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Category Archives: court of protection

Bone marrow transplants and struck off doctors

 

 

 

 

This is a very peculiar Court of Protection case, decided by the President.  Very peculiar is a massive understatement, to be frank.

SW, Re [2017] EWCOP 7 (12 April 2017)

http://www.bailii.org/ew/cases/EWCOP/2017/7.html

 

As the acronyms are a bit confusing, I’ll give us a cast list

 

 

SAN – a man who has cancer. It is said that he needs a bone marrow transplant to save his life, as a result of this.

 

SW – SAN’s adopted sister, and a woman about whom it is alleged lacks capacity to make decisions in her own right.

 

Son – the son of SW, who does have capacity, and who applied to Court for a declaration to be made that SW undergo surgery in order to donate bone marrow to SAN and that the surgery be undertaken by the next two members of our cast.

Dr Waghorn – a surgeon, who coincidentally is the husband of SW and the father of Son. He has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

Dr Jooste – another surgeon – a family friend and colleague of Dr Waghorn. He too has ‘relinquished his membership with the General Medical Council in order to continue his specialized medical practice’

 

The intention is that Dr Waghorn and/or Dr Jooste would carry out the transplant surgery.  By the way, don’t assume that SAN is keen on having this surgery. Or even that Son, Dr Waghorn or Dr Jooste have recently asked him if he wants it or consents to it.

 

 

Are you a dreadful cynical hard-bitten creature? Are your internal alarm bells going off loudly and causing dogs in your vicinity to bark furiously at the hellish clamour that was produced by the ‘relinquished his membership with the GMC’ bit?

 

 

This is the size of dog that is proportionate to how loudly my ‘WARNING’ alarm bell is ringing

 

(If Amazon suddenly get a spike in DVD orders for that film, I should get a cut. If you haven’t seen it,     ch-ch-ch-ch-check it out)

The Judge explored that a little further

 

6.In fact, both Dr Waghorn and Dr Jooste have had their names erased from the Medical Register following determinations by different Fitness to Practise Panels of the Medical Practitioners Tribunal Service, the one, in the case of Dr Waghorn, on 26 July 2013 and the other, in the case of Dr Jooste, on 17 February 2014. In each case the Panel’s findings make for very disturbing reading.

 

 

7.In relation to Dr Waghorn the Panel said this

 

“The Panel accepts that the matters before it relating to patient care arise from the treatment of one patient. However, they represent such a wide-ranging and serious set of clinical failings and such a cavalier and uncaring approach to patient safety that, even viewed in isolation, they demonstrate misconduct that is fundamentally incompatible with the practice of medicine. That misconduct is compounded by the fact that it occurred with foreknowledge of the wholly inadequate conditions under which Patient A was to be treated and it involved the criminal offence of carrying on a hospital without registration with the CQC. The misconduct is also exacerbated by Dr Waghorn’s breaches of the conditions that had been put in place to prevent any repetition and by his dishonesty in trying to disguise the extent of his subsequent work at the same clinic.”

 

In fact, as appears from the Panel’s determination, Dr Waghorn had been convicted at the City of Westminster Magistrates’ Court on 9 June 2011 of an offence contrary to section 11(1) of the Care Standards Act 2000 of carrying on an Independent Hospital without being registered in respect of it under Part II of the Act.

8.In relation to Dr Jooste the Panel said this:

 

 

 

“Dr Jooste is a risk to patient safety …

 

The Panel also considers that there is a risk to patient safety in Dr Jooste’s unwillingness to accept or comply with the authority of his regulator, in that he seems not to acknowledge any restriction or control on his practice and will not be called to account. Dr Jooste has behaved in an outrageous manner in his conduct towards the Interim Orders Panel and witnesses and in the entirely unmeritorious applications he has made to the High Court.

 

The Panel has received no evidence of any mitigating factors …

 

The panel has concluded that suspension would be wholly inadequate to mark the seriousness of Dr Jooste’s misconduct or to protect public confidence in the profession.

 

… The Panel has rarely encountered a doctor to whom so many of the indicative criteria for erasure apply. In short, Dr Jooste’s misconduct is fundamentally incompatible with his continued registration as a doctor.”

 

 

What is your prediction, at this point, as to whether the President is going to allow two doctors with this record to perform surgery on a woman with no capacity (who happens to be the wife of one of them…) ?

 

Yeah, me too.

 

To echo erstwhile comedian and labelled-welly-wearer Jimmy Cricket, come here, there’s more

 

9.As appears from his application form and the attached Annex E, the son made the application as SW’s attorney under a Lasting Power of Attorney (Health and Welfare) purportedly executed by SW on 18 October 2014 and registered on 9 January 2015. He had also been appointed SW’s attorney under a Lasting Power of Attorney (Property and Financial Affairs) purportedly executed by SW and registered on 17 June 2015. SW’s signature on the first of these documents had been witnessed by Dr Waghorn. The certificate declaring that SW understood what she was doing and was not being pressurised was given by Dr Jooste on 23 October 2014, who described himself as SW’s “friend for 10 years.” Both Dr Waghorn and Dr Jooste were described as “Dr” though each had by then been struck off.

 

There had also been litigation in the Court of Protection involving not SW as the vulnerable person but SAN

On 8 December 2014, Newton J gave judgment in the Court of Protection in proceedings (COP12599814) relating to SAN and the proposed treatment of his condition, in which Dr Waghorn appeared on behalf of SAN apparently pursuant to a lasting Power of Attorney (Health and Welfare) granted on 5 September 2013.

 

 

11.So far as material for present purposes, what Newton J said was this:

 

 

 

“… in order for the Court to exercise jurisdiction, in the Court of Protection, there has to be evidence that the patient does not have capacity …

 

The short [point] here is that all the evidence, in fact, points the other way. In fact there is absolutely no evidence that he lacks capacity at all, indeed quite the reverse. My attention has been drawn to the letter dated 16th October 2014 from Dr Bray which makes it clear that Dr Hunter, who is the consultant haematologist who is currently treating [SAN], is sure that he has full capacity regarding the decisions concerning his own health, but did not wish to pursue those other treatments.

 

Enquiries both of the insurers, and the legal advice by the medical group confirm that [SAN] has capacity, there is therefore no need for any best interests decision involving his power of attorney. In fact, Dr Bray spoke to [SAN] and he made it very clear that he did not wish for this matter to be pursued at that time and would like things left as they were. That point of view was reiterated by [SAN] himself as recently as Thursday of last week, when enquiries were made on behalf of NHS England. He made it plain that he was currently in remission, that he did not wish for the treatment to be pursued, and that he did not wish there to be court action.

 

Dr Waghorn feels that that very acutely, not least because of his expertise as a doctor, but also I have no doubt because of his concern and affection for his brother-in-law, he is deeply anxious that his brother-in-law simply does not grasp the full effect and indeed understanding of (A) his illness, and (B) what may be done to alleviate or assist him. And that is a point to which Dr Waghorn has repeatedly returned. But, counsel has pointed out, it seems to me correctly that that is for those are dealing with matters or treatment, and it is not for me in arrangement without first being able to establish lack of capacity …

 

It is a short point. As I explained to Dr Waghorn, in order for the Court to deal with the matter I have to have jurisdiction: there is no reason to believe, that he does not have capacity, as the lawyers or doctors understand it. His own treating clinician believes that he has capacity, she having treated him for some time. It is clear, as I understand the evidence, that he has consented to and understands his medical condition and the treatment options, as is plain from the papers. [SAN] himself does not agree that he lacks capacity: he believes that he has capacity to make decisions about his medical treatment and does not, in fact, agree with this application being made. The practitioner who spoke to him as recently as last week also considered, that he also did not lack capacity.

 

Therefore, whilst I understand the position in which Dr Waghorn has found himself, in my judgment I do not think, and indeed I am entirely satisfied that I do not have the jurisdiction to make any decisions in relation to [SAN’s] medical condition and treatment. I have no jurisdiction because there is no evidence that he does not have capacity, even on an interim basis (indeed quite the contrary).”

 

A company then sought to judicially review the NHS decision in this case not to allow surgery. Coincidentally, two directors of that company were Dr Waghorn and Dr Jooste. That application was dismissed on 9 June 2015 by Hayden J as being “totally without merit.” The judge observed that “The claim is at best vexatious, nor is it presented in any coherent or logical manner.”

The President remarks :-

13.There is a common thread to all three sets of proceedings, the purpose in each case being to obtain from the court relief facilitating or enabling Dr Waghorn and/or Dr Jooste to carry out an allogeneic bone marrow transplant from SW to SAN.

 

Dr Waghorn sought to involve the Anthony Nolan charity as interveners. Unsurprisingly, they declined. In much the same way that I would decline an invitation to “Tequilla-Fueled Sword Swallowing for Beginners, followed by candlelight dinner with Katie Hopkins and Eric Pickles”

 

 

 

15.Dr Waghorn sought to enlist the interest, and indeed involvement as intervenor in the present proceedings, of the well-known Anthony Nolan charity. On 28 February 2017 he received this stinging rebuff:

 

 

 

“… I would like to underline that we do not want to be involved in this case.

[Almost word for word what I said to Katie and Eric, btw. Well, actually, my response had certain rhyming qualities with the description of these two doctors in the title of the blog post…]

 

Anthony Nolan’s position is that allogeneic stem cell transplantation should be provided by registered specialist transplant physicians in an accredited NHS or accredited private transplant centre setting.

 

As such we do not want to be involved in this case in any way.

 

Please do not contact us again about this case.”

 

Dr Waghorn’s riposte was to threaten the writer of that letter with a subpoena to attend the hearing on 3 March 2017 – a threat which appears not to have been carried through.

 

 

The Judge then considers the position of SW, noting that the evidence as to her capacity or lack thereof was rather deficient. Her IQ was now around 78, having been previously about 90. That isn’t of itself, suggestive of a lack of capacity.

 

25.Quite apart from the issue of SW’s capacity, there are three particularly striking features of this application:

 

 

 

 

  1. i) First, there appears to have been, so far as I can see, and I pressed the son on this point, no discussion or consultation with SW about this application. I was told nothing about her wishes and feelings. What are they? More fundamentally, there seems to have been a wholesale failure to have regard to the fundamentally important principle in section 4(4) of the 2005 Act, requiring, “so far as reasonably practicable, [a decision-maker to] permit and encourage [SW] to participate, or to improve [her] ability to participate, as fully as possible in any act done for [her] and any decision affecting [her].”

 

  1. ii) Secondly, there appears likewise to have been no discussion or consultation with SAN about his wishes – a particularly egregious omission given everything Newton J had said as recently as December 2014. All the son could say, in answer to my probing, was words to the effect that ‘obviously he will agree because no-one wants to die.‘ Even as a general proposition this is not without its difficulties; in the present case it does not begin to address the obvious questions flowing from Newton J’s findings. This omission is also very significant for another reason for, according to the son’s skeleton argument, allogeneic bone marrow transplantation carries “a significant risk of mortality” for the donee.

 

iii) Thirdly, the application is put before me by the son explicitly on the basis that those with “clinical responsibility” for SW are two individuals who, although this was concealed from me, have in fact both been struck off the medical register, and that the relevant “treatment” is to be provided by one of these two struck off doctors. A prudent judge probably never says “never”, but I find it impossible to conceive of circumstances where the Court of Protection would ever contemplate authorising treatment of a kind referred to in PD9E (and this is such treatment: see PD9E, para 6(b), following Re Y, pages 116-117) where the treatment is to be given by a doctor who has been struck off.

26.A curious observation at the very end of the son’s skeleton argument, makes me wonder what, and who, are really driving this application. He is SW’s son, and puts himself forward as making the application as her attorney, yet he says of the declaration he seeks:

 

 

 

“If granted, such a Declaration will enable the public to obtain these life-saving, and curative treatments, from family members – not only for haematological cancers such as leukaemia, lymphoma and myeloma but also for solid tumours, with minimal residual disease, such as metastatic breast, colon & pancreas.”

 

Is there some wider agenda at work here, and, if so, whose agenda is it?

 

 

I like “a prudent Judge probably never says Never”

 

 

 

As we all suspected, the application was dismissed, leaving just issues of costs and anonymity in any published judgment

 

33.As it has been presented to the court, this scarcely coherent application is totally without merit, it is misconceived and it is vexatious. It would be contrary to every principle of how litigation ought to be conducted in the Court of Protection, and every principle of proper case management, to allow this hopelessly defective application to proceed on the forlorn assumption that the son could somehow get his tackle in order and present a revised application which could somehow avoid the fate of its predecessor.

 

 

34.The application must be struck out.

 

 

35.There remain two other matters I have to decide.

 

 

36.The first relates to costs. The HTA seeks costs which it invites me summarily to assess in the sum of £7,671.

 

 

37.As against the son, the claim for costs could not, in my judgment, be clearer. Given everything I have said, this is the plainest possible case for departing from the ordinary rule, set out in rule 157 of the Court of Protection Rules 2007, and applying the principles set out in rule 159. In saying this I make clear that I attribute no responsibility at all to the son for the previous litigation; but his conduct of the present proceedings is of itself more than adequate justification for ordering him to pay the costs. The amounts claimed are, in my judgment, plainly reasonable, and he has not sought to challenge any of the individual items or amounts. He says that he is “at this present moment” unable to afford the costs, praying in aid the fact that the Jobseekers Allowance he was previously receiving terminated in January 2017. That may be, but inability to pay is not, of itself, any answer to an otherwise appropriate order for costs and, in all the circumstances, I see no reason why he should not be ordered to pay the costs, and in the amount claimed. Impecuniosity does not provide immunity from the normal consequences of forensic folly.

 

 

38.As against Dr Waghorn and Dr Jooste, the question is not quite so simple because they, of course, were not applicants in the proceedings. But, and it is a very significant but, they each sought to be joined as a party and expressed themselves as consenting to the application; without any challenge on their part, they were put forward by the son as having clinical responsibility for SW; as I have already described, they seemed throughout the hearing to be making common cause with the son; and Dr Waghorn himself sought relief from the court. In these circumstances, and having regard to the principles expounded in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] UKPC 39, [2004] 1 WLR 2807, and Deutsche Bank AG v Sebastian Holdings Inc and another [2016] EWCA Civ 23, [2016] 4 WLR 17, to which Ms Khalique referred me, both Dr Waghorn and Dr Jooste, in my judgment, are persons against whom a costs order can be made even though are not, formally, parties to the litigation – and, if that is so, then for the same reasons as in relation to the son, it is, in my judgment, fair and just to order them to pay the costs.

 

 

39.I shall, therefore, order the son, Dr Waghorn and Dr Jooste to pay the costs, summarily assessed, in the sum of £7,671.

 

 

40.The remaining matter relates to the reporting restriction order. There is no reason why either SW or SAN should be named, and, indeed, every reason why they should not. Nor, in all the circumstances, is there any reason why the son should be named. Dr Waghorn and Dr Jooste, however, stand in a very different position. There is a very strong public interest in exposing the antics which these two struck-off doctors have got up to, not least so that others may be protected from their behaviour. I appreciate that the effect of naming Dr Waghorn may make it a matter of simplicity for anyone minded to do so to put names to both SW and SAN, but for reasons which will be all too apparent they also need to be protected, for example if there were to be any further attempt to embroil them in litigation. The balance is properly held, in my judgment, by varying the reporting restriction order so as to permit the naming of Dr Waghorn and Dr Jooste while continuing to forbid the naming of SW, SAN and the son.

Legal aid, Court of Protection and ‘contrivance’

 

This is a Court of Protection case, and it is a Charles J judgment, which means that although it is important, it is complicated and challenging. If you aren’t working in the COP field, you can probably skip most of it and just go to the bits where Charles J is erm direct in his views about the Legal Aid Agency and the Secretary of State, who were both joined as parties.  That’s towards the bottom – and it is good stuff so worth a read purely for schadenfreude about those two massively popular bodies being taken down a peg or two.

The case involved a man who as a result of a road traffic accident in July 2015 had been unconscious since that time, and whether he should continue to have Clinically Assisted Nutrition and Hydration (CANH)

Clearly the man lacked capacity, so an argument about this would have to be dealt with under the Mental Capacity Act 2005 and in the Court of Protection. There’s absolutely and undoubtedly a valid argument to be had about whether the continuation of this treatment is in his best interests or not.

The case isn’t really about THAT argument, it is about a preliminary argument.

Is the application before the Court for :-

 

(a) section 5 and section 16 of the MCA  which allows the Court to consider all of the welfare issues set out in the MCA and make a best interests declaration ;

 

or

(b)  A challenge under s21A of the MCA – which relates to the Court’s powers to consider any aspect of P’s life or plans or arrangements for P if his liberty is being deprived.  I.e is it a DOLS case?

 

That seems to be sterile and academic, but actually it isn’t.  Because answer (b) can potentially attract non-means legal aid and answer (a) cannot.  So if the Legal Aid Agency granted legal aid on the basis of (b) it would be free to P’s wife to make the challenge and be represented in Court, and if they granted it on the basis of (a)  she would have to make a contribution, and in this case the level of those contributions would be at a level where she could not afford it and thus have to represent herself in proceedings about whether in effect her husband should be allowed to die.  (P’s wife and his family would like the CANH to be withdrawn and P provided with palliative care, the hospital would wish to continue the feeding treatment)

 

I have to say that my immediate view on this was that whilst P is not free to get up and leave the hospital, and he does not enjoy the same liberty as you and I, it is EXTREMELY hard to argue that the restrictions on his liberty is imposed on him by the State. They are surely a natural consequence of his medical condition.

Briggs v Briggs and Others 2016  EWCOP 48

http://www.bailii.org/ew/cases/EWCOP/2016/48.html

Charles J says this:-

 

 

  • The case has been argued before me on the premise that:

 

i) applying the decision of the Supreme Court in P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19; [2014] AC 896 (“Cheshire West”) Mr Briggs is being deprived of his liberty at the Walton Centre, andii) the Deprivation of Liberty Safeguards (the DOLS) apply to Mr Briggs (and so the point referred to in paragraph 101 of my judgment in LF v HM Coroner [2015] EWHC 2990 (Admin); [2016] WLR 2385 was not advanced).

One of the reasons for this was that the LF case is listed to be heard in the Court of Appeal before Christmas.

 

  • In any event, if I am right in AM v South London & Maudsley NHS & Secretary of State for Health [2013] UKUT 365 (AAC); [2013] COPLR 510 the DOLS may well continue to apply for some time to the circumstances in which Mr Briggs finds himself in the hospital (and on any move to another hospital) on the basis that he may be being deprived of his liberty.
  • I accept that this approach is a sensible one but record that it was made for and limited to the preliminary issue before me in this case. At least one of the parties indicated that it was not accepted that Mr Briggs was being deprived of his liberty and all parties reserved their right to argue that one or both of the underlying premises is incorrect.
  • I also make the general comments that:

 

i) the circumstances in which Mr Briggs finds himself flow inexorably from his accident, the damage that caused to his brain and body and the package of care and treatment that damage necessitated on and after his admission to hospital, and soii) to my mind, it follows that it cannot be said that his deprivation of liberty in hospital is imposed by others as, for example might be said in respect of the consequence of decisions made to admit and detain a person in hospital under s. 3 of the Mental Health Act 1983.

 

 

  • A standard authorisation under the DOLS in respect of Mr Briggs has been granted by the relevant supervisory body at the request of the Walton Centre. It expires in December.

 

I will cut to the chase – Charles J did decide to treat this case as a s21A case, and thus has found that Mr Briggs (P) is being deprived of his liberty and is entitled to make use (through his family) of the Deprivation of Liberty Safeguards.

 

  • 74. So if the result of the CANH issue is that it should be part of Mr Briggs’ treatment, I consider that:

 

i) pending a move to a rehabilitation centre, the authorisation of his deprivation of liberty at the hospital should no longer be governed by the standard authorisation (continued if necessary by the COP) but by the welfare order made by the COP although a continuation of a DOLS authorisation is a possibility,ii) so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct consequence of the best interests CANH decision,

iii) the making of orders under s. 21A (6) and (7) may need to be considered, and

iv) how the deprivation of liberty at the rehabilitation centre is to be authorised should be addressed by the COP and it may be that any court order should end on the transfer and that reliance should then be placed on s. 5 of the MCA and a DOLS authorisation.

 

  • 75. Alternatively, if the conclusion of the COP on the CANH issue is that it should not be part of Mr Briggs’ treatment I consider that:

 

i) the position relating to Mr Briggs’ deprivation of liberty pending a move to another placement where Mr Briggs receives palliative care should be covered by a court order although if the treating team change their position authorisation under a continuation of a DOLS authorisation is a possibility,ii) so (unless there is an automatic termination) the existing DOLS authorisation should be terminated under s. 21A(3) as a direct result of the best interests decision as a direct consequence of the best interests CANH decision,

iii) the making of orders under s. 21A(6) and (7) will need to be considered, and

iv) how the deprivation of liberty at the new placement (probably a hospice) is to be authorised should be addressed by the COP.

 

  •  So I agree that the determinative or central issue is whether CANH is in Mr Briggs’ best interests and the conclusion on it should found an order under s. 16(2). But, in my view the consequences set out in the last two paragraphs mean that the determination of that issue by the COP founds and so is directly relevant to its consideration of its exercise of its functions under s. 21A (which it can exercise whether or not proceedings above have been issued under s. 21A).

 

 

{I’m very glad that I don’t work in a hospital legal department, because it is now very unclear to me whether every patient they have in an unconscious state or coma requires a DOLS authorisation. It is certainly a possible interpretation of this case}

 

Mrs Briggs argued in the case that s21A did apply . The Official Solicitor, the Secretary of State and the Legal Aid Agency argued that it didn’t, and that even if this WERE a DOLS case, there should be one non-means certificate to deal specifically with the issue of whether P’s liberty should be deprived, and another to deal with best interests decision about his care plan and treatment. The Hospital Trust were entirely neutral. It seems rather odd to me that nobody argued before the Court that the s21A issue is a contrivance using complicated legal finesse to attract non-means public funding to a situation where it doesn’t really apply.  (Perhaps they didn’t argue it because it appears that the idea emerged from decisions made by Charles J himself in other cases…)

 

 

  • It was not argued the proceedings issued by Mrs Briggs were an abuse or a contrivance. Indeed it was accepted that:

 

i) they were not,ii) the COP can grant relief under other sections of the MCA (and so under ss. 15 and 16) in an application under s. 21A (see Re UF [2013] 4289 at paragraph 11 and CC v KK [2012] EWHC 2136 (COP)), and so

iii) the COP could have granted relief in this case under ss. 15 and 16 if the only application before it had been that made by Mrs Briggs in reliance on s. 21A, and it could do this without directing that a further application be made,

iv) Practice Direction 9E, and no other Rule or provision, provided that an application “relating to” a best interests decision about serious medical treatment should be commenced in any particular way,

v) there was no difficulty in complying with Practice Direction 9E in proceedings issued in reliance on s. 21A and, in any event, Rule 26 of the COP Rules 2007 enables the COP to depart from it,

vi) whatever the result on the CANH issue Mr Briggs will continue to be deprived of his liberty and so when the COP determines that issue it will need to address how that deprivation of liberty is authorised, and

vii) on the approach taken in Re UF the authorisation under the DOLS (or a replacement) would remain in existence until the COP had decided the CANH issue and a decision about it under ss. 21A (3), (6) and (7) would or may be needed.

 

  • The points listed in the last paragraph are important because they mean that:

 

i) Mrs Briggs’ proceedings are proceedings under s. 21A and that applying Re UF until this case is decided by the COP an authorisation under the DOLS will remain in existence and so on any view those proceedings have an authorisation to bite on, and in my viewii) the COP can grant relief under s. 21A in an application brought for orders under ss. 15 and 16 of the MCA (the mirror image of Re UF and CC v KK).

 

  • Re UF addressed the same Legal Aid Regulation and identified a route (accepted by the LAA) that:

 

i) continued eligibility for non means tested legal aid although the COP (rather than the supervisory body) took the relevant decisions, andii) meant that what happened to that authorisation was a live issue at the end of the case.

 

  • My understanding is that the approach set out in Re UF has been applied in a number of proceedings brought under s. 21A which have turned on a detailed assessment of the relevant package of care, support and treatment, possible alternatives and which of them the COP has concluded will best promote P’s best interests.
  • So Re UF identified a route that the LAA accepted was not a contrivance by which non means tested legal aid was available albeit that the COP took over all decision making and could make decisions under ss. 15, 16 and 21A. Here Mrs Briggs’ proceedings came first and in Re UF separate proceedings seeking a welfare order and/or declarations had not been issued. Whether proceedings under s. 21A could be issued second to trigger eligibility to non means tested legal aid was not argued before me, but it would be surprising if the order of issue affected the application of Re UF and so the availability of non means tested legal aid. Also, it was not argued before me whether applying Regulation 5 non means tested legal aid could be given to both P and an RPR or only to one of them. I expressed the preliminary view that it could be given to both.
  • Experience indicates that many if not most cases brought under s. 21A in respect of a DOLS authorisation turn on the best interests assessment made by the COP and many lead to changes in the package of care, support and treatment to make it less restrictive rather than a change of circumstances that result in P no longer being deprived of his physical liberty and that these are implemented by or reflected in orders made under s. 21A varying the DOLS authorisation directly or by reference to the care plan it is based on or imposing conditions as a direct result of the best interests conclusion reached by the COP.

 

Charles J had THIS to say about the legal aid agency

 

 

  • The positions of the Secretary of State, the LAA and the Official Solicitor varied on the availability of non means tested legal aid for representation to present arguments on issues relating to the care, support or treatment of a P and so his care plan and needs assessment, and so on what the COP could properly consider and grant relief in respect of under or applying s. 21A:

 

i) the Official Solicitor submitted that non means tested funding for such representation was not available for any of such issues because they all related to the conditions of a detention and so were outside the ambit of the DOLS and s. 21A,ii) the Secretary of State submitted that such funding was available for representation on such issues if they related to “physical liberty”. As I understand the Secretary of State’s position that includes an examination of less restrictive conditions relating to physical liberty even though they also create a deprivation of liberty within Article 5 in the same or a different placement (e.g. a change from locked doors to door sensors and greater freedom of movement within a Care Home). But if that understanding is wrong, it is clear that the Secretary of State distinguishes between conditions that relate to physical liberty and those that do not – which, in the context of alternative regimes at the only available Care Home, it was submitted include the availability of en suite bathrooms or food choices or things of that nature. That distinction flows from the way in which the Secretary of State advanced his argument by reference to what is and is not covered by and so justiciable under Article 5, and

iii) although at the hearing it adopted the arguments of the Secretary of State on the meaning and effect of s. 21A and Regulation 5, the LAA was not prepared to commit to any circumstances in which it accepted that such funding was available for representation on such issues.

 

  • That stance of the LAA and experience of its general approach founds the conclusion that there is a real risk that:

 

i) it will seek to advance any point it considers to be arguable to avoid paying legal aid on a non means tested basis in respect of issues relevant to the circumstances of a P who is the subject of a DOLS authorisation,ii) in doing so, it will change its existing approach in such cases and so challenge Re UF and/or change the stance it adopted in that case,

iii) in doing so, it will adopt the position of the Official Solicitor and not that of the Secretary of State set out in paragraph 36 (i) and (ii) respectively.

 

  • After the hearing I was helpfully provided with further information by counsel for the LAA about its approach in the past and the future. This refers to the reliance placed on what the LAA is told and indicates that the approach in Re UF is being and will continue to be accepted and applied with the result that if the COP continues the DOLS authorisation non means tested legal aid will continue to be available in respect of applications about it. But it asserts that non means tested legal aid is (and has only been made) available in respect of matters that “relate directly to the discharge or variation of the standard or urgent authorisation” and that providers should always apply for a separate certificate to carry out non means tested services as and when these arise alongside a non means tested matter. This does not fully accord with the understanding of the solicitors acting for Mrs Briggs on the existing approach of the LAA and, more importantly it does not explain:

 

i) what matters the LAA says are directly related to the discharge or variation of a continuing DOLS authorisation, andii) whether it adopts the position of the Secretary of State or the Official Solicitor.

To my mind, although it seems to show that Re UF will continue to be applied this further information perpetuates uncertainty and so compounds the risk that the approach of the LAA will give rise to serious and possibly insurmountable hurdles being put in the way of challenges being made by Ps and/or their RPRs to a DOLS authorisation, and so the lawfulness of P’s deprivation of liberty, with the benefit of representation or at all because of the difficulties they would face in respect of contributions and as litigants in person.

 

 

Charles J also had this to say about the Secretary of State and the failure to provide proper scheme for legal representation in the avalanche of DOLS cases since the Supreme Court’s decision in Cheshire West opened the scope of such cases far wider than they had historically been.

 

 

  • The representation of P has been an issue in a line cases that do not fall within the DOLS but in which, applying Cheshire West, P is being deprived of his liberty and so that detention should be authorised by an order made by the COP. The last in the line is Re JM [2016] EWCOP 15. Those cases show the limitations on the availability of legal aid in such cases if they are not disputed. After the JM case, the Secretary of State has acknowledged in correspondence that, contrary to his stance in that case, a resource of people and/or of resources to provide people to act as representatives for Ps who are deprived of their liberty in such cases is not readily available. This means that:

 

i) in that type of case the COP cannot lawfully authorise the deprivations of liberty, and soii) such cases are being stayed, and

iii) many (probably in the thousands rather than the hundreds) of such cases are not being brought in part because they will be stayed and the costs of issuing them can be better spent.

 

  • We are all only too aware of problems flowing from austerity. But assessed through my eyes as Vice President of the Court of Protection the stance being taken by the Secretary of State in this case, and in and after Re JM, demonstrates the existence of a continuing failure by the Secretary of State to address an urgent need to take steps to provide resources that would enable the COP to deal with cases relating to probably thousands of Ps in a lawful way, and so in accordance with the procedural requirements of Article 5 and the requirements of Article 6. The result of this sorry state of affairs is that in probably thousands of cases not covered by the DOLS deprivations of liberty are not being authorised under the amendments made to the MCA by the MHA 2007 to comply with Article 5.

 

I think that most people practising in this area of work know that this is what is happening on the ground, but damn, it is nice to see the Secretary of State being told it in such clear terms.

 

For my part, I think legally that this is a pure device to get around the much loathed LASPO and it is a contrivance; but that it is surely the right outcome in terms of fairness. If anyone found themselves in the dreadful position that Mrs Briggs was in, surely they should have legal representation to help with the Court’s decision as to whether her husband should be fed via artificial means to keep him alive or whether he should be allowed to die with dignity in accordance with his family’s wishes.  Whatever stance you take on the right to die issue, surely it is unacceptable for the State to expect someone to have those difficult arguments without the benefit of legal representation.

 

 

Cheshire Cat, Cheshire Act

 

Following the Supreme Court decision in Cheshire West, which greatly expanded the definition of restriction of liberty to the point where the system has almost entirely broken down due to the huge increase in volume, the Law Commission have published an interim report on Deprivation of Liberty.

Unsurprisingly, they say that there’s no hot-fix available for the current mess we are in, and their recommendation is for Parliament to produce a brand new Act to put things right.

Given that Deprivation of Liberty was brought about as a solution for the Bournwood gap when the ECHR finally dealt with that case and told us that there was a truck-sized plot hole in our legislation about restricting the liberty of people who were not criminals and not mentally ill,  “for their own good”,  it probably did well to last as long as it did before crumbling like, well like, Cheshire cheese.

 

http://www.familylaw.co.uk/system/froala_assets/documents/799/law_commission_deprivation_of_liberty_dols_mental_capacity_interim_statement.pdf

 

1.4 We have concluded that legislative change is the only satisfactory solution to the problems we outline below. During the next phase, the Law Commission will
produce draft legislation and a final report. The process of developing draft legislation is likely to result in some changes of substance to the approach outlined here.
This statement should not be construed as necessarily representing our final position.
1.5 The final report and draft legislation will be published before the end of 2016. It will then be for the Government to decide how the recommendations will be taken
forward.
Why, Government, here is some convenient long grass

Why, Government, here is some convenient long grass

 

GO ON THEN!

GO ON THEN!

 

The Law Commission had a healthy response to its consultation, and this bit was, I think, telling

 

Finally, a significant number of consultees argued that any system which is based on Cheshire West
will be unsustainable. It was argued that the acid test defies common sense, the most frequently quoted examples being end-of-
life care andintensive care units. Most concerns related to the practical implications of Cheshire West .
Local authorities reported significant increases in the numbers of referrals locally (often above the tenfold national figure), widespread
non-compliance with time-scales for assessments and many “low-level” or “community” cases being left unassessed. Many queried why the
Law Commission was not seeking to legislate away the acid test.
Onto some detail
1.37 Nevertheless, it is our view that the new scheme must demonstrably reduce the administrative burden and associated costs of complying with the DoLS by
providing the maximum benefit for the minimum cost. With this in mind, we have therefore concluded that the new scheme should focus solely on
ensuring that those deprived of their liberty have appropriate and proportionate safeguards,and should not seek to go as widely as the protective care scheme.
1.38 We propose to recommend a more straightforward, streamlined and flexible scheme for authorising a deprivation of liberty. The responsibility for establishing
the case for a deprivation of liberty will be shifted onto the commissioning body (such as the NHS or local authority) that is arranging the relevant care or
treatment, and away from the care provider. This should provide greater clarity,since the body directly responsible for the proposed deprivation of liberty would
need to provide evidence to support its case. The required evidence would include a capacity assessment and objective medical evidence of
the need for a deprivation of liberty on account of the person’s mental health condition. The commissioning body would also be required to undertake certain
steps such as arranging for the provision of advocacy (or assistance from an appropriate person) and consulting with family members and others.
1.39 All those deprived of liberty would be eligible for safeguards to secure the protection of their rights under article 5 of the ECHR. For example, all those
deprived of their liberty (as well as others, such as family members and advocates) would have rights to seek reviews of their deprivation of liberty and
bring legal proceedings to challenge the deprivation of liberty. There will also be comprehensive rights to advocacy.
Sounds good, but the real test is going to be how possible it is going to be for a family member to challenge restrictive care arrangments and what help the State will provide them to do so. We know for example, that the Neary case showed up huge problems with the DoLs regime and had to be fought with tenacity by an exceptional human being to get the right outcome in the end. You could ask Mark Neary whether the protections that were in place and the mechanism for family members to be able to challenge were robust enough and simple to follow. I suspect I know what his answer would be.  It shouldn’t require that a vulnerable person needs someone as remarkable as Mark to stand up for them, not every vulnerable person has that luxury.
http://www.lag.org.uk/magazine/2014/07/the-court-of-protection-steven-neary’s-story.aspx
The Law Commission touch on the Neary case here, and suggest some additional safeguards
1.41 By way of amendments to the rest of the Mental Capacity Act, we will also seek to maintain, as much as possible, the article 8 ECHR protections that were
contained in the supportive care elements of the scheme, but in such a way as to minimise the demand upon services. These amendments will be aimed primarily
at ensuring that there is proper consideration, in advance of the decision being made, of the necessity of removing individuals from their own home and placing
them in institutional care in the name of their best interests.
The failures of public bodies in this regard have been evident in high-profile cases such as London Borough of Hillingdon v Neary and Essex County Council v RF
The amendments would also aim at giving greater priority to the person’s wishes and feelings when a best interests decision is being made, and qualifying the
immunity from legal action in respect of best interests decisions under section 5 of the Mental Capacity Act so as to provide additional procedural safeguards in
respect of certain key decisions by public authorities.
1.42 In addition we are considering whether a defined group of people should receive additional independent oversight of the deprivation of their liberty, which would be undertaken by an Approved Mental Capacity Professional. Owing to the vast number of people now considered to be deprived of their liberty
following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR. Whilst
we are still working to develop the precise criteria that would operate to identify this group, we envisage that this group would consist of those who are subject
to greater infringement of their rights, including, in particular, their rights to private and family life under article 8 of the ECHR.
And it wouldn’t be a civil service consultation without an omphaloskepsis exercise of deciding what it should be called
1.47 At consultation we provisionally proposed that the First-tier Tribunal should review cases under our new scheme, thereby replacing the role of the Court of
Protection. This proposal was supported by a significant number of consultees.
We were told that the advantages of a tribunal system included its accessibility, informality and speedy decision-making. But others pointed to the existing levels
of knowledge and expertise in the Court of Protection and the difficulties of demarcation or overlap with the remainder of the Mental Capacity Act if a tribunal
jurisdiction was introduced. We have not yet reached a final decision and will be considering our position further over the coming months.
1.48 Finally, perhaps the issue that provoked most debate at consultation was the nomenclature associated with the DoLS. Most consultees felt that the term
“deprivation of liberty safeguards” was at best unhelpful and, at worst, meant that people were being denied access to legal rights. Some consultees were similarly
critical of our proposed new terminology, including the label “protective care”. A number of consultees suggested the name “liberty safeguards”, whilst the next
favourite was “capacity safeguards”. However, there was no consensus on the terminology that should be adopted. Therefore we invite further
views (by 23 June 2016) on the name that should be given to the new scheme.
Please send your suggestions to Olivia.Bird@lawcommission.gsi.gov.uk.
There are some legitimate issues here about how naming something creates a set of preconceptions about what the scheme is for and whether it is intended to be a rights-based or a patrician cotton wool scheme, or where on the scale it falls, but this sort of thing always does remind me of Douglas Adams, writing about a bunch of middle-managers and marketing execs who fled their own planet and find themselves living on Earth in the stone age, trying to rebuild society from the ground up.
Well, you’re obviously being totally naive of course“, said the girl, “When you’ve been in marketing as long as I have, you’ll know that before any new product can be developed it has to be properly researched. We’ve got to find out what people want from fire, how they relate to it, what sort of image it has for them.”
The crowd were tense. They were expecting something wonderful from Ford.
Stick it up your nose,” he said.
“Which is precisely the sort of thing we need to know,” insisted the girl, “Do people want fire that can be fitted nasally?
“And the wheel,” said the Captain, “What about this wheel thingy? It sounds a terribly interesting project.”
“Ah,” said the marketing girl, “Well, we’re having a little difficulty there.”
“Difficulty?” exclaimed Ford. “Difficulty? What do you mean, difficulty? It’s the single simplest machine in the entire Universe!
The marketing girl soured him with a look.
“Alright, Mr. Wiseguy,” she said, “if you’re so clever, you tell us what colour it should be.

Woman who sparked versus Magical Sparkle Powers

You might remember this Court of Protection case

https://suesspiciousminds.com/2015/12/02/a-life-that-sparkles/

where a woman was found by the Court of Protection to have capacity to refuse medical treatment, even though doing so would be likely to bring about her death. The woman had some unusual (though capacitous) ideas about how she wanted to live, and she preferred to leave life whilst she still felt glamourous and sparkling, rather than to limp on in life and eventually fade away. It was an interesting case, with a lot to debate. As a result of this decision, she did die, leaving three children, one of whom was still a minor. Very sad case.

Sadly, some of the mainstream Press, having spent years sobbing outside the doors of the Court of Protection wanting to be let in to report responsibly, rather let themselves down, with the reporting they carried out

 

 

  • The application came before me on 9 December 2015. In summary, the statements filed in support of it show that:

 

i) V and G have been distressed by having to be involved in the COP proceedings, and by the extensive media interest in the information about C and their family that was provided to the COP, which appears to them to have been precipitated not only by a wish to report and comment on the bases on which the COP reached its decision but also to attract prurient interest in their mother’s sexual and relationship history (including her relationship with her children V, G and A).ii) At the time of the hearing before MacDonald J, neither V nor G anticipated the possibility that C and her family would be named in the press and that photographs of them would be published. Their attention was entirely taken up with the decision the COP was required to make and its implications.

iii) C’s youngest daughter, A, is a teenager who was already suffering from fragile mental health which has manifested itself in her physical conduct. The suicide attempt of her mother and her subsequent refusal of life-sustaining treatment despite A’s request to her to accept treatment, with which A had a direct and stressful involvement, have understandably had an appalling impact on A’s emotional and psychological wellbeing.

iv) A has already been negatively affected by the media coverage of the family, despite attempts by her father to shield her from it. Inevitably, A has now been told about certain very limited aspects of the COP’s reasoning, including negative descriptions of her mother’s character, which have upset her further. A’s father and one of her teachers are sure that if her mother is named, this will have an even more serious effect on A’s mental wellbeing and her ability to cope at school. V also asks the court to have regard to the serious risks of harassment of A not only directly from people around her, e.g. at school, but also on the internet including and in particular through social media.

v) There have been numerous attempts by journalists to contact the family and people with a previous relationship with C and her children.

vi) Family photographs have been obtained and published in a pixelated form.

 

  • Before the reporting restrictions order was extended:

 

i) At around 5.30 pm on Wednesday 2 December 2015 a reporter from the Daily Mail went to the home of A’s father (an ex-husband of C) where A lives. A answered the door and without saying who she was the reporter asked to speak to her father using his name, V asked who she was and was told that she was a journalist from the Daily Mail, A’s father came downstairs and the journalist asked if he would talk to her about his ex-wife. He refused and the journalist left.ii) On the evening of 2 December 2015 a reporter from the Mail on Sunday was asking questions about C in one of the pubs in the village where A and her father live. This was reported to V by friends in the village.

 

  • More generally, the evidence indicates that on unspecified dates (a) the Daily Mail and the Sun contacted C’s third ex-husband in America, and (b) a journalist went to see the husband of the housekeeper of flats where G had once lived seeking G’s current details on the basis that he was writing a memorial piece about G’s mother and was sure that G would want to speak to him. During his visit he opened C’s Facebook page.
  • Some of the coverage contains pixelated photographs of C, V and G. It is plain that some of these photographs have been chosen as photographs that emphasise the aspects of the published accounts that are of prurient interest and there is at least a risk, particularly in respect to C, that she would be recognised by some people.
  • Examples of reporting in the Times (4 December), the Daily Mail (6 December) and the Sun Online (6 December), are highlighted by V:

 

i) the Times ran a pixelated photograph of C on its front page with a caption “Voluntary death. The socialite allowed to die at 50 rather than grow old had a narcissistic disorder, doctors said. A court ruling blocked her identification. Page 7”. The article at page 7 was under the headline: “I won’t become an old banger” there was a further pixelated photograph of C standing by a car and a pixelated photograph of one of C’s adult daughters,ii) the Daily Mail at pages 26 and 27 published the same pixelated photograph as that on the front page of the Times and the article had the headline: “Revealed: Truth about the socialite who chose death over growing old and ugly —- and the troubling questions over a judge’s decision to let her do it”. Near the end of the article it is stated: “For the husband and daughters she leaves behind, the manner of her death is heartbreaking”, and

iii) the Sun Online has two headlines: “Mum who fought to die was “man eater obsessed with sex, cars and cash” and “A Socialite who chose to die at 50 rather than grow old was a “man eater obsessed with sex, money and cars”, a pal claimed yesterday” and published two pixelated photographs of C at a younger age each showing her with a drink in hand. In one in which she is wearing a low-cut party dress and in the other she is raising her skirt, standing by a vintage motor car and wearing what appears to be the same outfit as she is wearing in the photograph on the front page of the Times and in the Daily Mail.

 

There’s an old Aesop fable about a frog and a scorpion. The scorpion wants to cross a river and asks the frog if he can ride across on the frog’s back. No, the frog responds, you’ll sting me and I’ll die. Wait, says the scorpion, if I was foolish enough to sting you whilst we were crossing, we’d both die – you from the sting, but I would drown, so it won’t be in my interests to sting you. The frog agrees. Midway across the river, the scorpion begins stinging the frog. The frog shouts, if you keep doing that, we’ll both die. The scorpion says, I know, but it’s in my nature.

 

frog-scorpion

It really isn’t in the longer term interests of the Press to sting the frog of transparency by using that additional access to behave so irresponsibly and despicably, but it’s in their nature.

Anyhow, this is Charles J’s decision on the Reporting Restriction Order.

V v Associated Newspapers Ltd 2016

http://www.bailii.org/ew/cases/EWCOP/2016/21.html

 

The first law Geeky point, hence the title, is what jurisdiction the Court of Protection have to make a Reporting Restriction Order. The argument goes like this :- (a) The Court of Protection exists to determine whether a person has capacity, and if not, what is in their best interests and you have already ruled that this woman HAD capacity, so your involvement stops and (b) as she is now dead, whatever jurisdiction you had over her affairs is now gone. Decent points.

Charles J concluded that the CoP did still have jurisdiction, and in any event, if they don’t, then the High Court will just use Magical Sparkle Powers (TM)

 

  • I have concluded:

 

(1) The COP has jurisdiction after the finding that C had capacity and her death to make the reporting restrictions order sought by the Applicant but insofar as it may be necessary or appropriate I will also make it as a High Court judge.

There is a longer answer here:-

Jurisdiction of the COP to make a reporting restrictions / anonymity order after it has determined that C had capacity and/ or after C’s death

  • As I have already mentioned this jurisdictional point is raised by the media Respondents but they do not resist me making an injunction as a High Court judge. They base the argument on the finding of capacity made by MacDonald J. The Applicant addresses the relevant jurisdictional effect of this finding and of C’s death.
  • The media Respondents rely by analogy on In re Trinity Mirror Plc and others [2008] QB 770 concerning s.45(4) of the Supreme Court Act 1981 which provided that in “all other matters incidental to its jurisdiction” the Crown Court was to have the like powers, rights, privileges and authority as the High Court. The Court of Appeal held that the Crown Court has no inherent jurisdiction to grant injunctions and that unless “the proposed injunction is directly linked to the exercise of the Crown Court’s jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking”.
  • Section 47 of the MCA is worded slightly differently and provides that: “the court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”. It is generally accepted that the COP does not have an inherent jurisdiction so the issue is whether it can grant an injunction because it is exercising that power “in connection with its jurisdiction“.
  • At the time that the reporting restrictions order was made in this case by Moor J, sitting as a judge of the COP, I consider that it is clear that he was making that order in connection with the jurisdiction of the COP to determine initially whether or not C had capacity. In my view, it follows that he could in reliance on s. 47 have made that order for a period extending beyond any finding made that C had capacity, or the death of C (as to which see further below), if he had thought that that was appropriate. He did not do so.
  • The effect of the argument of the media Respondents is that if the hearing on 13 November 2015 had been before a judge, other than a High Court judge (which is not the practice in serious medical treatment cases but could occur in other cases) that judge having determined and announced his decision that C had capacity as a judge of the COP had no jurisdiction to continue, vary or discharge the injunction granted by Moor J. To my mind, that would be an unfortunate and odd result particularly, for example, if C had asked for it to be discharged. However, in my view, it does not arise because I consider that the termination, continuation or variation of an injunction made by the COP in the exercise of its jurisdiction conferred by s. 47 would also be within the jurisdiction so conferred as being “in connection with its jurisdiction”.
  • However, by its terms the injunction that was granted by Moor J expired on the death of C and so the present application is for a new injunction that was made at a time when for two reasons the COP no longer had jurisdiction over C and was therefore functus officio.
  • The Applicant points to a number of sections in the MCA which give the COP jurisdiction to make orders in respect of persons whether they have or lack capacity (see ss 15 (1)(c), 21A, 23 and 26(3)) but, in my view, this does not provide an answer because in this case the COP was not exercising jurisdiction under any of those sections.
  • To my mind the question on this application is whether the COP has power to grant a new injunction because it relates to proceedings that were before it although by reason of its decision and/or the death of P it no longer has any jurisdiction to make the welfare order sought. The answer is determined by considering whether in those circumstances it is exercising a power “in connection with its jurisdiction“. In my view the answer is that it is. This is because, in my view, the nature and extent of the relevant Article 8 rights relied on flows from the existence of the earlier proceedings before the COP, in which it exercised its jurisdiction and I see no reason to construe s. 47 to limit the power it confers to the period during which that jurisdiction continues to exist over the subject of the proceedings.
  • Indeed, I agree with the Applicant that the principle that legislation should be interpreted so far as possible to be compatible with Convention rights supports this conclusion because:

i) it promotes the grain of the legislation (the MCA), andii) it enables the court best placed to carry out the balancing exercise between competing Convention rights to perform that exercise.

  • That grain links back to the points I have already made that the jurisdiction of the COP invades not only the life of its subject P but also on many occasions the lives of others and in particular P’s family members.
  • Conclusion. I can make the injunction sought as a judge of the COP and I do so. However to avoid any jurisdictional argument in the future, and if and so far as this is necessary, I also make it as a High Court judge exercising the jurisdiction of that court.

 

The central issue here was whether the Press could report the story, and deal with both the human interest angle and the issue for public debate (the case being categorised – incorrectly, as a ‘right to die’ case, which is always interesting to the public – in fact, it is not a development of law at all, because people with capacity have always been able to refuse medical treatment, which is all that happened here) WITHOUT identifying the woman at the heart of the story. Clearly, the Press knew who she was, because they were able to doorstep people who knew her, look at her Facebook page and print pixelated images of her.

 

 

  • The naming propositions are reflected in the following points made by Mr Steafel:

 

The Daily Mail considers it has a duty to the public to report fairly and accurately on what happens in the courts. In order to engage the interest of members of the public in the kinds of issues the court decides, it is however necessary to publish articles and reports that people actually want to read. That means telling our readers about the facts of the cases, including the real people and places involved, and sometimes publishing pictures that relate to these people and places.

Where proceedings are anonymised, it is more difficult to engage our readers as the real people involved in the cases are necessarily invisible and the stories therefore lack a vital human dimension. It is human nature to find it more difficult to take an interest in a story about problems arising from, say, dementia or the right to die if the story does not feature identifiable individuals. If we cannot publish stories about important issues that people are drawn to read, this will inevitably limit and reduce the quality of public debate around these issues. It is in my view important in a democratic society that we should encourage informed debate I believe that the media, including the popular press, fulfils a vital function in this regard. By reading about the experiences of others, readers are likely to be able to identify with those people and understand what they are going through. But they are much less engaged – and correspondingly less focused on the surrounding public debate – where they cannot identify with real people, places and events. Pictures are a hugely potent way of engaging readers and one of the problems with covering anonymised cases is that it is impossible to include pictures in our stories which identify those involved.

 

  • I agree that fair and accurate reporting is vital if the public interest is to be promoted and I acknowledge that whether something is fair involves a value judgment and does not equate to it being balanced.
  • On the intense scrutiny that is required of the rival propositions relating to anonymisation I consider that a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off. But, I hasten to accept that this distinction:

 

i) simply reflects the strength of the reasoning that underlies the relevant COP Rules and Practice Directions, the established Scott v Scott exceptions and the positon referred to by Lady Hale that in many, perhaps most cases, the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved, and soii) provides weight to the general arguments for anonymity to promote the administration of justice by the COP generally and in the given case, and does not

iii) undermine the force of the naming propositions as general propositions, with the consequence that the COP needs to remember that it is not an editor.

 

  • As I have already said (see paragraphs 94 and 95 above) the weight to be given to (a) the naming propositions, and (b) the conclusion on what generally best promotes the administration of justice will vary from case to case and on a staged approach to a particular case the weight of the naming propositions, and so this aspect of the factors that underlie and promote Article 10, will often fall to be taken into account in the context of (i) the validity of the reasons for their application in that case, and (ii) the impact of a departure in that case from the general conclusion on what generally promotes the administration of justice in cases of that type. This means that those reasons and that impact will need to be identified in a number of cases.
  • As I have already mentioned, although he refers to and relies on the naming propositions Mr Steafel does not say why in this case the relevant public interests, rather than the gratification of a prurient curiosity or interest of the public:

 

i) would be or would have been advanced by the identification of C and members of her family in the publicity that took place,ii) was advanced by the reporting that contained pixelated photographs and focused on C’s lifestyle, or

iii) why he says the balance will change on A’s 18th birthday between reporting that does not name C and her family and reporting that does.

Accordingly he does not say, as an editor, why in this case the view expressed by Theis J that “there is no public interest in C or her family being identified” either is wrong or will become wrong when A is 18.

 

The Press had the chance to set out arguments and provide evidence as to why naming the woman was necessary for the proper and accurate reporting, rather than to gratify prurient curiousity, and they did not do so. Nor did they take up the Court’s offer of the ability to file evidence setting out why they felt the previous reporting and methodology were appropriate…

 

  • S0, to my mind, in this exercise the COP needs to consider why and how the naming propositions, and so the proposed naming or photographs of C and her family members that links them to the COP proceedings, would or would be likely to engage or enhance the engagement of the interest of the public in matters of public interest rather than in those of prurient or sensational interest.
  • This has not been done in this case. But in contrast evidence has been put in on the likely harm to the relevant individuals that such reporting would cause.
  • The ultimate balance in this case on the dispute relating to duration. On one side are:

 

i) the Article 8 rights of all of C’s children,ii) the weight of the arguments for a reporting restrictions order in this case, and so of the general practice in the COP of making such orders in analogous COP cases where the family do not want any publicity and have given evidence of matters that affect their private and family life and that of P of a clearly personal and private nature,

iii) the acceptance by the media Respondents that until A is 18 the balance between the Article 8 rights and Article 10 rights in this case justifies the grant of a reporting restrictions order,

iv) the compelling evidence of the extent and nature of the harm and distress that reporting that identifies C and any member of her family as respectively the subject of (or members of the family of the subject of) the COP proceedings and so of MacDonald J ‘s judgment would cause, and

v) the ability of the court to make a further order if and when circumstances change.

 

  • On the other side are the general propositions relating to the benefits of naming the individuals involved.
  • I accept that Thiess J’s statement that “there is no public interest in C and her family being identified” and my indications of agreement with it at the hearing go too far because of the well-known and important naming propositions and the public interests that underlie them. But, in my view, the absence of an explanation of why:

 

i) the accepted balance changes on A’s 18th birthday and so of why identifying C and her family and linking them to the COP proceedings and the publicity at the end of last year would then promote the public interests that underlie Article 10, or why those public interests could not in this case then still be properly and proportionately served by reporting that observes the reporting restrictions order, orii) more generally why any such identification would at any other time promote (or have promoted) or its absence would harm (or would have harmed) the public interests that underlie and promote Article 10

means that the naming propositions have no real weight in this case and balance of the competing factors comes down firmly in favour of the grant of a reporting restrictions order until further order.

 

As there was to be an Inquest, and Inquests are open to the press and public, the Court did need to consider whether the Reporting Restriction Order should cover the naming of this woman or her family emerging from the Inquest.

The extension of the order to cover C’s inquest.

 

  • The earlier orders provide that the injunction does not restrict publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public. It seems to me therefore that the result the Applicant seeks would be achieved by changing the word “including” to “excluding”.
  • This is much closer to the position in Re S and Potter P addressed such an application in Re LM [2007] EWHC 1902 (Fam) where he said:

 

The Overall Approach

53. In approaching this difficult case, I consider that I should apply the principles laid down in Re S, ————-

54. There are obvious differences between proceedings at an inquest and the criminal process, most notably that the task of the Coroner and jury is to determine the manner of the death of the deceased and does not extend to determining questions of criminal guilt. In various cases that has been held to be a matter of weight in respect of witnesses seeking to protect their own personal safety. However, in this case, the inquest to be held is into the killing of a child, L, in the situation where a High Court Judge has already found as a matter of fact that the mother was responsible for L’s death and the application is made because harm is indirectly apprehended to a child who is a stranger to the investigative process. It is presently uncertain whether criminal proceedings will in fact be taken against the mother. If so, and the Coroner is so informed, then no doubt he will further adjourn the matter pursuant to s.16. of the Coroners Act 1988. If that is done, then the question of publicity and reporting restrictions in those proceedings will fall four square within the principles propounded in Re S. If not, and if, as seems likely, the mother continues to pose a danger to any child in her care, then, if continued, the reporting restrictions in the care proceedings would prevent that fact from reaching the public domain, despite its clear public interest and importance.

 

  • He carried out a detailed balance between the competing rights emphasising the strength and importance of a public hearing of the inquest and so the general conclusion on what promotes the administration of justice in such proceedings. Having done so he refused the injunction sought that the parents should not be identified.
  • Here the important issue of child protection is absent.
  • In the note of counsel for some of the media Respondents dated 28 January 2016 points are made about the importance of a proviso permitting the reporting of other proceedings conducted in open court, including a coroner’s court. But after the Applicant sought this extension junior counsel responded (as mentioned in paragraph 49 above) that his clients are neutral on this point.
  • As the approach of Potter P confirms an application for restrictions on the reporting of other proceedings conducted in open court engages important and powerful interests against the making of such an order. However, in my view:

 

i) the expressed neutrality of some of the media Respondents reflects a responsible and understandable stance that in isolation the inquest is unlikely to give rise to issues of public interest or to any such issues in respect of which the general propositions in favour of naming C or her family will have any significant weight, andii) in any event, I consider that that is the position.

 

  • The essential question is therefore whether, unless the court makes a further order, C’s family should be at risk of publicity relating to the inquest that makes the connection between them and the COP proceedings and so effectively of suffering the harm and distress that any other reporting that identifies them and makes that link would bring.
  • The history of the prurient nature of some of the earlier reporting is a clear indicator that such reporting might be repeated. But, even if that risk is discounted I have concluded that the balance comes down firmly in favour of extending the order to cover the inquest.
  • The main factors to be taken into account overlap with those to be taken into account in respect of the duration of the order.
  • On the one side are:

 

i) the points set out in paragraph 167 (i) to (v) as the inquest is likely to take place before a is 18 andii) the points set out in paragraph 175.

 

  • On the other side are:

 

i) the powerful and weighty reasoning that underlies the conclusion and practice that the administration of justice is best served by inquests being heard in open court without reporting restrictions, andii) the general and accepted force of the naming propositions absent any evidence or reasoning that they found a need for reporting of the inquest that makes the link with the COP proceedings.

 

And the order therefore stops the Press naming the woman as a result of reporting on the Inquest – they can still report on the Inquest itself. It obviously doesn’t mean that the Inquest itself is barred from naming her.

 

The judgment also annexes some helpful procedural guidance on applications for Reporting Restriction Orders within the Court of Protection.

In the Court of Protection no-one can hear you scream (about the Case Management Pilot)

 

Those who are about to headdesk, salute you Caesar.

Yes, given their rip-roaring success in public law Children Act cases and their tour-de-force in private law Children Act cases  – where they managed to introduce at exactly the same time as all the lawyers were taken out of the system a process so complex and convoluted that it creates a key hearing with a name that literally cannot be pronounced…

The Court of Protection are proud to announce their very own labryinthine set of rules and processes.

You’re welcome.

 

Oh, and joyfully, they’ve called them Pathways. Because absolutely every single thing that has ever been labelled a Pathway has been an unqualified success and we absolutely want to build on THAT particular reputation.

 

http://www.familylaw.co.uk/news_and_comment/court-of-protection-draft-case-management-pilot-published#.VtiU-ObzOud

 

Would you like a little taste?  Well, obviously, they start off using very simple ideas and philosophies and plain English, because they’re bearing in mind that the Court of Protection is used by lay people who are there concerned about members of their family but don’t get free legal representation.

 

Plain English like:-

2.1 Where this pilot applies —
(a) Parts 1 to 5 and 13, and rules 84, 85 and 86 in Part 12 (but not the practice directions supplementing them), are disapplied;
(b) Pilot Parts 1- 5 as set out in Annex A to this Practice Direction (which contains modified versions of those Parts in a new arrangement) will apply in
their place, together with the practice directions supplementing the disapplied rules (renumbered as appropriate to supplement Pilot Parts 1-5); and
(c) rule 72(5) and (7) will not apply where a case is allocated to a case management pathway.

 

And thank heavens that’s all cleared up.

I would have provided you all with a simple overview of the Pilot, but I realised at page seven that the thudding noise in my ears was my brain forcibly trying to get out of my head so that it could stop reading this stuff.

 

By way of simple flowchart

  1. Were you thinking of entering into Court of Protection Work?    (If No, then YAY!  If Yes, then Reconsider)
  2. Are you already doing Court of Protection Work?  (If No, then high-five dude, you’re scott-free.  If Yes, then make a new plan Stan)

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.

Risk-taking and the Court of Protection

 

I’m always interested in Court of Protection cases that drill down into the key principles of autonomy v safeguarding – the dilemma between whether someone should be free to make decisions that an onlooker would consider to be bad or dangerous, or whether the freedom to make such mistakes is how we learn and grow. Of course, in law, the principle consideration is whether the person has capacity to make the decision – which does not necessarily mean that they understand every nuance of it and have weighed it up like Mr Spock – in daily life, we all make decisions without necessarily giving each and every one much thought.

This case also has important things to tell us about just how rotten a society we live in where someone with autism can be exploited on television for a cheap laugh because they don’t have a great singing voice, and even worse that there are sick men in our society who see someone fragile on television or social media and try to exploit them sexually.

Re Z and Others 2016

http://www.bailii.org/ew/cases/EWCOP/2016/4.html

 

Z is a 20 year old woman who is autistic. There was a time when she was very focussed on becoming a celebrity and wanted to become a singer. As a result, she appeared on the auditions for a television talent show (the show is not named, but readers are not ignorant and can probably narrow it down to one of two or three).

 

 

  • Z attended mainstream school, and told me (I am not sure how reliably) that she had obtained a number of GCSEs. She reported that she had many friends at school, although contemporaneous records in fact show her to have been rather isolated and a loner. After school she went on to train in the field of beauty therapy at a local education college, but her passion has always been, and is, music; Z keenly wishes to be a singer. In 2012, Z appeared in a televised talent show; it was not a success. Sadly she now regards the experience as humiliating and she is embarrassed by her performance. She dropped out of college and became depressed. A referral was made to CAMHS. She started to display risky behaviours; her performance was available to view on the internet, and she was deluged with contacts through web-based social media, mainly from men. She met with some of those who contacted her, some of whom allegedly abused or exploited her. She became sexually disinhibited, and some of her sexual experiences were believed to be non-consensual. Over a period of time, Z received support from SECOS (Sexually Exploited Children’s Outreach Services); although she appeared to show some insight into the risks of her behaviours, it became apparent that she did not always apply this insight or learning into practice, and continued to place herself at risk. The last evidence of this kind of risky behaviour with men now goes back to 2013 or (at the latest) 2014.
  • In 2013, Z was assessed by a clinical psychologist who concluded that she did not have a diagnosis of learning disability, and she retained capacity to make decisions about social contacts.
  • Like many young people, Z occupies her time on different forms of social media. Unlike many, at one time she removed all the privacy settings on her account, and was alleged to post up provocative material about herself. It was said (though she denied it, and I make no finding about it) that she had at one time sent naked photos of herself over the internet for money. For a time, though in my judgment to a much lesser degree now, she craved publicity for her singing, and was focused on becoming a celebrity.

 

 

  • In the January 2015 interview, it appears that Z demonstrated a good degree of insight into the debacle of her talent show audition, indicating that she would decline further opportunities for a repeat for the time being (“not at the moment, I don’t think I’m ready”). She showed a realistic, if not cynical, view of why men had shown such interest in her following her television appearance (“it’s obvious, men wanted sex with me…”). She denied inappropriate use of social media (“I have kept away from social media … I don’t want to go back to square one”), showing an understanding that people contacting her through social media “might be a risk to me”.
  • Dr. Rippon considered that Z showed interest in fame and celebrity status to an “unusual” degree. Dr. Rippon considered that Z had misinterpreted the talent show judges’ comments, and had formed a misguided appreciation of her impressive progression through the audition stages (as a possible object of ridicule rather than through talent). Dr. Rippon was concerned about Z’s “difficulty in processing information particularly that of an abstract nature”, and was of the view that

 

“… during the course of the proceedings, [Z] would struggle to be able to understand the evidence, either in written or verbal form, that is given in Court, process this information and use it to instruct her counsel appropriately. I also do not believe that [Z] would be unable (sic.) to think through the consequences of the instructions which she is providing to her solicitor or understand the risks to herself of any instructions given”.

 

and again later, the Judge describing Z’s presentation in Court and in her evidenc

 

She showed insight into her dismal talent show audition (“it was overwhelming … my nerves seemed to overtake my vocals… it was vocally bad”). She discussed the way in which she had been exploited by men who had contacted her, saying that there was a “bad light” around her at that time

 

The issue for the Court in this case was whether there should be a declaration as to Z’s capacity to

 

i) Choose her residence;

ii) Make contacts with others;

iii) Deal with her care;

iv) Litigate in these proceedings.

 

It was clear that Z had capacity to consent to sexual intercourse – she understood the mechanics of the activity, understood that pregnancy could result and how to mitigate against that and understood the risks of sexually transmitted diseases and how to protect herself.

We have dealt with this issue before as to whether a person who has capacity to consent to sex has the capacity to put him or herself in the position with a potential partner who might pose a risk to them of taking that risk.  Most dramatically in this piece

 

https://suesspiciousminds.com/2014/04/30/lets-find-you-a-nice-young-man/

 

where the Court of Protection were trying to put in place a regime for a man who wanted to have homosexual sex and had capacity to consent to it, but no real understanding of how to weigh up a partner as to whether they would meet his needs or treat him violently and badly.  Re A Local Authority v TZ no 2 2014

http://www.bailii.org/ew/cases/EWHC/COP/2014/973.html

(and I personally think that the CoP got themselves in a tremendous pickle in that case, with good intentions, but ending up with a regime that was utterly unworkable for a real person)

 

 

In this case, the Judge had to weigh up whether Z had capacity in relation to those issues, the dominant one being in making decisions about friendships and relationships

 

  • The Local Authority was perfectly justified in initiating proceedings in June 2014, at what was a very low point in Z’s life when her self-destructive behaviour was posing a significant threat to her well-being, and her capacity to process key decisions was significantly in question. I am inclined to the view (this is not, for obvious reasons, a finding) that she probably did lack capacity to make decisions on the matters under review at that time. However, having reviewed the contemporaneous material with care, and on the evidence available to the court at this hearing, I have reached the conclusion, on a fine balance, that the local authority has not rebutted the presumption of Z’s capacity in relation to the matters under review in this case, at the present time.
  • There is no dispute in this case that Z does suffer from an “impairment of … the mind” within the meaning of the MCA 2005, namely her autistic spectrum disorder, with a secondary component being her learning difficulty. The issue as to her capacity focuses in this case on the functional element of the test. At the heart of the dispute is the assessment of Z’s ability to ‘use or weigh’ information (section 3(1)(c)) about risk to herself, and her ability to keep herself safe in independent living, and in her social contacts. Only if I were to find that Z is “unable” (section 3) (and I emphasise ‘inability’ rather than ‘impairment’ – see again [15] above) to process information relevant to risk (in the ways defined in section 3(1)) could I find her incapacitous in relation to the matters in dispute. As the wording of the statute makes clear, the point in time at which I must capacity is to be tested is now (i.e. “at the material time”).
  • In order to determine Z’s capacity, it is not necessary for her to use or weigh every detail of the respective options available, merely the salient factors (see CC v KK and STCC: [12] above). In this case, it is apparent to me that Z does indeed understand the essential implications of living at home or living independently; as indicated above, Z acknowledged the benefit of having some “guidance” on living independently. She recognised that she would reasonably expect to be allocated a flat, and was able to distinguish between the ‘good’ areas and ‘bad’ areas of town in which to live. I am (perhaps unlike Dr. Rippon) sufficiently persuaded that Z recognises at a material level the benefit of third party support in the event that she is to live on her own. She showed insight into the possible loneliness of living independently; she felt that one of the downsides of leaving home is that she will lose the benefit of having her mother’s “shoulder to cry on” when things are getting her down. She has an outline knowledge of her financial circumstances, and currently appears able to perform basic budgeting. She seems aware that her life is easy now, as all the bills are paid, and she is cared for; I felt that she recognised that she would be giving these comforts up if she were to move. Overall, I am satisfied that Z is able to ‘use or weigh’ the evidence relevant to the matters set out by Theis J in LBX v K and L (see above) at [14].
  • In relation to social contacts, Z needs to be able to weigh up the risks of associating with strangers, particularly those whom she meets through the internet – something which she says that she has indeed learned to deal with through experience. Dr. Rippon acknowledged that, other than with A, there was no evidence of Z making contacts through social media which were of any concern. The fact that she has rejected any ongoing support or care from Dimensions is not evidence in itself that she lacks the capacity to decide on its usefulness. She has articulated her reasons: she does not feel that she currently needs the package, and she feels that the workers are constantly talking about the past not the future, and they ‘talk down’ to her.
  • Dr. Rippon expressed the view in November 2014 (see [29] above), that with time and increased maturity, Z’s ability accurately to assess risk may improve; it is my view that the evidence now available (December 2015) indicates that time and increased maturity, and the benefit of learning from experience, have indeed had that effect. There is no real issue but that 2015 has been a period of relative stability for Z; she has engaged (to a limited extent at least) with the support which is provided for her through Dimensions, and even within the limits of that work, she has impressed the workers with her display of increased maturity. In 2014, Dr. Rippon advised that it would be sensible to re-assess Z’s capacity in “two to three years time”, plainly contemplating a potential future change in capacity, but timescales of this kind are notoriously difficult to gauge, and in my view the evidence appears to have revealed change rather sooner.
  • While it may have been that Z showed an “unusual” degree of interest in fame and celebrity in the past (to some extent in 2014, when first interviewed by Dr. Rippon), and a limited appreciation of the quality of her talent-show performance, I do not find that she continues to hold or display these views. More recent discussions (including her evidence in court) reveal a good degree of awareness of the deficiencies of her performance, and a more realistic appraisal of her quest for fame. At the hearing before me, she impressed as someone who was more than just aware that “people should treat you with respect”, apparently mindful that people had not done so in the past. Dr. Rippon expressed scepticism in her 2014 report about Z’s ability to understand the evidence which was to be given in Court, process this information and use it to instruct her counsel appropriately; this scepticism was I believe misplaced. Z showed a good level of attention to the evidence, gave instructions to her solicitor and counsel, and – even on Dr. Rippon’s own view – answered questions in evidence better than she had during the three previous interviews.
  • Dr. Rippon entirely fairly observed that young adults are generally able to learn from negative experiences, and use this to support their future decision making. She felt that Z had failed to do this; I do not agree. Z’s behaviour in 2013 and 2014 was, I am prepared to accept for present purposes, intensely destructive; I accept Z’s own assessment that she has at least to some extent “learned how to make decisions”. I accept that she has changed, and I was impressed with her own assessment that “… everything has happened for a reason. It made me stronger and made me more mature” (see [30] above).
  • Dr. Rippon indicated that she would be looking for Z to develop and display insight, that she is not putting herself in risky situations and is understanding of other people’s motives; the trip to Brighton to stay with A was risky to some extent, but not more than usually risky for a young person who is in love, and who has met the object of her affections a number of times on home territory before heading off to see her at her home. Moreover, when the Brighton trip became intolerable, she left.

 

 

 

The Judge here recognised that capacity can fluctuate, and that there had been a time when Z had lacked capacity to keep herself safe but had learned from those experiences and now had the capacity to make decisions for herself about who she wanted to spend time with. Will she make the right decision every time? Probably no more than you or I have always made the right decision about friendships or relationships. Getting things wrong is part of life. If you never get these things wrong, you never have the life-enriching experience of getting them right and finding a true friend or a soul-mate or both.  It isn’t for the Court to worry about outcome or to wrap a person in forensic cotton wool – if they have the capacity to make a decision, then they are free to make it, even if you think they are likely to make some bad ones along the way.

 

 

  • As indicated at the outset of this judgment, some risk-taking in adolescents and young adults can be perfectly healthy, such as in sporting activities, or artistic and creative pursuits, travelling, making new friends (including internet dating and friendship groups), or entering competitions. Healthy risk-taking helps young people to learn. Some adolescent risk-taking can be unhealthy and dangerous – casual sexual relationships, unprotected sex, driving too fast on the roads, excessive consumption of alcohol, consumption of non-prescribed drugs, dealing with anger and confrontation. These forms of risk-taking are inherently unwise and unsafe. In dealing with risk issues in relation to a young person in the context of assessment under the MCA 2005, it is necessary to separate out as far as is possible the evidence which indicates that second category of risk taking (unhealthy, dangerous, unwise) from that which reveals or may reveal a lack of capacity. As Lewison LJ said in PC v City of York (above) “adult autonomy” includes the freedom “to make unwise decisions, provided that they have the capacity to decide” (see [64]).
  • Lewison LJ also referred in the same case (PC v City of York) to the need for a “solid evidential foundation” on which the judge’s decision as to capacity can rest. In this case, as I have earlier mentioned, Mr O’Brien invites me to ‘infer’ a continued existence of risk, and Z’s inability to ‘use or weigh’ information relevant to such risk. An inference can barely be described as an evidential foundation, let alone a ‘solid’ one.
  • I have not found this a particularly easy decision, in the main, because more than a year had passed between the filing of the principal evidence and the hearing. Moreover, I am conscious that I am differing in my conclusion from Dr. Rippon, who in many ways was an impressive and helpful witness and who, as I have indicated above (see [52]) also found the case “incredibly difficult”. In differing from Dr. Rippon, I remind myself that her role and mine are distinct: the expert advises and the court decides. While the opinion of an independently instructed expert in a case such as this is “likely to be of very considerable importance” (Baker J in PH v A Local Authority [2011] EWHC 1704 (COP)), as indeed I find her evidence to be, the decision as to capacity is a judgment for the court (see Re SB [2013] EWHC 1417 (COP)), weighing the expert evidence against my findings on the other evidence. I consider that Dr. Rippon may well have been right in her assessment as to Z’s capacity over a year ago (November 2014), but in my judgment, the passage of time and Z’s greater maturity, coupled with some support from Dimensions and enhanced self-esteem through her music, Z appears to have matured, learned from her mistakes, and developed sufficiently in her capacity to make relevant decisions, and keep herself safe. While the Brighton trip illustrates some unwise decision-making, in fact its greater significance lies in its revelation to me (in contrast to Dr. Rippon) that Z had developed sufficient ability to ‘use or weigh’ information which indicated risk, and insight into the consequences of her choices. In the way she described the visit when giving her unsworn evidence, it is apparent that she was alert throughout the trip to the potential hazards (i.e. the events which made her uncomfortable) and when the relationship with A appeared to be deteriorating badly, she took the appropriate step, entirely independently, of returning home.
  • I have conscientiously cautioned myself against considering outcome when determining Z’s functional ability; I repeat this point, as I am conscious that Z is a vulnerable young person who deserves to have, and should be persuaded to receive, support from adult social services going forward. It is tempting for the court to take a paternalistic, perhaps overly risk-averse, approach to Z’s future; but this would be unprincipled and wrong. I am satisfied in any event that Z currently has a reasonably fulfilling life, which enjoys; she has a loving relationship with her mother who currently cares for her well and who, I hope, could be encouraged to do so for a while longer while Z grows further in maturity and confidence.
  • That is my judgment.

 

If you are wondering, this decision and Re TZ are not in conflict, because the Judge here was satisfied that Z had capacity to make the decisions, whereas in Re TZ the Court was satisfied that TZ did not have the capacity to assess risk for himself  (though had capacity to consent to sex) and thus tried to construct a workable framework in his best interests that would allow him to express his sexuality and desire whilst keeping him safe.  Whether you think that they did so successfully is a matter of opinion….