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Category Archives: adult social care

The Costa dignity…. Financial abuse case

These cases always stir up my blood, and I ranted at my colleague sitting next to me about this one.

 

Re AH 2016

http://www.bailii.org/ew/cases/EWCOP/2016/9.html

 

In this one, a 95 year old woman, living in a care home and lacking capacity, had appointed her niece’s husband  Colin (is that a nephew-in-law?) to manage her affairs under a Lasting Power of Attorney in 2011.

[One might doubt, from the facts given that she had capacity to enter into that LPA in 2011, when she’d have been 90 years old. Not terribly reassured that The person who certified that Alma had capacity to create the LPA owns a hotel in the New Forest. He said that “Alma has been a personal friend of mine over the past 25 years and has always popped in to see me on her visits to the New Forest.”  ]

Since running her affairs for her, Colin has run up a debt of £100,000 on her nursing fees. He has withdrawn nearly £30,000 from her account. He has purchased a house and put it into her name  (hardly for her benefit, since she’s never going to live in it)

During that time, he has given her the princely sum of £260 of personal allowance. That equates to less than £10 per month – or about £2 per week. Generously, he has sent her about 1% of the money that he took out of her account.

(e) Mixing of funds. Alma and Colin have a joint bank account with Virgin Money. The table within the bundle highlights fifteen ‘concerning’ outgoings which remain unexplained and which were clearly not purchase made on Alma’s behalf including debits to the Odeon cinema, the Wilton Arms Hotel, Toby Carvery and Costa Coffee. Upon his appointment as Alma’s attorney, by continuing to have a ‘mixed account’, Colin breached his duty to keep Alma’s money separate from his contrary to paragraph 7.68 of the Code and has behaved in a way that is not in Alma’s best interests in breach of section 4 of the Act. Attorneys must, in most circumstances, keep finances separate to avoid the possibility of mistakes or confusion and this is not a situation of a husband acting as his wife’s attorney (for example) which might render the presumption to be rebutted.”

 

It doesn’t seem likely that this 95 year old woman, living in a nursing home in Oldham was out visiting the Odeon cinema and drinking coffee in Costa in the New Forest…

 

  1. Decision
  2. The Court of Protection General Visitor, who saw Alma on 19 January 2015, observed that she “has no verbal communication and her dementia is so advanced that she is unable to demonstrate any understanding of her needs or her environment.”
  3. I have no reason to doubt what the Visitor says and, on the balance of probabilities, I am satisfied that Alma lacks capacity to revoke the LPA.
  4. Colin’s management of her property and financial affairs has been a litany of failings.
  5. He failed to pay the nursing home fees and thereby put her placement in jeopardy.
  6. The nursing home had difficulty contacting him. He failed to reply to their letters and failed to return their calls.
  7. He failed to provide Alma with an adequate personal allowance. The stingy sum he did deign to pay her (£290 over 2½ years) amounted to less than £10 a month.
  8. Her clothes are old and worn and mostly hand-me-downs from former residents who have died or moved elsewhere.
  9. The Court of Protection Visitor concluded her report by saying that: “Alma would benefit from a full wardrobe of new clothing. In addition, she is reported to have loved to dance when she was mobile. The nursing home has provided a CD player but Alma would benefit from having her own music player and a range of CDs.”
  10. Colin failed to provide her with even these modest luxuries that could have enhanced her quality of life.
  11. He failed to account to the OPG. In fact, he failed to keep any accounts at all.
  12. He failed to produce bank statements.
  13. He failed to explain how he had managed to spend £29,489 of her money.
  14. He failed to act with honesty and integrity.
  15. He failed to keep Alma’s money separate from his own.
  16. And he failed to treat her with any semblance of dignity, empathy or respect.
  17. Having regard to all the circumstances, therefore, I satisfied that Colin has behaved in a way that contravenes his authority and is not in Alma’s best interests, and I shall revoke the LPA without further ado.

 

In the event that the police ever start prosecuting people like this for fraud or obtaining money by deception, I am more than willing to serve on a jury. Failing that, I hope the Devil has a Costa Coffee franchise in Hell, and that the Odeon there shows nothing other than “Failure to Launch” on rolling repeat.

A life that sparkles

 

This is a discussion about the decision in King’s College Hospital NHS Foundation Trust v C  2015

 

http://www.bailii.org/ew/cases/EWCOP/2015/80.html

 

It is a Court of Protection decision about whether a woman C, who medical professionals all agreed needed to undertake kidney dialysis treatment in order to survive, should be able to refuse such treatment or about whether the Court should make the decision on her behalf.  It is very sad, because what we are discussing here is (a) whether C will live or die and (b) why she might feel that life was no longer worth living for her.  She has a family who would greatly miss her if she were to die, and it is a case that has a lot of human tragedy. It also though, stirred up a lot of other feelings for me when I read it – there’s sadness absolutely, but it also has some more uplifting things to say about human spirit and how people can choose to live their lives outside of the norm.

 

The Judge was MacDonald J.  The case was obviously decided under the Mental Capacity Act 2005 principles – the key ones being that

 

(a) A person who has capacity is allowed to make decisions that would be bad for them and that someone else would not make if they were in their shoes

(b) The law’s starting point is that everyone is assumed to have capacity unless there is evidence to the contrary to prove that they do not

(c) There are specified factors to consider in assessing capacity – a person’s ability to understand the issue, to weigh up the various factors, to retain that information and to reach a decision. And a person can and should be helped with all of those issues

(d) If a person lacks capacity, the Court would then make a decision as to what they considered was in C’s best interests

(e) A Court cannot compel doctors to deliver treatment, but simply authorise them to deliver the treatment in the absence of consent if it is in C’s best interests.

 

Background then

 

 

  • C is a person to whom the epithet ‘conventional’ will never be applied. By her own account, the account of her eldest daughters and the account of her father, C has led a life characterised by impulsive and self-centred decision making without guilt or regret. C has had four marriages and a number of affairs and has, it is said, spent the money of her husbands and lovers recklessly before moving on when things got difficult or the money ran out. She has, by their account, been an entirely reluctant and at times completely indifferent mother to her three caring daughters. Her consumption of alcohol has been excessive and, at times, out of control. C is, as all who know her and C herself appears to agree, a person who seeks to live life entirely, and unapologetically on her own terms; that life revolving largely around her looks, men, material possessions and ‘living the high life’. In particular, it is clear that during her life C has placed a significant premium on youth and beauty and on living a life that, in C’s words, ‘sparkles’.
  • With respect to youth and beauty, her daughter V states that just as C has never seen herself as a mother, she has never seen herself getting old. Upon being diagnosed with breast cancer in December 2014 when aged forty-nine V relates that C expressed the view that she was “actually kind of glad because the timing was right”. It is recorded in C’s medical notes that she did not want to discuss the benefits and risks associated with chemotherapy but was “keen not to have any change in size or deficit that will affect her wearing a bikini”. She refused to take medication prescribed for the disease because “it made her fat”. There appear to have been no concerns expressed regarding C’s capacity in this context.
  • C’s preoccupation with not getting old also manifested itself in other ways. Upon learning that her daughter G was pregnant C’s reaction was, says G, one of anger in circumstances where this meant she would be a grandmother and made her feel “past her sell-by date”. Within the foregoing context, in her statement V relates that C has often said over the years that she wanted to “go out with a bang” and has been firm in her conviction that, with regard to growing old, she “just would not let it happen”.
  • C’s emphasis on money, material possessions and ‘living the high life’ is also well established by the evidence in this case. From the history of her four marriages provided by V it would appear that C has, over the course of those four marriages, considered a downturn in the financial fortunes of her husbands an entirely reasonable ground for moving on and has taken requests that her spending be curtailed or limited to be unreasonable. The value that C places on wealth and possessions is further demonstrated by her statement to V that, her fortunes having suffered a downturn in recent times, she does not want to “live in a council flat” or to “be poor”.
  • Despite her patent faults C is dear to her daughters. V relates that she and G have learnt to accept their mother for who she is: complexities, seeming contradictions, blind spots, self-centred and manipulative behaviour, excruciating honesty and all. V tells me that she has accepted that there is no point in trying to make C a ‘typical mother’ in the same way she could not have been a ‘traditional wife’ to her four husbands. She is who she is says V and summarises the position as follows:

 

“My mother’s values, and the choices that she made have always been based on looks (hers and other people’s), money, and living (at all costs) what she called her “sparkly” lifestyle…her life was, from her point of view, a life well lived. I have never known her express regret, or really to take responsibility for anything, including the choices she has made”.

Sadly, as C got older, she had health problems, and this substantially affected her emotional state and her outlook on life, leading her to take an overdose. The overdose did not kill her, but it caused substantial damage to her organs, which led to the need for dialysis treatment, which would be life-saving.

  • Over the past year the progress of C’s life has, sadly, followed a trajectory that has moved away from what she terms her “sparkly” lifestyle. As I have already noted, C was diagnosed with breast cancer in December 2014. She underwent a lumpectomy in January 2015 and radiotherapy in March 2015, with treatment concluding in May 2015. C has said that, understandably, this placed her under some stress. In August 2015 C experienced the acrimonious breakdown of a long term relationship. This also resulted in the loss of her business and the financial security attendant thereon, the loss of her home and the generation of significant debt. C was also the subject of arrest and criminal charges arising from an incident that occurred during the breakdown of her relationship. This situation is described in the report of Dr R as exposing C to ‘back to back psycho-social stressors’.
  • On 7 September 2015 C attended V’s house and asked where her Veuve Clicquot was. Later that day C attempted to commit suicide. The attempt was premeditated and planned. C went to a beach and took sixty paracetamol tablets with champagne. The attempt was not successful (C later told her daughters that she “royally cocked it up”). When C awoke she became worried about the pain that she might suffer and called her general practitioner who advised her to call an ambulance. She was admitted to a local hospital for urgent care and subsequently transferred to King’s College Hospital on 29 September 2015. Whilst at the local hospital V relates that C stated that she would try to kill herself again and that she was adamant that she wanted to die.
  • The consequences of C’s attempted suicide have been grave and are described in detail in C’s medical records and in the statements of Dr L, liver consultant and Dr S, consultant nephrologist. In summary, as a result of her paracetamol overdose C suffered an injury to her liver and an acute injury to her kidneys. Since admission to hospital C has, consequently, required renal replacement therapy. That therapy was provided initially by a ‘filtration’ machine and thereafter by intermittent haemodialysis for four hours three times per week.
  • Following a period of intensive treatment after the overdose, C made slow but progressive improvement in her liver function. However, an improvement in her kidney function has yet to occur with her kidneys showing no signs of significant recovery. Dr L is clear that the ongoing care of C is now predominantly supportive in nature save for the essential requirement of kidney dialysis. The anticipated duration of that treatment is from a minimum of six weeks up to a maximum of several months. As at 6 November Dr L was of the view that the outlook for C’s kidney function was unclear but that, generally, her doctors anticipated a recovery in due course. Dr L described the view regarding C’s kidney function on that date as ‘cautiously optimistic’.
  • In a statement dated 9 November 2015 Dr S observes that the ‘overwhelming majority’ of people who suffer an acute kidney injury as a result of a paracetamol overdose recover independent kidney function, usually within four to six weeks. However, he further notes that in circumstances where C is now nearly nine weeks from her overdose, arriving at a confident prognosis is made more difficult. In C’s medical records Dr S is recorded as informing C on 5 November 2015 that her prognosis remained unpredictable and that, even were the damage to her kidneys to be potentially reversible, the prognosis would remain uncertain.
  • In his statement Dr S explains that the most likely explanation for the current state of C’s kidney function is a combination of paracetamol related kidney injury, severe liver injury and several episodes of infection requiring antibiotic treatment, and that the most likely outcome remains that C will recover independent kidney function over the course of several months. Dr S however makes clear that it is possible that C has sustained irreversible damage to her kidneys in the form of cortical necrosis. The way to establish definitively whether this is the case for C would be to perform a kidney biopsy. At present however this is a high risk procedure due to C having abnormal blood clotting levels as a result of her liver injury. A kidney biopsy will become less risky as C’s liver recovers.
  • Dr S states that C may well be left with an element of chronic kidney damage. Within this context, if C recovers kidney function to the point where she does not need renal replacement therapy then Dr S would expect C’s kidney function to have minimal effect on C’s ability to continue as she had prior to the overdose. However, if C does not recover kidney function Dr S is clear that she would require regular renal replacement therapy in order to stay alive. The options for such replacement therapy would be a continuation of the haemodialysis that C currently has, peritoneal dialysis or a kidney transplant.
  • In an updating statement dated 11 November 2015 Dr L opines that C’s prognosis “remains excellent with survival fully anticipated”. Dr L records that restoration of C’s liver function to normal is anticipated within a four to six week period. Dr L further records that C’s kidney function has still yet to recover but anticipates an 85 to 95% chance of this occurring having regard to the progression seen in a large majority of similar cases. However, like Dr S, Dr L acknowledges that, with the passage of time, the likelihood of full recovery diminishes. Dr L estimates that if C is not fully recovered within a period of three months, later recovery is unlikely, with the chances of delayed restoration after three months estimated at less than 20%. In such circumstances C would require long term renal replacement therapy.
  • Dr S makes clear that if C does not have further dialysis and continues to have minimal kidney function, she will become progressively unwell as levels of potassium and acid in her blood increase to dangerous levels. These levels will typically become life threatening between three and seven days following the last haemodialysis session. If C drinks during this period then she will also endure fluid build up on her lungs and insufficient oxygen in her bloodstream as a result. The risks of a sudden cardiac event or deterioration will increase after more than three days without dialysis. If C’s kidney function remains poor and she passes very little urine, it is likely that C will die within five to ten days of having no dialysis. C would become progressively drowsy and possibly confused after several days although a sudden cardiac arrest and death is possible at any point.
  • Were doctors to have to force C to receive dialysis against her consent Dr S makes clear that this would be a significant undertaking. He states that were doctors to attempt to administer dialysis to C in circumstances where C took measures to try and stop such treatment the treatment would immediately become unsafe for C (and potentially for medical staff). In such circumstances, Dr S makes plain that in order to dialyse C against her will she would need to be sedated with that sedation being heavy enough to render her, essentially, unconscious for the duration of the dialysis. In order to achieve this safely the procedure would need to be undertaken in a high dependency setting. There are, of course, risks associated with heavy sedation, including respiratory depression and low blood pressure which may in turn necessitate further intervention including intubation and ventilation. Finally, Dr S states that a person seeking to avoid dialysis may remove the dialysis tubes when able to do so, resulting in the need to insert a dialysis tube into a large vein each time and under sedation. There is a risk of bleeding and infection each time this is done, which risk is significantly increased in C given her abnormal clotting. There is also a risk of damage to veins, thereby increasingly restricting venous access. Dr S opines that the minimum frequency of dialysis in this context would be once every five days, although the risks of a sudden cardiac event or deterioration increase over time after more than three days without dialysis.
  • It is within the context of this background C now refuses to undertake further haemodialysis. The parties are agreed that I should deal with the issue of capacity only at this stage. Accordingly, as set out above, the issue for the court is whether, at this time, C has the mental capacity to decide whether or not to consent to the life saving treatment that her doctors wish to continue to give her.

 

For most people, if doctors told them that they needed to have treatment which would work and would largely return them to health within about 6 weeks but that they would die if they didn’t have it, they would have the treatment. But C is not most people. And the tests are not whether ‘most people’ would do something, but whether C lacked capacity to make such a decision.

 

There were three capacity assessments. The first two concluded that C lacked capacity to make the decision and that her decision not to undertake the treatment because she did not want to live a life that she would consider ‘intolerable’ was an irrational one, possibly as a result of a Personality Disorder.  The third concluded that she did have capacity to make the decision, which was one that others might not have made but that she had weighed up as being the right one for HER.  The complication with the third was that shortly before it, C had been given some strong medication

 

 

  • Although at a point where she had been administered a synthetic opiate pain killer some two hours previously, C told Dr Stevens on 10 November 2015 that “I know that I could get better; I know that I could live without a health problem, but I don’t want it; I’ve lost my home; I’ve lost everything I’d worked for; I’ve had a good innings; it’s what I have achieved.” Further, Dr Stevens records in his report (although it is not reflected in his contemporaneous notes) that C:

 

“made very clear to me that she understands and has retained the information that her liver is making a good recovery and that her kidneys are recovering, albeit more slowly, such that her doctors wish her to undergo thrice weekly haemodialysis for some months to come. C also understands and has retained the information that her doctors expect her kidney function to recover such that haemodialysis can be discontinued at some point in 2016 and that her medical quality of life can be expected to improve thereafter. In response to my further exploration, C told me that she had thought a great deal about her medical condition and that, despite appreciating that she has been given a good prognosis, she remains steadfastly determined to die as soon as possible.”

 

 

I had better make it plain that looking at it objectively, the life that C could live after treatment would not be considered by 99.9% of the population to be ‘intolerable’  – this was not a case where the person’s freedom of movement would be restricted or that her mental faculties were ebbing or flowing away, or that she would be in physical pain or distress.  This was a very person specific view.

C’s daughter puts it very very well

 

“As I have said above, my mother would never have wanted to live at all costs. Her reasons for trying to kill herself in September and for refusing dialysis now are strongly in keeping with both her personality and her long held values. Although they are not reasons that are easy to understand, I believe that they are not only fully thought through, but also entirely in keeping with both her (unusual) value system and her (unusual) personality. Her unwillingness to consider ‘a life she would find tolerable’ is not a sign that she lacks capacity; it is a sign that what she would consider tolerable is different from what others might. She does not want any life that is on offer to her at this stage. Put bluntly, her life has always revolved around her looks, men, and material possessions: she understands that (as put to her by Professor [P]) other people have failed relationships, feel sad and continue living, but for her, as she has said, she doesn’t want to ‘live in a council flat’, ‘be poor’ or ‘be ugly’ (which she equates with being old). As is set out in the notes, she truly means it when she says ‘I have lost everything this year’, and that being the case, she doesn’t want to accept any of the options on offer to her as – as she sees it – an ‘old grandma’, even were her kidneys to fully recover. ‘Recovery’ to her does not just relate to her kidney function, but to regaining her ‘sparkle’ (her expensive, material and looks-orientated social life) which she believes she is too old to regain. Again, the references in the notes to her talking about being ‘sociable, hosting parties and going out with the girls’ are fitting: to those who know her well, her entire identity has been built around being a self-described ‘vivacious and sociable person who lives life to the full and enjoys having fun'”.

 

With that in mind, was her decision a result of the Personality Disorder that all three experts agreed that she had (or had traits of), or was it a logical extension (for her) of her actual Personality – the choice entirely in keeping with the choices that she had made about the way she wanted to live her life?

 

It was very finely balanced – how can you really unpick how much this decision is part of a Personality Disorder and how much it is C being unusual but consistent in that unusualness ?

 

SUBMISSIONS

 

  • On behalf of the Trust Mr Horne concedes, very properly, that this is a finely balanced case that sits close to the border that runs between an individual with capacity making an unwise decision and an individual lacking capacity to make the decision in question.
  • On balance the Trust submits C lacks the capacity to decide whether or not to receive dialysis on the basis that she is unable to use and weigh information relevant to the decision as part of the process of making that decision. Specifically, the Trust submits that the examples given by Dr R show that (a) C lacks belief in, and is unable to use and weigh her positive prognosis and (b) that C is unable to contemplate a future that includes her recovery, having closed her mind to this. The Trust submits that this constitutes an inability to use and weigh information for the purposes of s 3(1)(c) and that this inability is because of the impairment of, or a disturbance in the functioning of, the mind or brain for the purposes of s 2(1) comprised of the personality disorder diagnosed by Professor P and Dr Stevens. In the words of Dr R, the Trust submits that C’s decision to refuse treatment is not reached with significant using and weighing of information demonstratively ending with a balanced, nuanced, used and weighed position constituting a capacitous but objectively assessed unwise decision. Again, the Trust submits that this situation is arrived at because of the personality disorder under which C labours.
  • By contrast, having heard the oral evidence received by the court at this hearing the Official Solicitor submits that C does have capacity to decide whether or not to refuse treatment.
  • The Official Solicitor submits that the evidence in this case points not to C being unable to use and weigh information concerning her prognosis and future but, rather, to C taking into account that information and choosing to give it no weight as against other relevant information more important to her in the context of her outlook and values when coming to her decision. Within this context, citing Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1417 (COP) the Official Solicitor submits that, even were the court to consider C’s approach to her prognosis as overly rigid or ‘black and white’ C has given many other valid reasons for refusing treatment more important to her than her prognosis, which reasons evidence capacitous decision making within the context of her particular outlook and belief system. In any event, the Official Solicitor cautions the court against characterising C’s attitude towards her prognosis as rigid, or ‘black and white’ or irrational in circumstances where that prognosis remains uncertain and is worsening the longer C goes without her kidneys showing any sign of recovery. Were the court to conclude that C is unable to ‘use or weigh’ information relevant to the decision, the Official Solicitor further submits that the Trust cannot establish a causal link between this inability and C’s personality disorder in circumstances where the inability in question could equally be attributed to C’s belief system or stubborn character.
  • The submissions made on behalf of V are akin to those made on behalf of C by the Official Solicitor. V contends that her mother has the capacity to decide whether to accept treatment.
  • V submits that the Trust places the test for capacity too high by demanding from C a closely reasoned “balanced, nuanced, used and weighed position” in respect of her medical prognosis. V submits that on a proper application of the criteria set out in the 2005 Act the evidence before the court shows C has made a clear and capacitous decision, which decision she has maintained, after using and weighing the information relevant to that decision in accordance with her particular outlook and values. Thus, V submits, C has reached a clear and reasoned decision by giving weight to the factors that are important to her (a risk of a life lived on dialysis that is unacceptable to her, a risk of long term disability that is unacceptable to her, exhaustion with treatment and her wish not to endure further weeks or months of the same, her wish not to continue to endure the symptoms and pain associated with treatment, the risk she will not be able to attain her former “sparkly” lifestyle, her desire not to get old and lose her appearance and her wish to attain her original goal of ending her life) and no weight to the factors that are not (namely, the possibility that she might recover to a point where she can live without dialysis, the possibility of a future life that is ‘tolerable’ and the impact of her death on those who care for her) within the context of her (very unusual) set of values and outlook. V submits that this is the very essence of a capacitous decision. Again, were the court to conclude that C is unable to use and weigh information relevant to her decision, V submits that the Trust cannot establish a causal link between this inability and C’s personality disorder in circumstances where the inability in question could equally be attributed to C’s belief system and stubborn character.

 

 

 

At this point when I was reading the case, I didn’t know how it would be decided, but on a personal level I was hoping that C would succeed.  Not that I think it is objectively right for her not to have the treatment, but that this is a decision that everything I had read of her life told me that she would have made for herself, and personal freedom and autonomy is such a vital thing.  You may think otherwise – I think it is potentially quite a divisive issue.

 

DISCUSSION

 

  • In this difficult case I have come to the conclusion that, on balance, C does have capacity to decide whether or not to receive dialysis. My reasons for so deciding are as follows.
  • The first question for the court is whether the Trust has established on the balance of probabilities C is unable to make a decision about the matter in hand having regard to the matters set out in s 3(1) (the so called ‘functional test’). The Trust accepts that C is able to understand the information relevant to the decision, to retain that information and to communicate her decision. In relation to the remaining element of the functional test I am not satisfied that the Trust has proved to the requisite standard that C is unable to use and weigh the information relevant to the decision in question.
  • Notwithstanding the submission of the Trust, I am not satisfied that C lacks belief in her prognosis or a future that includes her recovery to the extent she cannot use that information to make a decision, or that C is unable to weigh her positive prognosis and the possibility of a future recovery in the decision making process. In my judgment, the evidence in this case, when viewed as a whole, is indicative of C acknowledging that her prognosis is positive, that there is a possible future in which she survives and of her weighing that information in her decision making process.
  • The entries in the medical records which I have referred to above show that C has, on a number of occasions over the span of her treatment, tacitly acknowledged that her prognosis is positive if she maintains treatment and has weighed that against other factors.
  • For example, on 29 September 2015 the rationale expressed by C for refusing treatment was that she believed she may need dialysis for the rest of her life, saw a bleak future if she could not have a life of socialising, drinking and partying with friends, that getting old scared her both in terms of illness and appearance. C was recorded by Dr O (Liver SHO) as being clear in her understanding that without dialysis, adequate nutrition and treatment of her liver she would die and, within that context, as being able to take in the medical advice and fully understood the risk of refusing treatment. Following interventions from her father and a friend on 29 September, C changed her mind and consented to treatment. It is clear from the medical records that C appears, with the assistance of her father and her friend, to have undertaken an exercise of using or weighing information as it is recorded that an hour was spent talking to C about her grave medical condition, her chances of recovery, and her prognosis for the future.
  • On 1 November 2015 C stated that she did understand that she would die if she stopped dialysis and this would not necessarily be pleasant. She is recorded as listening to the positive prognosis and quality of life on long term dialysis following which C said she understood it but that her ‘heart is not in it’.
  • On 2 November C stated that she felt fed up and exhausted, was hoping her kidney function would improve in 6 weeks but it hadn’t, could not imagine herself dependent on dialysis, felt it would be pointless to continue if she could not recover to a functional level where she could continue with her previous lifestyle, felt she did not have the mental health to continue with the treatment and therefore she was determined not to continue with the treatment. C is recorded as having understood that this would shorten her life expectancy.
  • On 5 November 2015 Dr R recorded C reasoning her position as follows, “C states she remains adamant that she does not wish to continue with dialysis treatment. The reasons, as she tells me, are that she has never wanted to have it (despite many weeks of engaging), she has acquiesced rather than engaged enthusiastically. Now she finds it painful, exhausting and she has had enough. She states she knows she will die as a result of not having it”.
  • On 9 November 2015 C told Dr R that she knew what the doctors were doing and were not angry with them, as they were just trying to save her life but she did not wish to be saved. When speaking to the representative of the Official Solicitor on 10 November 2015 C acknowledged the possibility that her kidneys will recover, saying “I am not prepared to wait for the possibility that my kidneys will get better”. On 9 November 2015 C told Dr R that she knew what the doctors were doing and were not angry with them, as they were just trying to save her life but she did not wish to be saved. When Dr R spoke to C about being able to envisage a future when she was back on her feet again with no line in her neck and no pain C is recorded as saying “they have told me before that I would do that and I am still here”… “I can’t go on like this for months and months or forever.”
  • There is also evidence before the court of C expressly acknowledging her positive prognosis and weighing the same. On 3 November 2015 V recalled that in deciding not to continue with treatment following the MDT meeting on that day C “had clearly used the time to consider the prospect of having what Professor P described as a ‘tolerable life’, and decided that, although with the more optimistic prognosis, it required some thought, she still did not want to live.” More generally V was clear in her evidence that C “repeatedly told us that she didn’t care whether her kidneys improved or not, and that she had thought about it, and that she wanted to die regardless. She – in the full knowledge that it was entirely possible that she might make a full recovery – said that if her kidney function improved, and she were discharged, that she would ‘throw [herself] under a train'”. No party sought to suggest that V was mistaken in her recollection of these conversations. On 10 November 2015 C told Dr Stevens that “I know that I could get better; I know that I could live without a health problem, but I don’t want it”. Dr Stevens states in his report that she “made very clear to me that she understands and has retained the information that her liver is making a good recovery and that her kidneys are recovering, albeit more slowly, such that her doctors wish her to undergo thrice weekly haemodialysis for some months to come. C also understands and has retained the information that her doctors expect her kidney function to recover such that haemodialysis can be discontinued at some point in 2016 and that her medical quality of life can be expected to improve thereafter.” Whilst there are difficulties with Dr Stevens’ report overall, I am prepared to accept that his recording of what C said to him is accurate, and indeed no party suggested otherwise.
  • I of course accept that there have been a number of occasions where C has appeared to reject out of hand her positive prognosis, in particular in conversations with Dr R on 29 September, 20 October, 3 November, 5 November, 9 November and 10 November 2015.
  • However, in my judgment it is important to place these statements by C in their proper context. In particular, they must be placed in the context of the other occasions, as summarised in the preceding paragraphs, when C has acknowledged her positive prognosis and weighed the same either tacitly or expressly. Thus, for example, whilst Dr R considered that on 29 September 2015 C was compromised by “very rigid thinking style and her distorted cognition such as black and white thinking and catastrophic thinking e.g. that she will forever require dialysis and will never recover to a stage where she can live an independent life again”, as I have noted, on the same day C was recorded by Dr O as being clear in her understanding that without dialysis, adequate nutrition and treatment of her liver she would die and, within that context, as being able to take in the medical advice and fully understood the risk of refusing treatment. Further, C was recorded as appearing to have capacity on that date. Likewise, whilst telling Dr R on 10 November that “there is no hope ‘a tiny sliver of hope’ as she put it today, that she will get better” she told Dr Stevens on the same day that “I know that I could get better; I know that I could live without a health problem.” In this regard I recall G’s evidence that her mother’s response to professionals will, in G’s experience, depend on whether she considers them to be ‘on her side’ (part of her ‘charm team’ as C styles that group) or not and that Dr R was not considered to be part of that ‘team’.
  • Further, in my judgment C’s more categorical statements regarding her prognosis, and the question of the extent to which they demonstrate an inability to use and weigh information regarding the same, must also be placed in the context of the information that she was receiving during this period with respect to that prognosis.
  • Central to both the opinion of Dr R and the opinion of Professor P that C lacks the ability to use and weigh information relevant to her decision is C’s alleged rigid and insistent rejection of her prognosis within the context of consistent optimism in this regard expressed by her treating doctors, characterised by Dr L’s statement on 9 November 2015 that C’s prognosis “remains excellent with survival fully anticipated”. However, I am not satisfied that the medical records bear out the assertion that C was, in fact, receiving uniformly positive and reassuring information concerning her prognosis (most especially in relation to the likelihood of her being able to live a life without dialysis).
  • At the time C was said to have “an overvalued idea that her quality of life will not improve” on 25 September 2015 and at the time she refused dialysis on 29 September 2015, according to her medical records by that date she had, at best, received a guarded opinion to the effect that her prognosis was uncertain. When on 20 October 2015 C is recorded as stating that she does not want a life dependent on dialysis and of poor quality and apparently dismisses the medical opinion that she has every chance of making a good recovery and leading a fulfilling and normal life, she had the day before been told by Dr V only that there was a “possibility she may” get better and a “possibility she could” return to a degree of normality. Whilst On 3 November 2015, when C again refused dialysis, Dr R was concerned that the main driver of C’s decision appeared to be her categoric belief that the timescale given to her for recovery had passed and that C considered that this meant she would not recover and did not want a lifetime of dialysis, the day before C had been told by Dr N that that no-one could predict how long it would take to recover and no one could tell for sure to what level of function she would recover. On 5 November, when Dr R was concerned that C was stating that “she believes she has no hope of recovery as she is now through the period of expected recovery as described to her. She is unflinching in her belief about this”, according to the medical records Dr L appears to have told C that dialysis may not be a permanent situation and Dr S confirmed to C that there was no evidence of recovery so far and, accordingly, the prognosis was still unpredictable and remained uncertain even if the damage was potentially reversible.
  • Having regard to the foregoing summary, it is clear from the medical records that C was, entirely understandably, not receiving uniformly positive and reassuring information concerning her prognosis, both generally and in relation to the likelihood of her being able to live a life without dialysis. Whilst it is the case that on occasion C received a very positive assessment of her prognosis after incidents of refusing treatment (for example on 29 September 2015, on 21 October 2015, when Professor G explained in the presence of C that “we feel that the patient should get better very soon and that they [her kidneys] could improve any day now” and on 3 November 2015, when Professor G told C that her prognosis was good and that she could “be out with a drink in your hand by Christmas) it is not in my judgment accurate to characterise the prognosis C was being given as consistently positive. Her more categoric responses in respect of her prognosis must in my judgment be seen in this context when determining whether they are probative of an inability to use and weigh her prognosis in her decision making.
  • Further, in my judgment it is also important in this case not to confuse a decision by C to give no weight to her prognosis having weighed it with an inability on her part to use and weigh that information.
  • It is clear that on occasions C’s has expressed herself in terms of categorically rejecting her prognosis in a way which gives the impression that she does not believe or accept that prognosis. However, on other occasions it is clear that her rejection of her prognosis is the result of her having considered it and given it no weight as against other factors more important to her. Thus, on 9 November 2015 C told Dr R that she knew what the doctors were doing and were not angry with them, as they were just trying to save her life but she did not wish to be saved. As I have noted, C told Dr Stevens on 10 November 2015 that “I know that I could get better; I know that I could live without a health problem, but I don’t want it” and that “she had thought a great deal about her medical condition and that, despite appreciating that she has been given a good prognosis, she remains steadfastly determined to die as soon as possible.” Later she told the representative from the Official Solicitor that “They are doing their best to do everything they can for me and unfortunately that is not what I want” and “I know they need to save lives. But I’ve chosen a different route.” As noted, V recalls C telling her on a number of occasions that “she didn’t care whether her kidneys improved or not, and that she had thought about it, and that she wanted to die regardless.”
  • In my judgment these exchanges, and some of those outlined further above, are more consistent with C acknowledging her prognosis and choosing to give it no weight as against other information within the context of her own values and outlook when making a decision than they are with her failing to believe or weigh her prognosis when making her decision.
  • Finally, and within this context, in assessing whether C does have the ability to use and weigh information relevant to the decision in question it is also in my judgment very important to have regard to the fact that, in addition to the position C has taken with regard to her prognosis, she has given a range of reasons for reaching the decision she has regarding further treatment. C has, on a number of occasions, given very clear reasons for not wishing to continue her treatment. These reasons include the risk of a life lived on dialysis, the risk of long term disability, exhaustion with treatment and her wish not to endure further weeks or months of the same, her wish not to continue to endure the symptoms and pain associated with treatment, the risk she will not be able to attain her former lifestyle, her desire not to get old and lose her appearance and her wish to attain her original goal of ending her life.
  • Within this context I note in particular that it is clear from the medical records that C had and has a consistent and specific fear of having to live the rest of her life on dialysis. This expressed fear on the part of C is evident in her medical records. On 22 September 2015 C is recorded as continuing to state that, whilst hopeful of recovery, if her kidneys do not recover and she requires dialysis for the rest of her life she will not wish to live. C repeated this view on 23 September 2015. On 2 November C stated that she could not imagine herself dependent on dialysis and that it would be pointless to continue if she could not recover to a functional level where she could continue with her previous lifestyle. I pause to note that, in the context of the information given to C regarding her prognosis as summarised in Paragraphs 83 to 85 above, these fears on the part of C cannot be considered irrational.
  • Within the foregoing context, I am satisfied that it is not the case that C has undertaken the decision making exercise in relation to dialysis solely on the basis of a concrete or ‘black and white’ view taken in respect of her prognosis but rather on the basis of placing in the balance many factors relevant to the decision. That C considers that these factors outweigh a positive prognosis and the chance of life that it signals may not accord with the view that many may take in the same circumstances, and indeed may horrify some. However, they do in my judgment demonstrate C using and weighing information relevant to the decision in question when coming to that decision.
  • Having regard to the foregoing matters in my judgment the Trust has not proved to the requisite standard that C is unable to use and weigh information relevant to the decision in question such that she lacks capacity to make that decision. In circumstances where the Trust concedes that C meets the other criteria comprising the ‘functional test’ I am satisfied that C is not a person unable to make a decision for herself for the purposes of s 3(1) and, accordingly, does not lack capacity to decide whether or not to accept dialysis.

 

 

 

Having decided that C has capacity to make the decision for herself, MacDonald J did not have to go on to say what decision he would have made as being in her best interests if he had found that she lacked capacity.

 

The Judge did, however hold out an olive branch to C, that he hoped that doctors would still engage with her in discussions and see if she could be persuaded to consent to the treatment, but that the decision was hers and hers alone to make.

 

CONCLUSION

 

  • For the reasons set out above I am not satisfied on the evidence before the court that the Trust has established on the balance of probabilities that C lacks capacity to decide whether or not to accept treatment by way of dialysis.
  • Within the context of C’s stated wish to refuse the life saving treatment which renal haemodalysis represents for her I am acutely conscious of the gravity of my decision. However, as set out at the beginning of this judgment, a capacitous individual is entitled to decide whether or not to accept treatment from his or her doctor. The right to refuse treatment extends to declining treatment that would, if administered, save the life of the patient and, accordingly, a capacitous patient may refuse treatment even in circumstances where that refusal will lead to his or her death.
  • The decision C has reached to refuse dialysis can be characterised as an unwise one. That C considers that the prospect of growing old, the fear of living with fewer material possessions and the fear that she has lost, and will not regain, ‘her sparkle’ outweighs a prognosis that signals continued life will alarm and possibly horrify many, although I am satisfied that the ongoing discomfort of treatment, the fear of chronic illness and the fear of lifelong treatment and lifelong disability are factors that also weigh heavily in the balance for C. C’s decision is certainly one that does not accord with the expectations of many in society. Indeed, others in society may consider C’s decision to be unreasonable, illogical or even immoral within the context of the sanctity accorded to life by society in general. None of this however is evidence of a lack of capacity. The court being satisfied that, in accordance with the provisions of the Mental Capacity Act 2005, C has capacity to decide whether or not to accept treatment C is entitled to make her own decision on that question based on the things that are important to her, in keeping with her own personality and system of values and without conforming to society’s expectation of what constitutes the ‘normal’ decision in this situation (if such a thing exists). As a capacitous individual C is, in respect of her own body and mind, sovereign.
  • In circumstances where I have decided that C has at this time the capacity to make the decision in question, this court has no jurisdiction to interfere with the decision making process. Accordingly, although rightly brought, I dismiss the application of the Trust for declarations under the Mental Capacity Act 2005.
  • As I said at the conclusion of this hearing, my decision that C has capacity to decide whether or not to accept dialysis does not, and should not prevent her treating doctors from continuing to seek to engage with C in an effort to persuade her of the benefits of receiving life saving treatment in accordance with their duty to C as their patient. My decision does no more than confirm that in law C is entitled to refuse the treatment offered to her for her benefit by her dedicated treating team. Nothing I have said prevents them from continuing to offer that treatment.
  • That is my judgment.

 

 

I don’t know that C would have been the easiest person to live with, and her decisions aren’t ones that I would make, but I am pleased that the State hasn’t imposed on her a choice that she would have bitterly resented.  I still hope that she might be persuaded, now that she knows that the choice is entirely in her hands, but only if she is persuaded that there is still sparkling to be done yet.

 

Otherwise, to paraphrase the Bard, she has decided that “nothing  in her life quite became her like the leaving it”  and why shouldn’t everyone in life have the chance to make that choice at least ? None of us have any say in how we Enter the stage, but perhaps we get some influence over the manner of our Exit.

 

Lasting power of attorney, financial abuse (contains ranting and references to tattoos)

 

These financial abuse cases come along with depressing regularity.  On the last one I wrote about, I made the suggestion that the pamphlet of guidance provided to those people who were appointed as attorneys/ deputies to manage the financial affairs of their vulnerable relative should have on the front cover  “It’s not your fucking money”

 

I have changed my position. That succinct advice should instead be tattooed across the back of the Attorney/deputy’s right hand.

 

Re ARL 2015

http://www.bailii.org/ew/cases/EWCOP/2015/55.html

 

This was decided by long-standing favourite of Suesspicious Minds, Senior Judge Lush.

 

Here are some of the things that the Attorney (the son of the vulnerable person) did with his mother’s money

 

The application was accompanied by a witness statement made by Sophie Farley, who had investigated the case at the OPG. To summarise, she said that:

(a) On 18 July 2014 concerns were raised with the OPG regarding ICL’s management of his mother’s property and financial affairs.(b) There was a debt of £39,000 in respect of unpaid care fees, which ICL was unwilling to pay because he believed that his mother should be receiving NHS Continuing Health Care.

(c) ICL was also in dispute with Hertfordshire County Council and claimed that ARL had been placed in the nursing home in Radlett without his consent. He had instructed Newlaw Solicitors in Cardiff to apply for compensation on his behalf.

(d) He was not providing ARL with an adequate personal allowance.

(e) It was not known known when he had last visited her, but it was thought to have been some time in 2013.

(f) In May 2013 ICL sold ARL’s house in Wheathampstead for £265,000 and used £174,950 from the net proceeds of sale to purchase a flat in his own name in Wheathampstead High Street. The OPG had carried out a search at the Land Registry, which confirmed that ICL is the registered proprietor.

(g) The difference of approximately £90,000 between the net proceeds of sale and the purchase price of the flat had been credited to ICL’s business account, rather than to an account in ARL’s name.

(h) The OPG wrote to ICL on 4 August 2014 asking him to account fully for his dealings with his mother’s finances.

(i) He replied a fortnight, on 18 August, later saying that he had far too many other things to deal with at that time.

(j) He said he was going to meet someone from Labrums Solicitors for advice on his responsibilities under the LPA, “which are now becoming too onerous.”

(k) He has only produced bank statements from October 2012 to October 2013, and an inspection of the bank statements he did produce revealed that he had spent at least £6,641 in a way that was not in ARL’s best interests.

(l) He had failed to account fully for his dealings.

(m) A Court of Protection General Visitor (Christine Moody) saw ARL on 15 August 2014 and confirmed that she has dementia and lacks the capacity to revoke the LPA

 

Now, under my methodology of hand tattooing, he would have been in no doubt that spending £175,000 of his mother’s money on a house for himself was not on, because when he signed the paperwork it would have been staring him in the face. Mandatory tattooing.

 

If this man does happen to have in his possession a mug that reads “Best Son Ever” or similar, it should be confiscated from him, and smashed to pieces in front of him. In fact, if the legend is not “Statistically within the bottom 1 %  of sons ever”  or “not quite as bad a son as Nick Cotton out of EastEnders”, smash it up.

 

Anyway, let’s see what his explanation for all of this was    (the “too long; didn’t read” version is “I needed money, and she had money, so I spent her money”  – to which, I would refer him to the tattoo that reads “It’s not your fucking money”. Sigh.  )

 

“I admit that some of the remaining funds have been used for personal outgoings for me and my family. This was because of difficult personal circumstances. As previously stated, I am fully prepared to pay back the entire amount that I have borrowed from my mother as soon as the sale of my former matrimonial home has completed. In the interests of complying with my duties as an attorney, I set out as far as possible an honest account of the remaining funds:

(a) I was caught drink driving in February 2013 and accordingly I borrowed £3,380 from my mother’s funds to cover my legal costs of defending my position (£2,640) and other related costs such as court fees (£500) and a penalty fine (£240). I attach letters confirming these costs sent to me by Freeman & Co. Solicitors and Sweetmans Solicitors.

(b) I ran out of money in April 2013 and had to borrow £7,500 from a friend, Mrs Pollard, in order to keep afloat financially. I repaid my friend this sum from my mother’s funds.

(c) I was required to pay a deposit of $1,500 (approx. £995) to secure my son’s place at university in the USA and I borrowed my mother’s funds to cover this.

(d) I was also required to cover my son’s college fees whilst he was studying in the USA totalling £7,500. I paid these fees in instalments from my mother’s funds.

(e) I sent £300 to my son on a monthly basis whilst he was living in the USA. These payments totalled £2,400.

(f) I also paid for my son’s flights to and from the USA during his year abroad and also for flights for myself to visit him in the USA totalling £2,774.

(g) During a visit to the USA to see my son in August 2013, I spent a total of $630 (approx. £418) on accommodation and £500 on sundry expenses.

(h) I also paid for my son’s car insurance from my mother’s funds totalling £4,757.17.

(i) During the summer of 2013 I borrowed £6,300 of my mother’s funds for works to my former matrimonial home.

(j) As previously mentioned, JJT borrowed £2,500 of my mother’s funds.

(k) I cannot specifically account for the remainder of the £90,050. However. I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.

 

 

Now, of course, it is utterly reasonable to raid your mother’s finances, which you’ve been entrusted to manage on her behalf in order to defend yourself when you get caught drunk-driving, and then to pay the fine. I mean, why would you use her money to pay her actual living expenses and nursing fees, when you can be paying your drink-driving fines with it?

 

It is also of course utterly reasonable to not provide your mother with a living allowance out of HER money, but instead use HER money to pay for your SON to have a living allowance whilst he is at College in America.

He also claimed that he didn’t know that the house he purchased with his mother’s money was registered in his name. Of course he didn’t.

 

(e) Until completion of the purchase of the flat in the High Street had taken place, he hadn’t realised that the property was held in his name. He said, “I have subsequently made enquiries of the conveyancer who dealt with the purchase of the property, who confirmed that, as I completed a summary of instructions in my own name, this is the name in which the property was purchased.”

(f) He said it was always the intention that this property was purchased for the benefit of his mother and that he would be happy for the property to be transferred into her name.

 

As ever with financial abuse cases, I find myself looking at the regulations for the provision that says that a deputy who does this shall be placed in stocks in the town centre for a period of forty days and be pelted with rancid fruit, but it seems to have been wrongly omitted from the regulations.

 

Let’s be really clear. Someone who loves and trusts you isn’t able to manage their money for themselves, so they ask you to look after their money for them. And you take that love and trust and repay it by using THEIR money to pay your drink driving fines and buy yourself a house, whilst at the same time running up £39,000 of debts on her behalf in unpaid care fees.  I hope that there really is a special circle of hell for people like this.

 

The Judge was also unimpressed with the Deputy’s behaviour, although somewhat less medieval in the sanctions than I myself would wish to be.

 

 

  1. In this case, ARL’s placement in the nursing home at Radlett was in jeopardy and there was a serious risk that she would be evicted because of ICL’s wilful refusal to pay her care fees. She is settled and content at the nursing home and any action or inaction that might prejudice her placement is not in her best interests.
  2. As is frequently observed in cases of this kind, a failure to pay care home fees, a failure to provide an adequate personal allowance, a failure to visit, and a failure to produce financial information to the statutory authorities, go hand in hand with the actual misappropriation of funds.
  3. In this case, ICL’s misappropriation of funds includes, but is not limited to:

    (a) The purchase of a property in his own name, using £174,950 of his mother’s funds. One of my particular concerns is that ICL is currently going through an acrimonious divorce, and there is a possibility that ARL’s funds could somehow, inadvertently, become part of the settlement in the matrimonial proceedings.(b) Pocketing the rental income from the property for the last two years.

    (c) The funds referred to in paragraph 16 (a) to (i) above, which by my reckoning amount to £36,524.17.

    (d) ICL’s admission at paragraph 16(k) that he cannot specifically account for the remainder of the £90,500, “However, I am sure that, save for the £2,500 borrowed by my sister, it would have been used by me in order to cover the living costs of my family.”

  4. I have no confidence in ICL when he says, “I am fully prepared to pay back the entire amount I have borrowed from my mother as soon as the sale of my former matrimonial home has completed.” He made a similar promise on 15 January 2015, when he offered to transfer title to the flat in the High Street from his name into his mother’s name, but has done nothing about it during the last seven months.
  5. I find it incredible that ICL is ready, willing and able to pursue a claim against Hertfordshire County Council for unlawfully depriving ARL of her liberty, yet is pumped up with tranquillizers and was in no fit state to attend the hearing in this matter.
  6. I also find it curious that he has instructed so many different firms of solicitors or other providers of legal services at his mother’s expense, often to defend the indefensible:

    (a) Rowlington Tilley & Associates drew up the LPA.(b) He was going to meet someone from Labrums Solicitors, St Albans, to advise him on his responsibilities under the LPA.

    (c) NewLaw Solicitors, Cardiff, were advising him on his dispute with Hertfordshire County Council regarding ARL’s placement in the nursing home in Radlett and were also pursuing a claim against the NHS for Continuing Health Care.

    (d) Freeman & Co., Solicitors, Manchester – The Home of Mr Loophole – had been instructed to defending him when he was prosecuted for drink driving.

    (e) He also instructed Sweetmans, another firm of specialist drink driving solicitors.

    (f) Taylor Walton acted for him in the sale of his mother’s house and the purchase of the flat in the High street, and in the proceedings brought against him by the Public Guardian.

  7. I wonder whether this is a smokescreen to ensure that no one firm or company is fully aware of the extent of his ineptitude and deceit.
  8. I am satisfied that ICL has behaved in a way that both contravenes his authority and is not in ARL’s best interests.

 

[I might comment in passing that if you ARE arrested for drink driving, and you consult “Mr Loophole” and he can’t get you off, it is throwing good money after bad to go to a second lawyer to see if they can. It seems to me that you are probably ‘bang to rights’ on the charge.  Of course, when it is NOT YOUR Fucking money, I suppose it bothers you slightly less]

 

 

 

Not being allowed to see an expert report

 

I’ve read this case half-a-dozen times now, and I still don’t entirely get it.

 

NCC v AH and DH 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4845.html

 

Dramatis personae

 

NCC is the Local Authority.   (It isn’t a very cryptic disguise of whom they might be)

AH is a woman, who has some mental health problems and for a time was considered to lack capacity and be a person at risk from :-

 

DH her husband.

 

The application

(a) an application by DH for disclosure to him of any reports and/or letters by Dr. McInerney and the report of Dr. Khouja dated 29th July 2011;

(b) an application by AH for disclosure to her of the said reports and of her Social Services records (it being acknowledged by all parties that she would share them with DH); and

(c) applications by AH and DH for their costs, or a proportion thereof, incurred in both sets of proceedings to be paid by the local authority.

These applications arise from a set of proceedings under the Inherent Jurisdiction and a set of proceedings under the Mental Capacity Act in the Court of Protection.  Both seem to have arisen because AH made allegations about her husband’s behaviour towards her which were believed (but which appear to have been more a result of her mental health problems).   NCC considered that AH was a woman that they owed duties towards, as a result of Re Z (Local Authority: Duty) [2005] 1FLR 740, especially at para.19.

 

In my judgment in a case such as this the local authority incurred the following duties:

i) To investigate the position of a vulnerable adult to consider what was her true position and intention;ii) To consider whether she was legally competent to make and carry out her decision and intention;

iii) To consider whether any other (and if so, what) influence may be operating on her position and intention and to ensure that she has all relevant information and knows all available options;

iv) To consider whether she was legally competent to make and carry out her decision andintention;

v) To consider whether to invoke the inherent jurisdiction of the High Court so that the question of competence could be judicially investigated and determined;

vi) In the event of the adult not being competent, to provide all such assistance as may be reasonably required both to determine and give effect to her best interests;

vii) In the event of the adult being competent to allow her in any lawful way to give effect to her decision although that should not preclude the giving of advice or assistance in accordance with what are perceived to be her best interests;

viii) Where there are reasonable grounds to suspect that the commission of a criminal offence may be involved, to draw that to the attention of the police;

ix) In very exceptional circumstances, to invoke the jurisdiction of the court under Section 222 of the 1972 Act

 

 

A psychiatric report was directed in those proceedings, from a Dr McInerney. It appears that within the proceedings, the Official Solicitor (on behalf of AH) and Local Authority, took the view that the Court should take the unusual step of not disclosing that report to DH, on the basis that there were things AH had said about his behaviour which might put her at risk if DH were to see it.  [That’s quite unusual, we’ll come back to it later]

The Official Solicitor and LA also told the Court that they did not rely on Dr McInerney’s report and wanted a second opinion, from a Dr Khouja.  DH  of course, had not seen it, so it was rather hard for him to say whether he did seek to rely on it, or whether a second opinion was necessary.  (One can make an informed guess that if it said things that the LA and OS agreed with, they wouldn’t have been asking for a second opinion, so DH would probably have agreed with what was said)

[It is also worth noting that DH had to pay a share of the costs of Dr McInerney’s report, although he never got to see it or know what it said. He didn’t have to pay a share of the costs of Dr Khouja’s report]

Dr Khouja was directed to file two reports, one on capacity (which DH DID get to see) and one”considering the recent Social Services assessment of AH, and he may also include in that supplementary report, any matter or opinion which he would wish to report upon, but he is of the view should be withheld from DH pending judicial determination of any disclosure issues.”  which DH didn’t get to see.

Dr. Khouja concluded that AH did not lack capacity in respect of any of the matters which he had been instructed to assess. This led to Bodey J’s order of 11th November 2011. By consent, NCC were given permission to withdraw both sets of proceedings. The Official Solicitor was discharged as litigation friend to AH although he remained as an interested party for the purposes of the disclosure application.

 

So, the proceedings were withdrawn, because AH had capacity to make her own decisions about whether she wanted to be with DH or not, and it wasn’t the role of the State to intervene on her behalf.

DH, having gone through all of this and having had to pay for all of his own legal costs, was understandably unhappy, and wanted to make a series of complaints about what had happened.  In order to inform his complaints and no doubt to bolster them, he wanted to see both of the expert reports that had been withheld from him. And he was also asking that some of his costs be paid.

 

Law on non-disclosure

 

The law is that generally, a document filed at Court should be seen by all parties, and the burden is on the party seeking non-disclosure to establish why that general rule should not be followed.

The substantive law is set out in the House of Lords case of Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593 [1995] 2 FLR 687. The test is:

“(1) It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party…

(2) … the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

(3) If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

(4) If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

(5) Non-disclosure should be the exception not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

[Although Re D here deals with a child, the principles are much the same. The argument was that disclosing to DH an expert report in which AH was presumably making allegations to the expert about abuse might put her at risk.  The counter argument to that is that as a consequence of these proceedings, DH might have to live apart from his wife as a result of such allegations but they were being made in a way that concealed from him what they were.  ]

Moylan J’s judgment does not really deal with this, although to be fair, the decision to not disclose the documents at that earlier stage had already been taken and presumably there is a judgment weighing up those factors at that time.  Instead, he looks at the duty of disclosure being that the documents are disclosed in order to allow a person to participate effectively in the hearing  –  in order to have a fair trial.

  1. Turning now to the legal framework, the expert evidence in this case was obtained for the purposes of these proceedings and pursuant to court orders. The court has power to provide to whom such evidence is to be disclosed and to whom it is not to be disclosed, including a party to the proceedings: see, for example, Re B (Disclosure to Other Parties) [2001] 2 FLR 1017.
  2. The experts overriding duty is to the court. Both proceedings in this case were heard in private. The reports are, therefore, confidential to the court, as described by Sir Nicholas Wall, President, in A County Council v. SB, MA & AA [2011] 1FLR 651. At para.34, he said:

    “In my judgment, ‘confidentiality’ in this context means that the information contained in the papers filed with the court for the purposes of the proceedings is confidential to the court. It is for this reason that, with very few exceptions, the court papers cannot be disclosed to people who are not parties to the proceedings without the court’s permission; and publication outside the proceedings of information relating to the proceedings is in most cases a contempt of court unless permission for it has first been given by the court”.

  3. As a result of being confidential to the court, and to the proceedings, a report cannot be used by any party for any collateral purpose or purpose unconnected with the proceedings without permission from the court. There are a significant number of cases which address the factors which the court will take into account when deciding whether to give such permission.
    1. Turning now to disclosure, the general rule is that a party is entitled to the disclosure of all evidence which any party proposes to adduce to the court. As Lord Dyson said in Al Rawi & Ors. v. The Security Service & Ors. (Justice & Ors. Intervening) [2012] 1 AC 531, at para.12:
      1. “Trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance”.
    2. It can be seen from this passage that disclosure is made for the purposes of the proceedings and to ensure that any trial is fair.

 

But of course we know that during the proceedings, those documents were kept from DH. There were allegations being made about him that he was kept in the dark about.  When it emerged that AH had capacity, and wanted to remain in a relationship with DH, the proceedings were withdrawn.

Should he now be entitled to see those reports?   (after all, they are about AH, and she has capacity to say whether she wants him to have them – and she does)

  1. Given the determination of the substantive proceedings, I can identify no grounds on which disclosure of the reports should be ordered. They were prepared for the purposes of the proceedings. They were not disclosed to DH and AH pursuant to orders made during the course of those proceedings. There is no freestanding entitlement to disclosure once proceedings have concluded. Disclosure is part of the process by which the court ensures that a fair trial is effected. It is self-evident that, following the determination of proceedings, disclosure of evidence is no longer required for the purposes of the proceedings or in order to effect a fair trial.
  2. It is self-evident in this case that disclosure can no longer be sought for the purposes referred to in DH’s Solicitor’s letter of 18th March 2010, namely to enable the evidence to be tested within the proceedings. Rather, disclosure is sought by DH and AH for collateral purposes, namely to challenge, what they refer to as, the “toxic” comments in the reports. This, they contend, is necessary to enable them to clear their names. They also want to report Dr. McInerney to the GMC, and possibly to take libel proceedings.
  3. None of these appear to me to provide, in the circumstances of this case, any ground for ordering disclosure. I cannot envisage any court giving permission to DH and/or AH to use the reports for the purposes of any such step. Now that the proceedings are at an end, there is no justification in seeking to challenge the contents of reports prepared for, and only for, the proceedings. I can, therefore, see no basis on which DH and/or AH could now successfully seek to challenge the orders made during the course of the proceedings.

 

That seems to me to be a rather curious way of looking at things. It ought not to matter what DH wants to do with the documents, and whether you think he ought not to do it. This was a report about AH, and we now know that she has capacity to decide for herself whether she wants it to remain confidential or whether she wants her husband to see it, and she does.  I can see that the Court approach is to draw a line under the proceedings and for everyone to move on and forget the whole thing, but once AH has capacity, she is no longer a vulnerable person who needs the protection of the Court. The decision not to disclose the reports at the time were taken in the context that it was believed that she lacked capacity and needed that protection.

The next bit is even more suprising.

Finally, given the clear risk of satellite litigation, I propose to order that neither the Official Solicitor nor the solicitors instructed by the Official Solicitor should disclose the non-disclosed documents or the Social Services records, insofar as they have them, to AH. If this were to happen, it would undermine the effect of my judgment and proposed order.

 

Well, it makes sense. The Court order could easily be circumvented by a subject access request under the Data Protection Act 1998, for disclosure of the records that are held about AH and DH.  This is, however, the Court making an order that a Local Authority need not comply with their statutory obligations under primary legislation if a request were made.  Not only that, it is an order about primary legislation where the first port of call in a dispute or challenge is not actually the Court but to the Information Commissioner.  Does the Court even have jurisdiction to do this?

 

[Well, of course the answer to that is going to be that the original application was under the inherent jurisdiction, and we can all chant the answer “the powers are theoretically limitless”]

 

I can’t actually establish under the DPA what section you would use to refuse a section 7 request.  It doesn’t fit any of the non-disclosure provisions in Schedule 7 of the Act.

 

My best argument would be that in making that order, the Court has effectively determined (though without giving a judgment as to why) that this is satisfied

The Data Protection (Subject Access Modification) (Social Work) Order

2000:

this provides that personal data held for the purposes of social work

are exempt from the subject access provisions, where the disclosure to the

data subject would be likely to prejudice the carrying out of social work, by

causing serious harm to the physical or mental health, or condition, of the

data subject, or another person.

 

For law geeks, there’s a really obvious way of getting the reports, but obviously it would be wrong of me to spell it out here.

 

You won’t be surprised, having read the rest of this, that Moylan J didn’t allow the application by DH for costs.

 

  1. Turning next to the issue of costs, I am satisfied on the evidence that AH was given no assurance that her costs prior to the appointment of the Official Solicitor would be paid. I accept the evidence of Ms. Hardman and Mrs. Ord to that effect, which is supported by the records produced from AH’s own solicitors. Additionally, AH herself says that she was not in a fit state at the relevant time and was not taking things in.
  2. Secondly, in respect of proceedings in the Court of Protection, I can identify no justification for departing from the general rule that there should be no order as to costs. There is nothing in NCC’s conduct which would justify my departing from that rule. The proceedings have concluded without any determination. I am satisfied that NCC have acted properly throughout, in accordance with their obligations. There is no point at which they should have decided, as submitted by DH and AH, to discontinue the proceedings earlier than they did, namely following the receipt of Dr. Khouja’s report.
  3. I am also not persuaded that I should make any separate order in respect of Dr. Khouja’s costs. These were part of the costs of the proceedings to which the general rule applies.
  4. Thirdly, in respect of the costs of the proceedings under the inherent jurisdiction, I am also persuaded that NCC acted properly throughout in bringing the proceedings, in that, in so doing, they were acting in accordance with their obligations in respect of vulnerable adults. As the letter from DH’s solicitor dated 18th March 2010 makes clear, it was accepted that AH had said things to social workers which would lead professionals to have concerns. The letter specifically states that:

    “Our client accepts that the premise of the proceedings is that the local authority believes that his wife’s descriptions of how he has treated her may be true”.

    I can identify no point at which NCC should have decided to discontinue those proceedings earlier than when they did.

 

Thus DH had to pay for legal representation, in order for NCC to go to Court and argue that his wife lacked capacity and needed protecting from him, even though it turned out in the end that she didn’t, and had to pay for a share of an expert report (which probably would have helped his case if he’d seen it) which he wasn’t allowed to see and will never see. The whole of this case was based on allegations which he hasn’t seen and none of which were proved.

 

This one is probably far too legally complex for our friend over at the Telegraph, but it certainly is one that might warrant the “Kafka-esque” label that he routinely affixes to cases.

The Supreme Court ignore my new Act

Having laboured over the drafting of brand new legislation to avoid any disputes about where people live,  https://suesspiciousminds.com/2015/07/03/the-residenceschmesidence-act-2015/  I am disappointed that the Supreme Court did not take the opportunity to pick up that particular baton and run with it.

 

And if you thought that people were litigating about ordinary residence too much BEFORE, just you wait.

 

The Supreme Court in R (on the application of Cornwall Council) 2015  https://www.supremecourt.uk/cases/docs/uksc-2014-0092-judgment.pdf  were dealing with a tricky scenario.

 

P had been a child, and when he was a child, had been placed in foster care in Wiltshire. This was in 1991.  As part of his care, Wiltshire PLACED him in South Gloucestershire.   When P became an adult, his needs were such that he required accommodation under the National Assistance Act 1948.  His needs are estimated to cost about £80,000 per year and he is likely to need them for the remainder of his life, so the issue of which Local Authority pays is liable to cost millions.

P’s parents, when he was an adult, moved to Cornwall; who also got dragged into this, despite him never having set a foot in Cornwall until 2004 and only then on a short visit to his parents.  We also add into the mix that accommodation was found for P in Somerset.

 

It is real law-exam stuff.  I wrote about how the High Court resolved it here (back in 2012), and I obviously developed some form of mental scarring as a result, because when the Court of Appeal decision came in, I couldn’t even face looking at it.    (I’ve not sold this link, but if you are a masochist, or you are trying to decide whether to quit law forever and just want something to tip you over the edge, here it is  https://suesspiciousminds.com/2012/12/27/as-clear-as-a-bell-if-the-bell-were-made-out-of-mud/

 

[I’ll assume that you rightly skipped that link]

 

The majority opinion of the House of Lords is that where a Local Authority accommodate a young person, and that person then goes on to require adult services, there’s no break in ordinary residence just because they happened to put him in another area.  The LA who started the case off, keeep hold of the responsibility, even though the case moves from being a child case to an adult case, and moves from one Act to another.

 

54. The question therefore arises whether, despite the broad similarity and obvious underlying purpose of these provisions (namely that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it), there is a hiatus in the legislation such that a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to be regarded on reaching that age as ordinarily resident in the area of Y for the purposes of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y.

55. It is highly undesirable that this should be so. It would run counter to the policy discernable in both Acts that the ordinary residence of a person provided with accommodation should not be affected for the purposes of an authority’s responsibilities by the location of that person’s placement. It would also have potentially adverse consequences. For some needy children with particular disabilities the most suitable placement may be outside the boundaries of their local authority, and the people who are cared for in some specialist settings may comefrom all over the country. It would be highly regrettable if those who provide specialist care under the auspices of a local authority were constrained in their willingness to receive children from the area of another authority through considerations of the long term financial burden which would potentially follow.

 

That does make a degree of sense.  Firstly, if a Local Authority caring for P as a child, could remove any burden on caring for him as an adult by placing him in another local authority area, then these vulnerable individuals could become subject to a game of pass the parcel (but where you DON’T want to be holding the parcel when the music stops). Secondly, Local Authorities who had made provisions or had specialist facilities in their area for children could end up receiving a higher number of such children and then having to go on to care for them as adults. And thirdly, Local Authorities might jealously guard their borders, not being willing to accommodate children on behalf  of other Local Authorities who might be trying to shift the burden of responsibility in adulthood.

 

The majority opinion therefore concludes

 

59. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect when it came to the transition in his care arrangements on his 18th birthday.

 

[The Supreme Court do not use this guache term, but in a reductive sense, the law on ordinary residence where a Local Authority places a young person in another area and that young person then needs services as an adult is “He who smelt it, dealt it”]

 

But see Lord Wilson’s stirring dissenting opinion, and it is hard not to disagree with his conclusions. What he says in effect is that the Supreme Court majority opinion is deciding the law not on the basis of a legal interpretation or following precedent, but deciding on which outcome has the better public policy implications.  This is all even better if, like me, you choose to imagine that Lord Wilson has the same speaking voice as John Le Mesurier used for Sergeant Wilson.  (“Are you sure that’s wise, sir?”)

 

I believe that this might be my FOURTH Dad's Army illustration on the blog...

I believe that this might be my FOURTH Dad’s Army illustration on the blog…

 

 

 

62. My colleagues consider that, in making his determination under section 32(3) of the National Assistance Act 1948 (“the 1948 Act”) of the place of PH’s ordinary residence on 26 December 2004 for the purpose of section 24(1) of the same Act, the Secretary of State could lawfully have reached only one conclusion. It is, according to them, that on that date, which was the day prior to his 18th birthday, PH was ordinarily resident in a county (Wiltshire):

a) in which in May 1991, ie about 13 years earlier, he had ceased to live upon his removal to live with the foster parents in South Gloucestershire;

b) to which, during the following 13 years, he never returned, not even just to stay overnight;

c) in which in November 1991, ie also about 13 years earlier, his parents had ceased to live upon their removal to live in Cornwall;

d)in which by 1997, ie about seven years earlier, both sets of his grandparents had, in one case because of relocation and in the other because of death, ceased to live; and

e) in which, from 1997 onwards until many years after 26 December 2004, no home remained available, even in principle, for his occupation.

63. Such is a conclusion to which, with great respect to my colleagues, I do not subscribe. It is a conclusion for which no party has contended at any stage of these proceedings. A court should tread cautiously before favouring a solution devised only by itself, particularly where, as here, it has been addressed by an array of excellent counsel instructed by public authorities widely experienced in this area of the law.

 

Whether you agree with Lord Wilson or not, you have it say that to be able to pour so much information into such a condensed and easy to follow two paragraphs is masterful.

 

He goes on

 

 

 

65. I must squarely confront the problem. There appear to be strong reasons of public policy which militate in favour of imposing upon Wiltshire, rather than upon South Gloucestershire, the obligation of making decisions about a suitable placement of PH following his 18th birthday and of funding whatever placement may thereafter be suitable for him from time to time. It would be a heavy financial burden for Wiltshire but its burden in the case of PH would be borne to the same extent by some other local authority in a reverse situation: in other words the burdens should even out. Public policy suggests:

a) that it is desirable that a local authority which has exercised the decision-making power (and has borne the funding burden) in relation to the placement of a mentally incapacitated minor should, in the light of its knowledge of his needs, continue to exercise that power (and bear that burden) following the attainment of his majority; and

b) that it is undesirable that a local authority which is exercising the decision-making power (and bearing the funding burden) in relation to the placement of an incapacitated minor should, while he remains a minor, be able to place him in a suitable facility in the area of another local authority (indeed, in the case of a private placement, without the consent of that local authority), with the result that, following the attainment of his majority, the decision-making power and, in particular, the financial burden should fall upon that other local authority. In the present case, for example, the evidence suggests that Wiltshire’s placement of PH in 1991 with his excellent specialist foster parents did not in any way involve the local authority of South Gloucestershire, which for the following 13 years appears to have played no part in directing or securing his care. Yet, on my analysis, it is South Gloucestershire which should thereafter have begun to exercise the decision-making power and, in particular, to bear the financial burden. The Secretary of State accepts that, of the young people who move from being looked after by local authorities as minors to being provided with accommodation by them as adults, those lacking capacity are only a small proportion. But he explains convincingly that, in the light of their specialised needs, the cost of maintaining them indefinitely is very high. He proceeds to identify real concerns that a few local authorities might therefore be motivated (to use the crude shorthand which, only for convenience, has been deployed in the hearing before this court) to “export” such a minor to the area of another local authority prior to the attainment of his majority; and equally that, were that other local authority to be the administrator of a specialist resource entirely suitable to the needs of a minor, it might nevertheless be motivated to refuse him admission to it for fear of the financial consequences following the attainment of his majority.

 

66. But such is the result which in my view the law, as it stands, clearly compels. I am not a legislator. Nor, with respect, are my colleagues.

 

Whether the case should be decided on law or public policy  (and I agree with Lord Wilson – if the Supreme Court start to decide cases on what it considers to be the best outcome for public policy then we are on a slippery slope), the Supreme Court have not really considered the real public policy outcome here.

 

If Local Authority A and Local Authority B are arguing about which area is responsible for providing care for little Tommy, then at the moment, they fight like cat and dog about meeting those costs for a maximum of 18 years.  Following this decision, the loser of that argument could, if little Tommy is going to require accommodation throughout his adult life, be stuck with those costs for 80-90 years.

Now, using your skill and judgment, do you think that those arguments will as a result become :-

(a) more amicable; or

(b) more contentious

 

 

 

 

 

 

Bodey and DoLs

Mr Justice Bodey, sitting in the High Court dealt with a case involving a 93 year old woman with severe dementia, and had to resolve whether the protective mechanisms that had been put in place by the Local Authority amounted to a deprivation of liberty (or DoLs).  And if so, whether the Court would authorise those.

 

W City Council v Mrs L  2015

http://www.bailii.org/ew/cases/EWCOP/2015/20.html

 

This might have wider implications, because the Court were being asked specifically about two issues :-

 

1. The deprivation was in the woman’s own home, rather than in accommodation provided by the State.

2. The woman herself was not objecting to the restrictions, or kicking against them.

Unusually here, it was the LA who were saying to the Court that their actions amounted to a deprivation of liberty, and the family were saying that it wasn’t.

Here’s what the restrictions amounted to:-

  1. As I have said, Mrs L is 93. She was widowed in 1976 and has lived since about that time, 39 years, in her current home, the upper floor flat in a 2-storey building. She has 4 adult daughters, 3 of whom live in England and one abroad. Her daughter PC is, as I have said, her litigation friend. If I may say so, the family seem to have done extraordinarily well in caring proactively for Mrs L, who was diagnosed with dementia in 2004. Since that time, her condition has deteriorated, and understandably is deteriorating. Her family have adapted her furniture and routines to take account of all her needs. She fell twice in 2013, the first time injuring her hip and requiring an operation. The second time in November 2013 she suffered no injury, but became disorientated and wandered away from her home very unsuitably clothed into the local town. She was returned home by the Police or Social Services. This event led to the involvement of the Local Authority.
  2. At that time, the garden at Mrs L’s home was not enclosed. In the light of Mrs L’s having wandered off, the family arranged for a fence and two gates to be erected, and for the garden to be generally improved. The gates are side by side: one to use on foot, and the other a double gate to admit vehicles, presumably for the benefit of the young couple who live with their children in the ground floor flat. The pedestrian gate latch is of the kind often seen on bridleway gates, having a vertical metal lever on the gate, which is pulled away from the gate post to open the gate, and which springs back to engage with a clip on the gate post in order to re-close the gate. The double gates are secured by a metal throw-over loop, which holds the two central uprights together. The front door of Mrs L’s flat which leads into this garden area is locked with a Yale lock, which Mrs L can and does operate herself. This enables her to have access to her garden as and when she wishes it. All agree that she gets great pleasure from being able to go out and enjoy the garden.
  3. The Local Authority have undertaken assessments of the safety of the above arrangements. They have concluded that whilst neither of the gate latches lock, they are quite stiff and heavy to operate. There was an occasion when Mrs L was observed to open the pedestrian gate when asked to do so. This was before a wedge was added to the gate by Mrs L’s downstairs neighbours (to stop their young children getting out) which has made the gate more difficult to open. The garden is felt by everyone to be sufficiently secure, although with an unavoidable risk that someone might leave the gate open. At night, there are door sensors which switch themselves on in the evening and off in the morning. They would be activated if Mrs L were to leave the property at night, although she has not in fact done so in the 6 months or so since they were installed. An alarm call would automatically be made to one of her daughters, who lives nearby. If that daughter were not available, the call would re-route go to the emergency services. This would enable Mrs L to be guided safely back home.
  4. Mrs L is happy and contented where she lives. A care package is provided for her by the Local Authority’s specialist dementia carers, who visit her 3 times a day. She is orientated within the property, steady on her feet, motivated to engage in simple activities, and has a clear interest in her garden. There is a documented history of her strong sense of belonging in her current home, and of her fierce sense of independence. She displays an acceptable level of mobility. Her immediate environment can be seen to give her significant pleasure and stimulation. She is able to enjoy the company of her cat. All agree it would cause her distress to be moved to residential care. All agree too that the current arrangements of family and Social Services working together are in Mrs L’s best interests and work well.
  5. The facts on which the Local Authority relies in particular for saying that the arrangements amount to a deprivation of Mrs L’s liberty are: (a) that the garden gate is kept shut, thereby preventing or deterring Mrs L from leaving the property unless escorted; (b) that the door sensors are activated at night, so that Mrs L could and would be escorted home if she left; and (c) that there might be circumstances in an emergency, say if the sensors failed to operate at night, when the front door of the flat might have to be locked on its mortice lock, which Mrs L cannot operate (as distinct from the Yale lock, which she can). She would then be confined to her flat. These arrangements are said by the Local Authority to be integral to its care plan for Mrs L, which is overseen by her social worker. The Local Authority thus asserts that it is responsible, as a public body, for a deprivation of Mrs L’s liberty.

 

This is a good illustration of how unsatisfactory things are at present with DoLs.  On those facts, my gut feeling would be that it ISN’T an article 5 deprivation of libery. BUT, given that if you get this wrong, compensation is payable to the person being deprived of their liberty (and at least one Judge has ordered that that is on a daily rate), would I be sure? Or even fairly sure? I can absolutely see why this LA wanted to make the application and have a Judge decide.

 

Mr Justice Bodey sets out the law very well (this would be a good “go-to” judgment for these issues)

 

On the two key issues in the case, Bodey J said that both were relevant factors in weighing up whether the restrictions amounted to a deprivation of liberty, but neither of them were determinative (i.e a person CAN be deprived of liberty in their own home and a person CAN be deprived of their liberty even if they seem perfectly happy about it, but whether or not they ARE being deprived of their liberty depends on the facts of the case)

 

23. ..it is overwhelmingly clear that Mrs L is where she always wanted to be when she was capacitous: and where not only has she not shown or expressed any dissatisfaction with the arrangements, but has demonstrated positively a continuing satisfaction with being in her own home. Further, her home is clearly not a ‘placement’ in the sense of a person being taken or taking herself to some institution or hospital.

  1. The fact of Mrs L referring to, and demonstrating by her demeanour, this continuing contentment in her home is not in issue. It is right that she is of course not capacitated. Otherwise, this case would not be happening. But I do find that she is capable of expressing her wishes and feelings, as is referred to in the documents and shown in such things as for example her choice of clothes, the choice of what she does around the property, and in her going in and out of the garden at will. Although I accept the general need for the caution which Miss Hirst urges me to exercise, this consideration must be relevant in the evaluation of whether Mrs L is being ‘deprived’ of her ‘liberty’ within Article 5.
  2. This case is thus different from one involving institutional accommodation with arrangements designed to confine the person for his or her safety, and where that person, or someone on his or her behalf, is challenging the need for such confinement. At paragraph 38 of Cheshire West Lady Hale spoke about ‘the presence or absence of coercion’ being a relevant consideration. As I have said, the range of criteria to be taken into account includes the type, duration, effects and manner of implementation of the arrangements put in place. The fact that those criteria are prefaced by the words ‘such as’ demonstrates that they are not intended to be exhaustive. It is a question of an overall review of all the particular circumstances of the case.
  3. I observe too that Article 5 refers to everyone having a right to ‘liberty and security of person’ [emphasis added]. Mrs L’s ‘security’ is being achieved by the arrangements put into place as being in her best interests, even though involving restrictions. Such restrictions are not continuous or complete. Mrs L has ample time to spend as she wishes, and the carer’s visits are the minimum necessary for her safety and wellbeing, being largely concerned to ensure that she is eating, taking liquids and coping generally in other respects.
  4. This is a finely balanced case; but on the totality of everything that I have read in the files, I have come to the conclusion and find that whilst the arrangements (clearly) constitute restrictions on Mrs L’s liberty, they do not quite cross the line to being a deprivation of it. If I were wrong about that, and if there is a deprivation of Mrs L’s liberty, is it to be imputed to the State? On the facts, I find not. This is a shared arrangement set up by agreement with a caring and pro-active family: and the responsibility of the State is, it seems to me, diluted by the strong role which the family has played and continues to play. I do not consider in such circumstances that the mischief of State interference at which Article 5 was and is directed, sufficiently exists.
  5. In these circumstances, my decision is simply that there is no deprivation of Mrs L’s liberty. This is not per se because Mrs L is in her own home; nor because she wishes to be there. Those features alone would not necessarily stop particular arrangements amounting to a deprivation of liberty. Rather it is a finely balanced decision taken on all the facts of the particular case. The question of the court’s authorising the arrangements concerned does not in the circumstances arise, although I would have authorised them if it did. The question of Mrs L’s up to date best interests is better considered back in Birmingham by the District Judge, and I anticipate that it should be capable of being dealt with by consent.

 

 

Even Professionals can find it difficult to know if a person is being deprived of their liberty…

Even Professionals can find Deprivation of Liberty confusing

Reporting restriction orders and anonymisation

 

This Court of Protection case raised, and answered, an important question that was causing people doubts, in relation to Reporting Restriction Orders. It has broader implications than just Court of Protection cases.

A Healthcare NHS Trust and P 2015

http://www.bailii.org/ew/cases/EWCOP/2015/15.html

 

A Reporting Restriction Order is just as you might guess, an Order of the Court saying that the Press can’t report some details on a particular case.  When the Court decides whether to make one, it is balancing up the article 8 right to privacy of the people involved (particularly if they are vulnerable people who can’t consent for themselves) AGAINST the article 10 right to freedom of expression (the concept that the Press ought to be free to report stories of public interest, or that are just interesting to the public)

What you might not know, if you haven’t made an application of this type, is that when faced with a story that you don’t want the Press to run, the procedure to obtain an RRO is to contact the Press and tell them all that there’s a really juicy story that you don’t want them to run.

 

That is so that the argument about article 8 v article 10 can be run with the Press being present and represented.  It does mean that you need to think carefully about whether stamping out a small fire (a newspaper wanting to run a story) by applying for an RRO might mean you accidentally starting a forest fire (by shouting “Fire, fire” to the rest of the media)

 

It is also worth noting that the transparency guidelines are that any application for an RRO, whether granted or not, should have an anonymised judgment published  – so RROs in practice are really going to be about ensuring that the NAMES of the people involved do not become published.

So, when the Press are told about the application for an RRO, should the real NAMES of the people involved be used, or should they be anonymised?

  1. It is submitted by the Press Association that pre-notification anonymisation appears to becoming a practice amongst claimant lawyers, who appear to be under the erroneous misapprehension that not only would they be committing a contempt but that by identifying the parties to a claim to the media means that the media will or may publish the material before the Court has had the opportunity to consider and possibly prohibit publication. It also suggests that the assumption is being made that the applicant’s right to privacy under Article 8 of the ECHR outweighs the media and public’s rights under Article 10. That approach by lawyers representing applicants seeking reporting restrictions or injunctions in refusing to identify the parties involved in a case involves restricting the media’s rights even before the Court has had an opportunity to consider the matter. That, it is said, leaves the media unable to take advice or make sensible and informed decisions as to what approach, if any, to take in a particular case.
  2. When the Press Association raised the question of identification of the parties with the applicant’s solicitors in this case, the response apparently was that the solicitors would be committing a contempt of court by disclosing the information; the argument put forward today by Mr Sachdeva QC is altogether different.
  3. The short issue of course is whether there is an obligation subject to paragraph 15-17 of the Practice Direction 13A to disclose information.

 

If there is an obligation to provide the real names of those involved as part of the application process, then there’s no issue of contempt of Court in complying with that obligation. And this is the issue that the Court had to decide.

On the one hand, the argument is that giving out the real names might be a contempt of Court and might breach privacy and might pose a risk of the names accidentally leaking out. On the other, if you tell the Press that they aren’t allowed to write about person X, but you don’t tell them who person X is, how can they really know whether they might have already been approached by X about the story, or even whether they would want to run the story.

  1. The questions therefore seem to be as follows. On the one hand the arguments in favour of revealing the parties’ identity to the Press before such an order is made include Practice Direction 13A requiring that the application notice (COP 9) be served with the media notification. The COP 9 has the parties’ names on it as of course does the witness statement (COP24). It is in accordance with open justice to allow the media fully to consider whether to object. It is pragmatic, otherwise the media would have to attend every case to learn the parties’ identity. Arguably no harm is done by notification because the media cannot report the parties’ identity despite no RRO being yet in place without being in contempt and the media will learn the parties’ names once the RRO is made in any event.
  2. Against the proposition is the assertion that the Practice Direction (which is a practice direction, not a Rule of Court) does not require the draft order to be served on the media (as noted by Baker J in Re M). However, he was considering the issue in relation to the identities of a considerable number of people who would be covered by the anonymity order. More directly than that it is simply unnecessary for the media to know the identity of P before forming an opinion on the terms of the RRO being sought, the issues being the centre of interest. Relevance is also placed on the absence of prohibitive order prior to hearing, a breach of which it is said is not clearly a breach of confidence or contempt of court.

Mr Justice Newton marshals the law and principles very well here, and it would be a good source for any RRO research in future cases.

To skip to the conclusion – the Judge was satisfied that the Press having the real names on the application form would not result in those names being published before the Court considered the RRO and that there were a number of safeguards to ensure that would be the case, even if there were to be one maverick or rogue player:-

  1. I am therefore completely satisfied that a number of factors come together preventing the media from revealing the parties’ names, because

    1. It would be a statutory contempt.

    2. It would be a contempt of common law.

    3. It would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect).

    4. It would be a breach of confidence.

  2. In the interests of transparency, the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names. I therefore order the disclosure of the identity of P and the family to the Injunctions Alert Service so that the Press may respond if they wish to do so.

 

 

The statutory contempt of court bit is interesting, particularly in relation to publication of information whilst the proceedings have not been concluded.

  1. Section 1 of the Contempt of Court Act 1981 provides:

    “In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”

    Section 2 of the Act sets out the scope of strict liability. The following must be established to the criminal standard:

    a) publication addressed to the public at large, as any sections of the public;

    b) publication which creates a substantial risk that the course of justice in the proceedings in question will be severely impeded or prejudiced;

    c) publication occurs at a time when the proceedings are active.

    So there is a double test, there has to be a risk that the proceedings in question will be affected at all and if affected, the effect will be serious.

  2. Anything that has a deleterious impact on the conduct or outcome of proceedings is prejudicial to the course of justice (I have had regard to the definitions in Arlidge, Eady and Smith on Contempt (citing Re Lonhro 1990 2 AC 154 and AG v Times Newspapers Times 12/2/83).

 

What about common law contempt?

  1. In the unlikely event that statutory contempt is not established common law contempt (under section 6(c) of the Act) could clearly be established. The actus reus and mens rea both have to be established. Lord Bingham in A-G v Newspapers Publishing plc [1997] 1 WLR 926 at 936B-D set out the actus reus to be established:

    “We do not accept that any conduct by a third party inconsistent with an order of the court is enough to constitute the actus reus of contempt. Where it is sought to impose indirect liability on a third party, the justification for doing so lies in that party’s interference with the administration of justice. It is not our view necessary to show that the administration of justice in the relevant proceedings has been wholly frustrated or rendered utterly futile. But it is, we think, necessary to show some significant and adverse effect on the administration of justice. Recognising that the restraints upon freedom of expression should be no wider than are truly necessary in a democratic society, we do not accept that conduct by a third party which is inconsistent with a court order in only a trivial or technical way should expose a party to conviction for contempt.”

  2. At 936H-937A, Lord Bingham set out what had to be established in respect of the necessary mens rea:

    “To show contempt, the [A-G] must establish, to the criminal standard of proof, that: ‘the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire …’

  3. The publication of material contained in an application for reporting restrictions prior to the hearing to determine those restrictions is likely to amount to a contempt of court at common law. It is likely to have a significant and adverse effect on the administration of justice by thwarting the very purpose of the application, thereby making the application for reporting restrictions redundant. Intent to impede or prejudice the administration of justice is likely to be inferred from the context that the publisher will be aware of the context of how the information was received, the purpose for which it was received and the likely restrictions sought in the application.

 

 

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