children Act 1989, “Limited use of Wardship and Inherent Jurisdiction in matters relating to Children”. On this, McFarlane LJ said at paragraph 61:

“It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”

In essence, if Parliament wanted to stop the use of inherent jurisdiction to creatively solve problems, they need to legislate this explicitly.

This is the cunning argument deployed  (which involves assuming that when the MCA says “Court” it means only the Court of Protection, not the High Court, even though in practice, as here, it is likely to be the same Judge, sitting in the same room, who just metaphorically puts on a different hat for a moment.

 

93.   (1) The prohibition on making an order which authorises the person being deprived of his liberty is expressly restricted to the Court of Protection exercising its statutory jurisdiction under the MCA and is not, but could have been, extended to the High Court exercising its inherent jurisdiction.

(2) Following McFarlane LJ in DL, the clear implication is that Parliament did not intend to prevent the High Court exercising its jurisdiction to make an order in the best interests and in order to uphold the Article 2 rights of a person lacking capacity in the circumstances of a case such as this.

(3) Furthermore, Parliament cannot have intended to remove the safety net from a person lacking capacity who requires the orders sought to be made in order to prevent his death.

(4) The relevant concept is his ineligibility to be “deprived by this Act” (section 16A(1) and schedule 1A at paragraph 2).

(5) If a person is ineligible to be deprived of his liberty by the MCA, section 16A provides that “the court may not include in a welfare order provision which authorises the person to be deprived of his liberty”. In this provision:

(a) “The court” means the Court of Protection; and

(b) “the welfare order” means an order under section 16(2)(a) of the Mental Capacity Act by the Court of Protection.

I agree with those submissions.

So, having determined that the Court had power under the Inherent Jurisdiction (which is like the legal equivalent of Duct Tape, or perhaps more accurately Polyfilla to cover up the cracks), the Judge then had to consider whether he should go on to use that power.

  1. the court, as a public authority, cannot lawfully act in a way that is incompatible with a right under ECHR. I accept the submission that I am under an operational duty under Article 2 to protect Dr. A., a man who, as I have found, lacks capacity to decide whether to accept nutrition and hydration against the risk of death from starvation. By making the orders sought by the Trust under the inherent jurisdiction, I will be complying with that operational duty.
  1. In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Article 5. Unless and until this court or another court clarifies the interpretation of section 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under section 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment (a) is outside the meaning of medical treatment of the MHA 1983 and (b) involves the deprivation of a patient’s liberty.
  1. Under that jurisdiction, I am satisfied, for the reasons set out above, that an order for forcible feeding of Dr. A. is in his best interests. I therefore make the orders sought by the applicant Trust, that is to say declaring that it shall be lawful for the Trust clinicians to provide Dr. A. with artificial nutrition and hydration and to use reasonable force and restraint for that purpose, and further declaring that, insofar as those measures amount to a deprivation of liberty, they shall be lawful.

An elegant fix of a mess caused by Parliament.

There is a postscript update on Dr A, which may be of interest

98.   On 1st July 2013 (before the transcript of the judgment was finalised) the Trust notified my clerk that Dr A had returned to Iran, having made, in the doctors’ opinion, a capacitous decision to do so. I received statements from Drs R and WJ and correspondence from the parties, detailing the clinical decisions and events, which preceded his departure. I am informed that Dr A had continued to be provided with artificial nutrition and hydration requiring restraint. He also received amisulpride, an anti-psychotic. His mental state gradually improved, in response to the medication. Dr A started drinking and eating voluntarily on 8 and 10 May respectively. His weight returned to a level within a normal range. The Trust states that Dr A first mentioned he was returning to Iran on 23 May 2013. He made the final decision on 4 June 2013; after taking medical advice and legal advice from his immigration solicitor. On 14th June 2013 Dr WJ rescinded Dr A’s detention under section 3 MHA; his mental condition having continued to improve. He returned to Iran on 24 June 2013. I will now make an order concluding these proceedings, discharging the declarations and the order for a review hearing.

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