Category Archives: court of protection

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

Posted on August 25, 2015 by suesspiciousminds

 

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

 

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

 

Re ARL 2015

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

 

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

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

 

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

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

 

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

 

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

 

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

 

 

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

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

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

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

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

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

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

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

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

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

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

 

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

 

 

 

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Not being allowed to see an expert report

Posted on July 15, 2015 by suesspiciousminds

 

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

 

NCC v AH and DH 2015

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

 

Dramatis personae

 

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

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

 

DH her husband.

 

The application

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

 

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

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

 

Law on non-disclosure

 

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

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

The next bit is even more suprising.

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

 

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

 

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

 

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

 

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

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

2000:

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

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

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

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

data subject, or another person.

 

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

 

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

 

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

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

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

 

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

 

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

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Deprivation mmmmeltdown

Posted on July 13, 2015 by suesspiciousminds

 

The case of MOD & Others (Deprivation of Liberty) 2015   http://www.bailii.org/ew/cases/EWCOP/2015/47.html   involved nine unrelated cases where Local Authorities were seeking test cases under the President’s new scheme for ‘fast-tracking’ Deprivation of Liberty authorisations.

 

You may recall that the Court of Appeal dealt with the President’s scheme as it was laid out in Re X  (saying that he did not have the power to do this in a judgment, but as it wasn’t really a judgment they had no jurisdiction to overturn it on appeal, but that in any event, a scheme which didn’t include a voice for P  – the person being detained, would almost certainly be wrong)   http://www.bailii.org/ew/cases/EWCA/Civ/2015/599.html

 

There’s a Practice Direction for the fast track process now, which will need some slight tweaking in light of Re X.

 

Anyway, this is the first reported authority on how these ‘fast track’ cases will work in practice.  The answer, in short would be  “not well” and “not fast”

 

The problem here is that the current scheme for P to be represented is through the Official Solicitor.   The Official Solictor told the Court that in the month after the Court of Appeal decided Re X  (which was effectively the green light to start bringing the DoLs cases) requests doubled.

 

District Judge Marin said this:-

I understand that at present, about 100 applications have been issued since the Court of Appeal’s decision three weeks ago with more arriving each week. At the hearing, one local authority told me that they alone have “hundreds” that are to be issued imminently.

 

[If anything, that’s something of an understatement. The ballpark figure nationally is that up to 100,000 such cases might be issued in a year, as a result of the wider definition for restriction of liberty settled on by the Supreme Court in Cheshire West]

 

20….the Official Solicitor wrote a letter which is not only referable to the cases before me but also to all other similar cases where he has been invited to act.

  1. The Official Solicitor said this:

    “..I am not currently in a position to accept the invitations to act as litigation friend in the ‘referrals’ in these cases.

    I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process for this class of case, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to fund them, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.

    Even before the dramatic increase for the month of June 2015 …. and these 43 actual and impending invitations to me to act as litigation friend in this class of case, in resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.”

  2. He went on to elaborate:

    “There has been an increase in the number of invitations to me to act as litigation friend (‘referrals’) for P in Court of Protection welfare applications, including applications for orders the giving effect to which deprives P of their liberty.

    For the three calendar years 2011, 2012 and 2013 the number of new referrals a month averaged 28 cases. In 2014 this increased to an average monthly referral rate of 50 cases. In the five months to the end of May 2015, the monthly referral rate was in excess of 53 cases. In resource terms my CoP Healthcare and Welfare team was then running at or beyond full stretch, ‘fire fighting’ in a way that was unlikely to be sustainable beyond the short term.

    There has been a dramatic increase for the month of June 2015 with 99 new referrals to the end of the month. But that number for June does not include the 43 new invitations to act to which I am responding. As at the end of May I had 137 referrals in my CoP Healthcare and Welfare team, in the ‘pre-acceptance’ stage (which clearly did not include these former streamlined procedure cases).

    From time to time, I have taken those steps I have been able to take, having regard to budgetary constraints and balancing the needs of all my teams, to increase staff available to the work of the healthcare and welfare team as its caseloads have risen.

    But, as has been frequently noted publicly, I do not have the staff resources to manage the expected significant additional increase in caseload arising from the decision of the Supreme Court in Cheshire West.”

      1. Despite reference in the letter to a light touch scheme to allow cases to be processed quickly, the Official Solicitor nonetheless commented that:
        1. “But the simple facts are that:
  • I am not currently in a position to accept the invitations to act as litigation friend in the referrals in these cases; and,
  • I am most unlikely, on my current understanding of my budgetary position, to be able, even when I have established a light touch process, which is nevertheless consistent with my duties as litigation friend, and the external outsourcing to which have I referred above, to be able to accept invitations to act in more than a relatively small proportion of the total expected numbers of these former streamlined procedure cases.”
  1. As if to emphasise the seriousness of the matter, the Official Solicitor copied his letter to the President and Vice President of the court, the local authority applicants in the cases and the Ministry of Justice as his “sponsoring department”.

 

 

The Supreme Court have made a ruling that means there will be thousands more of this case, probably tens of thousands. The Court of Appeal has said that P must have a voice. The organisation who are responsible for P having a voice say that they are already operating at a referral rate four times that which they can actually take (and the deluge hasn’t even begun yet – it is something like 100 a month at the moment, and when these cases really get going, it will be more like five to eight THOUSAND a month)

 

As the wise Lucy Series has said, this is now an engineering problem, rather than a logical one. The system as it is, clearly is not going to cope with what is coming at it.   And once we solve the representation of P problem, we will then have the Best Interests Assessor problem, then the social work problem, then the lawyers for relatives problem, then the Judges problem, then the Court time problem.

You can’t go from a system which just about functions at 25 cases a month and turn it into one that can handle 5,000-8,000 cases a month.  Everyone in family law can tell the Court of Protection just how hard it was to cope with the post Baby P deluge, and that was at worst a doubling of demand. Here demand is going up TWO HUNDRED to THREE HUNDRED times.

 

We shall see what happens when these test cases come before Charles J, the vice president of the Court of Protection, but there really are no easy solutions here.  The Law Commission has recognised the need for a complete overhaul of the law on DoLS, but that’s years off.

 

  1. So far as the remaining eight cases are concerned though, I decided to transfer them to the Vice President of the Court of Protection to decide issues at a hearing which I listed as follows:

    1. Whether P must be joined as a party in a case involving deprivation of liberty

    2. Whether the appointment of a rule 3A representative is sufficient in a case involving deprivation of liberty

    3. If P must be joined as a party, in the absence of any suitable person to act as litigation friend, what should be done in circumstances where the Official Solicitor cannot accept an invitation to act.

    4. Whether a family member can act as litigation friend in circumstances where that family member has an interest in the outcome of the proceedings.

    5. Whether other deprivation of liberty cases not before the court on this occasion but which raise similar issues to this case should be stayed pending a determination of the issues recorded at paragraphs 1 to 4.

  2. With regard to the fifth issue, some of the parties expressed the concern that they have other cases listed and they were loathe to incur the cost of a hearing if a similar order is likely to be made or the court will stay the case pending determination of these issues. To address this, I have invited the Vice President to consider staying the cases presently listed such that hearings already listed may be vacated. It occurs to me that he may also wish to consider whether an automatic stay should be imposed on future cases that are issued.
  3. I have taken the course of referring these cases to the Vice President because it is vital that a decision is made on these issues as quickly as possible. None of the parties were equipped to fully argue the issues at the hearing as they would need to prepare: this is not a criticism as the issues were not identified until the hearing. There would therefore need to be another hearing and if so, it must make sense that this hearing produces a judgment from a senior judge which will set out the court’s view on these matters and direct the way forward. There will thus be a saving in time and costs which is consistent with the overriding objective in the court process.
  4. So far as the Official Solicitor is concerned, I do not discharge him in any of these cases and I have ordered him by 4pm on 22 July 2015 to file and serve on the parties a statement which shall:

    1 Provide a full and evidence based explanation of why he cannot cope with the number of deprivation of liberty applications in which he is invited to act as litigation friend

    2 Explain in full detail providing evidence where appropriate as to which areas or processes cause him difficulty and why

    3 Inform the court when he expects to be able to cope with deprivation of liberty cases and the likely time scale in which he can start work on a case.

    4. Provide any other information to the court that will assist the court to make decisions in this case regarding the position of the Official Solicitor.

  5. I believe that this information is vital to allow the court to properly consider his position.
  6. I am also anxious that the court can properly evaluate the availability of a litigation friend in all of the cases apart from MOD where one has been appointed. I therefore ordered the Applicants in each case by 4pm on 22 July 2015 to file a statement which shall:

    1 Explain what steps have been taken to find a litigation friend for P

    2 Set out whether IMCAs or other Advocates or resources are available to act as litigation friend or if not, why they are not available.

    3 List all family members who are willing to act as litigation friend.

  7. I was asked in all the cases to approve the deprivation of liberty of P on an interim basis. I declined to do so because it seems to me that the effect of the Court of Appeal’s judgment is to demand a higher level of scrutiny than the Re X process demanded and on the information available which is in the form of Re X, I am unable to do so. There are also some cases where the information is incomplete. However, my order provides that applications for interim orders can be renewed at the next hearing.
  8. By setting out the issues as they emerged at the hearing and making the orders I have referred to, my aim is to ensure that matters can be adjudicated upon and resolved as soon as possible.

 

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Video-recording (life and death)

Posted on June 29, 2015 by suesspiciousminds

We’ve been having a lively debate about whether or not parents should be able to record their interactions with professionals, and there’s a piece over at the Guardian about it  http://www.theguardian.com/society/2015/jun/17/social-workers-under-scrutiny-parents-camera

 

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

 

St Georges NHS Healthcare Trust and P 2015

Neutral Citation Number: [2015] EWCOP 42

Click to access cop_khan_26.6.15.pdf

 

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

 

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

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

The bit of relevance for us is here:-

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

 

Breaking this down :-

 

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

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

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

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

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

 

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

 

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

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

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

 

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

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

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

 

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

 

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

 

 

 

 

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Financial abuse, Court of Protection

Posted on June 24, 2015 by suesspiciousminds

I have talked before about how I think Senior Judge Lush has probably the best case load in English justice, and this is another one that doesn’t disappoint.

 

It is probably the most blatant bit of financial abuse I’ve come across, and I hope that those involved will get what is coming to them.

 

Re OL 2015

http://www.bailii.org/ew/cases/EWCOP/2015/41.html

 

OL is 77 and has clearly worked hard all of her life and built up savings. She had a stroke and signed a Lasting Power of Attorney to allow her son YS and her daughter DA to manage her financial affairs on her behalf. There was a third son, who as far as I can see is blameless.  Neither DA nor YS were young people, and they had proper jobs – they were not young and impulsive, nor should they have been in financial dire straits.

 

Despite this, they took the money that they were managing on their mother’s behalf and spent it on themselves.

Let’s put it really starkly

In the six months that DA and YS were ‘looking after’ their mother’s finances, she went from having £730,000 to £7,000.

DA and YS on the other hand, had paid off their mortgage, had a loft conversion, bought a new house (entirely with their mother’s money) in which their mother (who paid all of the money) had a 20% stake and DA (who paid not a penny) had a 40% stake and YS (who also paid not a penny) had a 40% stake.

£730,000 to £7,000 in six months, equates to OL’s financial resources dwindling at a rate of £2,800 per day. OR that at the rate of spending, she had about another three days money left.

Or to put it yet another way (going back to Mostyn J * and the Pizza Express case https://suesspiciousminds.com/2015/06/18/taking-forty-thousand-pounds-in-cash-to-pizza-express/)  if OL had instead of appointing deputies, had gone into Pizza Express and bought meals for fifty people a day, for every day over the last six months, she’d probably be slightly better off now.  Or she could have met with the wife in that case and handed over that forty grand in cash EIGHTEEN TIMES and still been better off)

*second best case-load. And to misquote Bill Hicks “you know, after those first two best caseloads, there’s a real big f***ing drop-off”

 

Senior Judge Lush spells out all of the guidance and law on being a person’s deputy under the Lasting Power of Attorney. If you want to see it, you can find it all in the judgment. A key bit is here

 

Paragraph 7.60 of the Code says:

Fiduciary duty

“A fiduciary duty means attorneys must not take advantage of their position. Nor should they put themselves in a position where their personal interests conflict with their duties. They must also not allow any other influences to affect the way in which they act as an attorney. Decisions should always benefit the donor, and not the attorney. Attorneys must not profit or get any personal benefit from their position, apart from receiving gifts where the Act allows it, whether or not it is at the donor’s expense.”

I think I can condense all of the guidance and law into this simple sentence of my own, however   (apologies for Anglo-Saxon language)

 

“If you are appointed as a deputy to manage someone’s financial affairs, it is NOT YOUR FUCKING MONEY”

 

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“I know it when I see it” – deprivation of liberty

Posted on June 11, 2015 by suesspiciousminds

 

Readers will know that I don’t always agree with Mostyn J on issues of deprivation of liberty, but I think that he makes some very powerful points in this case and he makes them well.

 

Bournemouth Borough Council v PS 2015

http://www.bailii.org/ew/cases/EWCOP/2015/39.html

It involves a 28 year old, who the Court is naming “Ben”  (not his real name) who is on the autistic spectrum and has learning difficulties. The Local Authority who are providing him with care, asked the Court to make a ruling as to (a) whether the care package they were providing amounted to a deprivation of liberty and (b) whether if so, the Court would declare that this was in his best interests.

 

Firstly, Mostyn J wanted to ensure that all of the savings that Ben had accrued during his life by living frugally were not immediately eaten up by lawyers, since he would have to pay for a lawyer if represented through the Official Solicitor.  Mostyn J put different arrangements in place to ensure that Ben’s voice was heard, without draining his savings.  I applaud him for that, and it is a shame, that as he says, this may be one of the last times that this clever solution is useable.

  1. By virtue of COP Rule 2007 rule 141(1), as presently in force, Ben, as a party lacking capacity, is required to have a litigation friend. By virtue of great frugality Ben has accumulated appreciable savings from his benefits. It was foreseeable that were Ben to have a litigation friend who instructed solicitors and counsel, his savings would soon be consumed in legal costs. In my own order of 17 March 2015 I caused a recital to be inserted recording my concern that his means should not be eroded by legal costs. That same order recorded that Ben would be referred to the IMCA service for the appointment of an IMCA. That has duly happened and I have had the benefit of a helpful report from the IMCA, Katie Turner, where Ben’s wishes and feelings are clearly set out.
  2. In Re X (Deprivation of Liberty) No. 2 [2014] EWCOP 37 [2015] 2 FCR 28 Sir James Munby P at paras 12 – 15 and 19 explained that Article 6 of the 1950 Convention required that a protected person should be able to participate in the proceedings properly and satisfactorily with the opportunity of access to the court and of being heard, directly or indirectly, in the proceedings. However, these standards did not necessarily require that the protected person should be a party to the proceedings. There was no obstacle to the protected person participating in the proceedings without being a party.
  3. This ruling has been put on a statutory footing by a new rule 3A to the COP rules. This permits the protected person’s participation to be secured by the appointment of a non-legal representative. However this new rule does not take effect until 1 July 2015, some three weeks hence.
  4. In the circumstances, in what I suppose will be one of the last orders of its kind to be made, I directed that Ben be discharged as a party. I was wholly satisfied that his voice has been fully heard through the IMCA Katie Turner. Further, in relation to the question of deprivation of liberty, all relevant submissions have been fully put on both sides of the argument by counsel for the applicant and the first respondent.

 

One of the real hopes about Cheshire West when it went to the Supreme Court was that there would be a working definition of what ‘deprivation of liberty’ actually amounts to.  I didn’t like the Court of Appeal solution that it could be person specific  (i.e that a person with special needs can have less liberty and more restrictions to his liberty than an average person because his needs require it), but the Supreme Court’s acid-test is not proving much simpler than the old tangled case law.

The facts in this case which might have amounted to a deprivation of liberty were these:-

  1. There are no locks on the doors but there are sensors which would alert a staff member were he to seek to leave, although he has never tried to do so. Mr Morrison explained the situation as follows:

    “The property is such he is in theory able to leave his home on his own volition. Since he has lived at his bungalow he has never left of his own accord or verbally requested to leave without staff. However a door alarm is in place which would alert staff should Ben attempt to leave without staff attendance. If Ben were to leave the property without this having been arranged by staff they would quickly follow him, attempt to engage with him, and monitor him in the community. Ben requires one to one staff support at all times in the community. If he decided he didn’t want to return to his home, staff would firstly verbally encourage him to return, if this proved unsuccessful the Manager of Ben’s care agency would be contacted and they or another staff member would arrive and assist. If this proved unsuccessful further advice, support and attendance by Crisis Team and Social Services for crisis management would be sought and to consider whether a Mental Health Act assessment would be required. If this proved unsuccessful then consideration would be given to the attendance of the Police. Police attendance would be determined by the circumstances and if it is deemed his health and safety and that of others are at risk of harm. At all times staff would remain with Ben.”

  2. In his oral evidence Mr Morrison explained that if all attempts to persuade Ben to return home failed they would ask the police to exercise the powers under section 136 of the Mental Health Act 1983 to remove Ben to a place of safety. He also explained that consistently with a duty of common humanity if staff were out with Ben and he appeared to be about to step in front of a car they would prevent him from doing so. He stated in his witness statement:

    “Ben needs 1-1 staff support in the community as he lacks road and traffic awareness. Without staff support Ben would not take into account the traffic or road conditions at any given time. If Ben was unescorted in the community it is highly likely he would walk out into the road presenting a high risk of serious harm to him and potentially others. When Ben is escorted in the community he would be guided either verbally or physically and supported to cross a road and staff would intervene should he put himself at risk of significant harm.”

  3. He accepted under cross-examination that such an act of humanity could not amount to a deprivation of liberty, and I emphatically agree.
  4. In his witness statement Mr Morrison dwelt on one particular aspect of necessary supervision. He stated:

    “There is particular risk associated with Ben accessing public toilets in the community as the result of past incidents of Ben engaging in inappropriate sexual activity in public places including toilets. Ben has no understanding of the rights of other members of the public having access to public toilets safely and that any sexual activity in a toilet is illegal. Ben is supported by staff to access public toilets should he need to do so. … He is encouraged to use the locked cubicle of the disabled toilet and staff have a key to access should this be required. When Ben uses a male communal toilet the worker either remains outside the building or goes inside to support Ben. If Ben does not want to leave the toilet a male worker would enter the toilet and encourage him to leave. If a female worker was in attendance they would remain on site and the manager of the care agency would be called for assistance and attendance. A male worker or the intensive support team worker will arrive to support Ben. If this proved unsuccessful the Intensive support team would be called for specialist support and if unsuccessful then Police would be called.”

 

Remember that in deprivation of liberty, there’s a two stage test. Firstly, are the restrictions such as to amount to a deprivation of liberty? And secondly, if so, are those restrictions in the person’s interests?

I think it is really easy to conflate the two. It is really easy to look at this and say “of course he would be stopped if he tried to run into the road” and rather than answering it as a two stage question to simply combine the two, ending up with “someone with Ben’s difficulties would and should be stopped from running into the road, so no deprivation of liberty”  – but that’s a re-set to the Court of Appeal take on Cheshire West.

The comparison is not of Ben with other people with his difficulties and the liberty that they enjoy, but of Ben with other twenty-eight year olds, or Ben with other adults. Other adults are allowed to leave the place where they live, and are not going to be brought back by the police.  (unless their liberty is being deprived as a result of the criminal justice system, or secure accommodation, or the Mental Health Act, or a Deprivation of Liberty under the MCA).  You might consider it to be daft or irresponsible to give Ben the freedom to leave his home and go wherever he wants even if that’s in the middle of the night, but that’s why there’s the second limb – are the restrictions in his best interests?

Whether they are in his best interests or not, doesn’t stop the fact that the restrictions on his life amount to his liberty  being deprived, that’s a deprivation of liberty.

I think there’s also a blurring of whether deprivation of liberty is to be taken with a silent word ‘complete’ in there.  Few would argue that a man locked up in a prison cell, told when to eat and sleep and when he can exercise or go outside is a complete deprivation of liberty, and that what Ben is experiencing is not qualitively the same thing at all. But the Act doesn’t talk about ‘complete’ deprivation, and nor do the Supreme Court.

 

As Mostyn J says, the fuzziness around the edges of deprivation of liberty lead to applications of this kind being made, and as we saw at the outset, they don’t always make things better for Ben and people like him. He could have had all of his savings chewed up by a technical legal debate that he couldn’t care less about, because the chances are whether a Judge decides that his circumstances amount to a deprivation of liberty or not, the Judge is going to go on and say that the restrictions are in his best interests.

 

  1. In her lecture Lady Hale frankly stated that the decision of the Supreme Court of 19 March 2014 has had “alarming practical consequences”. I was told by Miss Davies that in the immediate aftermath of the decision the rate of suspected DOLs cases in this local authority rose by 1000% (it has recently reduced to 800%). This local authority is one of three in Dorset. Statistics from the Department of Health state that in the six month period immediately following the decision 55,000 DOLs applications were made, an eightfold increase on 2013-14 figures.
  2. The resource implications in terms of time and money are staggering. In the Tower Hamlets case I stated at para 60:

    “Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers.”

  3. I do not criticise this local authority in the slightest for bringing this case. In the light of the decision of the Supreme Court local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyers’ costs) to pay. I remain of the view that the matter needs to be urgently reconsidered by the Supreme Court.

Although I disagree with Mostyn J about the merits of returning to the Court of Appeal Cheshire West decision, I can’t argue with him on the underlined passage. This is not public money being well spent to make people’s lives better. This is a huge amount of money being expended to achieve very little.

 

Mostyn J’s view on the individual case is that the current circumstances do not amount to a deprivation of liberty and that it would only arise at the point where the police were asked to bring him back

 

I cannot say that I know that Ben is being detained by the state when I look at his position. Far from it. I agree with Mr Mullins that he is not. First, he is not under continuous supervision. He is afforded appreciable privacy. Second, he is free to leave. Were he to do so his carers would seek to persuade him to return but such persuasion would not cross the line into coercion. The deprivation of liberty line would only be crossed if and when the police exercised powers under the Mental Health Act. Were that to happen then a range of reviews and safeguards would become operative. But up to that point Ben is a free man. In my judgment, on the specific facts in play here, the acid test is not met. Ben is not living in a cage, gilded or otherwise.

Famously, a group of professionals working in the field were given case studies about various scenarios and asked to conclude whether each was, or was not, a deprivation of liberty and there was barely any consensus. Have things got better post Cheshire West, or are we now arguing relentlessly about ‘acid tests’ and ‘freedom to leave and ‘continuous supervision”?

 

What I like most about Mostyn J is that you never leave one of his judgments without having learned something new. There are not many people who would produce both poetry and an American case about hard core pornography to prove a point, but Mostyn J is one of them, and he has enriched my day by doing so.  I also believe that this case is now legal authority for both the elephant test and ‘if it looks like a duck’ and should you need to demonstrate those principles, you may pray this case in aid.   [The formulation of the duck principle is expressed in slightly different wording to the traditional use, so beware of a pedant challenging you]

 

  1. The continuing legal controversy shows how difficult it is to pin down a definition of what is a deprivation of liberty (i.e. detention by the state) as opposed to a restriction on movement or nothing beyond humane and empathetic care. It has been said on a number of occasions by the Strasbourg Court that the difference is merely one of degree or intensity, and not one of nature or substance (see, for example, Stanev v Bulgaria (2012) 55 EHRR 22 at para 115). Ultimately I think that whether a factual situation does or does not satisfy the acid test is likely to be determined by the “I know it when I see it” legal technique. That received its most famous expression from Justice Potter Stewart in the US Supreme Court in Jacobellis v Ohio (1964) 378 U.S. 184, an obscenity case, where he stated “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [of hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” The technique has been expressed in zoological metaphor. In Cadogan Estates Ltd v Morris [1998] EWCA Civ 1671, a case about a claim for a new lease, Stuart-Smith LJ stated at para 17 “this seems to me to be an application of the well known elephant test. It is difficult to describe, but you know it when you see it”. Another expression is the well known aphorism attributed to the American poet James Whitcomb Riley who wrote “when I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck”. The case of Stanev was perfectly obviously one of rigorous state detention. In describing Mr Stanev’s circumstances the court referred to the “severity of the regime”. The complainant was held in dire conditions in a remote compound enclosed by a high metal fence. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives. The complainant needed prior permission to leave the compound, even to visit the nearby village. He had been denied permission to travel on many occasions by the management. In accordance with a practice with no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. The complainant had in fact been arrested by the police on one occasion.
  2. One does not need to reach for many legal tomes to realise that this was unquestionably a case of deprivation of liberty. The Strasbourg court knew it when it saw it.
  3. In KC v Poland [2014] ECHR 1322 a 72 year old widow, under the apparent care of a social guardian, who had previously been declared to be partially incapacitated, was placed by a court, against her wishes, in a care home on account of chronic schizophrenia and a disorder of the central nervous system. She could ask for permission to leave the care home on her own during the day. When she asked for the court order to be varied to allow her to leave for one hour a day to go to the shops and to allow her to stay in her room all day, this request was declined by the court on the basis that it was provided for by the internal regulations of the care home. The Polish government’s position was that she had never requested permission to leave on her own even for a short period of time. However, and unsurprisingly, the government did not contest that she had been deprived of her liberty under Article 5. It knew it when it saw it. The court, inevitably, agreed. At para 51 it stated:

    “In the present case, although the applicant has been declared only partially incapacitated and although the Government submitted that she could ask to leave the social care home on her own during the day, they did not contest that she had been deprived of her liberty. She was compulsory placed in the social care home, against her will, on the basis of a court decision. Therefore, the responsibility of the authorities for the situation complained of is engaged.”

  4. In my opinion that was a very obvious case of state detention

 

The problem with “I know it when I see it” is that it is going to be completely subjective. As Mostyn J pointed out, if a Local Authority worker or lawyer decides “I know it when I see it” and this isn’t a Deprivation of Liberty, and someone later challenges that it was and was an unlawful one, that then hangs on what a Judge will decide when he or she runs the “I know it when I see it” exercise. If they disagree with the LA, financial consequences will rack up. It is risk and uncertainty, and who wants risk and uncertainty?  (other than casinos and fans of Game of Thrones)

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

Posted on May 22, 2015 by suesspiciousminds

 

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

Re XZ 2015

http://www.bailii.org/ew/cases/EWCOP/2015/35.html

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

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

 

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

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

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

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

    This has been designed to prevent:

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

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

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

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

 

 

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

 

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

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

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

 

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

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

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

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

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

 

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

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

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

 

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

So, what’s the decision?

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

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

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

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

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

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

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

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

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

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Costs argument between Official Solicitor and Mail on Sunday

Posted on May 15, 2015 by suesspiciousminds

 

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

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

 

I summarised all the controversial litigation in this post here https://suesspiciousminds.com/2014/05/02/journalists-right-to-private-and-family-life-with-her-source/

 

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

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

 

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

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

http://www.bailii.org/ew/cases/EWCA/Civ/2015/446.html

 

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

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

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

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

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

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

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

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MN (adult) 2015 – Court of Appeal pronouncements

Posted on May 7, 2015 by suesspiciousminds

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

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

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

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

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

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

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

http://www.bailii.org/ew/cases/EWCA/Civ/2015/411.html

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

 

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

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

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

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

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

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

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

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

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

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

    Balcombe LJ continued:

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

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

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

 

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

 

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

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

 

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

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

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

 

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

 

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

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

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

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

    Precisely so.

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

 

That last point segueways into all of the Practice pronouncements.

Let’s start with bundles.

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

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

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

 

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

What else?

 

Timescales

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

 

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

What else?

Lack of rigour in defining the argument

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

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

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

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

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

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

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

 

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

 

The quest for perfection

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

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

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

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

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

 

Declarations

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

 

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

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Bodey and DoLs

Posted on March 23, 2015 by suesspiciousminds

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

 

W City Council v Mrs L  2015

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

 

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

 

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

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

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

Here’s what the restrictions amounted to:-

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

 

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

 

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

 

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

 

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

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

 

 

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

Even Professionals can find Deprivation of Liberty confusing

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