Category Archives: court of protection

Manuela Sykes

Posted on February 27, 2014 by suesspiciousminds

 

Manuela Sykes, from what I have read about her, sounds like an amazing woman. I hope that her actions in this case make a difference for others like her in the future.

http://www.bailii.org/ew/cases/EWHC/COP/2014/B9.html

Lucy Series over at The Small Places has written an amazing and moving article about this woman, and it is far better than anything that I will manage, so go and read that

http://thesmallplaces.blogspot.co.uk/2014/02/i-was-ever-fighter-so-one-fight-more.html

Manuela was 89 and suffered from dementia. It was considered by Westminster that she could not be kept safe in her own home, so they placed her in a secure home and (very commendably) made an application to the Court of Protection for authorisation of Deprivation of Liberty  (making that application allowed Manuela to be represented and to challenge that and made it a judicial decision rather than an administrative one. That was a damn fine thing to do, well done Westminster)

District Judge Eldergill decided the case, and I would like to say that it is a model judgment – I hope it blazes a trail that others will follow.  (Justice Jackson decided a case on a similar rationale in 2013, a judgment I praised highly at the time)

Ms S has had a dramatic life, and the drama is not yet over.

She has played a part in many of the moral, political and ideological battles of the twentieth century. A vegetarian from an early age; a lifelong feminist and campaigner for women’s rights; a Wren in the Fleet Air Arm; a committed Christian; a political activist who stood for Parliament; a councillor on the social services committee of the local authority that now authorises her deprivation of liberty; the editor for 40 years of a trade union newspaper; a helper of homeless people and an advocate for them; and a campaigner for people with dementia, from which condition she now suffers herself.

The court is not concerned with her particular political views, whether they are left or right of centre, and nor is it concerned with her religious views. These are matters for her. Their main relevance to this court is that by nature she is a fighter, a campaigner, a person of passion. She appears always to have placed herself in the public eye, in the mainstream, rather than ‘far from the madding crowd,’ debating the issues of the day, causing, accepting and courting controversy.

In 2006, she was diagnosed with dementia and appears to have responded to that in the same forthright manner with which she has approached everything else in her life. She participated in a dementia project and campaigned for the rights of dementia sufferers, in particular older women. In December 2006, she made a living Will. Some time later, in 2011, she appointed an attorney for property and affairs, a person she trusted to act for her in accordance with guidance set out in her LPA (attorney) document.

I DECLARE THAT if at any time any of the following circumstances exist, namely:

1 I suffer from one or more of these conditions: ….

1.5 senile or pre-senile dementia (e.g. Alzheimer’s disease); ….

2 I have become unable to participate effectively in decisions about my medical care; and

3 Two independent doctors (one a consultant) are of the opinion, having examined in full my circumstances and prognosis, that any of the following apply:

3.1 there is no reasonably likelihood of substantial recovery from illness involving severe pain and distress and from which it is likely I will die in the near future; or

3.2 I am in a state of unconsciousness or coma and it is unlikely that I will regain consciousness; or

3.3 I suffer from a mental illness resulting in me having a very limited awareness of my surrounding environment and an inability to perform basic tasks and from which it is unlikely that I will recover.

THEN AND IN THOSE CIRCUMSTANCES my directions are as follows:

1 That I am not to be subjected to any medical intervention or treatment aimed at prolonging or sustaining my life;

2 That I consent to the control of physically distressing symptoms…by appropriate and aggressive palliative care even if such care is likely to have the effect of shortening my life ….

That document proved to be very important, and I hope that this case will highlight how important such documents can be in protecting your wishes – amongst other things, it ensured that Manuela’s desire that her name should be published if she ever came before the Court of Protection meant that I can name her, and gives a much greater chance that the mainstream press will follow her story.

On the issue of capacity, the Judge found that Manuela, did, as a result of her dementia lack capacity to make decisions for herself about where she should live

Effect of this dementia on MS’s capacity to make the relevant decisions

Ms S is intelligent, articulate and knowledgeable. She has no difficulties expressing herself. That her core personality is intact is clearly demonstrated by her continuing and passionate commitment to the causes to which she has dedicated her life. Her weight is healthy, physically she looks many years younger and fitter than her chronological age, she presents well and her care is good. There are, therefore, currently no signs of neglect or refusal of care.

Unfortunately, this is not the whole picture. Her short-term memory is very severely impaired. Because she is so intelligent and articulate, this may not be immediately apparent from a brief superficial exchange.

Following an examination on 2 December 2013, Dr Barker reported that her short-term memory is less than one minute. It is this inability to retain information which lies at the root of many of her recent difficulties. The consequence is that she is unable to retain, nor therefore weigh, information (highly) relevant to the decisions about the treatment, care and support she requires.

In particular, she cannot recall the circumstances and behaviour that caused others to remove her from her own home to hospital and to transfer her to residential care. Lacking this information, she does not accept that she had significant problems at home, nor therefore that she requires a significant package of care and support. Nor can she appreciate that, without additional care, it is likely that the problems will be the same as before, because the situation is the same as before. It is recorded that she has a tendency to become defiant when these issues are raised. This is logical and understandable because, unless one has a memory of the previous difficulties, the professional view must appear patronising and intrusive, and the problems made-up or grossly exaggerated.

Sadly, the preponderance of the evidence requires a conclusion that MS lacks capacity to make the relevant decisions for herself. She frequently asks, ‘Why am I here’ because she cannot remember how her situation has arisen, nor therefore understand and weigh the reasonably foreseeable consequences of accepting or refusing necessary care or support.

To summarise, I accept the professional and family view that she lacks the capacity to make these decisions for herself because her dementia has affected her ability to understand, retain and weigh the relevant information. It is more than simply an unwise decision that she chooses to make, if free to do so.

I admire District Judge Eldergill immensely for being honest about the dilemma before the Court – there was no solution that would keep Manuela Skyes HAPPY AND SAFE – there was a choice to be made between the two.

Having summarised the legal framework, I must consider MS’s best interests in the context of it.

There is, of course, no solution.

In the suggested care settings the situation will be less than optimal.

None of the options canvassed with the court will provide Ms S with security, safety, liberty, happiness, an absence of suffering and an unrestricted home life. These different considerations cannot all be reconciled and promoted within a single setting, and the realisation of some of them must inevitably involve the sacrifice of others. The task is to choose which of these legitimate values and aims to compromise and which to give expression to, in her best interests.

The Judge addressed how Manuela Sykes expressed wishes fed into the best interests decision – underlining is mine – expect to see this quoted fairly often

S’s wishes and feelings are important factors to be taken into account when reaching my decision: after all, why would anyone wish someone to be cared for otherwise than in accordance with their wishes if they can be adequately cared for in accordance with their wishes?

In taking her wishes and feelings into account, I have considered the case of ITW v Z, [19] the degree of incapacity, the strength and consistency of her views, the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes), the extent to which her wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings can properly be accommodated within the court’s overall assessment of her best interests.

I have noted the consistency of her wishes and feelings; the effect on her mental health, happiness and well-being of the continued loss of her home; her attitude towards institutional life and the importance to her of her freedom. She values her privacy and the sense of security at home.

MS is still able to appreciate and express the value of being at liberty and being allowed autonomy. [20] The importance of individual liberty is of the same fundamental importance to incapacitated people who still have clear wishes and preferences about where and how they live as it is for those who remain able to make capacitous decisions. This desire to determine one’s own interests is common to almost all human beings. Society is made up of individuals, and each individual wills certain ends for themselves and their loved ones, and not others, and has distinctive feelings, personal goals, traits, habits and experiences. Because this is so, most individuals wish to determine and develop their own interests and course in life, and their happiness often depends on this. The existence of a private sphere of action, free from public coercion or restraint, is indispensable to that independence which everyone needs to develop their individuality, even where their individuality is diminished, but not extinguished, by illness. It is for this reason that people place such weight on their liberty and right to choose.

Any written statements made by her when she had capacity

Ms S’s living Will and the guidance in her Lasting Power of Attorney are written statements which I have considered and taken into account. They indicate a wish to remain in her own property for as long as ‘feasible’ and in general that she prioritises quality of life over the prolongation of life (see §5).

Relevant beliefs and values

The law requires objective analysis of a subject not an object.

Ms S is the subject.

Therefore, it is her welfare in the context of her wishes, feelings, beliefs and values that is important. This is the principle of beneficence which asserts an obligation to help others further their important and legitimate interests. In this important sense, the judge no less than the local authority is her servant, not her master.

Applauds

The available evidence indicates that Ms S’s relevant beliefs and values include a very strong belief in and commitment to the value of open public debate and social services for those who need them.

She has unambiguous opinions about what is right and what is wrong, and has spent much of her life airing those opinions. It seems plain that it is fundamental to her nature and purpose in life that she is free to air and promote her political and personal values through discussion, marches, rallies, newspapers, campaigning and other forms of political activity.

She has a strong will to change the world, to influence others and to draw their attention to the plight of those she believes need and deserve more care, such as the homeless and people experiencing dementia. She also has a strong desire to promote the interests of those she believes are politically disadvantaged: women as compared with men; the homeless compared to those with homes; the older and more frail compared with the younger and fitter; and, to use her term, the ‘double whammy’ disadvantage of older women.

These political and personal values have a religious element, evident from her expressed religious beliefs and attendance at church services and Quaker meetings.

One thing she seems never to have lacked is courage and a willingness to place herself at the centre of public debate and attention. She stood in two Parliamentary by-elections and campaigned to have Buckingham Palace rated. Indeed, the impression is that she relishes being at the centre of public events because it means that she is exerting influence; is being heard; is affecting the outcome of social issues important to her.

All of this is highly relevant when it comes not only to the court’s decision concerning her care package but also, and perhaps even more so, the decision whether she should remain anonymous or be identified as the person at the heart of her case. What she has done with her life indicates that she has always wanted to be ‘someone’, to have influence.

Realistically, this is her last chance to exert a political influence which is recognisable as her influence. Her last contribution to the country’s political scene and, locally, the workings and deliberations of the council and social services committee which she sat on.

On a personal level, her strong sense of self, her belief in the importance of the individual, her desire for freedom and autonomy are magnetic factors, operating at positive and negative poles by providing both the pull of freedom and the counterforce of resistance to outside care.

It is undoubtedly hyperbole to suggest that Manuela Sykes is the Rosa Parks of dementia, but what the hell – that is how I feel about her at this moment.

It is my view that it is in Ms S’s best interests to attempt a one-month trial of home-based care.

Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed.

The judgment was published, and Manuela’s name not anonymised – in accordance with what she had asked for. The Judge does make this very good observation about “secret Courts” though, and I think it has wider application

Under the Court of Protection Rules 2007, the general rule is that a hearing is to be held in private.

This reflects the personal, private, nature of the information which the court is usually considering.

That is not the same as being secretive; a GP is not a ‘secret doctor’ because the press have no unqualified right to be present during patient consultations or to report what is said. All citizens have a right to expect that information about them will be held in confidence by their doctors and social workers, and to expect that any overriding, future, need to breach this right will go no further than necessary, and only exceptionally involve seeing it in national newspapers.

Everyone benefits from, and enjoys, this level of privacy and therefore there is a strong public interest in privacy. Not to allow an incapacitated person the same general right to privacy or confidentiality that we claim it for ourselves would be to discriminate against them because of their mental illness and vulnerability.

The one, highly important, difference is that whilst in an ideal world incapacitated people would have exactly the same right to privacy and confidentiality that the rest of us enjoy, when judges make decisions for them this brings into play the competing consideration that the public ought to know how courts of law function and administer justice: what kinds of decisions they are making, the quality of those decisions, and so forth.

While it is sometimes necessary to distinguish between ‘the public interest’ and ‘matters which the public finds interesting,’ there is a high public interest in seeing that hearings which determine the rights of incapacitated people, and their families, are fair and properly administered.

[You don’t often get cases where everyone involved comes out of it well, but this is one]

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Blood transfusions, jehovah’s witness and court of protection

Posted on February 27, 2014 by suesspiciousminds

The decision of the Court of Protection in Newcastle Upon Tyne Hospitals Foundation Trust and LM

http://www.bailii.org/ew/cases/EWHC/COP/2014/454.html

Readers may be aware that followers of the Jehovah’s Witnesses faith are staunchly opposed to blood transfusions and will not accept them for themselves, even if that means losing their life. There has been quite a lot of litigation in the past about children whose parents have that faith, who require blood transfusions. A somewhat uneasy accommodation has been reached whereby the parent won’t agree but won’t stand in the way of the Court making an order that the child must have a blood transfusion.

An adult Jehovah’s Witness is legally entitled to refuse blood transfusion for themselves. It may seem silly and reckless to us, but it is a central part of their belief and faith, and they are entitled to make that decision for themselves.

That leaves one gray area – what happens where an adult Jehovah’s Witness lacks capacity and then needs a blood transfusion if they are to survive? What should the Court decide is in their best interests?

Not sure there’s a right answer here, and I expect it might cause some debate in the comments section.

On 18 February, an application was made by the Newcastle upon Tyne Hospitals Foundation Trust for a declaration that it would be lawful to withhold a blood transfusion from LM, a gravely ill 63-year-old female Jehovah’s Witness. The application came into the urgent applications list at short notice. When it was made, the medical view was that LM might not survive for as long as a day in the absence of a blood transfusion and that even if one was given, she might still die. A decision had to be taken there and then. I took the view that it was not practicable or necessary for a litigation friend to be appointed.

In this case, the Judge made the following declaration

It shall be lawful for the doctors treating LM to withhold blood transfusions or administration of blood products notwithstanding that such treatments would reduce the likelihood of her dying and might prevent her death.

Sadly, LM died before judgment could be given

    1. This judgment concerns these questions:

 

    • Did LM (before she became unable to do so) have the capacity to make a decision to refuse a blood transfusion?
    • If so, did her decision apply to her later circumstances?
    • Alternatively, if the answer to either of the above questions was ‘no’, was the Trust’s proposal to withhold a transfusion in her best interests?

 

The Court heard from witnesses about LM’s capacity and her wishes and faith

    1. In this context, I heard from Mr R, who first met LM in 1975 and had known her ever since. He last saw her shortly before her admission. He brought letters from three other members of the congregation who knew her. Mr R described LM as a formerly active member of the congregation who fully subscribed to the tenets of the faith (including its opposition to blood transfusion) and had taught them to others, although she had become less engaged in recent years. Her beliefs on the question had been consistent. He says that if LM had been able to speak for herself she would have been distraught at the prospect of receiving a transfusion.

 

    1. Speaking on his own behalf, and expressing the united medical view, Dr C said that the evidence available to him suggested that during her time in hospital and up to 13 February LM had had capacity. There was no evidence that mental illness had interfered with her decision-making. He considered that her decision applied to her life-threatening situation, which was an unfortunate but natural progression from her underlying condition. He considered that her clearly stated views should be respected.

 

    1. Dr C said that the treating doctors intended to continue to withhold blood products, recognising that this compromised their ability to provide full care. LM would continue to receive full active medical care in all other respects in an attempt to bring her through until it became clear that all attempts were futile. At that point the team would act in her best interests as with any critically ill patient.

 

    1. The Trust’s submission was that LM had clearly made her wishes known even with knowledge of death. Alternatively, if it was a matter of best interests, the Trust did not wish to act against her wishes, being concerned to respect her individual dignity.

 

    1. Addressing the question of capacity, I find as follows:

 

1) Prior to the afternoon of 13 February, LM had the capacity to decide whether to accept or refuse a blood transfusion. There is no evidence that her underlying mental illness rendered her unable to make a decision (MCA s.2(1)). The presumption of capacity (s.1(2)) was not displaced and the criteria for capacity (s.3) were on the balance of probabilities met. I am satisfied that LM understood the nature, purpose and effects of the proposed treatment, including that refusal of a blood transfusion might have fatal consequences. 2) The decision taken by LM prior to her loss of capacity was applicable to her later more serious condition. There was no difference in kind and I am satisfied that she intended her decision to be effective in the circumstances that subsequently arose.

    1. In consequence, I find that LM made a decision that the doctors rightly considered must be respected.

 

    1. In the alternative, if LM had not made a valid, applicable decision, I would have granted the declaration sought on the basis that to order a transfusion would not have been in her best interests. Applying s.4(6) in relation to the specific issue of blood transfusion, her wishes and feelings and her long-standing beliefs and values carried determinative weight. It is also of relevance that a transfusion might not have been effective to save her life.

 

  1. The right to life (Art. 2 ECHR) is fundamental but it is not absolute. There is no obligation on a patient with decision-making capacity to accept life-saving treatment, and doctors are neither entitled nor obliged to give it   
  2.     The next issue was delicate and difficult – should there be a Reporting Restriction Order preventing LM’s real name being made public? All of the law on RROs relate to living persons and that made it uncertain as to whether an RRO could be made – the Judge took the pragmatic view that he would make the order and if anyone really wanted to litigate the issue then they could do so at a later stage
  3.  
  4.  
  5. The remainder of this judgment concerns an application for a Reporting Restriction Order made by the Trust on 24 February. At the hearing on 18 February I indicated that I would grant such an order subject to the proper procedures being followed, which eventually they were. I intended to formally make the order when handing down judgment on 26 February, but LM’s death intervened. Accordingly, I heard further submissions from Mr Speker and Mr Farmer about the appropriate course to take.
  6. The court has jurisdiction to make an order during the lifetime of a patient that will continue to have effect after death unless and until it is varied: Re C (Adult Patient: Restriction of Publicity After Death [1996] 1 FCR 605. The situation here is different in that the patient is no longer alive. The unusual circumstances raise interesting questions about the court’s jurisdiction to restrict the reporting after a person’s death of information gathered during proceedings that took place during her lifetime.
  7. It seems to me that the proper approach is to make an order that preserves the situation until the time comes when someone seeks to present full argument on the question. I will say no more than that for the present
  8. I make a Reporting Restriction Order preventing the naming of LM, and the medical and care staff who looked after her and the two Jehovah’s Witnesses who participated in the proceedings. It does not prevent the naming of the Trust or the hospital, nor discussion of the underlying issues or the court’s procedures. Anyone affected by the order may apply to vary or discharge it, whereupon its terms or existence will be looked at afresh.

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Incapacity cannot be deduced from isolated incidents of eccentric reasoning

Posted on February 27, 2014 by suesspiciousminds

The Court of Protection decision in Heart of England NHS Foundation Trust and JB 2014

http://www.bailii.org/ew/cases/EWHC/COP/2014/342.html

In this case, the Court of Protection, in the form of Mr Justice Peter Jackson, was faced with an application by the Hospital for a declaration that JB, who was not consenting to an amputation, lacked capacity to make that decision and that the surgery was in her best interests.

The case throws up some interesting issues, and I think it leads fairly neatly into my next piece, in suggesting that the Court of Protection may be moving away from a patrician “State knows best” view of cases towards a more “vulnerable people are owed some respect for their wishes and feelings” view.

You can’t really sum up the whole issue of capacity and declarations about capacity much better than the Judge does here – it is an excellent distillation of the balancing act that the Court has to perform

    1. The right to decide whether or not to consent to medical treatment is one of the most important rights guaranteed by law. Few decisions are as significant as the decision about whether to have major surgery. For the doctors, it can be difficult to know what recommendation to make. For the patient, the decision about whether to accept or reject medical advice involves weighing up the risks and benefits according to the patient’s own system of values against a background where diagnosis and prognosis are rarely certain, even for the doctors. Such decisions are intensely personal. They are taken in stressful circumstances. There are no right or wrong answers. The freedom to choose for oneself is a part of what it means to be a human being.

 

    1. For this reason, anyone capable of making decisions has an absolute right to accept or refuse medical treatment, regardless of the wisdom or consequences of the decision. The decision does not have to be justified to anyone. In the absence of consent any invasion of the body will be a criminal assault. The fact that the intervention is well-meaning or therapeutic makes no difference.

 

    1. There are some who, as a result of an impairment or disturbance in the functioning of the mind or brain, lack the mental capacity to decide these things for themselves. For their sake, there is a system of legal protection, now codified in the Mental Capacity Act 2005. This empowers the Court of Protection to authorise actions that would be in the best interests of the incapacitated person.

 

    1. The Act contains a number of important general principles regarding capacity:

 

  • A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain: s.2(1).
  • A person must be assumed to have capacity unless it is established that he lacks capacity: s.1(2).
  • The question of whether a person lacks capacity must be decided on the balance of probabilities: s.2(4).
  • A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success: s.1(3)
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision: s.1(4).
  • A lack of capacity cannot be established merely by reference to—

(a) a person’s age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity: s.2(3).

    1. These principles reflect the self-evident seriousness of interfering with another person’s freedom of action. Accordingly, interim measures aside, the power to intervene only arises after it is has been proved that the person concerned lacks capacity. We have no business to be interfering in any other circumstances. This is of particular importance to people with disadvantages or disabilities. The removal of such ability as they have to control their own lives may feel an even greater affront to them that to others who are more fortunate.

 

    1. Furthermore, the Act provides (s.1(6)) that even where a person lacks capacity, any interference with their rights and freedom of action must be the least restrictive possible: this acknowledges that people who lack capacity still have rights and that their freedom of action is as important to them as it is to anyone else.

 

  1. The temptation to base a judgement of a person’s capacity upon whether they seem to have made a good or bad decision, and in particular upon whether they have accepted or rejected medical advice, is absolutely to be avoided. That would be to put the cart before the horse or, expressed another way, to allow the tail of welfare to wag the dog of capacity. Any tendency in this direction risks infringing the rights of that group of persons who, though vulnerable, are capable of making their own decisions. Many who suffer from mental illness are well able to make decisions about their medical treatment, and it is important not to make unjustified assumptions to the contrary.

 

By way of background to this case

    1. It concerns a 62 year old lady named JB. In earlier life, before she became too unwell, she undertook responsible work. She now lives with her twin sister. She is described by her Community Psychiatric Nurse as a strong willed woman who before her latest illness was good at needlework and art, enjoyed reading, attended her local church and took a lot of interest in community events.

 

  1. JB has a number of mental and physical disabilities. In her 20s, she was diagnosed as suffering from paranoid schizophrenia for which she has received treatment of various kinds, including during several involuntary hospital admissions, the last being in 2005. Since then she has been subject to what is now known as a Community Treatment Order. She lacks insight into her mental illness but accepts antipsychotic medication to avoid being returned to hospital.
    1. On New Year’s Eve, JB, having been unwell for several days, was readmitted and has remained in hospital since then. Her right foot was now entirely mummified and by the end of January it had come off, leaving an unresolved wound. Once again, the advice of the surgeons was that an amputation was necessary to allow the wound to be closed and to prevent it becoming infected. JB continued to refuse consent for this on some occasions, though she expressed agreement on others. Indeed, on 4 February she signed a consent form. Once again, doubts were expressed about her capacity, with no clear conclusion being reached. An example is the report of Dr B, who assessed JB on 14 January and concluded that “I am of the opinion that one needs to be certain of her capacity to consent or refuse the proposed intervention… However one cannot say with certainty she lacks capacity.” It was again agreed that an application would be made to the Court of Protection.

 

    1. In the meantime, discussion was taking place between surgeons, physicians and consultants in rehabilitation as to the nature of the amputation that would be most appropriate. At different times, it has been suggested that there should be amputation below the knee, through the knee or above the knee. Each option has important consequences in relation to the process of rehabilitation and the possibility of the patient walking in future. At the outset of this hearing the Trust’s position was that a through-knee operation should be approved, but this then changed to a recommendation for a below-knee operation. It is to be noted that the consent form signed by JB only two days before the proceedings began had covered an above-knee operation. The relevance of all of this is that the attempts to assess her capacity have taken place against a background of shifting medical opinion.

 

  1. On 6 February, the Trust applied to the court for a declaration that JB lacks capacity to make a decision about serious medical treatment. It sought a declaration that it would be in her best interests to have a through-knee amputation and for her to be sedated if she resisted.

21. I turn to the question of whether JB has the capacity to decide whether or not to consent to amputation of her right leg. The Trust says that she does not, relying upon evidence given by Dr O. The Official Solicitor says that she does, relying upon the evidence of Dr Pravin Prabhakaran, consultant psychiatrist, and Mr Jack Collin, consultant surgeon. Each of these witnesses has assessed JB during the past week and gave evidence during the hearing.

 

The issue of capacity was a critical one – the Judge makes it manifestly plain – if a person has capacity to consent to surgery and understands the pros and cons and risks and benefits to make an informed choice then they also have the capacity to say no. The surgery could not be performed on JB if she had capacity, because she has the right to say no.  IF she lacked capacity, then the Court would still have to consider whether the surgery was in her best interests (which does not mean simply substituting what a rational person might do in her shoes, but a consideration of what is in HER best interests)

Frankly, if surgeons came to me and said that they couldn’t agree on whether to cut my leg off above the knee, below the knee or through the knee, I wouldn’t consent to an amputation – I’d tell them to go away and come back when they know between themselves which it was.

The Judge makes a very good point about the process of assessing a person’s capacity

What is required here is a broad, general understanding of the kind that is expected from the population at large. JB is not required to understand every last piece of information about her situation and her options: even her doctors would not make that claim. It must also be remembered that common strategies for dealing with unpalatable dilemmas – for example indecision, avoidance or vacillation – are not to be confused with incapacity. We should not ask more of people whose capacity is questioned than of those whose capacity is undoubted.

 

Absolutely. Anyone faced with that decision would have had some emotional reaction to it, and some changes of heart, some denial, some over-optimism, some hopelessness. It is not fair to set the test of capacity as though the person had to approach the decision as though they were Mr Spock, coolly and dispassionately considering the pros and cons.

On assessing the conflicting medical evidence about capacity, the Judge broadly considered that those who claimed she did not have capacity were placing too high a test on JB  (underlining mine)

    1. At the hearing evidence was taken from Dr O and Dr Prabhakaran via a telephone conference call (so that the latter heard the former’s evidence), and from Mr Collin in person.

 

    1. Dr O has been JB’s community psychiatrist since October 2013. She has seen her three times: October, January and 12 February. She advises that JB lacks insight into her mental state and does not believe that she has a mental illness. This is not uncommon with schizophrenia. Dr O believes that in relation to her physical health, JB can understand and retain some but not all of what is being said by the doctors, but that her ability to weigh the information is compromised by her tendency to minimise and disbelieve what the doctors are telling her. She conceded that JB’s approach was possibly a normal reaction but said that she is not convinced that she had actually weighed all the evidence that she had been given. Nonetheless, over time JB has shown more belief and greater engagement, telling Dr O that she is frightened of surgery.

 

    1. Dr O advises that schizophrenia can have an effect on cognition but she was not in fact able to give any clear instance of irrationality in JB’s current thinking. She went so far as to say that the rejection of a through-knee operation was evidence of incapacity, although by the time she gave evidence this had been dropped as a plan.

 

    1. I note that as recently as 16 January, Dr O and Dr B expressed themselves unable to reach a conclusion as to whether JB had capacity and that during her assessment on 12 February, Dr O obtained only limited co-operation from JB.

 

    1. Dr Prabhakaran assessed JB on 9 and 12 February. She was more communicative with him than with Dr O, possibly because she regarded him as someone who is not implicated in her Community Treatment Order. He confirms the diagnosis of schizophrenia and the absence of any psychotic features or depression. He says that he had a detailed discussion with her about the various forms of amputation. JB was able to understand the main benefits and risks associated with each procedure, including the risk of death. He found her consistent in her views and reasoning process. She was very well orientated and had no problem with understanding or retaining information.

 

    1. Dr Prabhakaran discussed the then proposed through-knee operation, saying that it was the doctors’ preferred option. JB replied: “It is not my preferred option… I have a horror of the whole thing”. She said that she wanted her leg to remain as long as possible and only wanted any necrotic part removed. If she was to have an operation she wanted a longer leg and a hope of walking. She does not want to live her life with a shorter leg.

 

    1. During this conversation, JB would often pause for a long time before answering. Dr Prabhakaran considered this an effect of her schizophrenia impacting on her cognitive functioning, possibly alongside tiredness and the hospital environment. He says that given time, she can process and communicate her clear wishes. He is confident that JB has capacity to make a decision with regard to surgery, including a decision not to have it.

 

    1. Mr Collin assessed JB from a surgical perspective on 13 February. His conversation with her gave him a full opportunity to assess her understanding, as would be normal in such a case. His report details a full conversation. JB was able to give him a lucid and coherent medical history. In Mr Collin’s experience, few patients would give a better account. She has a tendency to minimise, but this is a natural response and not evidence of any incapacity. Mr Collin is aware that JB is mentally ill but throughout the discussion she gave him no reason to suspect a lack of capacity to consent or withhold consent for any essential operation.

 

    1. Mr Collin explained that JB’s decision in October to refuse surgery was unusual but not illogical and that from the medical perspective the loss of the foot by natural processes had been satisfactory. Surgically, her position is better now than it had been in October in that she is not currently suffering from any infection. As matters now stand, it is Mr Collin’s opinion that a below-knee amputation is the only sensible clinical decision to make, but if JB does not want this there would be no compelling reason to seek to persuade her otherwise. A substantial risk of infection with possibly life-threatening consequences in the longer term undoubtedly exists and the medical advice from any surgeon in the land would be clear, but she does not have to take it. Apart from anything else, the greater short-term risks arise from remaining in hospital with the risk of infection and from the small but not insignificant possibility of a major adverse consequence from surgery of this kind.

 

    1. It was, perhaps surprisingly, suggested to Mr Collin that he lacked the expertise to assess capacity. He accepted that the assessment of mental illness was outside his remit but said that he was well qualified to assess the capacity of patients to consent to operations. I agree. All doctors and many non-medical professionals (for example, social workers and solicitors) have to assess capacity at one time or another. Bearing in mind JB’s longstanding mental illness it is entirely appropriate that the core assessment of her capacity comes from psychiatrists, but other disciplines also have an important contribution to make.

 

    1. The combined and complementary evidence of Dr Prabhakaran and Mr Collin provides powerful confirmation that JB has the ability to understand, retain and weigh and use the necessary information about the nature, purpose and effects of the proposed treatment. I accept the view of Dr Prabhakaran that JB’s schizophrenia is relevant to the way in which she decides, and not to her capacity to decide. Her tendency at times to be uncommunicative or avoidant and to minimise the risks of inaction are understandable human ways of dealing with her predicament and do not amount to incapacity.

 

    1. I depart from the assessment of Dr O because I am not satisfied that she establishes the necessary link between JB’s mental illness and the alleged incapacity. Further, her analysis demands more of JB than the law requires. It is not for JB to understand everything, or to prove anything. Dr O among others has perfectly properly raised questions about JB’s capacity, but her evidence does no more than that and does not discharge the burden upon the Trust.

 

  1. I do not accept the Trust’s submission that incapacity can be deduced from isolated instances of eccentric reasoning on the part of JB: for example, agreeing to intravenous antibiotics or blood transfusion but refusing the necessary cannulation. I also reject the submission that those who conclude that JB does not lack capacity have failed to grapple with the facts that (i) she undoubtedly lacks capacity in relation to treatment for her mental illness and (ii) she has lacked capacity in relation to surgical treatment in the past and (iii) she has changed her position from refusal of all surgery to a willingness to contemplate an operation of some kind, a situation calling for investigation. As to the first element, as has already been said, there is no necessary correlation between a lack of insight into schizophrenia and incapacity to decide about surgery. The second element begs the question, in that it has not been established that JB has ever lacked capacity to decide about surgery. Finally, the development in JB’s thinking about amputation was in my view well understood by Dr Prahakaran. Insofar as it calls for any explanation, her view has evolved over time in a way that is consistent with her mental state.

 

A particular issue arises, and is dealt with in paragraph 28 – there was a time in the process, when JB was accepting that surgery was the right option (i.e following the medical advice). There’s always a risk in these situations that one tends to assume that the person has capacity when they make a decision that the doctor supports – just because JB agreed with the doctor does not mean that she had capacity. If she had said no, on the same day, the temptation would have been to dispute that she had capacity to say no, but the test and principles are the same. The ability to say no doesn’t require more capacity than the ability to say yes.

 

28. A similar issue arises from the statement of Dr W, a vascular surgeon. In common with the other surgeons he believes that an amputation is in JB’s best interests. Writing on 5 February, he said “…we now have a window of opportunity as she has become cooperative with her medical management and has consented to the operation…” There is a danger that in a difficult case like this the patient is regarded as capable of making a decision that follows medical advice but incapable of making one that does not.

 

The conclusion therefore was that JB had capacity, and that there was no locus to make a declaration. It seemed that JB might be more willing to consent to the surgery, but that had to be her free choice.

My conclusion is that JB undoubtedly has a disturbance in the functioning of her mind in the form of paranoid schizophrenia (as to which she lacks insight), but that it has not been established that she thereby lacks the capacity to make a decision about surgery for herself. On the contrary, the evidence establishes that she does have capacity to decide whether to undergo an amputation of whatever kind. She now appears to be open to having the below-knee operation that the doctors recommend. Whether she has it will be a matter for her to decide for herself with the support of those around her.

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“Wrapping a person in forensic cotton wool”

Posted on February 17, 2014 by suesspiciousminds

The Court of Appeal recently decided a particularly tricky legal point in  IM v LM 2014

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/37.html

 

That point being, when it comes to issues of capacity to consent to sexual intercourse, is it “Act-Specific”  (as concluded in civil cases such as A Local Authority v TZ [2013] EWHC 2322 (COP))  or is it “person specific”  (as considered in the criminal case of R v Cooper  Regina v Cooper [2009] UKHL 42, [2009] 1 WLR 1786 ,  which was a House of Lords case)

 

That may seem a narrow distinction, so I’ll try to explain it.

 

In the civil cases (usually Court of Protection) the law has usually been expressed as being an act-specific test.

 

Does the person lack capacity and understanding, and the three things needed to be understood are :-

 

  1. The mechanics of the sex act
  2. The possible consequence of pregnancy (and how to avoid this)
  3. The possible consequence of sexually transmitted disease (and how to avoid this)

 [In the Court of Protection, where a person doesn’t understand this, they can be given education and help to see if they can develop that understanding, and it is only if that doesn’t work that a person should be declared as lacking capacity to consent to sex]

 

Whereas in the criminal courts, following R v Cooper, there has been the additional possibility that the person needed the ability to not only consent to sex generally, but to be able to weigh up the choice of having sex with this individual person, in this individual situation.

 

Cooper was a difficult case, and the facts were that  that a vulnerable person was taken to an unpleasant setting (a crack-den) and pressured into performing a sexual act.  She would have met capacity on the civil test (and thus there would have been no sexual offence in the act) but the House of Lords felt that she lacked capacity to say no, or express her resistance to the act in this specific situation and setting.

 

 

  1. The complainant, an emotionally unstable woman with schizo-affective disorder, low IQ and a history of harmful use of alcohol, left a community mental health team resource centre in a distressed and agitated state, met the defendant who offered to help her. He took her to a friend’s house, gave her crack cocaine and asked her to engage in sexual activity which she did. She later said that she had consented because she had been panicky and afraid; she had both stayed and submitted because she did not want to die.
  1. In relation to a charge of sexual touching of a person with mental disorder impeding choice contrary to s. 30 of the Sexual Offences Act 2003 (‘the 2003 Act’), the jury were directed that the complainant would have been unable to refuse sexual activity if she lacked the capacity to choose whether to agree to it for any reason, including an irrational fear or confusion of mind arising from mental disorder or if through her mental disorder she was unable to communicate such a choice to the defendant even though she was physically able to communicate. Quashing the conviction, the Court of Appeal (Criminal Division) agreed with the conclusion expressed by Munby J that a lack of capacity to choose to agree “cannot be person specific or, we would add, situation specific” and held that irrational fear which prevented the exercise of choice could not be equated with lack of capacity to choose and that inability to communicate referred to a physical inability.
  1. The House of Lords restored the conviction. The headnote summarises the decision in this way:

“[T]he words ‘or for any other reason’ in section 30(2)(a) of the 2003 Act encompassed a wide range of circumstances in which a person’s mental disorder might make her unable to make an autonomous choice whether to agree to sexual touching even though she might have sufficient understanding of the information relevant to making it; that those circumstances could include an irrational fear preventing the free exercise of choice; that incapacity to choose could be person- and situation-specific; that section 30(2)(b) of the 2003 Act referred to an inability to communicate choice which was the result of or associated with a disorder of the mind and its meaning was not limited to a physical inability to communicate; and that, accordingly, the judge’s directions on lack of capacity and inability to communicate would be upheld.”

 

 

 

 

[There’s a very very good piece by Lucy Series over at the Small Places law blog  http://thesmallplaces.blogspot.co.uk/2014/01/framing-test-of-capacity-to-consent-to.html#more   and Lucy highlights very well that the confusion about the tests, and where the duties of public authorities lay in preventing a person from being a victim of a criminal act of ‘sexual activity with a person with a mental disorder impeding choice’  – Sexual Offences Act 2003, can sometimes end up with a person’s rights and liberty being interfered with to prevent them becoming a victim of crime, often oppressively so.  Lucy also points out fairly that there are people with capacity who might struggle with some of those questions – after all, sexual health clinics dealing with STDs aren’t solely populated by persons lacking capacity.  One of the problems with having a judicial declaration that a person lacks capacity to consent to sex is that the Court cannot substitute its consent for the persons on a best interests decision – as can happen with other issues where a person lacks capacity to make an informed decision but is showing clearly what they WANT. So once you have that declaration, there is uncertainty as to what professionals working with the family should do? Is it sufficient that they warn those seeking to enter a relationship that the person lacks capacity to consent to sex? Or do they in effect have to chaperone and deny the person the opportunity to participate in sex that they can’t consent to? These are tricky ethical topics. Lucy’s piece is a very good way to get up to speed with these dilemmas and is thought-provoking as usual ]

 

 

Back to IM… the Court of Appeal were then wrestling with the issue of whether the test should be the same in both criminal and civil cases (and in fact whether the House of Lords decision in R v Cooper might be binding on civil cases) or whether there are advantages to the test being framed differently in civil cases.

 

One of the issues is that simply adding the ‘person specific’ element to Court of Protection cases would involve the Court of Protection having to look in detail at prospective future sexual partners, or perhaps cases coming back every time a person who had capacity issues formed a new friendship / relationship, which would be intrusive and cumbersome.

 

The Court of Appeal cited with considerable approval,  Hedley J’s decision in a Court of Protection case  (underlining mine)

 

  1. The short judgment of Hedley J in A NHS Trust v P [2013] EWHC 50 (COP) (which involved capacity to decide whether or not to continue with, or terminate, a pregnancy) is also worthy of note for its more general observations as to the proper limits of the Court of Protection’s jurisdiction (para. 10):

“Most importantly, the Act provides:

‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision.’

In the field of personal relationships that is a very important qualification to the powers of the court. The plain fact is that anyone who has sat in the Family jurisdiction for as long as I have, spends the greater part of their life dealing with the consequences of unwise decisions made in personal relationships. The intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do.“

 

 

In short, that just because a person lacks capacity we should not as the Court of Protection presume to simply make flawless and logical decisions on their behalf – just as humans routinely make bad, emotional, or irrational decisions, so persons lacking capacity should not be wrapped up in cotton wool to rob them of these experiences.  There is a very real danger that the Court of Protection becomes too patrician and risk averse in making ‘best interests’ decisions. Sometimes it can be in a person’s best interests to make mistakes.

 

[Long-term readers of this blog may see echoes in Hedley J’s famous family law case

 

 Re L (Care threshold criteria) 2006  “Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”     

 

Which I think is a principle long overdue in the Court of Protection, and I hope that having it cited here by the Court of Appeal might promote its widespread use in Court of Protection cases]

 

 What the Court of Appeal decided, eventually, was that both sets of Judges (Baroness Hale in the criminal arena, and the President (largely) in the  civil arena) were right. There are two different aspects being looked at, and it is right that there be two different tests.

 

  1. Having already laid the ground during our summary of the case law (in particular at paragraphs 41 to 44) it is not necessary to dwell unduly on this point in which, in our view, each of the judges, including Baroness Hale, was correctly stating the law. The reason why the words used are diametrically opposed to each other arises, in our view, from the two distinct and different contexts in which the respective judgments were given. We regard the passages that we have quoted from Mostyn J in D Borough Council v B and Hedley J in A Local Authority v H as being correct in drawing a distinction between the general capacity to give or withhold consent to sexual relations, which is the necessary forward looking focus of the Court of Protection, and the person-specific, time and place specific, occasion when that capacity is actually deployed and consent is either given or withheld which is the focus of the criminal law.
  1. Baroness Hale is plainly right that: ‘One does not consent to sex in general. One consents to this act of sex with this person at this time and in this place’ [emphasis added]. The focus of the criminal law, in the context of sexual offences, will always be upon a particular specific past event with any issue relating to consent being evaluated in retrospect with respect to that singular event. But the fact that a person either does or does not consent to sexual activity with a particular person at a fixed point in time, or does or does not have capacity to give such consent, does not mean that it is impossible, or legally impermissible, for a court assessing capacity to make a general evaluation which is not tied down to a particular partner, time and place.
  1. Going further, we accept the submission made to us to the effect that it would be totally unworkable for a local authority or the Court of Protection to conduct an assessment every time an individual over whom there was doubt about his or her capacity to consent to sexual relations showed signs of immediate interest in experiencing a sexual encounter with another person. On a pragmatic basis, if for no other reason, capacity to consent to future sexual relations can only be assessed on a general and non-specific basis.

 

 

So, for the criminal offence, a person can lack capacity even if they understand the act, the issue of pregnancy and of STDs IF they lacked capacity for whatever reason to say yes or no to this specific person in these specific circumstances.

 

For the Court of Protection, however, when asked to make a declaration about a person’s capacity to consent to sex, one is simply looking at the person’s understanding of those three aspects  (the mechanics of the act, pregnancy and STDS) and not at the person they might be consenting to sex with.

 

The Court of Appeal then go on to say that although those three issues have to be capable of being understood by a person if they are to have capacity to consent to sex, there’s a danger in trying to suggest that a person who has vulnerabilities or capacity issues needs to conduct a sort of logical root-and-branch analysis of the pros and cons of saying yes to sex before their “yes” is good enough, and importing a requirement on them to undertake an exercise that doesn’t normally play that much of a role in agreeing to make love with someone.

 

[Hedley J’s forensic cotton wool comes back into play here]

 

  1. The requirement for a practical limit on what needs to be envisaged as “reasonably foreseeable consequences” derives not just from pragmatism but from the imperative that the notional decision-making process attributed to the protected person with regard to consent to sexual relations should not become divorced from the actual decision-making process carried out in that regard on a daily basis by persons of full capacity. That process, as Ms Richards observes, is largely visceral rather than cerebral, owing more to instinct and emotion than to analysis.
  1. It is for that reason also that the ability to use and weigh information is unlikely to loom large in the evaluation of capacity to consent to sexual relations. It is not an irrelevant consideration; indeed (as we have emphasised) the statute mandates that it be taken into account, but the notional process of using and weighing information attributed to the protected person should not involve a refined analysis of the sort which does not typically inform the decision to consent to sexual relations made by a person of full capacity. That is the point which Munby J was seeking to make in MN at paragraph 84, which we have reproduced at paragraph 35 above. It is precisely this point at which Hedley J was driving in A NHS Trust v P when he observed that “the intention of the Act is not to dress an incapacitous person in forensic cotton wool but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not infrequently do”.
  1. We agree. Perhaps yet another way of expressing the same point is to suggest that the information typically, and we stress typically, regarded by persons of full capacity as relevant to the decision whether to consent to sexual relations is relatively limited. The temptation to expand that field of information in an attempt to simulate more widely informed decision-making is likely to lead to what Bodey J rightly identified as both paternalism and a derogation from personal autonomy

 

 

 

This point is again stressed here

 

88. Mr Gordon also castigated as legally irrelevant to the question of capacity the judge’s observation that “The respect that a person with disabilities such as LM is entitled to must mean that she is given opportunities which may carry with them at least some levels of risk.” In our judgment the judge was there expressing in different language precisely the point espoused by Hedley J in A NHS Trust v P to the effect that the intention of the Act is to allow a protected person as far as possible to make the same mistakes as all other human beings are at liberty to make and not infrequently do.

It will be interesting to see how this develops – one possible reading of this case is that the very risk-averse approach of some local authorities to insulating a vulnerable person and curtailing their freedoms to prevent them being sexually taken advantage of might end up being toned down, and that the Court will view such things as being somewhat contrary to the Court of Appeal’s stance that vulnerable people must be allowed, as far as possible to make the same mistakes that all other human beings are free to make.

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Revocation of Lasting Power of Attorney (green fingers versus light fingers)

Posted on February 13, 2014 by suesspiciousminds

 

This is a Court of Protection case Re DP (Revocation of Lasting Power of Attorney) 2014, published under the President’s Guidance that any Court of Protection decision of this kind should be published.

 http://www.bailii.org/ew/cases/EWHC/COP/2014/B4.html

 

It also serves as another helpful reminder that being appointed as an Attorney for someone who lacks capacity is a responsibility that comes with rules and obligations that the Attorney ought to make themselves familiar with, and is not a licence to dip into that person’s pockets or bank accounts.

 

In this case, the woman, DP, had appointed her former gardener as her Attorney in a Lasting Power of Attorney whilst she had capacity. He was then entitled to manage her affairs, and in many regards, he did this well. He was able to identify that she had been wrongly advised to switch a Legal and General Policy to an Aviva one, and get her compensation worth £38,000 for this.

 

Unfortunately, that good deed was somewhat undone by the Attorney then making a cash gift to himself to the value of £38,000, and also paying himself a salary for being the Attorney   (An LPA can authorise the payment of a salary, but if, as here, it is silent then the Attorney can only claim legitimate and evidenced out of pocket expenses), also withdrawing money to pay for his wife’s motability scooter and weekly amounts of £55 to pay for the upkeep of it.

 

It is no great surprise that the Court, having investigated this matter carefully, concluded that the Attorney had exceeded their powers and the LPA should be set aside and a Court appointed deputy have the power of attorney to run the estate.

 

[Underlining mine – as it makes plain what an Attorney is to do if they WANT to use the person’s estate in this way, which is to get permission from the Court of Protection first]

 

  1. It is unusual for the OPG to receive referrals about an attorney’s conduct from two completely unrelated sources. In this case concerns were initially raised by Oxleas NHS Trust more than a year before Aviva alerted the OPG to the attorney’s suspicious behaviour in seeking to transfer the balance on DP’s investment bond into an account in his own name by means of a gifting arrangement.
  1. By making a gift of £38,000 to himself, JM contravened the provisions of section 12 of the Mental Capacity 2005, which sets out the limited circumstances in which an attorney may make gifts to persons, who are related to or connected with the donor, including himself. In order to have made a gift of this magnitude, he should have applied to the Court of Protection for formal authorisation pursuant to section 23(4) of the Act.
  1. Regardless the inherent artificiality of his claim for remuneration at a rate of £20 a day for 365 days’ house clearance and rubbish removal and £20 a week for 52 weeks’ gardening, JM contravened his authority by awarding himself a salary. Section 7 of the LPA, ‘About paying your attorneys’, was left blank by DP. The guidance to that section states: “You can choose to pay non-professional attorneys for their services, but if you do not record any agreement here, they will only be able to recover reasonable out-of-pocket expenses.” JM had no authority to charge for his services under the LPA itself and, if he wished to receive a salary, he should have applied to the Court of Protection for directions under section 23(3)(c) of the Act, whereby the court can authorise an attorney’s remuneration or expenses.
  1. By failing to keep proper accounts and financial records, he was in breach of his fiduciary duties as an attorney.
  1. I was unmoved by JM’s suggestion that, if the LPA is revoked, he will be unable to afford the Motability vehicle and will no longer be in a position to visit DP and take her on outings. The purpose of the Motability scheme is to enable someone who is in receipt of Disability Living Allowance (in this case, JM’s wife) to use the mobility component in their DLA to lease a vehicle. I do not understand why JM’s wife cannot apply her mobility component for the purpose for which it was intended and I am surprised that, having received a substantial gift of £38,000 from DP’s estate as recently as November 2012, JM should have insufficient resources to keep up the payments on the vehicle.
  1. At the end of his witness statement JM said that the police had concluded that there was no case to answer, and he asked why he was still being investigated by the OPG.
  1. There are significant differences between a police investigation and an investigation conducted by the OPG. When the police investigate an alleged crime, they need to consider whether there is sufficient evidence to present to the Crown Prosecution Service (‘CPS’) to guarantee a realistic prospect of conviction, which in this case would have been on a charge of theft or fraud by abuse of position. The CPS would have had to prove that JM was aware that he was acting dishonestly and they would have had to prove this ‘beyond reasonable doubt’, the standard of proof in criminal proceedings. The decision not to prosecute him simply means that the CPS was not totally confident that it would be able to prove JM’s guilt so as to ensure a conviction. It does not imply that his behaviour has been impeccable.
  1. By contrast, an investigation by the OPG is concerned primarily with establishing whether an attorney or deputy has contravened his authority under the Mental Capacity Act 2005, or has acted in breach of his fiduciary duties under the common law of agency, or has behaved in a way that is not in the best interests of the person who lacks capacity. The standard of proof, ‘on the balance of probabilities’, is lower than the criminal standard.
  1. Like the police and the CPS, the OPG carries out a comprehensive sifting process, and the Public Guardian will only make an application to the Court of Protection in cases where he has good reason to believe that an attorney or deputy has acted inappropriately and that it is in the best interests of the person who lacks capacity for the attorney or deputy to be discharged.
  1. In fact, the OPG make comparatively few applications to the court. According to the Office of the Public Guardian Annual Report and Accounts 2012-2013, at pages 6 and 7, the Public Guardian received a total of 2,982 safeguarding referrals during the financial year 2012/13. 728 (24%) were referred for full investigation and the Public Guardian approved 480 investigation case recommendations. Of these, only 136 resulted in an application to the Court of Protection for the removal of an attorney or deputy.
  1. Having regard to all the circumstances, therefore, I am satisfied that JM has behaved in a way that has both contravened his authority and has not been in DP’s best interests.
  1. Accordingly, I revoke the LPA under section 22(4)(b) of the Mental Capacity Act 2005 and direct the Public Guardian to cancel the registration of the instrument under paragraph 18 of Schedule 1 to the Act. I also direct that a member of the panel of deputies be invited to make an application to be appointed as deputy to manage DP’s property and affairs.

 

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“You can’t see me”

Posted on February 3, 2014 by suesspiciousminds

Withholding documents in Court proceedings from a party, and documents being shown to that party’s lawyer

 RC v CC and Another 2014

 http://www.bailii.org/ew/cases/EWHC/COP/2014/131.html

 This is a Court of Protection case, but has wider implications (in fact, it imports a lot of the principles established in care proceedings into Court of Protection cases)

 It does sometimes (but only very rarely) happen within court proceedings that there is a document, or something within a document that might be problematic for one of the parties to see. In those circumstances, the Court have to decide whether the reason for keeping it from that party are sufficiently strong to interfere with the usual principle that a party gets to see all of the evidence against them.

 

It is absolutely right that the test for keeping evidence secret from one party is a very very very high one. It does very little good for the perception of fairness and equality in Courts if things are kept away from a party.

This is a very rare course of events – I’ve come across it twice in nearly twenty years of practice. In the overwhelming majority of cases, the parent is entitled to see all of the evidence, and to ask for whatever documents or disclosure that they or their lawyers think is fit. It is also worth noting that even in these rare cases where a piece of evidence is determined by a Judge that the parent should NOT see it, the process itself ought to be transparent  (i.e that the parent knows that SOMETHING is being kept back, they just don’t know what it is).

 

In this case, which was an appeal heard by the President, a birth mother had been applying for contact with her daughter who had been adopted. There were circumstances that led to that being a Court of Protection case. There were three pieces of social work evidence which the Local Authority had argued ought not to be seen by the mother (though they were seen by the Judge) and the Judge ordered that they were not to be disclosed.

 

The President accepted the appeal, for reasons set out below, and sent the case back to the original judge for reconsideration. The President was able to confirm that the principles which govern non-disclosure of documents to a party in care proceedings applied equally to Court of Protection cases.

 The original Court had properly identified the tests to be followed (and they are all helpfully set out within the judgment)

 

  1. How is the jurisdiction to be exercised? I return to what Lord Mustill said in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, page 615:

“Non-disclosure should be the exception and 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 nondisclosure only when the case for doing so is compelling.”

  1. In Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, having examined a number of both domestic and Strasbourg authorities, I concluded my judgment as follows (para 89):

“Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant’s access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.”

As I pointed out in Dunn v Durham County Council [2012] EWCA Civ 1654, [2013] 1 WLR 2305, para 46, this approach, so far as I am aware, has never been challenged and has often been followed.

  1. Dunn v Durham County Council is in fact clear authority (see paras 23, 24 and 26) that the test is, indeed, one of “strict necessity”, what is “strictly necessary”.
  1. In a case such as this the crucial factor is, as we have seen from the passage in the speech of Lord Mustill in In re D, page 615, which I have already quoted, the potential harm to the child. Lord Mustill summarised the proper approach as follows:

“the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

… 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.

… 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.”

  1. Before leaving this part of the case, there are two further points to be noted. The first is that, as I put it in Dunn v Durham County Council (para 50):

“disclosure is never a simply binary question: yes or no. There may be circumstances … where a proper evaluation and weighing of the various interests will lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards. For example, safeguards limiting the use that may be made of the documents and, in particular, safeguards designed to ensure that the release into the public domain of intensely personal information about third parties is strictly limited and permitted only if it has first been anonymised.”

To the same effect, Maurice Kay LJ said (para 23) that:

“in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity.”

  1. A related point, often commented on in the authorities, is that the position initially arrived at is never set in stone and that it may be appropriate to proceed one step at a time. This is not the occasion to discuss this in any detail. I merely draw attention, as examples, to what was said by Hale LJ, as she then was, in Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828, [2002] 2 FLR 476, para 28, and, most recently, by Baroness Hale JSC in In re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60, [2012] 3 WLR 1484, para 36.
  1. Thus far, as will be appreciated, the authorities to which I have referred have mainly related to children. Do the same principles apply in cases in the Court of Protection relating to adults? To that question there can, in my judgment, be only one sensible answer: they do.

 

 

Part of the appeal was that although the original judge had drawn his attention to those authorities and the test, in the discussion passages of his judgment it appeared that he had reversed the test and begun talking of there being no strong reason why the mother needed to see the documents  (as can be seen from the above guidance, the test is the opposite – it has to be demonstrated why it is necessary that she SHOULD NOT see them)

 

  1. First, Mr Fullwood submits that Judge Cardinal misdirected himself, failing in fact to apply the law as he had summarised it. He points to the passages I have set out in paragraph 34 above where Judge Cardinal says “I do not consider that RC needs to see the social work evidence” and, again, “I do not take the view at this stage that it is necessary for the … social worker’s evidence … to be disclosed”, submitting that this is to put the point the wrong way round. The question, he submits, and I agree, is not, is it necessary for RC to see the documents? The question is whether it is necessary (in CC’s interests) that RC does not see the documents. Now particular phrases in a judgment are not to be torn out of context. The judgment must be read as a whole, giving it a fair and sensible reading, not a pedantic or nit-picking reading. Are these particular passages on which Mr Fullwood fastens, passages which taken on their own are wrong, saved by the rest of the judgment and, in particular, by Judge Cardinal’s concluding summary quoted in paragraph 25 above? I cannot be confident.
  1. Second, Mr Fullwood submits that in any event Judge Cardinal has given inadequate and unsustainable reasons to justify his conclusion. There are a number of points here. There is no differentiation between the obvious necessity to prevent the disclosure of anything that might lead to CC being identified or traced by RC and the far less obvious necessity to restrict RC’s access to other personal information about CC. It is surprising, even allowing for what Judge Cardinal says are the difficulties in redacting the material, that it is necessary that nothing in the three witness statements should be disclosed. After all, a large amount of sensitive personal information about CC was disclosed to RC in the redacted psychologist’s report. What is it about all the information that makes it necessary not to disclose it? And how does this square with the fact that Judge Cardinal thought that RC’s counsel should be able to see it? It may be that, with fuller explanation, Judge Cardinal’s decision could be sustained, but as it stands it provides inadequate justification for such a drastic restriction of what RC can see.
  1. Mr Fullwood’s third complaint is that Judge Cardinal has in effect introduced a closed material procedure, which, he says, was inappropriate in this particular case and is in any event, as a matter of general principle, inappropriate in the Court of Protection. I am not sure that it is helpful to categorise what Judge Cardinal did here as a closed material procedure as that expression is more generally understood. I take him to have been doing no more than has been hallowed by long practice in these cases and now has the weighty imprimatur of Baroness Hale. Whether, on the other hand, it was appropriate in this case is another matter. I have already alluded to the deficiencies in Judge Cardinal’s reasoning. But there is another point. As Moses LJ made clear, this is a process dependent upon counsel’s agreement – an agreement which counsel for the reasons given by Moses LJ may feel unable to give and which in any event the instructions from his lay client may prevent him giving. Judge Cardinal does not seem to have explored these aspects of the matter. Nor, for that matter, does he consider other possible solutions: allowing RC to read, but not to borrow or copy, suitably redacted copies of the documents, or directing that there be disclosure to her of a document setting out the gist of what is being said by the social workers.

Conclusion

  1. In the circumstances I am persuaded that the appeal should be allowed to the extent of setting aside those parts of Judge Cardinal’s order which relate to the three social worker statements. Counsel were agreed that in this event the matter should be returned to Judge Cardinal to reconsider his decision and judgment in the light of this judgment

 

 

The other matter of interest was that the original Court had ordered that the documents in question could be seen by mother’s legal team (presumably to reassure themselves that there was not a “smoking gun” being kept back from them) but on the basis that the documents or their contents were not to be shared with the mother.

 

That puts the lawyers in a difficult spot, and the President makes it plain that such an arrangement

 

(a)   can only happen with the agreement of the legal team and not be imposed upon them, and

(b)   they can only agree if they have instructions to do so, and

(c)   They can only agree if they are satisfied that they can do so without any damage to their client’s interests (which is, of course, bloody difficult when they don’t know what might be contained in those documents)

 

  1. It is apparent from Official Solicitor to the Supreme Court v K and Another [1965] AC 201 that disclosure limited to a party’s legal representatives was already by then a recognised practice in wardship. It is mentioned by Sir Nicholas Wall P in A County Council v SB, MA and AA [2010] EWHC 2528 (Fam) , [2011] 1 FLR 651, para 37. There can be no doubt as to the legality of the practice: see, for example, R (Mohammed) v The Secretary of State for Defence [2012] EWHC 3454 (Admin). But there are obviously potential difficulties, some identified in a characteristically thoughtful discussion in the June 2013 issue of the Thirty Nine Essex Street Court of Protection Newsletter of Judge Cardinal’s judgment in this case.
  1. Importantly, such disclosure cannot take place without the consent of the lawyers to whom the disclosure is to be made; and they may find themselves, for reasons they may be unable to communicate to the court, unable to give such consent. Moreover, they cannot consent unless satisfied that they can do so without damage to their client’s interests. As Moses LJ said in Mohammed (para 28):

“The free and unencumbered ability to give and receive instructions is an important facet of open and fair trials. That ability is hampered if in some respects the lawyer is unable to disclose all the relevant evidence and material and, in that respect, the client is deprived of the opportunity to give informed instructions. But the degree to which that is of importance will vary from case to case. No lawyers should consent to such a ring unless they are satisfied they can do so without harming their client’s case. But provided the legal advisers are satisfied they can safely continue to act under a restriction, the inability to communicate fully with the client will not in such circumstances undermine the fundamental principles on which a fair application for judicial review depends.”

 

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Transparency Guidance

Posted on January 20, 2014 by suesspiciousminds

You probably recall that the President of the Family Division is rather keen on transparency – he’s been saying so for many many years, he’s certainly no Johnny-come-lately on the issue, and was saying so for a long time as pretty much a lone voice.

He called for views on a proposal to publish every judgment in care proceedings decided by Circuit judges or above, and all Court of Protection judgments back in October, and those views have now been considered and the plan is going ahead.

In fact, from 3rd February, the overwhelming majority of judgments in care proceedings will be published on Bailii. These will be anonymised (by the poor saps who work for local authority legal departments, with the anonymising then being approved by the judge) and will be available for anyone who wants to read them.

I think that in principle this is a good thing – as the President has said many times, in the debate between those within the family justice system who say that confidentiality and respecting the child’s privacy is the point and those outside who say “secret courts – if there’s nothing to hide, why is it secret”  – the transparency camp have clearly won.

If we are to move the debate about family justice beyond “secret court, what have you got to hide” and into proper areas of where the family justice system is getting it wrong, and where it is getting it right, and what can be done differently, then publishing judgments is an idea whose time has come.

I am absolutely in favour of transparency and the public being able to see what is being done by the State in their name. Only by doing that can we properly test the system and to recalibrate if things are taking place that don’t have public backing, that are being done wrong. Every wrong decision in family justice is a huge tragedy, but at present we have very limited ability to see whether wrong decisions are a rarity or endemic.

 

Pink Tape writes very efficiently about the issue and the guidance here

 http://pinktape.co.uk/rants/and-suddenly-it-all-becomes-clear/

There are things that I worry about – not least being that we are going to go very fast from announcing it to doing it in 2 weeks, that the previously expressed views from children don’t seem to have played much of a part, how we prevent jurors from finding those judgments and contaminating the criminal trial,  that there doesn’t seem much in the way of safeguards about privacy (the President is of the view that as long as the name doesn’t get out, privacy of the child is preserved – I am slightly more cautious about the ability of the general public, journalists and determined people on the internet to put known facts together to be able to link Mr X with a genuine name), and a lack of clarity about the boundaries.

It is the latter one which troubles me, because I really think there are now gray areas – once the judgment is a public document, how direct does one have to be in highlighting that the person in that public document is the same as this very real person here.

For example, if what is currently forbidden is the parent (or anyone else) directly or indirectly identifying that the child in  Re B (Parents who snort Polyfilla) 2014 is called “Timmy Grout” but that publishing the judgment or facts in the judgment is fine, are any of these actions going to get people in trouble?

 

1. Pam Grout, the mother of Timmy, posts a link to the judgment on facebook, and makes no comment about it.

2. People add comments under the link saying “you were robbed Pam”

3. A member of Pam’s extended family posts a link to the judgment and says “Don’t talk to me about British justice”

4.A campaigner about family justice who lives abroad, say a resident of the Vatican posts a link on their website, hosted abroad, saying “Pam Grout was betrayed by the State, read the case here and see how the Judge stitched her up”

5. People living in England post links to that website

6. Pam Grout posts a link to the website on facebook, but with no comment, or someone posts a link on her facebook wall and she ticks “Like”

7. A person on Twitter says “This judgment LINK is awful. My friend Pam Trout had an awful experience in Court”

8. A newspaper runs a story about the case, quoting the judgment. In the comments section, someone says “Pam Grout is not a bad person”

9. A prominent tweeter posts “Why is Pam Grout trending? #innocent face”

10. An MP stands up in Parliament and says “Pam Grout is the mother in the well known miscarriage of justice that the Courts call Re B (Parents who snort polyfilla) 2014

11. Every newspaper in the land reports what the MP has said.

 

12. Or how about this – one of the children is 14 and tweets “I am the brother of  Timmy Grout, the Polyfilla boy” and that goes viral?  

Are any of these actually breaches, would there be sanctions? Or are all of these things okay, and the only breach would be Pam Grout saying in terms “My son Timmy was taken off me by social services”

If you are advising Pam, how confident are you in telling her which of those twelve things are breaches and which are not?

 

It may well be that we end up having a debate about whether, once these anonymised judgments are out there, that we are playing a semantic game in saying that the child is not identified, given that they clearly become IDENTIFIABLE by what’s already a simple process of putting two or three facts together.

If you live in Bon Temps, and are one of six children, and you are all taken into care, and children in your class know that this has happened to you, but they only know the lurid details if you chose to tell them; then it isn’t that hard for anyone who wants to know more to find it.   Because a  judgment is published about six children who were taken into care in Bon Temps at about the right time and the ages and genders of the siblings match up, it isn’t rocket science for people who know a few things about you – perhaps your friends, perhaps people at school who have taken an unhealthy interest in you or who dislike you, to be able to read a judgment about you online and learn about your family life, allegations that have been made – perhaps that you still wet the bed, maybe you self-harmed, perhaps you have been confused about your sexuality,  maybe your dad has mental health problems, maybe your mum smokes crack, perhaps that your uncle molested you?

Maybe that won’t just be in your childhood – perhaps a prospective love interest will search about you, perhaps a future employer, perhaps future work colleagues.  If the link between Timmy Grout and Polyfilla boy ever gets out into the public domain, that information will be there for years to come, capable of being found by anyone who wants to know a bit more about Timmy. 

Perhaps when we are all wearing Google-Glass or whatever supersedes it in five years time, every time anyone sees Timmy Grout in the street they will be alerted to who he is and what happened to him as a child and be able to read all about it.  {Google Glass is here now, and facial recognition software that sees a face and can take you to any websites they are mentioned on is already here – this sort of thing is going to be commonplace in the near future}

It may be that we reach a point where society says that the interests of transparency mean that anonymity can’t be totally preserved, and that if children’s identities are found out and that people who are not invited by them to know about their lives can find out the most intimate details themselves then that is a price worth paying for opening up our family justice system and ensuring that there are no secrets.  Maybe we will eventually get rid of the bar on identification completely.  

There are many people who think that this will be a good thing. Me, I’m mostly interested in what Timmy has to say about it.

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“Will you walk a little faster, said a whiting to a snail”

Posted on December 23, 2013 by suesspiciousminds

An application (unsuccessful) to commit Mr Whiting for alleged breaches of an injunction made in the Court of Protection. Re Whiting 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B27.html

 

This was an application made by a Local Authority for a committal of Mr Whiting for alleged breaches of an order made in the Court of Protection, which had been designed to protect a vulnerable woman who lacked capacity to consent to sexual intercourse from any unwelcome advances.

 

The Judge praised the LA for good practice and good social work generally

 

 

  1. Too often, bad practice is rebuked and good practice is unacknowledged. I am happy to have this opportunity to redress the balance at least a little. However, I emphasise this for another reason – as later in this judgment I have found myself driven to make criticisms of the way this application has been pursued. I intend those criticisms to be constructive and to restate guidance. I do not want them to eclipse my positive acknowledgment of the social work practice here and the way that, in my view, it has afforded WAJ much better protection against the many vicissitudes of life. Most importantly, I do not want anything I say to weaken that relationship.
  1. Leslie Whiting formed a relationship with WAJ. During the course of the proceedings he was made a respondent. Social Services were concerned about the dynamic of this relationship. They were worried, too, about a conviction recorded against him in 2009. The details of that conviction are not in my papers but I have been told that it is a sexual offence relating to exploitation of a vulnerable adult. Mr Whiting made it clear to the court that he did not want to play any part in the proceedings when the Court of Protection was looking at the issues that I have outlined as in its focus. He declined to attend. Nonetheless, in his absence, his role in WAJ’s life fell under scrutiny and was the subject of detailed professional evaluation. The conclusion that was reached was that his influence was essentially malign.
  1. On 21st August 2012 an injunction was made by District Judge Rogers, which was designed to protect WAJ and to extricate Leslie Whiting from her life. The terms of that order were as follows:

“(1) Leslie Whiting should be forbidden by himself or acting jointly with any other person from: (a) allowing or threatening any unlawful violence against the first respondent (WAJ); (b) coming within 100 metres of a property in which it was thought she was living at the time, or any other property that he became aware that she might be visiting; (c) communicating with the first respondent, whether by letter, telephone, text message or other means of communication; (d) threatening the first respondent; (e) instructing or encouraging any other person to do anything which is forbidden by the terms of the order.”

 

 

 

One can see perhaps why professionals would have preferred that Mr Whiting played no further part in the life of WAJ.

 

Here are the alleged breaches

 

 

  1. In this case, the breaches were pleaded as follows:

“(1) Leslie Whiting is alleged to have contacted WAJ eight times by telephone at the end of August 2012 in breach of paragraph (2)(c) of the enclosed order.

(2) Leslie Whiting is alleged to have contacted WAJ once by telephone during September 2012 – WAJ recorded the telephone call and played it back to her social worker, and the social worker has confirmed that the voice she heard on the recording was that of Leslie Whiting and that, in her opinion, the tone of his voice was aggressive. This is in breach of paragraph (2)(c) of the enclosed order above.

(3) Leslie Whiting is alleged to have contacted WAJ by telephone on or around 23rd October 2012. He is alleged to have been heard by Rachel Curl, the manager at a respite unit, making verbal threats to WAJ and also against WAJ’s mother. This is in breach of paragraphs (2)(b), (c) and (d) of the enclosed order.

(4) WAJ was found on 15th December 2012 by Cambridgeshire Constabulary at Leslie Whiting’s residence, 19 Myrtle Avenue, Peterborough. Leslie Whiting is reported to have been heavily intoxicated and aggressive towards the police officers. WAJ’s friend, Tony Armstrong: they had visited Leslie Whiting to exchange Christmas presents but when they had gone to leave his property, he became upset. Leslie Whiting is believed to have encouraged WAJ to visit him, in breach of paragraph (2)(e) of the enclosed order.”

 

 

If one were able to prove those, particularly the last, one would expect at least a suspended sentence.

 

Now, for reasons that are not plain to me, the application for committal was lodged in January 2013, and heard in November 2013, an extraordinary delay

 

In the autumn of 2012, and certainly by December, the Adult Services in Peterborough believed that they had grounds upon which to establish that Leslie Whiting had breached the terms of the district judge’s injunction. Accordingly, an application to commit was launched. The application notice is dated 11th January 2013. It is an application which has, to say the least, a very dispiriting litigation history. That I am hearing the case in November, and now December 2013, relating to alleged breaches in the autumn of 2012 tells its own story.

 

To enlarge on that a little, the Judge cited the hearing in September 2013

 

  • District Judge Eldergill heard the case on 18th September 2013. His order records the following: 

    “(2) The application was due to be heard on 15th January 2013 then on 29th July 2013 and then on 19th September 2013. On each occasion procedural irregularities have caused the hearing of the application to be postponed.”

    The district judge went on in paragraph (3) of that order to identify the relevant guidance for practitioners in order that those procedural irregularities might not dog the case further. It is, I think, helpful to set that out in this judgment. It reads:

    “(3) The applicant is referred to the Court of Protection Rules 2007, and in particular to Part 21 and Rule 9, Court of Protection Practice Direction PD21A; committal for contempt of court (practice guidance) [2013] 1 WLR 1316, 2013 EWHC B4 (COP); committal for contempt of court (supplemental practice guidance) [2013] EWCH B7 (COP); Part 81 of the CPR and the relevant case law.”

    The district judge also signalled, by way of completeness, at (4):

    “It is unlikely that any further adjournments of the application will be granted.”

 

Now, what was the evidence produced to demonstrate that those alleged breaches were proven?

 

  1. . The applicant sought to prove the breaches by the affidavit and oral evidence of a social worker. The affidavit the social worker spoke to, at the hearing of November 2013, was dated January 2013. Exhibited to it was a short chronology of similar date. There were fundamental difficulties with the affidavit, with the chronology and indeed the oral evidence. Timescales and dates were vague. There was heavy reliance on hearsay evidence from a variety of sources. There was a dearth of primary material – for example, mobile phone records – even though it appears they may have been capable of being obtained. The passage of time also meant that the social worker’s evidence was characterised by a lack of detail, but so too, it must be said, the affidavit and the chronology were decidedly sparse. I must also add that it was particularly frustrating that the photocopies of the chronology were barely legible and the original appeared to have been lost.
  1. The injunction from which the alleged breach arises is, as I have said, that of 21st August 2012. The fundamental problem with the first breach, dealing with each in turn, is that it relates to “the end of August”. Did that include the period before the injunction was made? At this stage that is simply not known. Were some of the alleged eight telephone calls made before 21st and some after? Again, the answer to that is not known. The allegation is simply not drafted tightly enough and, to my mind, fails on that basis alone.
  1. The second alleged breach fails for a similar reason. The social worker was able to tell me that she listened to a recording made by WAJ on her phone, for evidential purposes. The social worker said that she had listened to that during September. It could therefore have been any date between 1st and 30th September. Moreover, that was the date the social worker listened to the recording, not the date the call was received. When was it received? Again, that could not be ascertained. Given that the order itself was only made ten days prior to 1st September, it lets in the real possibility that the call might have been made sometime before that. The burden here is on the applicant and the standard is the criminal standard. This drafting simply lacks the degree of specificity that is required in an application of this kind, and that, too, fails.
  1. The third allegation relies entirely on second hand hearsay. The primary witness, whose evidence must be taken to be challenged, was not available, This did not begin to meet the requisite standard of proof. The fourth allegation, however, is, in my view, established. I am satisfied that the police attended Leslie Whiting’s home on 1st December 2012; I am satisfied that the social worker giving evidence was directly informed of this and; I am satisfied that Leslie Whiting was drunk and aggressive, and I am also satisfied, on the basis of WAJ’s actions throughout the previous months, that she was determined to steer clear of Leslie Whiting if at all possible. That she had attended at his home that day was, in my view, as a consequence of being lured or coerced, probably, as the social worker told me, induced by the prospect of Christmas presents.

 

 

One can obviously see that the only allegation proved to the requisite standard was the fourth. Of course, whilst the fourth was the most serious, by the time the Court actually gave judgment on it, it was nearly a year old.

 

This piece of the judgment is a salutary lesson for professionals (not least the lawyers preparing the evidence for the committal hearing)

 

  1. The commitment and sincerity of all the professionals working in this area is beyond any doubt. It has been on display in this case. What is required, however, is an intellectually rigorous relationship between the lawyers and the social workers in every aspect of the Court of Protection, of course, but particularly on an application of this kind. The lawyers preparing the case must realise that establishing breaches to the criminal standard of proof requires forensic precision and the careful identification of evidence to support each of the particulars of the breach. It seems to me that nobody has hitherto engaged directly in that exercise. It is striking that the best attempts to marshal the evidence were in fact made by WAJ herself. The process requires the lawyer and the social worker to work closely together to look at the order, to identify the breach and to marshal the material as if proving the constituent parts on a count on an indictment. Nothing less will do where the liberty of the individual is at stake.
  1. The Court of Protection is, as the title makes clear, here to protect the vulnerable. The breadth of its work is very wide; its injunctive powers may well not yet have been fully utilised, but it is important, as they develop, that they are deployed with forensic rigour and, where possible, as here, subject to public scrutiny. Collating evidence when working with those who, in certain areas of their lives, may lack capacity is inevitably challenging. Having here found the fourth breach to be proved, I propose to take no action in respect of it. A year has passed since it occurred and there are no subsequent allegations. To that extent, the injunction appears ultimately to have been successful. I do, however, intend to continue the injunction in the terms made by District Judge Rogers for a further twelve months, with liberty to Mr Whiting to apply to discharge.

 

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It’s clobbering time ! Or not, as it turns out – Italian C-section case, the President’s judgment

Posted on December 17, 2013 by suesspiciousminds

 

Thanks to Jerry for tweeting that this was up – I didn’t even know there was an application. Okay, if you have been on a desert island in December – the Sunday Telegraph ran a story about social workers arranging a c-section for an Italian mother who had had a panic attack so they could steal her baby. A few days later, the press reported that Munby LJ (now the President of the Family Division) had called the case in, and demanding that social workers answer for their dreadful actions.

 

Over the course of a few days, we got more of the official judgments published, and one could see that although there were problems here the luridness of the reporting was not perhaps bourne out by the actual facts. (There are legitimate public debates about whether the mother’s representation in these situations is forceful enough against the State’s wishes, whether there should be a higher test for judicial declarations on c-sections, whether the placement order judgment made before Re B, Re B-S et al would now survive if we re-ran the case now, whether the State ought to have a mechanism to get the country that the mother is from to seize the case, and a few other bits and pieces) – but the press driven debate of “Should social workers be able to impose a c-section to snatch a baby” is a non-starter. The answer is an emphatic, no, they shouldn’t. Which is why they don’t.

 

Anyway, the case found its way to the President, ostensibly as a return of the Reporting Restriction Order (see last blog), although it appears that part of the thinking was that the President was about to open up a can of whoop ass on social workers.

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4048.html

On 3 December 2013 a national newspaper ran a front page story under the headline ‘EXLAIN WHY YOU SNATHCHED BABY AT BIRTH’. The strapline, ‘Judge’s order to social workers behind forced caesarean’, was elaborated in the accompanying article, which stated that I had “demanded to know why the girl should not be reunited with her mother”. That was simply not so. All I had done was as I have set out above. I had directed no hearing. How could I? And I had given no directions as to the evidence that might be required at some future hearing of an application that had not yet been made. How could I? All I had done was to direct that any further application was to be heard by me. In other words, if any application was made, either in the Court of Protection or in the family court, I would hear it. That was all. Unhappily this canard has been much repeated in the media.

 

What the President does say is that the case raises important principles which are worthy of discussion, and building on his judgment in Re J, considers that transparency and being able to see the judgments and scrutinise them is a vital part of that.

 

    1. In the present case, as typically, a number of competing interests are engaged, protected by Articles 6, 8 and 10 of the Convention. Three competing interests, in particular, have to be considered here. I take them in no particular order.

 

    1. The public has an interest in knowing and discussing what has been done in this case, both in the Court of Protection and in the Chelmsford County Court. Given the circumstances of the case and the extreme gravity of the issues which here confronted the courts – whether to order an involuntary caesarean section and whether to place a child for adoption despite the protests of the mother – it is hard to imagine a case which more obviously and compellingly requires that public debate be free and unrestricted.

 

    1. The mother has an equally obvious and compelling claim to be allowed to tell her story to the world. I repeat what I have on previous occasions (see most recently Re J, para 36) about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system and likewise being able to criticise local authorities and others. I repeat what I said last week (Re P [2013] EWHC 4037 (Fam), para 4):

 

“The mother wishes to complain publicly about the way in which the courts in this country have handled her and her daughter. The court should be very slow indeed before preventing a parent doing what the mother wishes to do in the present case.”

If ever there was a case in which that right should not be curtailed it is surely this case. To deny this mother in the circumstances of this case the right to speak out – and, I emphasise, to speak out, if this is her wish, using her own name and displaying her own image – would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself.

    1. P also, it should go without saying, has an equally compelling claim to privacy and anonymity.

 

  1. How then, in the final analysis, is the court to balance these competing demands?

 

The Judge defends, to an extent, some of the inaccurate and tendentious reporting

 

    1. Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country.

 

    1. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

 

  1. The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges.

 

It is a reasonable point. Whilst the placement order hearing had little of public import until the case broke, my view is that every Court of Protection declaration judgment ought to be published in anonymised form. Looking at the law reports, there are such few c-section cases reported since the introduction of the Mental Capacity Act, I think all of them ought to be published as a matter of routine – Mostyn J’s judgment was important and should have been published and available even before this furore. If it had been, it is likely that when the story broke, factual inaccuracies could have been put right (or heaven forbid, the journalists involved might even have tried to find the judgments)

I also happen to believe that any family court application for a Reporting Restriction Order should be published in such anonymised form as is necessary to protect the individuals privacy. We can’t have family law becoming like super-injunctions, where we don’t get told that there is something we can’t know.  (The RROs in this case were put up very promptly, which does the Court service and the judges involved a lot of credit)

 

Munby does have a word of caution for the Press, however

 

think I should repeat what I said earlier this year when addressing the Annual Conference of the Society of Editors:

 

“dare I suggest that the media should remember the great C P Scott’s famous aphorism that “Comment is free, but facts are sacred.” I recently gave a judgment that received coverage in the media. A legal commentator* suggested that readers might wish to compare and contrast what I had actually said with how it was reported: “Compare. And contrast … And weep.””

 

*Waves at Pink Tape

 

 

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What IS the Court of Protection?

Posted on December 6, 2013 by suesspiciousminds

This is intended to be a beginner’s guide to the Court of Protection, not exclusively intended for lawyers. There are, in fact, some journalists who might benefit from it.  You may have been reading about the Italian woman who underwent a ceasarean section without her consent, and want to know how decisions like this are supposed to be made and what powers the Courts have.

To be fair to the national press, I’ve just had to expand 3000 words to absolutely race through even the basics of the Court of Protection, without even getting into the nuts and bolts of this case, so one can see why they end up saying “A secret Court” and leave it at that.   Perhaps in future, this piece might be a handy link or source for anyone who wants to understand the basics of  how that secret court is meant to operate.

I in no sense think that the Court of Protection is flawless or perfect, and it is perfectly possible for very bad decisions to be made, but at least understanding the nuts and bolts of the fact that decisions are made by a Judge, with a lot of tests and guidance might help people avoid some of the more dreadful factual errors that came about with some of the recent reporting. Otherwise you end up endlessly debating the rights and wrongs of a set of abhorrent things that DIDN’T actually happen, as opposed to very real and important rights and wrongs of a set of very troubling things that DID.

[It is like determining US and UK foreign policy post 9-11 based on Kay Burley’s account on Sky News on the day that “The entire Eastern Seaboard of the United States has been decimated by terrorist attacks” rather than what actually happened, which was awful and significant enough without lurid inaccuracies *]

What is the Court of Protection, and is is a secret court?

The Court of Protection is a branch of the English and Welsh court system, dealing with cases involving people who either do not have capacity to make decisions about certain things for themselves, or to determine whether in fact they do have that capacity. The Court of Protection as we now know it was set up by the Mental Capacity Act 2005, building on the Court of Protection which had previously dealt with financial matters  (Thanks to @barbararich for pointing out my original inacuracy, now fixed, and for doing so nicely).

It is not open to the public. The Press have to make an application if they want to attend the hearing. Some decisions of the Court of Protection (judgments) are made public on law sites like Bailii

http://www.bailii.org/ew/cases/EWHC/COP/

if they contain important points of law or principles which might apply to other cases or are in the public interest, but the day to day decisions are not made public  (yet – the President of the Family Division has indicated that he intends to bring about publication as a matter of course of all decisions of the family courts and probably the Court of Protection too).  When those decisions are made public, the identity of the person concerned is usually anonymised.   (There are certain, though rare cases, where the identity is revealed, such as the Mark Nearey case http://www.independent.co.uk/news/people/profiles/mark-neary-they-didnt-understand-steven-they-saw-me-as-a-fly-in-the-ointment-2295565.html )

So the Court of Protection is certainly secretive – there are arguments that this is done to protect the vulnerable people concerned, but the President of the Family Division takes the view that the counter argument that without exposing their decisions to public scrutiny there’s a risk that the public lose confidence in the work they do and that hyperbolae is taken as gospel  (he would seem, from events this week, to be right) and it is almost irresistable now that judgments from the Court of Protection will be made routinely available, and probably that the Press attendance at Court of Protection hearings will become the default position (with the Court having to given reasons why they SHOULDN’T be there)

Why did the Court of Protection come about?

It was introduced by the UK Parliament as a result of a case that went to the European Court of Human Rights, involving a man who is known as “L”  (the case is also well known as the “Bournwood” case, after the Trust involved). L had been a day patient at a centre, and lived normally with a family. He did not have capacity to make decisions for himself, but was not mentally ill or dangerous. One day he had an episode at the centre and when his family came to collect him, they were told that he had to stay at the centre. Now, if L had been detained under the Mental Health Act, his family would have had all sorts of legal safeguards and abilities to challenge his detention. Equally, if L had had the capacity to say to the unit “I want to go home” they would have had to let him, but L fell between these two situations, and there was no proper mechanism. Many commenters and professionals working with vulnerable adults felt that it was inherently wrong that someone like L could be detained for months or years with no legal safeguards, just because he wasn’t in a position to object. The ECHR agreed.

At the same time, Parliament brought into one statute, legal provisions for some decisions that the High Court had historically made under their Inherent Jurisdiction  (Inherent Jurisdiction would require a whole other beginners guide, but if you just read Inherent Jurisdiction as “High Court superpowers” you won’t go far wrong) – for example deciding whether doctors could carry out surgery on a patient who was refusing it, dealing with marriages where people had no ability to understand the marriage vows, protecting the finances of vulnerable people, and wrapped it all up into one statute.

The thinking was to give protection and safeguards for the most vulnerable people in society, those who are not able to look out for their own interests.  (Many commenters believe that the MCA began with those noble intentions but hasn’t in practice delivered on them)

Who brings cases to the Court of Protection ?

The cases are normally brought by one of these four groups (though others are possible) : –  the health trust whose doctors are treating the person, the care home who is providing care for the person, the Local Authority who are providing services for the person, or on behalf of the person or their family.

How does the Court decide whether a person has capacity?

The Mental Capacity Act sets out a test as to the REASON why the person lacks capacity

Section 2

(1)For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)It does not matter whether the impairment or disturbance is permanent or temporary.

And then sets out a test for deciding WHETHER  a person lacks capacity

Section 3 Inability to make decisions

(1)For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)to understand the information relevant to the decision,

(b)to retain that information,

(c)to use or weigh that information as part of the process of making the decision, or

(d)to communicate his decision (whether by talking, using sign language or any other means).

(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)deciding one way or another, or

(b)failing to make the decision.

It is VERY VERY important to note that a person is entitled in law to make a bad decision, an unwise decision, a daft decision, a decision that no other person would take; AS LONG as they understand the situation they are making the decision about.   (For example, Carla out of Corrie is entitled to marry Peter Barlow even though he is a love-rat with a history of bigamy, an alcoholic and is trying it on with Tina from the Rovers, even though many people would think she was foolish to do so. But if she does not understand that marriage is the union of one man and one woman (currently) and is intended to be for life although it can be ended through divorce, then she can’t marry him.  Just as, if he drinks and is so intoxicated that he can’t understand that, he can’t legally enter into a marriage contract  – but that is PRETTY drunk)

It is also important to note that just because a person lacks capacity to make one particular decision, it doesn’t mean that they lack capacity to make any sort of decision. Some decisions are more complicated to weigh up than others and need more capacity to understand.  Over a period of time, the Court of Protection has decided cases and set up guidelines for what sort of understanding a person has to have for certain decisions.

For example, classically, in order for a person to have the capacity to consent to sexual intercourse they have to be able to understand the following three things :-

(i) The physical mechanical act

(ii) That pregnancy can occur and what pregnancy is  (and contraception)

(iii) that you can get diseases through sex (and how to avoid that)

The person doesn’t have to understand the emotional implications (that you could get heart-broken or sad, or that the other person might) or be able to weigh up who is a good person to have sex with and who is not, just those three factors.    (For homosexual sex, the second factor is taken out)

You will see from the legal test that the person has to be helped, with explanations suitable for them, to reach the point of understanding the issues so that they can make the decision for themselves. The law WANTS people to make the decision for themselves, and it is also worth noting that the starting point is that every person HAS capacity unless evidence is provided to the contrary.

If the Court decide that a person lacks capacity, what then?

The Court then have to make what is called a “best interests” decision.  That means deciding what is in the best interests of the person. That might be what the State (the doctors or social workers) say is best, it might be what the person themselves is saying or showing that they want, or it might be something else entirely.

The legal test is set out in the Mental Capacity Act

section 4 Best interests

(1)In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—

(a)the person’s age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)He must consider—

(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)if it appears likely that he will, when that is likely to be.

(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)He must consider, so far as is reasonably ascertainable—

(a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.

(7)He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)anyone engaged in caring for the person or interested in his welfare,

(c)any donee of a lasting power of attorney granted by the person, and

(d)any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a)are exercisable under a lasting power of attorney, or

(b)are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10)“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11)“Relevant circumstances” are those—

(a)of which the person making the determination is aware, and

(b)which it would be reasonable to regard as relevant.

You can see that the Court are obliged to consider and take into account all that is known about what the person themselves wants, or would want, or has previously expressed about wanting (remember that a person might only temporarily lack capacity, so the Court have to take account of anything the person said or showed about the issue in the past), and also has to take into account the views of anyone who cares for the person or is interested in their welfare.

This is the difficult bit, and in most Court of Protection cases, the majority of the judgment is spent on the Judge deciding what is in the ‘best interests’ of the patient to do.  Sometimes that accords with what the patient is saying or showing they want, sometimes it does not.  It is the hardest part of the exercise, and to an extent, I agree with Lucy Series from The Small Places blog about capacity and mental health :-

“ A recently ratified UN treaty – the Convention on the Rights of Persons with Disabilities – poses the question: why should people with disabilities and mental illnesses face these kinds of interventions when people without do not? It looks very much as if the Mental Capacity Act itself is not compatible with this Convention, although views on this differ. It is certainly a question it would be good to see the media asking more often… Again, this is an issue that comes up a lot around the Mental Capacity Act 2005: how can we distinguish decisions which are merely irrational or unwise, which everybody is entitled to make, from those which are incapable. This is actually quite a profound philosophical problem (my own view is that it is insoluble; ‘mental incapacity’ is a conceptual device which we cling onto to mask the value judgments we are bringing to bear when justifying interventions in situations which we regard as intolerable). The disability Convention referred to above poses serious questions about how we deal with ‘capacity’, and emphasises the role of support for decision making. Even the Mental Capacity Act requires support to be provided for a person to make their own decision before it is made on their behalf, and decisions made on their behalf should involve the person as far as possible. “

How does the Court ensure that it is making the decision that is right for the person, and not the decision that “seems” the right thing to do from a paternalistic “The State knows best” approach.  The Court of Protection at essence is a referee between the tension of “the State needs to decide what is best for vulnerable people” and “people should be free of State interference and make their own decisions”.  It is not easy, and it can seem to those outside that the Court of Protection doesn’t always get things right.

It is certainly a new system (in terms of law, 8 years of operation is a baby) and it would be astonishing if mistakes weren’t being made and lessons were there to be learned. So it is important to scrutinise the decisions and for the Court of Protection to be responsive and reflective to changes both in law and attitudes in society. Twenty years ago, a man saying that he intended to marry another man would have seemed peculiar to most of society, now a Conservative Prime Minister is driving that change.

But, if a person doesn’t have capacity to make a decision, how do they fight the case?

Well, this is the million dollar question. Remember firstly that just because a person lacks capacity to make one decision doesn’t mean that they lack capacity to make all decisions. So it is possible for a person to be able to instruct his lawyers to fight the case, whilst the Court decides on the real issue in question. But very often the issue of capacity will also affect the person’s capacity to instruct a solicitor.  There is firm guidance on the legal test to be able to instruct a solicitor, and where a person doesn’t meet that test, they can’t give instructions directly to a solicitor.

[A person who HAS capacity is able to tell their solicitor to do something really foolish or unwise or downright dumb – i.e Carla can tell her solicitor to put all of her assets in Peter Barlow’s sole name and to sign a pre-nup saying that she has no claim on any of what is now his property. That’s stupid, but if she understands the nature of what she is doing, she can do it.]

What happens ordinarily then is that an agency known as the Official Solicitor is appointed by the Court   (not by the social worker or Trust, as certain national newspapers seem to think) and the Official Solicitor will decide how the case is to be run on the persons behalf  – that might be to fight the case every inch of the way, it might be to offer no resistance, it might be to be neutral and say that the doctors or social workers have to prove their case, or it might be that some parts of the case are challenged very hard and others aren’t. It is up to the Official Solicitor)

Now, one can see where that causes a problem. The person lacks capacity, say, to make an informed decision that if surgeons don’t cut off their foot they will die of gangrene, but is very vocally saying “Don’t cut off my foot, I would rather die”.   The doctors will be able to tell their lawyers to argue all the reasons why the surgery will happen. The Judge knows what the person is saying and has to take it into account. But there could very well be no lawyer who actually argues to the Court all of the reasons why the surgery SHOULDN’T happen, they will only do that if the Official Solicitor decides that it is in the person’s best interests to fight the case.

(You may see that you end up with both the Official Solicitor and the Court making decisions about what each of them CONCLUDES is in the person’s best interests to do and that can appear to be a blurring of roles.  When a lawyer acts for someone who has capacity, she gives them ADVICE about what is in their best interests, often very strong advice, but where a person says “I hear all that, but I still want to do X instead” that lawyer goes into Court and argues fearlessly and without favour for X.  You end up with, here, a situation where the most vulnerable people in society get less protection from the lawyer charged with representing them, than they would if they had capacity)

If you want to know more about the decision of the Court of Protection in ceasarean section cases, I heartily recommend this piece , which focuses on the legal side and the tests to be met

http://thesmallplaces.blogspot.co.uk/2013/12/more-questions-than-answers-on-forced.html#more

and this piece

http://www.birthrights.org.uk/2013/12/views-on-the-forced-cesarean-judgment/

Which looks at it from the perspective of the pregnant mother

* She actually did say that. And what better reason do I need to crowbar in a “Who said this, Kay Burley or Ron Burgundy” quiz?

http://www.huffingtonpost.co.uk/2012/03/29/anchorman-2-ron-burgundy-kay-burley-quiz_n_1387332.html

Stay classy, internet

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