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Category Archives: court of protection

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 He has withdrawn nearly £30,000 from her account.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….

 

 

Appointing a professional as deputy, rather than a family member

 

Again, a Court of Protection case.  This time by Senior Judge Lush.

Re A 2016

http://www.bailii.org/ew/cases/EWCOP/2016/3.html

The first thing that leaped out at me in reading this was that the applicant, who was asking that a professional be appointed as a deputy to manage the affairs of her mother, had instructed a QC. That’s pretty rare, and tells me that the case might have a bit of substance. The person opposing the application, D, was the son, and he was in person.

The mother A was 78 and the Judge says “comes from a titled family”, so one assumes there’s some pot of money.  I have to say that from the brief description of her, I liked her enormously.

 

“She told me that she still hears voices but wasn’t able to tell me what they have said recently. She told me about her hobby of sending letters and cards to famous people. She was very keen to discuss the Queen and her plans to send a Christmas present that the Queen would appreciate. When I asked what this would be, she replied, ‘Books, make-up and a lollipop.’ She then told me that she wants to send a ‘woolly animal toy’ to David Cameron’s daughter. Mr Cameron is one of the famous people that she is most interested in and she told me that he had proposed marriage to her in the past, despite having a very glamorous wife already. A told me that she had met the Prince of Wales several times and that he was ‘very easy to be with’. She went on to say. ‘He has eighteen women lovers. I wish he liked me’.”

 

It was very clear from the assessment of her that she lacked capacity to manage her own affairs. There were some previous proceedings about appointing a deputy in 2013, and I note that the Judge remarked that within those proceedings, D’s conduct had been such that a cost order of £7,500 had been made against him.

 

  • After only eighteen months as A’s deputy, C now wishes to stand down, and on 15 January 2015 she filed an application seeking an order that Suzanne Jane Marriott, a partner in Charles Russell Speechlys, Solicitors, London EC4, be appointed in her place.
  • She also made an application for Mrs Marriott, once appointed as deputy, to exercise A’s power to appoint new trustees of certain settlements and appoint herself as a trustee.

 

 

Reading between the lines, and explicitly, D’s frequent and lengthy correspondence had been a factor in C no longer wishing to act as deputy and wanting a professional person to do so.

D generates an enormous volume of correspondence and, even though most of the points he makes are irrelevant, tiresome and repetitious, his correspondence needs to be read by the recipient, if only to confirm that that is simply hot air. Naturally, Mrs Marriott is concerned about the costs implications for A’s estate if she is required to respond to every item of correspondence or e-mail sent to her by D. Accordingly, the applicant has asked the court to direct that Mrs Marriott need only reply to communications from D that appear to be pertinent to her role as deputy, and that she needn’t reply in relation to any relevant point that he raises more than once.

 

D had two chief reasons for objecting to the appointment of Mrs Marriott as a deputy – the first (sensible) was that a professional deputy will generally charge from the estate, whereas a family member would not. The second was less sensible

(a) she is an expert in ‘tax avoidance’, which, I assume, he regards as morally wrong [Mrs Marriott’s response is that her experience of tax avoidance, as distinct from tax evasion, is no greater than that of any other private client lawyer based in the City of London]

 

To be honest, if you have to have someone else managing your financial affairs, that person having a solid working knowledge of the best lawful ways to minimise tax payments from it seems to me to be rather a good thing.

 

Decision

 

  • Since 1959 a family member has acted as A’s committee and subsequently as her receiver and deputy. Sadly, because of D’s conduct, no suitable family member is now willing to act as A’s deputy for property and affairs and there is no alternative to the appointment of a professional.
  • In my judgment, it would be in A’s best interests to appoint Suzanne Marriott as her deputy and as a trustee of the 1978 Settlements for the following reasons.
  • The checklist in section 4 of the Mental Capacity Act is not tremendously helpful on this occasion. I have no idea of A’s own wishes and feelings about the application, and shall assume that she has no particular views on the matter. According to Professor Howard, “she is not able to understand how the Court of Protection and her niece could operate on her behalf and in her best interests.”
  • As regards the views of others who are engaged in caring for her or interested in A’s welfare, the respondent, D, has made his views known and they are outnumbered by those of the applicant and her mother and siblings and the professionals at Macfarlanes who have been looking after the affairs of A and other members of her family for decades, all of whom support C’s application.
  • Few people, if any, are better qualified than Mrs Marriott to act as A’s deputy and trustee. Charles Russell Speechly’s website says that:

 

“Suzanne specialises in cross border and UK tax planning, wills, trusts, contentious trusts and probates, Inheritance Act claims, estate and succession planning, international wills and trusts, non-domiciliaries, mental incapacity and Court of Protection work, heritage property, art, landed estates and charitable trusts. She acts as trustee, executor, deputy, attorney and charitable trustee for many well-known clients and is often appointed by the court in these roles where there are disputes. Suzanne is a notary public practising in the City of London and is a member of STEP, ACTAPS, and the CLA.”

[These are the acronyms of the Society of Trust and Estate Practitioners, the Association of Contentious Trust and Probate Specialists, and the Country Land and Business Association respectively].

 

  • She and her firm have substantial experience of acting as professional deputies and the role of other partners and members of staff should not be underestimated. In July 2015 the OPG published a set of ‘Deputy Standards’ for professional deputies, Standard 3 of which requires professional deputies to “maintain effective internal office processes and organisation”. Amongst other things, this involves establishing clear and effective governance between the named deputy and staff delegated to carry out the day-to-day functions of the role.
  • Both Suzanne Marriott and Charles Russell Speechlys also have considerable know-how in dealing with landed families and private wealth management. I imagine that, in selecting Suzanne Marriott as a potential replacement for C, Macfarlanes consciously looked for someone with a similar practice to their own but with more experience of contentious Court of Protection matters.
  • I concur with the observation made by Mr Justice Newey that, although Charles Russell Speechlys’ fees are likely to be large, it is improbable that they will be excessive because the Senior Courts Costs Office will carry out a detailed assessment of their general management costs on the standard basis each year.
  • With a view to keeping the costs as proportionate as possible, and because I believe that it would be in A’s best interests to do so, I shall allow the applicant’s request, to which I referred in paragraph 33 above, and direct Mrs Marriott to reply only to communications from D that appear to be relevant to her role as deputy and not to reply to any irrelevant communications or to any relevant point that he has raised more than once.

 

[That last paragraph might seem very appealing to lawyers and deputies around the country who are faced with people like D. ]

 

Court of Protection and Criminal Injuries compensation

 

Slow start to the year, I’m afraid. It seems to be only the Court of Protection who are really publishing any judgments so far.

PJV v The Assistant Director Adult Social Care Newcastle City Council 2015

http://www.bailii.org/ew/cases/EWCOP/2015/87.html

 

This one relates to a 23 year old man, who as a child suffered significant brain injuries as a result of being shaken. No convictions resulted, but the persons present at the time he was shaken as a baby were his mother, her boyfriend and his maternal uncle.  An application for compensation was made to the Criminal Injuries Compensation Authority. He was removed from his mother’s care but went back to live with her in 1994 and has lived with her ever since. That had been the proposal put forward by the Local Authority at the conclusion of the care proceedings, that the best place for him was his mother, even if she could not be excluded as a potential perpetrator of his injuries, and the family Court agreed.

His difficulties were serious.

The Appellant will never be able to compete in the open labour market, will never be capable of independent living and will always require daily support. He is not capable of managing his financial affairs and cannot carry out basic tasks such as shopping or cleaning. His difficulties are permanent and are unlikely to improve. He may be able to have children and to marry.

 

That being the case, the amount of compensation awarded was significant. In July 2012, the sum of £3 million pounds was awarded. As by that stage, the man was an adult, albeit one lacking in capacity, the issue for the Court of Protection was to decide how that compensation should be managed.

This particular case was an appeal, decided by Charles J.

The noteworthy passages are probably these:-

 

 

  • I apologise on behalf of the court for the time it has taken to deal with this case.
  • Standing back and for whatever reason it is the case that since some time before June 2012 the Appellant has not had the benefit of an interim award of £500,000 and that since June 2013 he has not had the benefit of the balance of his award in a sum of over £2 million.
  • This is a sorry state of affairs.

 

 

In terms of pragmatic solutions to this issue from now on, which might affect other cases

 

 

  • There is no need for an application to the Court of Protection to finalise an award that CICA, in the proper exercise of its powers under the relevant scheme, decides should be held on trust and so requires to be paid to trustees on trusts that include and do not conflict with terms that CICA is so entitled to require.
  • A deputy appointed by the Court of Protection can be authorised to negotiate and finalise the terms of such an award and so of the trust and to enter into the “Acceptance of Final Award” or the equivalent document for an interim award on behalf of P and thereby finalise the claim.
  • There are number of ways by which such trusts can be declared and evidenced and so by which the result can be achieved that the award moneys are paid to and from the outset are held by trustees on terms properly required by CICA and wanted by the applicant. A convenient and sensible way is that adopted in practice by CICA when the applicant has capacity (i.e. a declaration of trust by original trustees setting out the trusts over the award which will start to operate on payment). No doubt trust lawyers could set up other ways to give effect to the terms and so the trust created by the finalisation of the process of an application for compensation to CICA under the relevant scheme.

 

Charles J was fairly sniffy about the approach of the CICA to the litigation and that it had required some considerable work to extract from them the important principles and policy.

He did also indicate that the CICA’s decision on quantum of an award was not necessarily the last word on that issue.  (A view contrary to that taken by the CICA)

 

 

  • Whilst I acknowledge that in one sense it can be said that the award is in the discretion of CICA, in my view what Senior Judge Lush says in paragraphs 31 to 34 of his judgment must be qualified to make it clear that the decisions made by CICA are not “entirely” in its discretion. This is because it has to make its decisions on a correct interpretation of the relevant scheme and its exercise of discretion under it is subject to challenge applying public law principles. Indeed routes of challenge are provided in the schemes and then from a decision of a First-tier Tribunal.
  • This means that an applicant and so the Court of Protection, a deputy or attorney does not simply have to accept CICA’s decision and can challenge quantum and the terms that CICA seeks to require.
  • Having said that I acknowledge the point made by counsel for the Official Solicitor that a challenge may result in the award not being made or its payment being delayed. But CICA, as a body governed by public law principles, is bound to act fairly and that is likely to preclude a commercial negotiating stance along the lines accept what is offered now or you will not or may not get an award.

 

 

If you are, for some reason, deeply intrigued by the intricate workings of this case and want to read the full judgment, I will warn you that (a) It involves Trusts and trust law (b) it involves the detailed wording of both the Mental Capacity Act and two CICA schemes and (c) The Judge deciding the case was Charles J  (whom I believe may have had a hand in the scripting decisions of the Phantom Menace that decided to turn a film about people fighting with swords made out of light into a film instead chiefly about Trade disputes, embargos and the inner workings of an intergalactic United Nations).  If Charles J ever decides to publish a thriller, I do not foresee that Tom Cruise will be purchasing the movie rights.  Read it if you absolutely have to.

 

 

 

A life that sparkles

 

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

 

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

 

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

 

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

 

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

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

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

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

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

 

Background then

 

 

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

 

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

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

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

 

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

 

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

 

 

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

 

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

 

 

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

C’s daughter puts it very very well

 

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

 

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

 

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

 

SUBMISSIONS

 

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

 

 

 

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

 

DISCUSSION

 

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

 

 

 

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

 

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

 

CONCLUSION

 

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

 

 

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

 

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

 

Bickering (or the ever decreasing circle of life continues)

[Grateful to @dilettantevoice for highlighting this case to me on Twitter]

 

You may recall the Court of Appeal taking Mostyn J to task for taking them to task for taking him to task.

https://suesspiciousminds.com/2015/10/22/ever-decreasing-circles-court-of-appeal-take-mostyn-j-to-task-for-taking-them-to-task-for-taking-him-to-task/

 

Well, none of you thought that it would end there, did you?

Re CD 2015

http://www.bailii.org/ew/cases/EWCOP/2015/74.html

An exceptionally tricky case, and one absolutely can’t underestimate just how difficult a job High Court Judges have to do. This one involved a woman with very severe mental health problems, who after she stabbed herself in the stomach, the hospital found that she had tumours in her stomach that needed to be removed. Although the woman was detained under the Mental Health Act, the power to perform treatment against a person’s will under that Act is really confined to treatment for their mental health, and this was a physical treatment. As the woman would be under anesthetic at the time, the High Court has previously ruled that this would be a deprivation of liberty.

A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161

Additionally, there’s the complication of some wording in the Mental Capacity Act which suggests that a deprivation of liberty can only be dealt with under the Mental Health Act if the person is detained under the Mental Health Act.

 

 

  • he confusion surrounding the main test is mirrored by the confusion that the interface with the MHA gives rise to. I recently have had to grapple with this in Re A [2015] EWCOP 71. Mr Justice Baker has given a characteristically exhaustive judgment on the subject in A NHS Trust v A [2013] EWHC 2442(Fam) [2014] Fam 161 as has Judge Parry in A Local Health Board v AB [2015] EWCOP 31. The confusion arises from the highly ambiguous and double negative laden terms of para 3(2) of Schedule 1A to the MCA 2005. This states:

 

“P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes”

 

  • In this case CD is P. “Ineligible” means ineligible to be deprived of liberty by the 2005 Act. The “authorised course of action” is the surgical removal of the ovarian masses. The “relevant regime” is the MHA regime whereby CD is compulsorily detained in a mental hospital. So, for our purposes, para 3(2) reads:

 

“CD is ineligible to be deprived of liberty by the 2005 Act if the surgical removal of the ovarian masses is not in accordance with a requirement which the MHA regime whereby CD is compulsorily detained in a mental hospital imposes.”

 

  • Mr Auburn rightly says that there are two ways of reading this which give rise to directly contradictory results. The first is in a pitilessly literal way, as argued by Mr Matthewson. It is this: if the surgical removal of the ovarian masses is not in accordance with a requirement of the MHA regime whereby CD is compulsorily detained in a mental hospital then CD is ineligible to be deprived of liberty by the 2005 Act. It isn’t, he says, so she is ineligible and so the necessary orders have to be made under the inherent jurisdiction of the High Court. The problem with this interpretation is that it gives rise to a result directly contrary to the intention of the statute and to the express terms of the Code of Practice, as I explained in Re A at paras 10 – 14 (accepting the submissions not only of Ms Butler-Cole but also of Ms Dolan, on that occasion instructed by the Official Solicitor).
  • The alternative interpretation, which I adopted in Re A, and which I maintain to be correct is this: if the MHA regime whereby CD is compulsorily detained in a mental hospital imposes a specific requirement for dealing with the problem of the ovarian masses then CD is ineligible to be deprived of her liberty under the 2005 Act for the purposes of dealing with the problem by a different procedure under that Act. It doesn’t (obviously) so she isn’t ineligible. As I said in Re A this is plainly what the scheme of section 16A and Schedule 1A intends and the matter is conclusively confirmed by paras 4.50 and 4.51 of the Code of Practice. In my judgment it would be ridiculous if the whole case had to leave the Court of Protection with its statutory powers and enter the High Court exercising common law inherent powers by virtue of a pedantically literal reading of para 3(2).
  • The orders which I make will be made by me sitting in the Court of Protection under powers granted by Parliament in the MCA.

 

 

Mostyn J is utterly and completely right here, the wording of this piece of the legislation is ghastly (double-negatives are really not something that you want in a piece of legislation anywhere, particularly about something so serious) and it has left a serious lacuna in the law.  And you know how High Court Judges tend to solve lacunas in the law – that’s right, the ‘theoreticaly limitless powers of the inherent jurisdiction’  [Though not here, Mostyn eschewing Baker J’s inherent jurisdiction solution to say instead that the power must really remain under the MCA]

 

A very tricky case, and almost all of what Mostyn J says in the judgment is careful, apposite and fair.

Unfortunately, this passage decides to resurrect the quarrel with both the Supreme Court in Cheshire West, and the Court of Appeal

 

In KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at para 32 the Court of Appeal stated “even if Cheshire West is wrong, there is nothing confusing about it”. It may seem that way from the lofty heights of the Court of Appeal; and of course the literal words of the Supreme Court’s test are perfectly easy to understand. But for we hoplites who have to administer it at first instance the scope and ramifications of the test are, with respect, extremely confusing. As Mr Matthewson, instructed by the Official Solicitor for CD, rightly stated “anyone who deals with this day by day knows this is confusing”. What of the situation where, as here, the protected person actively and fervently expresses the wish to undergo the procedure that is said to amount to a deprivation of liberty? What of the situation, as was the case in Bournemouth Borough Council v PS & Anor [2015] EWCOP 39, where the protected person shows no inclination whatsoever to leave the home where he is cared for round the clock? What of the situation where the protected person is seriously disabled, perhaps bedridden, perhaps in a coma, and is thus physically incapable of exercising the freedom to leave? The answers I received from the Bar when discussing these scenarios belie the blithe suggestion that “there is nothing confusing” about the test. I do not accept the criticism that my approach to these cases is “distorted” by my “passionate” and “tenacious” belief that Cheshire West is wrong. Rather, it is a loyal approach which tries to apply literally and purposively the Supreme Court’s test while at the same time pointing out how confusing and curious it is, to say nothing of the cost it causes to the public purse

 

 

I think that there IS an argument about whether Baker J’s decision in Re A (that the surgical procedure amounts to a deprivation of liberty) actually meets the test in Cheshire West – I think that one can argue it either way and a strong case can be made for if a Court has declared that the procedure is in P’s best interests despite a lack of consent that the patient has had sufficient safeguards and an additional authorisation of a Deprivation of Liberty isn’t necessary.

It is also quite right that we now have a definition of deprivation of liberty which is utterly unworkable in practice due to resource implications (as we have seen, if every LA issued every deprivation of liberty application that they need to on the wording of Cheshire West, the Court would spend the next five years dealing with this years cases, and so on), and that the MCA on this particular issue is badly in need of reform. Such reform not likely to hit us until 2017 at best.

 

But the Rule of Law is the Rule of Law.  Whatever one might think of the Cheshire West test (and personal opinions and critiques of it are perfectly valid – it wasn’t a unanimous decision on all issues in the Supreme Court itself), the test has been set and it is now to be applied.  In the first of the two examples, it is really plain that the absence of resistance from P if they lack capacity is neither here nor there, that’s not a legitimate part of the test. After all, that was the very issue in Bournewood that led to the development of the MCA in  the first place. The latter question of whether you assess whether a person is being deprived of their liberty by looking at their physical characteristics has been squashed by the Supreme Court.

[There IS , I think an argument about whether someone who is physically prevented temporarily from getting up to leave – under anaesthetic for example, or that they have a broken leg that will heal, meets the Cheshire West test. But that’s for a Judge to determine when they are faced with an application of the test to those particular facts]

 

It is a fine line between a Judge being free to criticise the law when it is resulting in unfairness and staying out of politics and just applying the law as it is to the facts of the case.

I’m aware that I am being hypocritical here – because I do think that Judges can and should speak out when the law at present is unfair and makes unreasonable outcomes when it is applied.  Because when Mostyn J and others have attacked LASPO, I’ve supported and applauded them. That is a law whose application is currently unfair (particularly the Legal Aid Agency’s approach to granting exceptional funding where human rights require it, but ignoring when Judges tell them that this particular case would breach a person’s human rights if funding were not given).  I also disagree with LASPO itself, but I’m stuck with it unless and until Parliament changes it. So, am I just as unreasonable as Mostyn J considers the Court of Appeal to be – given that I’m happy for him to critique and attack the law when I agree with him, but criticise him when I think the law is right?

Damn, I’ve painted myself into a corner here.

 

Perhaps what we need is a case with the citation Mostyn J v Court of Appeal  (to be decided in the Supreme Court)

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

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

 

Re SF 2015

 

http://www.bailii.org/ew/cases/EWCOP/2015/68.html

 

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

 

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

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

 

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

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

 

 

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

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

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

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

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

 

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

 

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

 

 

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

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

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

 

 

Is he the most callous attorney ever?

 

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

 

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

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

Winding your way down on Baker Street

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

 

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

http://www.bailii.org/ew/cases/EWCOP/2015/65.html

 

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

 

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

 

 

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

 

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

 

 

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

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

 

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

 

 

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

 

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

    Respondents £110,000

    Official Solicitor £57,000

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

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

 

 

 

 

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

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

NRA and Others 2015 (the Charles J DoLS case)

The NRA is often in the news, generally after some terrible incident in an American school and usually positing the opinion that if only everyone on the scene had had a firearm rather than just the sociopathic person shooting everyone nothing bad would have happened.  This is a different NRA. So if you have come here looking for the National Rifle Association (hi Piers, bye Piers) then you’re in the wrong place.

 

This is Charles J’s decision in a group of linked cases designed to test whether in a case where a vulnerable person’s liberty is being deprived as a result of their care package, that person HAS to be represented. The President, said no, we could distinguish between cases where the deprivation is contentious (when they should be represented) and where it is not contentious (where a streamlined fast-track system could be in place where there might not even be a hearing)

 

This came before Charles J as a result of the District Judge who had first got the linked cases realising that this was a real can open, worms everywhere scenario   , described by me here   

https://suesspiciousminds.com/2015/07/13/deprivation-mmmmeltdown

 

This is chief is a pragmatic engineering solution to the huge mountain of such Deprivation of Liberty cases that are going to come before the Courts as a result of the Supreme Court in Cheshire West broadening out the criteria of what consituted a deprivation of the person’s liberty.

Thus, if you don’t do Court of Protection work, you need read no further, and that may be a relief to you, because the thing that most lawyers know about Charles J is this gem from the Court of Appeal in Jones v Jones 2011 :-

http://www.bailii.org/ew/cases/EWCA/Civ/2011/41.html

 

The appeal judge quoted from an article in the magazine Family Law by Ashley Murray, a Liverpool barrister. This began:

“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles.”

Lord Justice Wilson commented: “Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite.”

 

Of course, I have no views on this whatsoever, and merely report the judicial decision of the Court of Appeal in that regard.  I may, however, have prepared a small packed lunch, put on a warm coat and ironed my Welsh flag before I sat down to tackle the judgment in NRA and Others 2015.

 

Charlton Heston of the NRA is asked by Dr Zaius to re-read a Charles J judgment

Charlton Heston of the NRA is asked by Dr Zaius to re-read a Charles J judgment

 

 

My mission-statement (sorry I just shuddered) when I began this blog is “I read it, so you don’t have to”.  I have been putting off this particular task for quite some time.

As I outlined, the President had arrived at a two track process – where P (the vulnerable person) would only be represented in a deprivation of liberty case where the deprivation or the plan was contentious.  However, when the Official Solicitor in the case appealed that decision, the Court of Appeal had two things to say – firstly that it hadn’t even been a decision so there was nothing to appeal, but secondly that P should ALWAYS be represented.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/599.html

 

These cases were then the first raft of non-contentious cases that were run as test cases to work out what the hell was going on. It had become really apparent that the Official Solicitors office, who normally represent P would be utterly overwhelmed by demand and that the practical implications of following the Court of Appeal’s guidance (since it is obiter and not ratio) would be to grind the whole system to a halt, and more importantly make it impossible for P to be represented in a contentious case.

So there were a few questions

Should P always be represented?  Could P be represented by a litigation friend instead of the Official Solicitor? Would that litigation friend be able to speak in Court if they didn’t have rights of audience?

Re NRA and Others 2015

http://www.bailii.org/ew/cases/EWCOP/2015/59.html

If I tell you that the judgment contains 269 paragraphs, and that a full 16 of them come under the sub-heading of “Flaws and gaps in the reasoning of the Court of Appeal”  you get much of the flavour of the whole thing without having to read it all.  A state of affairs for which I envy you.

 

It is a curious thing, and a dreadful position for the Judge to be placed in. To make this decision right in law, and respect the well-established principle of Winterwerp v Netherlands  1980 ..it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded “the fundamental guarantees of procedure applied in matters of deprivation of liberty” …    and the Court of Appeal’s steer which though NOT binding could honestly not have been clearer, the Judge would have to break the Court of Protection system. Barely any case would be heard and injustice done to thousands of cases. The alternative was to take the pragmatic engineering solution of  “This can’t work if we insist on P always being represented, so we’re not going to do that”.   However, it has to be legally dressed up so that it at least looks as though it can withstand an appeal.

 

Charles J makes the following conclusions, which he thankfully summarises at the end

 

A brief summary of my conclusions is that:

(1) P does not have to be a party to all applications for welfare orders sought to authorise, and which when they are made will authorise, a deprivation of P’s liberty caused by the implementation of the care package on which the welfare order is based.

(2) In two of the test cases before me I have made orders that reflect that conclusion and my conclusion that the procedural safeguards required by Article 5 are (and are best) provided in those cases by appointing a parent of P as P’s Rule 3A representative. As such, that parent as a continuation of the dedicated and devoted support given by P’s family to P and directed to promoting P’s best interests, in a balanced way, can best provide (a) the court with the information it requires about the care package and P, and (b) P’s participation in the proceedings. Also, that parent can and in my view will monitor the implementation of the care plan and so initiate any challenge to it or review of it that the parent considers should be made in P’s best interests.

(3) I do not have a test case before me in which (a) P has not been joined as a party and the Official Solicitor has not agreed to act as P’s litigation friend, and (b) the appointment of a family member or friend as P’s Rule 3A representative without joining P as a party is not an available option. Such a test case or cases should be listed for hearing.

(4) In contrast to the Court of Appeal in Re X and subject to further argument in such a test case or cases, I consider that the way in which the Court of Protection can at present best obtain further information and P’s participation in such cases is for it to exercise its investigatory jurisdiction to obtain information through obtaining s. 49 reports or through the issue of a witness summonses. This keeps the matter under the control of the court rather than invoking the necessity of appointing a litigation friend with the problems and delays that history tells us this entails and will entail and I have concluded is, or shortly will be, not fit for purpose.

(5) I do not for a moment suggest that absent further resources being provided there will not be problems and delays in taking the course referred to in paragraph (4). Also, and importantly, I recognise that it would be focused on Article 5(1) and would not provide for monitoring on the ground until it is repeated from time to time for that purpose. But, the appointment of a litigation friend will also not provide that monitoring.

(6) In such cases the argument advanced by the Secretary of State before me that a Rule 3A representative identified by the local authority be appointed shows that if this was a practically available option it would replicate the input that I have decided can be provided by an appropriate family member or friend and so satisfy the procedural safeguards required by Article 5 and common law fairness in non-controversial cases without joining P as a party.

(7) That replication is an obvious solution that will provide the necessary safeguards more efficiently and at less expense than either

i. the making of orders for s. 49 reports and the issuing of witness summonses perhaps coupled with more frequent reviews, or

ii. joining P as a party.

(8) So I urge the Secretary of State and local authorities to consider urgently, and in any event before a test case or cases of this type are before the court, how this solution can be provided on the ground.

 

He also ruled definitively that a litigation friend can, if appointed by the Court, be given the power to conduct litigation

 

Gregory v Turner [2003] 1 WLR 1149, at paragraphs 50 to 58, it is common ground that if and when the court appoints such a litigation friend:

i) it can also give him or her a right of audience and the right to conduct litigation in relation to those proceedings (see Paragraphs 1(2)(b) and 2(1)(b) of Schedule 3 to the 2007 Act),ii) it can remove those rights, and further and alternatively

iii) it can end the appointment of the litigation friend (see COP Rules 144 and 140).

 

[He described the arguments to the contrary made by some of the parties as ‘arid’.  I can’t think of anything to say about that which isn’t churlish, so let’s move on. ]

And that conducting litigation can include anything that P could do themselves as a litigant in person if only they had capacity – so definitively, if a Court appoints a litigation friend and grants them the right to conduct litigation, they can do everything – they can deal with correspondence, draft a statement and address the Court. They can be given rights of audience, even though they would not be someone who has them.

 

I have mixed feelings about this decision – it was an impossible position for the Judge to be in. To make a fair decision would have broken the Court of Protection and caused far more harm to all of the vulnerable people who require its services. On the other hand, I just agree with Winterwerp and feel that if someone is being locked up even if it is ‘for their own good’ they should have someone speaking on their behalf and making such points as ought to be made.

The only thing I would say is that by setting out a huge section entitled “Flaws and gaps in the Court of Appeal’s reasoning”,  we now have a pretty solid indicator that if a decision is made relying on this judgment and someone intends to appeal it, the Court of Appeal are going to be rather interested in getting to grips with it. That really just places even more uncertainty into an area of the law which has been nothing but uncertainty ever since the President first encountered the words “Cheshire West”

The Law Commission reforms of deprivation of liberty can’t come soon enough.

 

 

Should Mr Heston be represented here? Does the net satisfy the Cheshire West 'acid test'?

Should Mr Heston be represented here? Does the net satisfy the Cheshire West ‘acid test’?

Court’s power to get an expert report for free

 

Don’t get too excited, this power only works in Court of Protection cases. But it is still pretty cool.   [Unless you work for an NHS Trust, in which case this power is soul-crushingly awful.]

 

Re RS 2015

http://www.bailii.org/ew/cases/EWCOP/2015/56.html

 

In this case, there was an application for authorisation of  a deprivation of liberty.  The Court directed (on 28th May) that the NHS Trust should prepare a report on capacity.  Days went by, with no report, then weeks, then two months.

 

And then this:-

  1. On 31st July by direct email, the court received a letter on behalf of Lincolnshire Partnership NHS Foundation Trust which, notwithstanding the order of 28th May and the assurance given via LCC to the court on 29th July advised that it was impossible to comply with the order and further that it was inappropriate for the evidence sought to be obtained by way of an order pursuant to Section 49 of the Mental Capacity Act 2005.
  2. In light of this letter, which I treated, albeit exceedingly late, as an application as provided for in the order of 28th May to set aside or vary the original order.

 

The Trust set out their arguments as to why it was not right that they should prepare a report – in part because taking a doctor away from patients to write a report on someone they barely knew was not terribly in keeping with their job of looking after patients, especially where there was no fee for the report to offset the costs of doing it.

The Trust advanced ten reasons to support their view that it was inappropriate for the required evidence to be obtained by way of Section 49. They were:-

(1) The Trust has no clinical involvement or knowledge of P (other than the information contained in the applicant’s enclosed letter). P is not a patient under the Mental Health Services of the Trust.(2) There appears to be a clear dispute on capacity the outcome of which may have a significant impact on P’s future care and welfare. Such a dispute should properly be resolved by way of a jointly instructed independent court expert. It is not appropriate to seek quasi expert evidence through Section 49.

(3) A Section 49 Report is not a joint instruction and therefore can potentially leave open a dispute in the event that the evidence is not accepted by all parties. We understand that the first Respondent was not in agreement that Section 49 is appropriate.

(4) The Trust’s consultants are not court experts: they do not have the expertise in preparation of Medico Legal reports and should not be expected to do so, particularly where it is not in connection with a patient under their care.

(5) We understand a report in the proceedings has been prepared on a private instruction by Dr Gonzalez (of the Trust). There is a potential conflict of interests in seeking a further report from a consultant of the Trust.

(6) The request was a publicly funded body into proceedings of which it has no involvement.

(7) Complying with the request places a significant and disproportionate burden on limited NHS resources.

(8) A consultant would need to cancel clinics to make time to prepare the report; putting vulnerable patients at risk.

(9) There is no provision for costs of the report in order to enable the Trust to employ locum cover for the report author. The Trust is already under significant pressure to reduce its locum cover.

(10) Even where locum cover can be sourced this can be detrimental to patients if they are not able to see their usual consultant with whom they have built a trusting professional relationship. Consistency of care is an important factor in mental health care and should be maintained wherever possible.

The Trust position was therefore that capacity evidence should be facilitated through the instruction of an independent jointly instructed expert and not through Section 49.

 

 

Can’t this be resolved just by paying a fee?

 

No, the Code of Practice specifically says that there IS no fee payable for a report ordered under s49.

 

 

  1. There are a number of notes to Section 49 contained within the Court of Protection Practice 2015. Specifically one of the notes states

    Fees – there is no provision for fees to be charged for any report requested by the court.

    Reference is also made in the notes to the Court of Protection Rules and in particular Rules 117 and 118 and Practice Direction E (PD14E).

  2. I do not propose to set out Rule 117 in full but will refer to:

    (1) this Rule applies where the court requires a report to be made to it under Section 49 of the Act;(2) it is the duty of the person who is required to make the report to help the court on the matters within his expertise.

 

 

What did the Judge have to say about the Trusts’s arguments?

 

  1. In relation to the specific submissions on behalf of the Trust then I will deal with these briefly:

    (1) While I note the argument there is no such distinction drawn within the powers given in Section 49 and the accompanying Rules or Practice Direction. In my view it would be wrong for the court to undertake such distinction either in the preparation of its orders generally or in this order in particular.(2) The dispute as to capacity has arisen following a report from a consultant psychiatrist dealing with matters pertaining to a lasting power of attorney. There is an existing assessment by a consultant psychiatrist Dr Loosmore and a very experienced social worker. A question has therefore arisen in relation to RS as to the extent or otherwise of her capacity. It is a matter well suited for determination by Section 49 which is a proportionate response as opposed to an instruction to an independent expert. Such direction would have additional funding and cost consequences particularly in the instant case where three of the parties are either publicly funded or public bodies and the fourth is privately paying albeit acting in person. Furthermore a Section 49 Report would [or should at any rate] incur significantly less delay.

    (3) A Section 49 Report is a direction of the court. If a letter of instruction cannot be agreed the court will deal with any such dispute. It was the court’s direction and not that of any specific party.

    (4) The Rules and in particular the Practice Direction are clear as to the contents and format of a report. If that format is followed specific medico legal experience is not required. However, given the significant growth in the volume of work undertaken by the Court of Protection and in particular Section 21A or related challenges, it is no doubt a level of expertise that all consultant psychiatrists particularly dealing with the elderly will acquire if they have not already done so.

    (5) The court can see no potential conflict of interest in another consultant of the Trust preparing a report. Again the duty of the author of the report is fully set out in the Rules and Practice Direction.

    (6) The provisions of Section 49 are clear. There is a wide range in power to direct a report from an NHS body as the court considers appropriate. It is common for Section 49 Reports to be directed in this way.

    (7) The court has sympathy with the effect of its order upon the Trust. However as is noted earlier no provision is made within Section 49 in relation to fees or expenses incurred by the author of the report (be it NHS body, Trust or otherwise). What the court will do is to carefully consider resources and listen to any argument from the Trust particularly in relation to the time for compliance and the scope of the work to be undertaken. That would appear to be both a reasonable and proportionate approach.

    (8) While this is noted the answer to 7 would seem to cover this.

    (9) I have already dealt with this in 7 above.

    (10) As stated above every effort will be made to accommodate the preparation and extent of the report so as to limit wherever possible the disruption in healthcare provided by a consultant to his patients.

  2. It follows, for the reasons given above I am not prepared to vary or alter the principle behind the original order of 28th May. However it must be right that compliance with any order is subject to reasonable adjustment on application by the Trust in relation to the scope and extent of any report ordered and the time for compliance. However such applications must be made promptly and supported by evidence on behalf of the Trust or NHS body.
  3. Finally, this is a difficult and recurring problem and brings into sharp focus the burden upon any Trust or NHS body to comply with such direction while at the same time maintaining the provision of its service to existing patients. The cost of the report is also funded by the Trust. There is no provision within Section 49 for the court to order payment of fees or expenses in that regard. These are matters that ultimately may have to be considered elsewhere. In line with the President’s guidance I propose to publish a suitably anonymised version of this judgment on Bailii.

 

 

In short, you might, as the Trust, be able to plead extenuating circumstances and time pressures and get longer to DO the report, but you have to ask the Court and do so in good time, but you aren’t going to get out of doing it.

 

If you are an NHS accountant /manager/ worker / taxpayer who feels miserable about this, read this fun case where a Husband in divorce proceedings who is claiming that he has no assets at all (due to them all being put into a in a Trust which has subsequently kicked him out and taken them all) also struggles to explain to a Court why he has at the same time entered into an agreement to buy a private jet plane and put a deposit down yet is completely unworried about his ability to pay for the rest of it given that he has no assets, no income and no job.  His courageous answer  is, in effect “I’m such a great businessman, I can make it work”

 

While on the topic of aircraft, I should mention that H shows as an illiquid asset US$250,000 which he has paid as a deposit against the much delayed delivery of a Honda Jet. The balance of the purchase price is US$4m. H expressed no anxiety in his current parlous circumstances (another global economic meltdown apart) in coping with this liability when it falls due. In evidence he said that the latest estimated delivery date was probably the first or second quarter of 2016, and that he had “set up a multi-billion dollar empire with very little capital. It is a question of leverage and investing partners.” Asked whether he regarded operating a single jet as a viable source of income and livelihood he was optimistic describing it as “a big growth area of business especially if you have the latest jet technology.”

 

I don’t know about my readers, but if I had no money in the bank, no income and no job, and for some reason, I had to pay $3.75million for a jet plane in the next year, I’d probably be on the phone to the plane company explaining how, “yeah, it turns out maybe I don’t need the plane so much after all, can I take a rain-check on that? Also, could I get my deposit back?”

 

Note that he also has / or rather had because the Trust, which is not run at all by one of his former friends as a complete device to escape his wife’s financial claims oh no, a fleet of luxury cars including cough “A Ferrari that cost $8.5 million”

“Their position is an elaborate charade, the stage management of which has been conducted ruthlessly and without regard to cost”

 

and

“There is a clear distinction between the question whether a trust can be characterised as sham (which was, as rightly stated, not asserted at the hearing), and the conclusion which I reached that the case collusively advanced by H and TB was a rotten edifice founded on concealment and misrepresentation and therefore a sham, a charade, bogus, spurious and contrived. I do not shrink from applying to it the description fraud, a deliberate design to deceive, inflicted on W and on the court, and found by the court so to be”

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2507.html