Category Archives: court of protection

the judgment from court of protection in the caesarean section case

Posted on December 4, 2013 by suesspiciousminds

 

This is Mostyn J’s decision (see the two Untimely Ripped posts, and most of the press since Sunday if you don’t know the background)

 

http://www.judiciary.gov.uk/media/judgments/2013/re-aa-approved-judgement

 

I think the note from Mostyn J is important to read

 

NOTE BY MR JUSTICE MOSTYN (4 December 2013)
Although no-one has sought to appeal the judgment dated 23 August 2012 during the last 15 months, or to have it transcribed for any other purpose, I have decided to authorise its release together with
the verbatim transcript of the proceedings and the order made so as to inform and clarify recent public comments about this case.
It will be seen that the application to me was not made by the local authority or social workers.
Rather, it was an urgent application first made at 16:16 on 23 August 2012 by the NHS Trust, supported by the clear evidence of a consultant obstetrician and the patient’s
own treating consultant psychiatrist, seeking a declaration and order that it would be in the medical best interests of this seriously mentally ill and incapacitated patient, who had undergone
two previous elective caesarean sections, to have this birth, the due date of which was imminent (she was 39 weeks pregnant), in the same manner.
The patient was represented by the Official Solicitor who instructed a Queen’s Counsel on her behalf. He did not seek an adjournment and did not oppose the application, agreeing that the
proposed delivery by caesarean section was in the best interests of the patient herself who risked uterine rupture with a natural vaginal birth. I agreed that the medical evidence was clear and,
applying binding authority from the Court of Appeal concerning cases of this nature, as well as the express terms of the Mental Capacity Act 2005, made the orders and declarations that were sought.
Although I emphasised that the Court of Protection had no jurisdiction over the unborn baby, I offered advice to the local authority (which were not a party to or represented in the proceedings, or
present at the hearing) that it would be heavy-handed to invite the police to take the baby following the birth using powers under section 46 of the Children Act 1989. Instead, following the birth there
should be an application for an interim care order at the hearing of which the incapacitated mother could be represented by her litigation friend, the Official Solicitor
Okay, there’s quite a lot in that, so let’s break it down :-
1. The application for the Court to rule that the surgeons could undertake a C-section was made by the health authority, not by social workers
2. Social workers weren’t a party to the proceedings or represented
3. The mother was represented through the Official Solicitor and by Queen’s Counsel
4. The Court heard evidence that the mother was seriously mentally unwell and incapacitated  (not quite Brooker’s “panic attack”)
5. The decision about the C-section was on the basis of very clear medical evidence that it would prevent a uterine rupture
6. Mostyn J gave advice to be communicated to the local authority social workers, that any decision about removal of the baby should take place at a Court hearing with the mother represented through the Official Solicitor
 rather than the police exercising their powers to remove for a period of 72 hours and place the baby in the care of social workers
7. The decision about the C-section was made lawfully, taking the statutory matters into account and following the clear principles already established in English law   (i.e there isn’t anything dramatically new about what happened here, in relation to the Court of Protection decision)
Now, there is still a public debate here about point 3, and I am sure that John Hemming MP would still wish to have it. Although the mother was represented through the Official Solicitor and had a very very experienced and senior barrister representing her; as the mother did not have capacity to instruct a solicitor and tell them what she thought about the operation, the Official Solicitor did not oppose the application.  (I know that Mr Hemming MP taes the view that this procedure is unfair for vulnerable people and there is a disconnection between the mother and those who are purportedly representing her. It is a tricky one, and worthy of further debate. However, what was done here is the usual process with a person lacking capacity – even slightly more so, given that Queen’s Counsel was instructed.
What there ISN’T here, is the smoking gun that the Sunday Telegraph and others following in their wake were hinting at (or indeed expressly saying) that the C-section had been done at the behest of social workers to facilitate an easier time of removing the child into care.  Let’s see if the Press correct that.
There is STILL a genuine debate to be had about the circumstances in which the child was removed – but the Local Authority made an application to the Court (as Mostyn J had advised) and it seems very likely that the mother was represented through the Official Solicitor for that hearing (they already being seized of the situation).  Let’s wait and see what that judgment says – of the three judgments, that is probably the pivotal one, since it will illuminate whether the evidence and the risks involved really required this baby to be removed whilst mother was unconscious and recovering from her operation.
(I may come back to the judgment, but wanted to get it up so that people could read it for themselves)

 

 

75 Comments

Posted in court of protection and tagged , , , , . Bookmark the permalink.

Untimely ripped part two

Posted on December 3, 2013 by suesspiciousminds

Firstly thank you to all the contributors to the debate on the first post, I think this case undoubtedly stirs up not only emotions but some genuinely important issues. No doubt once we get the Court of Protection judgment (which is the really important one) more issues will be stirred up.

I have to point you all towards Pink Tapes very thoughtful and considered analysis of the case

http://pinktape.co.uk/cases/never-let-the-facts-get-in-the-way-of-a-good-story-eh/#more-4418

which makes the very important point that the Press are conflating two separate decisions and applications

1. The Health authority’s application for a determination about capacity and surgery to the Court of Protection, which would have been about health issues

2. The Local Authority’s application for removal of the child on an interim basis, which would have been about risk  (and appears from the reporting to have taken place in mother’s absence and whilst she was not conscious)

It is the conflation of those two separate decisions and applications into one that suggests that the C-section happened to make it easy for social workers to remove the child that raises the temperature so much.   There are still very interesting and important issues in the case, however, and still a legitimate public debate to be had about whether this is right or not.

It occurred to me that I could imagine all sorts of scenarios where this choice was a genuine life-or-death one for both limbs (it would be wrong for me to speculate about those, but it doesn’t involve much of a stretch to concieve of a situation where it appeared that the only way to save A baby’s life was to take this incredibly harsh action). Now, we don’t know whether that was the case here or not, and await the judgments to give us an informed view.

[So from here on out, I am not talking about THIS particular case, I am talking about a hypothetical case, where the Court is satisfied that there is a genuine life-or-death choice to be made, where the issue is either to save the child OR to intervene in the starkest and harshest way  –  the Court is of course bound by Art 2, so would have no choice BUT to act, if the choice were that stark]

Hypothetically, IF the evidence was that this action was the only thing that could have saved the child’s life and the risks there were ones that no Local Authority could sensibly ignore, one still has to consider whether the State (which in my view effectively ‘borrows’ its powers with the consensus of the people) ought to have those sorts of powers, even after a legal process with safeguards and the highest tests before such powers can be used.

I think that there is a very legitimate question, along the lines of Ben Franklin’s famous aphorism  “Those who would trade in their freedom for their protection deserve neither”

If we as a society, and as a free press take the view that even in a life or death situation, an outcome like this is abhorrent and wrong  (and I think I am probably leaning towards that myself, in terms of ‘are these powers that the State should have’ as opposed to ‘those powers existing, was it right to make use of them?’  but I reserve my final position) then in coming to that judgment, we have to accept the consequences of it, which will be that we must be willing to accept that it might be better for the baby faced with this hypothetical situation to die than to use very draconian powers to secure its safety.

That’s a big question put in those terms.  I have immediately thought of  three conflicting positions in relation to that :-

(a) in a life or death situation, pretty much anything goes to save the baby, although the burden to demonstrate that this really is life or death is high

(b) Even in a life or death situation, the State shouldn’t have such powers and it is wrong to exercise them

(c) I would be absolutely opposed to such powers being used in anything short of life or death, and I still feel pretty uncomfortable about the powers existing, because of the draconian nature of them, the fact that the decision is being made in haste and what appears ‘life and death’ might not be in the cold light of day

[I think that in the hypothetical situation, I am probably C, but I MIGHT be B]

I do feel uncomfortable that a removal hearing takes place whilst mother was unconscious, if the reporting is accurate, and I would want evidence of a very high level that there was really nothing that could be done to safeguard the child whilst a hearing took place with mother being present.

I have little doubt, that IF we had a hypothetical situation like this, and the risks were genuine life or death and this draconian action was the only way to save the baby, and the LA HAD NOT acted, there would be equal criticism and vitriol from the Press about bungling social workers who let a baby die even though they knew how big the risks were  – “what were they thinking?”.  Does anyone honestly think that we wouldn’t have been seeing “heads must roll” headlines and speeches in Parliament? 

So whilst this case is based on a particular set of circumstances which may never ever crop up again, it does raise an issue of wider importance – are we as a society willing to accept that if the system is rebalanced so that we have a higher tolerance of risk to allow more children to stay with their families, are we at the same time willing to accept the less palatable consequences of that?

14 Comments

Posted in assessment of risk, court of protection. Bookmark the permalink.

Untimely ripped

Posted on December 2, 2013 by suesspiciousminds

The case involving the Italian mother who whilst in the UK had a caeserean section without her consent, and awoke to find her baby had been removed.

The Press, understandably have taken a very hard line on this – the Independent isn’t one of the Camilla Cavendish / Christopher Brooker brigade, but even they tell the story with very emotive language – social workers ‘forcibly removing the baby from the womb’  – I’ve even seen the phrase ‘ripped from the womb’ employed by the mainstream press today. The Independent even headline their piece that social workers were condemned for this action  (which makes you immediately think “by a judge”, but no, it is by human right campaigners)

http://www.independent.co.uk/news/uk/home-news/social-services-forcibly-remove-unborn-child-from-woman-by-caesarean-after-she-suffered-mental-health-breakdown-8975808.html

 

First things first then – we don’t know the facts.  There will be three judgments in this case, all of which we need to see and consider before we could claim to be informed on the issues. Because contrary to the impression one might form from the Press accounts, social workers don’t have powers to conduct surgery, nor to remove children without either consent or a court order.

The judgments would relate to the applications and would be these :-

 

1. The Court of Protection decision that the mother in question lacked capacity to make a decision about the way in which she was going to give birth, and giving a declaration that a C-section was in her best interests (note that the Court of Protection don’t have the power to make the surgeons carry out the operation, only to tell them that they CAN do it without mother’s consent)

2. The initial decision for removal, which is probably going to be an ex-parte Emergency Protection Order – the existing law on this is that removal of a child from a parent without the parent being present to oppose is a draconian order that requires the most compelling evidence, and the Court should be very reluctant to grant such an order

3. Given that those two matters happened in August 2012, we now have the final hearing in care proceedings in which, it seems, the Court made a Care Order with a plan of adoption, possibly with a Placement Order.  As recent readers of this blog will know, the test for that has become very high (many would say rightly so) – that “nothing else will do”

 

There are three judgments then, two involving very very high and stringent tests and robust evidence – the Court of Protection would undoubtedly have needed to consider the operation very carefully before granting it.

So, firstly, we don’t know the circumstances – given the public debate I think that all 3 of these judgments should be published forthwith and that the Press should also be given access to the documents and evidence in the case (so long as anonymity is preserved). It is vital that one sees in this case whether :-

(a) The proper high legal tests were observed in this case

(b) The authorities involved made the applications that they were entitled to make in law in good faith, and that there was no other option realistically open to them  [were they gung-ho, or just in a genuinely impossible position? We don’t yet know]

 

But over and above that

(c) Whether as a society, we are content for the State to have such powers at their disposal, particularly when they are used on a person who whatever the scenario was a vulnerable person enduring a difficult mental health problem.

 

I can see perfectly well why John Hemming MP has taken an interest in this case – it involves the Court of Protection, decisions being taken in the “best interests” of a person which seem on the face of it to be directly counter to what the person’s own view of what would be in their best interests would be had she been asked, the whole issue of a person being deprived of the opportunity to challenge and fight the most dramatic and draconian applications purely because she lacks capacity (her vulnerability effectively being counted against her twice)

I’m not going to defend or condemn the actions of the State in this one, because I don’t have the facts. [yet]  It may well be that no matter how dreadful the risks and fears were in this case, no matter how strong the evidence, I would still feel uncomfortable that the State had such power  to do such things.  I’m not sure that they sit terribly comfortably with the duties that we have to people under article 8 – I can think of no greater interference with family life than this, and one has to be sure that the interference is both necessary and proportionate.

I do feel that the Press is a little unfair in not conveying that these actions were all a consequence of a Judge making decisions. Whether a Judge, any Judge, should have that power, whether the requirements and tests are high enough  and whether the safeguards for a mother in this position are adequate is a perfectly valid debate, and the sooner the facts of the case are properly in the public domain the better.

 

*I will declare an interest now, I worked for a time at Essex about five years ago, and I think that they are good people; although in any case like this I would prefer to see the judicially established facts rather than the media spin on things

35 Comments

Posted in adult social care, court of protection and tagged , , . Bookmark the permalink.

There are compelling reasons of public policy why ‘sham marriages’ are declared non-marriages

Posted on November 13, 2013 by suesspiciousminds

 

This is the Court of Protection decision in A Local Authority v SY 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/3485.html

Much of the case involved SY’s difficulties with capacity and plans for her future, which involved her living in a care home – having not consented, this was being treated as a deprivation of liberty (I add in parenthesis that I am pleased to see the Courts taking a common sense pragmatic approach on someone having to live in a home when they don’t consent as being a Deprivation of Liberty DoLS, as I think that was always the spirit of the Mental Capacity Act 2005, though we seem to have drifted from that in the short years the Act has existed)

An additional issue, however, was that SY had entered into a marriage to a man TK.   I have to say, the man TK, doesn’t come out of this well  (I have reordered the judgment here, simply because it scans better in this particular context)

 

    1. TK was born in Pakistan. He came to the United Kingdom on 7 September 2009 as a student. His application to continue his studies was refused and his appeal was dismissed on the basis of a tribunal finding that he had submitted two forged documents and had attempted to deceive the immigration authorities. His rights of appeal were exhausted in June 2011. It is in this context that he began a relationship with SY in August 2011.

 

    1. On or around 15 June 2012 TK was arrested for immigration offences and detained by the UK Border Agency pending his deportation. He claimed asylum on the basis that he feared he would be killed by his family who disapproved of his marriage to a white British woman, namely SY.

 

    1. Following an adult case conference on 20 June 2012, SY moved to her current placement on 27 June 2012. The following day an associate of TK attended the placement and attempted to gain entry for the purpose of seeking SY’s signature on a document allegedly prepared to assist TK with his asylum claim. In light of the risks to SY of harm and exploitation, an urgent authorisation was issued and then a standard authorisation to deprive her of her liberty at the placement was granted.

 

  1. On 17 July 2012 TK’s appeal against the refusal to grant him asylum was dismissed on all grounds. His relationship with SY lay at the heart of the case he sought to mount. The tribunal judge found that “The relationship, if there is one, does not have the necessary qualities of commitment, depth and intimacy which would be necessary to demonstrate family life for the purposes of article 8…”. He later observed that “viewed objectively her best interests are likely to be served by there being no further interference by [TK] and his friends with the care arrangements which social services have put in place”. He was found not to have given a truthful account in his evidence and not to be a credible witness.

 

    1. On 23 January 2012 her then carers notified the authority that she had returned from TK’s property in a nearby city and told them that TK had locked her in his house when he went to work, she and TK had been visited by a ‘lawyer’ about a housing application, that they were to marry in six months time and that TK had taken her to a registry office to obtain a copy of her birth certificate. The carers reported they had overheard TK speaking to SY on the telephone in a controlling and aggressive manner.

 

    1. Social workers attempted to undertake a capacity assessment but SY refused to co-operate. For the same reasons a clinical psychologist, Dr. C, was unable to assess formally her capacity to litigate and/or to make decisions as to residence, contact, marriage and sexual relations but concluded it was unlikely she was able to do so.

 

  1. On 24 May 2012 the authority and the police told TK that SY had a learning disability and was unlikely to have capacity to consent to sexual relations and marriage and that an offence would be committed. Notwithstanding this advice, on 10 June 2012 TK and SY entered into a purported Islamic marriage ceremony at his home.

 

So, the issue in the case was whether the Court of Protection should make a declaration that this marriage was not recognised, as being one that SY had no capacity to consent to.  The eagle-eyed or attentive reader may recall that there was a blog post recently about a Holman J decision, in which he held that the Court had no jurisdiction to make such a declaration  – the difference HERE is that the unfortunate wife in that case COULD have made her own application for nullity but was vulnerable and unwilling, which was what caused the bar to the declaration. Here, there was no possibility that SY had the capacity to make an application in her own right, so the Court would have power to make the declaration.

(It isn’t QUITE as simple as that, because the marriage never purported to be a ceremony to which the Marriage Act applies, so the Court can’t use the powers under that Act – this was clearly an Islamic ceremony. So, to declare it a non-recognised marriage  involves the use of the inherent jurisdiction, and the Court needed to walk through very carefully the existing authorities,  hence the debate and determination below – underlining mine for emphasis)

Discussion – Declaration of Non-Marriage

    1. There is no provision in the 2005 Act to make a declaration in respect of the ceremony in which SY and TK participated on 10 June 2012.

 

    1. The issue is whether the Official Solicitor should make a freestanding application for a declaration or whether the court, of its own motion, should invoke the inherent jurisdiction of the High Court and make a declaration of non-marriage. The parties invite me to take the latter course.

 

    1. The ceremony was conducted at TK’s home by a Mr MA. He is not a registrar and the ceremony did not take place at an authorised place. A document entitled ‘Marriage Certificate according to Islamic Laws’ appears in the court bundle [A35].

 

    1. It is submitted by counsel for the authority and for the Official Solicitor that the ceremony failed to comply with essential requirements of the Marriage Acts 1947-1986 in that:

 

a. it was not conducted in a registered place; and

b. it was not conducted by a registrar or by a priest according to Anglican rites.

    1. Furthermore it is submitted that the evidence indicates that in all probability the ceremony was not intended to attract the status of a marriage under English law being a ceremony undertaken to create a marriage expressly according to Islamic laws.

 

    1. In A-M v. A-M (Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, Hughes J. (as he then was) considered the status of an Islamic marriage ceremony conducted in England. He said, at paragraph 58,

 

“It is clear, however, that the present ceremony did not begin to purport to be a marriage according to the Marriage Acts, with or without fatal consequences. It was not conducted under the rites of the Church of England, nor was there ever any question of an application for, still less a grant of, a superintendent registrar’s certificate, and it was conducted in a flat which was clearly none of the places which were authorised for marriage. The ceremony was consciously an Islamic one rather than such as is contemplated by the Marriage Acts……It is not any question of polygamy which ipso facto takes this ceremony outside s. 11, but the fact that it in no sense purported to be effected accordingly to the Marriage Acts, which provide for the only way of marrying in England. …It follows that I hold that the 1980 ceremony is neither a valid marriage in English law nor one in respect of which jurisdiction exists to grant a decree of nullity”.

    1. The self-same facts and considerations apply in this case in relation to the ceremony conducted on 10 June 2012.

 

    1. In the case of Hudson v. Leigh (Status of Non-Marriage) [2009] 2 FLR 1129, a ceremony was undertaken in South Africa which the parties had deliberately modified to avoid strict compliance with local formalities. They intended a civil ceremony would be conducted some weeks later in England, but it never took place. Bodey J. held, at paragraphs 80-84,

 

“As to Mr Leigh’s amended petition, Mr Mostyn has abandoned the secondary prayer in it for a declaration that “…no marriage between the parties subsisted on the 23rd January 2004 or thereafter”. That had seemingly been inserted into the pleading by amendment and as an afterthought so as to try to bring Mr Leigh’s case into S55 (1) (c), as being ‘a declaration that the marriage did not subsist on a date so specified in the application’. I am clear that the making of such a declaration would have been wholly impermissible as being a device to get around S58 (5) (which outlaws any declaration that a marriage was at its inception void) and I would therefore have dismissed that prayer had it stood alone. There remains Mr Mostyn’s application for a declaration that the Cape Town ceremony did not effect a marriage at all….It goes without saying that, if appropriately worded, the mere dismissal of Miss Hudson’s petition for divorce and alternatively for nullity would inform any reasonably knowledgeable interested party that there was not a marriage between herself and Mr Leigh. There would indeed be nothing to prevent a specific recital to that effect. That would not be entirely satisfactory, however, since it would not theoretically bind third parties and problems might arise if either party wanted to marry here or abroad, or otherwise needed to demonstrate his or her status. A declaration, if permissible, would be in the public interest of creating certainty and would be beneficial and convenient for both parties. In my judgment, the making of such a declaration is not outlawed by S58 (5) if and for so long as it is made to declare that there never was a marriage, as distinct from being a declaration (which is not permitted) that a given marriage was void at its inception. When the facts dictate the latter (which, as found here, they do not) then the only route to resolution is nullity. Nor do I find persuasive Mr Le Gryce’s argument about the former practice of the ecclesiastical courts. For so long as the High Court has an inherent jurisdiction, as it does, and has the authority of the RSC to make free-standing Declarations in appropriate circumstances, then such jurisdiction needs within reason to be flexible and to move with the times. I cannot accept that it is stuck in the mid-19th century. Were it so, then countless orders must have been made (for example in the management of life-support systems) without jurisdiction. Accordingly I propose to make a Declaration that the Cape Town ceremony of 23.1.04 did not create the status of marriage as between Miss Hudson and Mr Leigh.”

    1. Bodey J., in a later case, considered the status of an Islamic marriage ceremony conducted in the ‘husband’s’ London flat in the presence of an imam. He held there had been a wholesale failure to comply with the formal requirements of English law and there was nothing that could be susceptible to a decree of nullity under s. 11 of the Matrimonial Causes Act 1973. He made a declaration of non-marriage: El Gamal v. Al Maktoum [2012] 2 FLR 387.

 

    1. On the basis of those authorities I am satisfied that the ceremony which took place between SY and TK on 10 June 2012 did not comply with the formal requirements of the Marriage Acts 1947-1986. I find it was a non-marriage.

 

    1. What is then to be done? The Official Solicitor on behalf of SY could make a freestanding application pursuant to the inherent jurisdiction of the High Court to seek a declaration of non-marriage. Alternatively, the court in these proceedings could, of its own motion, invoke the inherent jurisdiction and make a declaration of non-marriage.

 

    1. In the case of XCC v. AA and Others [2012] EWHC 2183 (COP), Parker J. was invited to make a declaration of non-recognition of a marriage within Court of Protection proceedings by invoking the inherent jurisdiction of the High Court. She said, at paragraphs 54 and 85,

 

“The protection or intervention of the inherent jurisdiction of the High Court is available to those lacking capacity within the meaning of the MCA 2005 as it is to capacitous but vulnerable adults who have had their will overborne, and on the same basis, where the remedy sought does not fall within the repertoire of remedies provided for in the MCA 2005. It would be unjustifiable and discriminatory not to grant the same relief to incapacitated adults who cannot consent as to capacitous adults whose will has been overborne…..I am satisfied that once a matter is before the Court of Protection, the High Court may make orders of its own motion, particularly if such orders are ancillary to, or in support of, orders made on application. Since the inherent jurisdiction of the High Court in relation to adults is an aspect of the parens patriae jurisdiction the court has particularly wide powers to act of its own motion.”

    1. I, respectfully, agree.

 

    1. Parker J. held that the provisions of the 2005 Act were not to be imported in to the inherent jurisdiction evaluation, the decision was not dictated only by considerations of best interests but public policy considerations were also relevant [paragraphs 56-57 and 71-76].

 

    1. It is plain on the facts of this case, especially taking account of the immigration judgment handed down on 17 July 2012 in respect of TK’s asylum appeal, that TK exploited and took advantage of SY for the purpose of seeking to bolster his immigration appeal and his prospects of being permitted to remain in this country. The ceremony he and SY engaged in on 10 June 2012 formed the bedrock of that objective.

 

    1. TK well knew that SY had learning difficulties and was a vulnerable young woman. He knew that the police and the care services were extremely concerned about his involvement with SY.

 

    1. I can reach no other conclusion than he deliberately targeted SY because of her learning difficulties and her vulnerability. The courts will not tolerate such gross exploitation.

 

    1. Fortunately, it would appear that TK’s involvement in SY’s life is not now causing her emotional distress or harm. It was, however, yet another abusive and exploitative episode in her life which could have had serious physical, emotional and psychological consequences for her.

 

  1. In my judgment it is important for SY that a declaration of non-marriage is made in respect of the June 2012 ceremony. There are also, in my judgment, compelling reasons of public policy why sham ‘marriages’ are declared non-marriages. It is vital that the message is clearly sent out to those who seek to exploit young and vulnerable adults that the courts will not tolerate such exploitation.

 

Over and above the facts of this case, and that judicial steer underlined above (which I suspect will be cited in many of these cases to come), the Court made some interesting observations about the capacity assessment.

 

    1. The assessment of capacity (COP 3) was completed by SY’s social worker, NU. It is a full, detailed and helpful assessment of SY’s capacity to make decisions as to her residence, contact with others, her care needs and to enter into a contract of marriage.

 

  1. I am told by counsel that it is more usual for the assessment of capacity to be undertaken by a medical practitioner or a psychiatrist. The assessment in this case demonstrates that an appropriately qualified social worker is eminently suited to undertake such capacity assessments. I commend the practice which I hope will be followed in appropriate future cases.

 

[I am not entirely sure how I feel about that – I represent and work with social workers and believe that those who work in adult social care do have the necessary expertise and skill to conduct such assessments and that they would strive to make them fair. However, it can be the case that the Local Authority take, and sometimes have to take, a line as to what they consider to be in the best interests of the person. It may be that such a role doesn’t sit entirely comfortably with conducting an assessment to decide whether a person is capable of exercising autonomy or should have decisions about their future made by the State in their ‘best interests’.  (I am not saying that there WOULD be bias or unfairness, but in law, the perception of bias can be as important as the actuality.  R v Sussex Justices being the lead on this – the law must not only be fair, it must be seen to be fair)

 

 

 

2 Comments

Posted in case law, court of protection and tagged , , , , , . Bookmark the permalink.

Life, liberty and the pursuit of happiness

Posted on November 8, 2013 by suesspiciousminds

 

 

The compelling case of Re M (Best Interests : Deprivation of Liberty) 2013

 

http://www.bailii.org/ew/cases/EWHC/COP/2013/3456.html

 

This is a Court of Protection case,  decided by Justice Peter Jackson – who has delivered a number of very cogent judgments in the short time I have been running this blog. I think this one is a model of its kind.

 

The issue was whether the Court would approve a Deprivation of Liberty for a woman, meaning that she would have to live in a care home, or reject it meaning that she could return to her own home. The care home option would be safe but make her unhappy, being in her own home carried considerable risks but would make her happy.   [Hence the title of the piece]

 

There was no doubt in this case that the woman in question, M, lacked capacity to make decisions on her own behalf, and that the professional agencies concerned could have done nothing other than make the recommendation they did

 

my decision implies no criticism whatever of any of the witnesses from the local authority or by the CCG. I understand the position taken and the reasons for it; indeed it would be difficult for them to have taken a different view on the facts of the case. There are risks either way and it is perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court and not on the shoulders of the parties.

 

 

Another interesting point for wider application is this :-

 

I have already noted the visit made by the District Judge to M in the care home about a month before this hearing. A careful written record was made and placed with the papers. The visit has therefore had the dual purpose of informing the court of M’s views and of making M feel connected to the proceedings without putting her into the stressful position of having to come to court in person. I commend this as an approach that may be of value in other cases of this kind.

 

 

The fundamental issue in the case was the management of M’s diabetes, the assessment being that she needed 24 hour supervision to manage this so that it would not be life-threatening. The authorities therefore wanted M to live in a care home, where this supervision could take place. M (despite lacking capacity to make a decision) was clearly expressing her huge antipathy to this and her desire to live at home.

 

 

 

 

The risk from the management of her diabetes was real and vivid

 

In relation to the management of M’s diabetes, Miss L, a senior specialist nurse, clearly explained the processes involved, the nature of the medication regime, and the range of consequences arising from non-compliance of different kinds. Her evidence establishes that if there is a default in the insulin supply that M receives there will undoubtedly be a deterioration in her physical health. The probability is that this would be picked up, but the length of time that would be available to take action would be limited with the likeliest scenario being a situation that had to be resolved within a certain number of hours or a few days; however the possibility of a more urgent and possibly fatal event cannot be discounted.

 

Counsel for the Care Commissioning Group (the agency responsible for M’s care) put it very crisply to the Court

 

at the care home there is almost complete certainty of physical safety at the cost of the happiness of M

 

 

 

You may already be anticipating that we are about to move into very interesting territory in Deprivation of Liberty law   – if someone needs to be detained to preserve their physical safety, but the effect of that is to lose their happiness and quality of life, where does that balance fall?

 

 

  1. In relation to the views of others, I have taken account of the views of all those referred to above. I am in no doubt that everyone concerned has thought hard about what is in M’s best interests. It is not surprising that witnesses called by the CCG are by vocation highly motivated by their responsibility to keep her safe. I also place substantial weight upon the judgement of A, who knows M and her situation extremely well.
  1. Ultimately the court must balance these factors:
  • M’s wishes, feelings and values which point towards a return home.
  • The best possible control of her diabetes, which points towards her remaining in the care home.
  • The risks to her health that exist in the care home, both by way of a possible deterioration in her physical and mental state consequent upon her being made to stay there, and by way of her threats of self-harm.
  • The risks to her health that would exist following a return home, as described by Miss L.
  • The possibility that cannot be ignored that M will cause herself serious physical harm if she is told that she is not going home.
  • The real possibility that her enjoyment of life might to some degree be recovered following a return home even if it does not fully meet her expectations.
  1. Having weighed these matters up I have reached the clear conclusion that the case for a continued deprivation of M’s liberty has not been made out. I accept that there are many uncertainties in a return home, indeed more uncertainties both of a good and a bad kind than in maintenance of the status quo. Negatively these include a possible deterioration in her physical and mental state as a result of non-cooperation. The deterioration may be gradual, but might also be sudden, occurring in a matter of a few hours, and may even, though perhaps less likely, be instantly life-threatening. Any decision that M returns home must accept the real possibility that the attempt will fail and the possibility in the worst case that she may die as a result of a sudden deterioration in her condition. Like Dr Leonard, I do not however accept the view that failure is inevitable.
  1. The above disadvantages are, in my view, outweighed by the following considerations.
  1. In the end, if M remains confined in a home she is entitled to ask “What for?” The only answer that could be provided at the moment is “To keep you alive as long as possible.” In my view that is not a sufficient answer. The right to life and the state’s obligation to protect it is not absolute and the court must surely have regard to the person’s own assessment of her quality of life. In M’s case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable

 

 

The Judge therefore ruling that in this case, M’s best interests would be better served by being at home and being at happy (albeit with an element of risk) rather than being safe but unhappy in the care home.

 

Obviously, there was some emphasis on trying to make the option at home safer, and the Judge had this message for M

 

My message to M is this: I hope that you will be happy when you return home. If you accept the support you will be getting from district nurses and carers it may be possible for you to stay there. If you do not accept that support you will probably have to return to a care home

1 Comment

Posted in case law, court of protection. Bookmark the permalink.

Sanctity and futility

Posted on November 4, 2013 by suesspiciousminds

The Supreme Court recently gave judgment in

 Aintree University Hospitals NHS Foundation Trust (Respondent) v James (Appellant) [2013] UKSC 67

{This is the first Supreme Court decision on Mental Capacity Act – there’s obviously the Cheshire West decision pending, but this is still quite a big deal} 

http://www.bailii.org/uk/cases/UKSC/2013/67.html

 

 Lady Hale captures the importance of the judgment in one simple opening

 

This is the first case under the Mental Capacity Act 2005 to come before this Court. That Act provides for decisions to be made on behalf of people who are unable to make decisions for themselves. Everyone who makes a decision under the Act must do so in the best interests of the person concerned. The decision in this case could not be more important: the hospital where a gravely ill man was being treated asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold from him treatment which will keep him alive? On the other hand, when can it be in his best interests to inflict severely invasive treatment upon him which will bring him next to no positive benefit?

 

There’s a really excellent summary over at UK Human Rights blog

 

Supreme Court weighs in on patient’s best interests and the meaning of futility

 

The Court of course re-emphasised the existing law and the starting point that human life has a sanctity and that making any decision that might hasten the end of life is a very serious one requiring very careful analysis. That’s long-standing authority, of course backed by Article 2 of the Human Rights Act which protects an individual’s right to life.

 

In a nutshell the patient David James had severe medical conditions and complications arising from those. He reached a point where neurologically he was no longer able to make decisions about his own treatment. The hospital took the view that the treatment they were able to provide was not going to cure him or help him recover. He did appear to recognise his family during their visits and take pleasure from them.

 

The hospital sought a declaration from the Court that they should be permitted to not provide Mr James with treatment which would be invasive or painful. The family opposed this, considering that Mr James was still able to take some pleasure from life and that his life should continue.

 

The three treatments that they wished to withhold were these [Note that there was not a suggestion of ending Mr James life through an overdose of pain medication, nor of ceasing to provide him with food or liquid – though of course, if Mr James HAD needed CPR to keep him alive and that would not be provided, it would hasten his death]

 

  1. The three treatments in question, as described by the judge (para 8), were as follows:

(1) Invasive support for circulatory problems. This meant the administration of strong inotropic or vasopressor drugs in order to correct episodes of dangerously low blood pressure. The process is painful, involving needles and usually the insertion of a central line. The drugs have significant side effects and can cause a heart attack. They had previously been used to treat Mr James.

(2) Renal replacement therapy. This meant haemofiltration, filtering the blood through a machine to make up for the lack of kidney function. It too requires a large line to be inserted and an anti-coagulant drug which brings the risk of bleeding or a stroke. It can be very unpleasant for the patient and may cause intense feelings of cold. Mr James had not so far required this treatment.

(3) Cardiopulmonary resuscitation (CPR). This aims to make a heart which has stopped beating start beating again. So the decision has to be taken at once. It can take various forms, including the administration of drugs, electric shock therapy and physical compression of the chest and inflation of the lungs. To be effective, it is “deeply physical” and can involve significant rib fractures. CPR had successfully been given to Mr James when his heart had stopped beating in August.

 

The debate hinged really on the Mental Capacity Act Code of Practice

 

 

  1. The Mental Capacity Act Code deals with decisions about life-sustaining treatment in this way:

“5.31 All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment.

5.32 As with all decisions, before deciding to withdraw or withhold life-sustaining treatment, the decision-maker must consider the range of treatment options available to work out what would be in the person’s best interests. All the factors in the best interests checklist should be considered, and in particular, the decision-maker should consider any statements that the person has previously made about their wishes and feelings about life-sustaining treatment.

5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen. Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests. If the doctor’s assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person’s best interests.” (Emphasis supplied.)

 

 

The issue here was therefore whether the three treatments in question met that criteria of being ‘futile, overly burdensome to the patient or where there is no prospect of recovery’

 

The initial Court of Protection decision was to refuse the hospital’s application for a declaration that they could decline to provide those 3 forms of treatment. That was appealed and the Court of Appeal overturned that, and allowed the declaration.

 

The family then appealed to the Supreme Court.  The Supreme Court actually found that the original trial judge at the Court of Protection had been right BUT that by the time the case got to the Court of Appeal, deteriorations in Mr James condition meant that the Court of Appeal HAD also been right to reach the opposite decision.

 

[But that on two areas of principle, the original judge had been right and the Court of Appeal had been wrong]

 

In particular, the Supreme Court reached two key decisions

 

 

  1. That a treatment was not futile just because it had no real prospect of curing or palliating the illness – a treatment that could improve or restore some quality of life might not be futile

 

Thus it is setting the goal too high to say that treatment is futile unless it has “a real prospect of curing or at least palliating the life-threatening disease or illness from which the patient is suffering”.  ….where a patient is suffering from an incurable illness, disease or disability, it is not very helpful to talk of recovering a state of “good health”. The patient’s life may still be very well worth living. Resuming a quality of life which the patient would regard as worthwhile is more readily applicable, particularly in the case of a patient with permanent disabilities. As was emphasised in Re J (1991), it is not for others to say that a life which the patient would regard as worthwhile is not worth living

 

  1. The test is not an “objective” test as to whether a reasonable person or even reasonable patient would consider the treatment to be futile or burdensome, but a subjective one  – whether that is the case for THIS patient, where the Court should as best as possible put themselves in the shoes of the patient and take into account as much as is known or can be established about what the patient’s own view would have been.

 

The purpose of the best interests test is to consider matters from the patient’s point of view. That is not to say that his wishes must prevail, any more than those of a fully capable patient must prevail. We cannot always have what we want. Nor will it always be possible to ascertain what an incapable patient’s wishes are. Even if it is possible to determine what his views were in the past, they might well have changed in the light of the stresses and strains of his current predicament. In this case, the highest it could be put was, as counsel had agreed, that “It was likely that Mr James would want treatment up to the point where it became hopeless”. But insofar as it is possible to ascertain the patient’s wishes and feelings, his beliefs and values or the things which were important to him, it is those which should be taken into account because they are a component in making the choice which is right for him as an individual human being.

 

The Supreme Court made it plain that there might be circumstances in which medical professionals, or even families, might make the decision that it was right to seek a declaration from the Court of Protection about treatment in such cases, but that it would ultimately be a matter for the Court of Protection to make such a decision, and the court might take a different view to that of the applicant.

5 Comments

Posted in case law, court of protection. Bookmark the permalink.

Deprivation of liberty and Mental Capacity Act – Europe beats Supreme Court to the punch?

Posted on October 24, 2013 by suesspiciousminds

The ECHR judgment in MH v UK is out today, even as we all await the Supreme Court deliberations and decision in Cheshire West.

I honestly can’t put it better than Lucy Series does, and if I can send a few people interested in mental capacity / civil liberties over to her sensational blog, I’ll count that as a very good day, so here it is.

 

I’ll give you her opening, to whet your appetite

Whilst 18 barristers fought it out over the Cheshire case in the Supreme Court this week, the European Court of Human Rights (ECtHR) handed down a judgment which could have equally dramatic consequences for the Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS): MH v UK.  MH v UK confirmed what I have suspected for a long time, that the DoLS fall short of the requirements of Article 5(4) ECHR – the right to ‘take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.  The key issue is that without the assistance of a third party a person detained under the DoLS is unable (in practice) to be able to exercise their right of appeal, but there is no failsafe means by which the DoLS guarantee the requisite support.  In essence, there may be duties upon various entities to assist a person in exercising their right of appeal under the DoLS, arising via the Human Rights Act 1998 (HRA).  But it is not entirely clear who, and few people – at present – are interpreting them in that way.  The million dollar question is – how do we respond to this?

 

http://thesmallplaces.blogspot.co.uk/2013/10/mh-v-uk-implications-for-deprivation-of.html

 

Her beginners guide to Cheshire West is also very good

 

http://thesmallplaces.blogspot.co.uk/2013/10/the-cheshire-case-beginners-guide.html

 

(See folks, this is what law writing actually looks like when it is done properly rather than my sarcasm and cut-and-paste.  Even if you aren’t involved in adult social care law, Lucy’s stuff is good for the brain)

Comments Off on Deprivation of liberty and Mental Capacity Act – Europe beats Supreme Court to the punch?

Posted in court of protection and tagged , , , . Bookmark the permalink.

You say “Investing”, I say “embezzling”, let’s call the whole thing off

Posted on October 9, 2013 by suesspiciousminds

 

Am beginning to be very fond of Judge Lush, who decided the JM and MJ case I recently blogged about.  This is another Court of Protection case.  The Court of Protection gets a hard time from people (including me), but I am massively in favour of the way this particular Judge is getting stuck into those people who end up being responsible for managing the affairs of someone lacking capacity and end up enriching themselves.

 

The Public Guardian v C 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2965.html

 

Miss Buckley entered into an Lasting Power of Attorney (LPA) in which she appointed her niece, C, to be her sole attorney. Miss Buckley lives in a nursing home, for which the fees are just under £1000 per week.  The nursing home became concerned about what Miss Buckley was saying about the way C was managing her affairs and an investigation took place.

 

  1. The application was accompanied by a witness statement made on 22 October 2012 by Yun Ding, an investigation officer with the OPG, which can be summarised as follows:

(1) Miss Buckley’s house had been sold for £279,000 on 28 April 2011.

(2) Between 17 January 2011 and June 2012 the attorney had withdrawn £72,000 from Miss Buckley’s funds to set up a reptile breeding business. The attorney claimed that this was a short-term investment which would generate a 20% return over a two year period.

(3) The attorney admitted that she had used at least £7,650 of Miss Buckley’s capital for her own personal benefit.

(4) The attorney said she visited Miss Buckley once a week, but this was contradicted by the nursing home, who said that she had not visited her at all until 16 October 2012, when she appears to have obtained Miss Buckley’s signature on some unknown documentation.

(5) At one stage there had been daily cash withdrawals of £300 (the maximum amount) from Miss Buckley’s Nationwide Building Society account.

(6) The Special Investigation Department at the Nationwide had alerted Social Services in April 2012 and the matter was also referred to the police, who interviewed the attorney in July 2012.

(7) Miss Buckley’s estate may have incurred a total loss of approximately £150,000.

 

(The withdrawal of the maximum daily amount from the Nationwide is a bit of a telling indicator here)

 

It seems that a lot of this money was being ‘invested’ in a company which specialises in breeding reptiles  (“so… many…jokes. must resist jokes”)

14.On 13 December 2012 Yun Ding made a second witness statement, the primary purpose of which was to exhibit Dr Barker’s report and to update the court on the OPG’s investigation as required by the directions order of 23 October. She concluded the statement as follows:

“From the evidence gathered so far, I estimate that Miss Buckley has contributed at least £87,682.53 towards the reptile investment venture described by C. In the absence of any contrary evidence, the Public Guardian maintains that Miss Buckley’s finances may have been used to heavily subsidize what appears to be a reptile breeding business, without any formal guarantee or security or her share of the alleged investment returns. C also appears to have misappropriated £43,317.47 of her aunt’s estate without obtaining consent, contrary to what she had told the police. I have therefore re-referred this matter back to the police to conduct further enquiries

It certainly seems a distinct possibility that this ‘reptile’ company was C’s own business, or one in which she had a direct financial involvement in. The “investment” led the Judge to give some general principles on investing when doing so under an LPA.

The investment of funds by an attorney

20.There are two common misconceptions when it comes to investments. The first is that attorneys acting under an LPA can do whatever they like with the donors’ funds. And the second is that attorneys can do whatever the donors could – or would – have done personally, if they had the capacity to manage their property and financial affairs.

21.Managing your own money is one thing. Managing someone else’s money is an entirely different matter.

22.People who have the capacity to manage their own financial affairs are generally not accountable to anyone and don’t need to keep accounts or records of their income and expenditure. They can do whatever they like with their money, and this includes doing nothing at all. They can stash their cash under the mattress, if they wish and, of course, they are entitled to make unwise decisions.

23.None of these options are open to an attorney acting for an incapacitated donor, partly because of their fiduciary obligations and partly because an attorney is required to act in the donor’s best interests. The Mental Capacity Act 2005, section 1(5), states that, “an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

24.Mr Justice Lewison (as he then was) commented on this point in Re P (Statutory Will) [2009] EWHC 163 (Ch), [2009] COPLR Con Vol 906. At paragraph 42 he said:

“I would add that although the fact that P makes an unwise decision does not on its own give rise to any inference of incapacity (section 1 (4)), once the decision making power shifts to a third party (whether carer, deputy or the court) I cannot see that it would be a proper exercise for a third party decision maker consciously to make an unwise decision merely because P would have done so. A consciously unwise decision will rarely if ever be made in P’s best interests.”

25.Attorneys hold a fiduciary position, which imposes a number of duties on them. Like trustees and other fiduciaries, they must exercise such care and skill as is reasonable in the circumstances when investing the donor’s assets and this duty of care is even greater where attorneys hold themselves out as having specialist knowledge or experience.

 

 

31.Two of the most important factors when considering the suitability of investments are the donor’s age and life expectancy. Most donors are older people. Their average age is 80 years and 11 months and, in this respect Miss Buckley, who is 81½, is a typical LPA donor.

32.Short-term investment codes are generally more appropriate where an individual has an anticipated life expectancy of five years or less, and the guidance to court staff suggested that, “without clear medical evidence it would be prudent to consider a life expectancy of less than five years for new patients aged 80 or over.

 

 

And

  The second point is that, subject to a sensible de minimis exception, where the potential infringement is so minor that it would be disproportionate to make a formal application to the court, an application must be made to the court for an order under section 23 of the Mental Capacity Act 2005 in any of the following cases:

(a) gifts that exceed the limited scope of the authority conferred on attorneys by section 12 of the Mental Capacity Act;

(b) loans to the attorney or to members of the attorney’s family;

(c) any investment in the attorney’s own business;

(d) sales or purchases at an undervalue; and

(e) any other transactions in which there is a conflict between the interests of the donor and the interests of the attorney.

 

  The final point is one that has been made in the past, but needs to be repeated. Attorneys should be aware of the law regarding their role and responsibilities. Ignorance is no excuse. I am not suggesting that attorneys should be able to pass an examination on the provisions of the Mental Capacity Act 2005, but they should at least be familiar with the “information you must read” on the LPA itself and the provisions of the Mental Capacity Act 2005 Code of Practice. Section 42(4)(a) of the Act expressly stipulates that it is the duty of an attorney acting under an LPA to have regard to the code.

  Commenting on the conduct of an attorney in Re W (Enduring Power of Attorney) [2000] Ch 343, at page 350 Mr Jules Sher QC said:

“… she ought to have known the law if she was to take on the responsibility of such an important fiduciary position, particularly as one of the few things expressly stated in part of the power itself is the following sentence: “I also understand my limited power to use the donor’s property to benefit persons other than the donor.””

 

 

A person taking on that responsibility to manage the affairs of a vulnerable person has to make themselves familiar with the limits on those powers, and ignorance of the law is no excuse.

 

It is not, therefore a massive surprise that the Judge didn’t consider that C had been properly conducting affairs on behalf of Miss Buckley  (incidentally, I think it slightly unfair that the innocent Miss Buckley is named, whereas C gets a cloak of anonymity here). There’s some lovely judicial understatement here  “One can hardly describe a man who runs a reptile breeding business as someone who is qualified to give investment advice”

 

  I am satisfied that C has contravened her authority and has acted in a way that is not in Miss Buckley’s best interests.

  Even if one were to be generous and believe C and accept at face value her description of the way in which she has applied Miss Buckley’s funds as an ‘investment’, it was a highly unsuitable investment to make and she broke almost every rule in the book in making it.

  She did not obtain and consider proper advice from someone who is qualified to give investment advice. One can hardly describe a man who runs a reptile breeding business as someone who is qualified to give investment advice by his ability in and practical experience of financial and other matters relating to investment.

  The investment was very high risk. When investing funds on behalf of older people, the perceived wisdom is that the investments should be safe and that very little risk is acceptable as can be seen from the short-term investment tables set out above. Even when investing funds long-term on behalf of a younger person, a hazardous and speculative investment of this kind would have been inappropriate for anyone in a fiduciary position to make.

  The attorney invested in her own business, which was in breach of her fiduciary duty. Paragraph 7.60 of the Mental Capacity Act Code of Practice states that:

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

  The investment was also made in the attorney’s name. This was in breach of the guidance to attorneys given in paragraph 7.68 of the Code of Practice to keep the donor’s money and property separate. The attorneys’ admission in paragraph 16 of her witness statement – “I would like to state that I was not aware that the investment had to be made in her name and was concerned about signing on her behalf – is no excuse.

  C’s use of £43,317.47 (according to Yun Ding’s second statement) of Miss Buckley’s capital for her own personal benefit was way beyond the very limited authority to make gifts conferred on attorneys by section 12 of the Mental Capacity Act 2005. The attorney’s comments paragraphs 17 and 18 of her witness statement are no defence:

“I agree that my aunt lacks capacity to manage her own financial affairs and in my view she has become increasingly confused and is unable to understand the information relevant to deciding how to handle her finances or retain that information. … I admit that some of the money was used for my own benefit but only with my aunt’s permission.”

  As regards Miss Buckley’s capacity, I am satisfied that she is incapable of revoking the LPA herself. I accept the opinion of the Court of Protection Special Visitor, Dr Andrew Barker, who stated:

“She was unable to understand the nature and effects of an LPA to a sufficient degree or to choose an attorney, was not aware of her financial dealings and could not recall detail sufficiently well or concentrate long enough to weigh information in the balance to come to decisions about an attorney or to direct or instruct an attorney.”

 

 

This is what Miss Buckley’s friend Shirley said

“I am so worried that (Miss Buckley’s) money will get stolen and that she won’t be able to stay in the nursing home. I have been asked not to get in touch with C both by social services and by the police. I find this very difficult. I must have given two years of my full attention – selling her house for her – setting up the Nationwide to pay the (nursing home) monthly. Finding a decent retirement residence (from which she had to move for health reasons) then I found her the nursing home but it’s nearly £1000 per week. She cannot afford for her money to be taken. She needs every penny.”

 

Very very true. A shame that C could not see things in that light at all.  I hope that she and the reptiles are very happy together.

5 Comments

Posted in case law, court of protection and tagged , , , . Bookmark the permalink.

Being a deputy is not a licence to loot

Posted on October 8, 2013 by suesspiciousminds

A Court of Protection case has recently tackled the issue of a person with considerable financial means but no capacity to manage her affairs, and the deputies appointed by the Court having made extensive ‘gifts’ from her financial estate and seeking retrospective approval for them.

MJ and JM v The Public Guardian 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2966.html

This was the background to the appointment of MJ and JM as deputies

 

9.       GM has vascular dementia, which was first formally diagnosed in 2007.

10.   On 25 August 2010 the court made an order appointing MJ and JM jointly and severally to be her deputies for property and affairs.

11.   The order required the deputies to obtain and maintain security in the sum of £275,000. The premium for the security bond, which is payable from GM’s estate, is £550 a year, and the purpose of the bond is to restore to GM’s estate any loss that may have arisen as a result of the wrongful acts or omissions of her deputies.

12.   Paragraph 2(c) of the order gave the deputies the following authority to make gifts:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

The case sets out very clearly the parameters in which deputies can operate, particularly with regard to ‘gifts’  and ‘deputyship expenses’

  1. The scope of a deputy’s authority to make gifts
  1. Section 16(2)(b) of the Mental Capacity Act 2005 provides that the court may appoint a deputy to make decisions on behalf of ‘P’, which is the shorthand term used in the Act for the person who lacks capacity or to whom the proceedings relate.
  1. Section 16(3) states that the powers of the court under section 16 are subject to the provisions of the Mental Capacity Act 2005 and, in particular, sections 1 (the principles) and 4 (best interests).
  1. Section 16(4) provides that the court may “confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).”
  1. Section 18(1)(b) provides that the powers of the court under section 16 extend to making a gift or other disposition of P’s property.
  1. Paragraph 2(c) of the order of 25 August 2010 appointing JM and MJ as GM’s deputies defined the scope of their authority to make gifts in the following terms:

“The deputies may jointly and severally (without obtaining any further authority from the court) dispose of money or property of GM by way of gift to any charity to which she made or might have been expected to make gifts and on customary occasions to persons who are related to or connected with her, provided that the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of her estate.”

  1. Similar wording appears in almost every order appointing a deputy for property and affairs, and the intention of the court is that deputies should have the same powers to make gifts as attorneys acting under an Enduring Power of Attorney (‘EPA’) or a Lasting Power of Attorney (‘LPA’).
  1. It is important that deputies and attorneys should:

(a) realise that they have only a very limited authority to make gifts;

(b) understand why their authority is limited; and

(c) be aware that, in an appropriate case, they may apply to the Court of Protection for more extensive gift-making powers

  1. Deputyship expenses
  1. Section 19(7) of the Mental Capacity Act 2005 provides that:

“The deputy is entitled –

(a) to be reimbursed out of P’s property and affairs for his reasonable expenses in discharging his functions, and

(b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.”

  1. The Act distinguishes between two kinds of entitlement: the reimbursement of expenses, on the one hand, and remuneration, on the other. A deputy is entitled, as of right, to be reimbursed for the expenditure he incurs in carrying out his functions, though a ‘reasonableness test’ arises as to the amount he can actually recover.
  1. The Office of the Public Guardian publishes a booklet called A guide for Deputies appointed by the Court of Protection (OPG510), which is available in both hard copy and on the OPG website. Page 22 of this guide states as follows:

“Will I be reimbursed for my expenses?

The Act allows you to be reimbursed for reasonable expenses incurred when acting as a Deputy. Examples of expenses include telephone calls, travel and postage.

Expenses are not payment for your time spent while acting as a Deputy – this is called remuneration and can only be claimed if the Court order specifically states it. If you wish to receive remuneration you should ask the Court to consider this in your initial application.

 

The expenses you are entitled to claim and what is considered reasonable will vary according to the circumstances of each case. It depends on what you are required to do and also the value of the estate of the person who lacks capacity.

The OPG expects that you will only claim reasonable and legitimate expenses. If you claim more than £500 in expenses per year the OPG may require you to explain your expenses in detail and frequently.

If your expenses are considered unreasonable you may be asked to repay them, and in extreme cases the OPG may apply to the Court to cancel your appointment.”

So, in this case, what sort of “expenses” had been claimed?

£46,552.24 for ‘cars and computers’

Flick back – acceptable expenses £500 a year, and they went for nearly £50,000, out by several orders of magnitude.

It is no surprise that the Court considered that these were not ‘expenses’ at all, but the deputies making unauthorised gifts to themselves, and thus decided that they were obliged to refund GM’s estate with the money.

Let’s look at the gifts now

MJ personally had received ‘gifts’ from GM’s funds totalling £55,856  – including an £18,000 Rolex watch, a £16,000 ring, perfume, an Alexander McQueen handbag and £20,000 in cash.

JM personally had received ‘gifts’ from GM’s funds totalling £48,396.50, including a £17,000 Omega watch, two rings costing over £11,000, 2 Mulberry handbags and £20,000 in cash.

These were, of course, people who had been appointed by the Court to safely manage the estate of a very vulnerable woman and who had sworn an oath to do so properly.  I don’t think that I can actually find the words to describe how loathsome I consider their conduct to be, and I am amazed that the Judge was able to be as circumspect as she was.

They also made gifts of £62,500 to other friends and family members, all of whom seem to receive a Vivienne Westwood handbag, apart from one man who received a DerbyCounty season ticket.

GM had not been consulted about any of these ‘gifts’, nor had her wishes been explored by MJ and JM in any way.

  1. The Public Guardian’s position is that the deputies have made unauthorised gifts totalling £171,407.50 from GM’s estate to themselves and their immediate family.

The Public Guardian believes that this level of gifting by the deputies is excessive, not in the best interests of GM and is inconsistent with the deputies’ fiduciary duty of care. In addition, the deputies have exceeded the authority given to them to act on GM’s behalf in respect of her property and affairs and have exposed themselves to allegations of self-dealing.

In addition, the Public Guardian also questions if the deputies had the authority to spend a total of £46,553.14 in purchasing a car and computer each and then claim them as ‘deputyship expenses’. It is the Public Guardian’s opinion that the cars and computers are further unauthorised gifts which the deputies had no authority to make to themselves.

The Public Guardian has calculated that almost 44% of GM’s total assets have been disposed of by way of gifts made by the deputies to themselves and their family where they had no authority to do so. Therefore, the Public Guardian cannot recommend to the court that the gifts shown below can be approved retrospectively.

Detail

Amount

 

 
Gifted to immediate family

£67,155.00
Gifted to MJ

£55,856.00
Gifted to JM

£48,396.50
Deputy ‘expenses’

£46,553.14
Total

£217,960.64

Damn. Right

GM has £177,230.96 left in her estate

I don’t usually make comments about the individuals who appear in cases, over and above the judgments, but this particular case is making that rule of mine very hard to stick to. My opinion of these people, and it is merely a personal opinion based on the reading of the judgment, could not be much lower.

  1.  I do not accept that the gifts they made were in GM’s best interests. They are completely out of character with any gifts she made before the onset of dementia. There was no consultation with her before they were made and there was no attempt to permit and encourage her to participate in the decision-making process, or to ascertain her present wishes and feelings.
  1. Nor do I accept the applicants’ argument that they believed that the order appointing them allowed them to make gifts on such an extensive scale. They should have been aware of the law regarding their role and responsibilities. Ignorance is no excuse.
  1. The fact that GM’s remaining assets were in the names of one or other of the applicants, rather than in GM’s name, is a further example of what is, at best, ignorance, and, at worst, stealth.
  1. I realise that MJ and JM are the only visitors that GM receives, but this does not give them a licence to loot, and I was unimpressed by the veiled threat that, if the court were to remove them as deputies, they would find it difficult to continue seeing GM.
  1. If they had made a proper application for the prospective approval of gifts, I would possibly have allowed them to make gifts to themselves and their families to mitigate the incidence of IHT on GM’s death, but only if they had been the residuary beneficiaries under her will.

The applicants were seeking approval of gifts and expenses totalling £277,811.74. The approval of only £73,352 has left them personally liable to GM’s estate in the sum of £204,459.74, which they must pay back.

 

The Judge was then alive to the fact that GM did not have a will and that an application might be made for a statutory will, and that in doing so, JM and MJ might become the beneficiaries, allowing them to avoid repayment AND gain the remaining funds into the bargain.

  1. I shall not attempt to prejudge the outcome of any statutory will application, but, if an order is made for the execution of a will on GM’s behalf, there is a possibility that MJ and JM could become her residuary beneficiaries, in which case their liability to her estate may become less relevant.
  1. On the other hand, the judge who considers the statutory will application may take the view that, if she had testamentary capacity and was fully aware of what has been going on, GM would be outraged by the applicants’ conduct and would make no provision for them at all.
  1. Alternatively, the judge may find that GM’s intestate heirs have had closer contact with her than the applicants suggest, or that certain charities, such as the Christadelphian Church, the Scottish National Trust or the National Deaf Children’s Society, have a more meritorious claim on her bounty and should receive the lion’s share of her estate.

Applauding

And just for good measure, discharging them as deputies

  1. For the purposes of section 16(8) of the Mental Capacity Act, I am satisfied that the deputies have behaved in a way that contravened the authority conferred on them by the court and was not in GM’s best interests.
  1. I am not persuaded by any of Miss Bretherton’s submissions on their behalf, and I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place.

One of those cases where just reading it makes you want to take a long shower and despair about the ability of human beings to be craven and opportunistic.   Sadly there is nothing in the judgment about PC Plod being at the back of the Court with some handcuffs – I suppose one could make a case on obtaining by deception (since they would never have had the lawful access to GMs funds as a result of being appointed deputies if the Court had had any inkling that rather than looking after GM, they were simply going to enrich themselves at her expense)

 

Some days, I am afraid that I hope that the medieval world view of what happens after one dies is actually true.

8 Comments

Posted in case law, court of protection and tagged , , , , , . Bookmark the permalink.

Capacity to consent to sexual intercourse

Posted on October 7, 2013 by suesspiciousminds

Another useful case on this issue from Baker J sitting in the Court of Protection.

A Local Authority v TZ  2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2322.html

There are a few unusual features of this case – firstly that the Local Authority and the Official Solicitor representing TZ were in agreement that TZ DID have capacity to consent to sexual intercourse and it was the expert who was not, thus leading to the need for a Judge to make the determination.

Secondly, as illustrated very neatly by Baker J, there is the potential line of conflict between authorities decided in the Court of Protection and authorities decided in the Supreme Court, as to whether capacity to consent to sexual intercourse was merely ‘act specific’  (as the Court of Protection have said) or whether it is ‘act and person specific’  (as Baroness Hale said in R v Cooper 2009 which was a criminal prosecution)

  1. How is a court to determine capacity to consent to sexual relations? It is well established that capacity to marry is to be assessed in general and as a matter of principle and not by reference to any particular proposed marriage: see the decision of Munby J (as he then was) in Sheffield City Council v E [2005] Fam 326, approved by the Court of Appeal in the PC case (supra) at paragraph 23 of McFarlane LJ’s judgment. It is act specific and status specific rather than person specific or spouse specific. In a further case, Local Authority X v MM [2007] EWHC 2003 (Fam), hereafter referred to as ‘MM‘, Munby J adopted the same approach to capacity to consent to sexual relations, holding that it, too, is act specific rather than person specific. At paragraph 86 Munby J said:

“The question [capacity to consent to sexual relations] is issue specific, both in the general sense and…in a sense that capacity has to be assessed in relation to the particular kind of sexual activity in question. But capacity to consent to sexual relations is, in my judgment, a question directed to the nature of the activity rather than to the identity of the sexual partner.”

 

  1. This approach was, however, disapproved by Baroness Hale of Richmond in R v Cooper [2009] UKHL 42 [2009] 1 WLR 1786 in the context of a criminal prosecution for an offence of sexual activity with a person with a mental disorder impeding choice, contrary to the Sexual Offences Act 2003. In paragraph 27 of her speech in that case, Baroness Hale observed:

“My Lords, it is difficult to think of an activity which is more person-and situation-specific than sexual relations. 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. Autonomy entails the freedom and the capacity to make a choice of whether or not to do so. This is entirely consistent with the respect for autonomy in matters of private life which is guaranteed by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The object of the Sexual Offences Act 2003 was to get away from the previous ‘status’ – based approach which assumed that all ‘defectives’ lacked capacity, and thus denied them the possibility of making autonomous choices, while failing to protect those whose mental disorder deprived them of autonomy in other ways.”

Mostyn J grappled with this tension in D Borough Council v AB 2011

  1. In D Borough Council v AB [2011] EWHC 101 (Fam), [2011] COPLR Con Vol 313, [2011] 2 FLR 72, a case involving a man with a moderate learning disability, whom the judge referred to as ‘Alan’, Mostyn J grasped the nettle of addressing the conflict between Munby J’s decision in MM, a case that pre-dated the Mental Capacity Act, and Baroness Hale’s observations in R v Cooper, a Supreme Court case that post-dated the Mental Capacity Act but were made in the context of a case involving a different statutory provision. Mostyn J came down firmly on the side of Munby J’s approach. Having acknowledged the correctness of Baroness Hale’s observation quoted above that ‘it is difficult to think of an activity that is more person-and situation-specific than sexual relations’, he added (paragraph 35):

“but the same is true (if not truer) of marriage. But it does not follow that capacity to marry is spouse-as opposed to status- specific. Far from it. I do think, with the greatest possible respect, that there has been a conflation of capacity to consent to sex and the exercise of that capacity. There is also a very considerable practical problem in allowing a partner-specific dimension into the test. Consider this case. Is the local authority supposed to vet every proposed sexual partner of Alan to gauge if Alan has the capacity to consent to sex with him or her?”

And Baker J notes that there is the possibility of the Court of Protection line coming into difficulties if a case ever goes to the Supreme Court, but concludes that in this case   (particularly since what TZ intended was to embark on sexual relationships with persons he considered suitable in the future who he had not yet met, rather than with a single known partner) it was more proportionate to look at whether TZ had capacity on an ‘act specific’ way, rather than whether he had capacity to consent to sex with particular individuals.

I can see merit on both sides – if for example, a person with difficulties was in a relationship with a partner who was very alive to his issues and very skilled in explaining things to the person and had no intention of taking advantage of them, that might require slightly less capacity than a partner with very different approach and morals. I think that on the issue of intrusion, however, Baker J was right.

The next interesting aspect is the three-tier test of capacity to consent to sexual intercourse as devised by Munby J and endorsed by Mostyn J in D Borough Council v AB 2011

  1. 27.   “I therefore conclude that the capacity consent to sex remains act-specific and requires an understanding and awareness of: the mechanics of the act; that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissable infections; that sex between a man and a woman may result in the woman becoming pregnant.”

 

There has been speculation, including within judgments as to whether all three elements are applicable where there is no risk of pregnancy (particularly with regard to a homosexual relationship)

The issue arose specifically in this case, as TZ’s sexual orientation was homosexual, and he wished to have sex with men, rather than women.

I believe that this is the first time that the Court of Protection have decided the issue, rather than simply speculated about it. So, this is the key passage

  1. I therefore conclude that in the case of a person in respect of whom it is clearly established that he or she is homosexual – gay or lesbian – it is ordinarily unnecessary to establish that the person has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy.
  1. Having said that, it goes without saying that human sexuality is profound and complex and there are many people, such as Alan in D Borough Council v AB and indeed TZ in the current case, who have, at times, been attracted to both men and women. In those circumstances, it will be necessary to establish an understanding and awareness of the fact that sex between a man and a woman may result in pregnancy as part of the assessment of capacity to consent to sexual relations.

Having established the appropriate test (did TZ understand the mechanical action and the health risks?) the Judge then considered whether TZ met that test

  1. TZ spoke frankly about his own sexuality. He said that he had come out as gay about a year ago. Before that, he had been a bit confused but now was not. There are some reports in the local authority records suggesting that he may have been attracted to women at one stage since he moved into H Home. TZ was clear that this was no longer the case. “I’m not attracted to women at all, just men.” He said that it was important to be friends first with someone before moving onto a sexual relationship. Asked what he would get out of such a relationship, he identified sexual pleasure, but also thought it was important “to be happy and healthy, not be abused, and not be let down”. It seemed to me that he was referring back to unhappy experiences in previous relationships. “It’s not just the sex, it’s about being happy and safe and secure in the relationship.”
  1. TZ described in simple terms the physical acts of sex both between a man and a woman and between two men. He indicated that he understood that, “if men and women have sex, the woman can get pregnant”. He knew that a man cannot become pregnant. He was aware of the health risks from sexual activity, and listed the names of several sexually transmitted diseases. He said that the way of avoiding catching any of these diseases was to use a condom. He said that he knew there was a risk of the condom splitting, and in those circumstances he would get himself tested. He has been tested twice before for HIV. On each occasion, the test was negative.
  1. He said that he would like to have the opportunity to meet a man, by going to places such as gay bars. He said that he had learned to take his time because “you can’t judge a book by its cover”. He said he would rather not rush things, but would rather wait to see if he could trust the man. He would not have sex on a first encounter but would wait until he knew the man a little better. “Sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.”

The expert’s view seemed to be that TZ did not meet the test because he was not able to use and weigh information before making a decision in relation to sexual intercourse and did not have an understanding of the emotional consequences involved.

The Judge rejected that argument.

  1. It seems to me, with respect, that Dr. X is making a similar error as that made by the expert in D Borough Council v AB when he stipulates that the ability to use and weigh relevant information before consenting to sexual relations involves “a complex analysis of risks and benefits often in the abstract and hypothetical”. In D Borough Council v AB, the expert suggested that one essential ingredient of capacity to consent to sexual relations was “an awareness that sex is part of having relations with people and may have emotional consequences”. Mostyn J observed in response (at paragraph 37):

“This criterion is much too sophisticated to be included in the low level of understanding and intelligence needed to be able to consent to sex. Apart from anything else, I would have thought that a great deal of sex takes place where one party or the other is wholly oblivious to this supposed necessity.”

  1. Most people faced with the decision whether or not to have sex do not embark on a process of weighing up complex, abstract or hypothetical information. I accept the submission on behalf of the Official Solicitor that the weighing up of the relevant information should be seen as a relatively straightforward decision balancing the risks of ill health (and possible pregnancy if the relations are heterosexual) with pleasure, sexual and emotional brought about by intimacy. There is a danger that the imposition of a higher standard for capacity may discriminate against people with a mental impairment.
  1. In any event, I am satisfied in this case, having spoken to TZ myself, that he does have an understanding of the need to weigh up the emotional consequences of having sexual relations. This was evident to me from his comment that he would rather not rush things, but would rather wait to see if he could trust the man and by his observation that “sometimes it’s easy to make the right choice, sometimes it isn’t, but I would try to make the right choice.” This insight seemed to me to be well above the level of “rudimentary” ability required.
  1. Overall, I find that TZ does have the capacity to use and weigh the information to the degree required for capacity to consent to sexual relations. I think he has been significantly helped in that regard by the sensitive programme of sex education he has received. Like most people, he may behave impulsively at some point in the future, and in his case that tendency may be accentuated by his ADHD, but I do not consider that this tendency means that he lacks the ability to use and weigh the relevant information.
  1. I therefore declare that TZ has the capacity to consent to and engage in sexual relations

8 Comments

Posted in case law, court of protection and tagged , , , , . Bookmark the permalink.
← Older Posts
Newer Posts →