Category Archives: court of protection

Removal of a vulnerable adult from his home

Posted on August 22, 2013 by suesspiciousminds

The decision of the Court of Protection in Re A Local Authority v WMA 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2580.html

This is not, I think, a development in the law, but it is a recent decision by the Court of Protection which authorised the removal of a vulnerable adult WMA from his home, authorised the LA to go into his home and remove him, authorised him to be placed somewhere he didn’t want to go, authorised a deprivation of his liberty and authorised if necessary the police to go into his home and remove WMA, all on the basis that this was in his best interests, WMA lacking capacity to make such decisions for himself.   It therefore raises interesting talking points.

What orders are necessary? I find that these are: a power for the local authority to enter the home if necessary; a power to the police to restrain WMA if necessary; an order that WMA be removed from his current home and taken to B where the local authority will have power to retain him if needs be; and the local authority will have the power, of course, in addition, to sign the tenancy agreement on his behalf. These measures are proportionate and necessary.

As such, it is a powerful reminder of the powers that the Court of Protection have; the impact such powers can have on vulnerable individuals and additionally a useful summary of the factors to be balanced and tests to be applied.

I have to say that my own take on the case (which is not that important, but I’ll give it) is that I felt WMA’s wishes were somewhat marginalised and that the case was substantially more finely balanced than it might appear from reading the judgment. I probably would have authorised WMA’s removal, if all efforts to improve things for him at home had failed, but I would have found it more difficult to do so.

  1. The case concerns the future of a twenty five year old man, WMA, and where he should live plus what help should be given to him. It raises complex issues about best interests and deprivation of liberty.
  1. WMA suffers from an autistic spectrum disorder. Although it is possible to have a conversation with him about his clearly expressed views, it is plain, and agreed by even his mother MA, that he lacks capacity in some important aspects to which I shall come. He has been diagnosed in these proceedings as having atypical autism and a pervasive development disorder. He presents with unpredictable behaviour on occasion.
  1. He leads an isolated and insular life with MA, who has also sight and mobility problems of her own. The local authority is concerned about the impact of isolation on WMA’s long term development and its social work team has reluctantly come to the conclusion that he needs to be moved into supported living accommodation, despite the difficulty of the initial move, because in the long term this will help WMA and MA to develop a more healthy relationship. It is argued that there is currently an unhealthy degree of interdependence. The local authority alleges too that MA is unable to care for WMA properly, she is likely to be harming his development and it is against his best interests to remain with her.

 

 

Part of the problem in the case was that although WMA wanted to be with his mother, MA; professionals felt that MA was (a) holding him back and impairing the progress and development that he could make and (b) not able to actually care for him, to the point where the home conditions were described as both ‘squalid’ and the sort of home conditions that would lead a child to be removed for neglect.  MA did herself no favours by the way she participated in the hearing, one has to say.

The LA put the case like this

 

  1. 67.   “It is my professional view that WMA is a twenty three year old man with the potential to lead a more fulfilling life. I am also of the view that MA is not deliberately abusive to him but rather has needs of her own that have not been assessed but which impact upon her ability to care for WMA effectively and to manage her own living environment. I think she is not aware that her behaviour towards him is abusive. She has little expectations of him and there is evidence of the frustration she experiences from undertaking his care, shouting at him, preventing him from leaving the property. MA has stated on many occasions she does not want local authority involvement with the family, blaming them for the lack of diagnosis of WMA as a child. She has been found to be neglectful through safeguarding adults procedures. I am concerned that WMA has been treated in an inhumane and degrading manner by MA and that his true potential has been unrecognised and stifled. In order for him to live safely and towards a more fulfilling life I think he should move on to supported accommodation whilst continuing to have contact with his mother.”

The first issue in the case, where WMA had capacity to make decisions for himself, was fairly straightforward. (I did note with some surprise that WMA’s IQ was assessed at being 64, rather higher than one might have believed reading some of the descriptions of him, but of course with autistic spectrum disorder IQ itself isn’t the only measure of capacity)

  1. WMA’s significantly learning disability as a result of his autism meet the criteria of section 2 for he has an impairment of functioning of the mind or brain. Dr. Carpenter has made this quite clear. Even MA has doubts as to his capacity and considers him less capable than others of achieving in this life.
  1. In addition, WMA clearly meets the functional tests in section 3. He cannot use all relevant information relevant to a decision as part of the process of making a decision. This test is decision specific but I am satisfied that WMA cannot make decisions as to his residence, his care plan and his contact with his mother. Of course, WMA has sufficient capacity to decide what he wants to eat but he cannot cope with concepts or make sensible plans as to where to live. In addition, he cannot cope with or even contemplate change, save with assistance.
  1. This, too, is confirmed by Dr. Carpenter who made it clear to me that this is not a borderline case as to capacity. He counselled against believing that WMA has near capacity simply because of his verbal abilities. That view of the functional test was echoed in the evidence of Mr. McKinstrie, the independent social worker, and the views of the social workers who gave evidence.
  1. Accordingly, I have concluded WMA cannot use or weigh the factors as to where he should live. His view that he should remain living with his mother is a decision he is incapable of making. He cannot weigh up all the considerations. Alongside that fundamental issue he cannot decide what care package is suitable for him or, indeed, what contact if away from MA he should have with her.

Having established that WMA lacked capacity, the Court then had to go on to consider what was in his best interests, taking into account all of the factors set out in the Mental Capacity Act 2005.

The Court made the following factual findings

  1. I make the following findings.
  1. First, the local authority social workers have been unable and will be unable to provide appropriate care for WMA and monitor it because of his refusal to accept it and because of MA’s inconsistence and erratic interference with the local authority help.
  1. Second, there is a worrying history about MA’s care for WMA that shows no sign of abating.
  1. Third, that the local authority has made special efforts over the last eighteen months to engage fully with both of them but there has been an unacceptable degree of conflict. I am not persuaded the local authority could have done any more and I have noted with concern the helpful evidence of CG that she has felt under threat recently.
  1. Fourthly, WMA lives an isolated lifestyle and is expected often to be in mother’s eyes and ears. His relationship with her, however, is a frustrated one and there is clear evidence on mother’s case alone that he is, at times, beyond control.
  1. Fifthly, the isolation is such that WMA just does not go out with any with any regularity. Dog walking and shopping appear to be virtually the limit of his outdoor activities with the exception of the few outings that were organised by Delos who he now rejects. As long ago as February 2012 he could not recall when he last went out anywhere.
  1. Sixthly, the home of MA and WMA continues to be kept to a very low standard of cleanliness and, whilst it is not for the court to impose respectable middle class standards of care, nonetheless, the home’s condition has on occasion deteriorated. The recent evidence of CG, for example, that the fridge is kept to a low standard of cleanliness is very concerning. True enough, this has not yet made WMA ill but I am sure that it will one day,
  1. Seventhly, there is a plain history of neglect of WMA by his mother. She does not keep him sufficiently safe or clean or his clothes sufficiently clean to an acceptable standard. The clear point is that MA’s standards are not simply lower than the norm, they are below a good enough standard.

It is important to note that the ‘safeguarding concerns’ were not the test – they were a factor to be weighed in the best interests decision, but it was not a simple matter, as the Official Solicitor suggested the LA had put it of safeguarding concerns being the focus of the Court.  The Official Solicitor also raised on behalf of WMA that the case might well be social engineering. It was not right to move WMA simply because he might DO BETTER in a setting away from his mother   (this is a well-established principle in care proceedings), it had to be a decision taken in the round, for his best interests.

There was an interesting debate about what the starting-point is in such cases (i.e does one START with the position that WMA ought to be at home where he wants to be, or START with a blank sheet of paper?  In care proceedings, of course, the Court STARTS with the proposition that it is better for a child to be at home with his parents and has to have compelling evidence to move away from that proposition)

Not so in Court of Protection cases.

  1. I quote from another part of the K v LBX case [2012] EWCA (Civ) 79 not cited by Mr. O’Brien. In discussing whether or not the court would start from placing the person concerned with their family, Black LJ said this:

“A prescribed starting point risks deflecting the decision maker’s attention from one aspect of Article 8, private life, by focusing his attention on another, family life. In its wider form incorporating reference to both private and family life, there is a danger it contains within it an inherent conflict for elements of private life, such as the right to personal development and the right to establish relationships with other human beings in the outside world may not always be entirely compatible with the existing family life in the sense of continuing to live within the existing family home.”

It is a difficult tension here – once a person lacks capacity, there is no “Threshold criteria” no test of harm that has to be crossed by the State to justify their removal from their family home; the Court just has to consider whether it would be in WMA’s best interests to be so moved.

Of course, the law is intended to protect vulnerable people who prior to the MCA 2005 would have been left alone to live in squalid conditions with their needs not being met unless the person met the criteria under the Mental Health Act for detention or Guardianship (or the little-used powers under community care legislation)

National Assistance Act 1948

s47 Removal to suitable premises of persons in need of care and attention.

(1)The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who—

(a)are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and

(b)are unable to devote to themselves, and are not receiving from other persons, proper care and attention.

 

Which made provision for an application to be made to Court and an order authorising the removal.  I’m not sure how often that was ever used, but one can see that there is something of a test in there (and a pretty high one), rather than the generic principle now that a person lacking capacity can be removed from their family if the Court of Protection consider it is in their best interests.

There are no police powers to remove a vulnerable adult from a home where they are felt to be at risk, and the criminal offence of neglecting a vulnerable adult whom you are caring for only came about with s44 of the Mental Capacity Act 2005.

On the other hand, this leaves a vulnerable group of adults, those lacking capacity, as being those for whom the Court of Protection can make wide-ranging decisions about what is in their best interests. One hopes, of course, that the Court of Protection makes what one would objectively consider to be in the best interests of the vulnerable adult, but there is this obvious tension between what the State might consider to be in the best interests of the adult, and what the adult and their friends and family might consider to be in the adults best interests.

The Mental Capacity Act of course came about to fill a gap in the law, the “Bournewood gap” where a person who lacked capacity to declare that they wanted to leave a residential unit ended up remaining there with his carers being unable to challenge that decision or remove him, and the case had to go all the way to Europe.

We are still in relatively early days of the Court of Protection and the working of the MCA in practice, but a case like this does point up how even when a Judge carefully analyses and balances all of the competing factors, the exercise of a “best interests” decision can completely turn WMA’s life upside down, and unless his capacity to make decisions changes, such a decision will be very hard to reverse or challenge for WMA in the future.

It could be argued, and is being by many who come across the MCA, that the solution is becoming worse than the problem. It is very hard not to be paternalistic when operating the best interests decision.  (for me, in this one, the chronic neglect and home conditions probably just tip the balance, when combined with the long-standing unsuccessful attempts to resolve this, but if they do tip the balance, it is only just, and I might well have gone on to find that the article 8 right to private and family life trumped it).  It does seem to me a little odd that there’s no presumption in the MCA that the vulnerable person’s family are better placed to make a decision for what is in their best interests unless there are compelling reasons to the contrary.

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Capacity and Vasectomy

Posted on August 19, 2013 by suesspiciousminds

The decision in Re DE  2013 , and issues arising from this

 

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/de-judgment-16082013.pdf

 

I will start by saying that this is obviously a controversial judgment, dealing with the State intervening in the private life of an individual, and the Court authorising the sterilisation of a man who did not have capacity to agree to such an operation.

 

I actually think that the judgment was very fair and well-balanced and carefully looked at the need to respect DE’s rights and interests, and did not smack of the patrician attitude or eugenic approach that one might think going by some of the media reporting. I only have one real critique of it, but it is an important one.  There are some really good articles analysing this decision, in both a critical and supportive tone, and it is a thought-provoking issue.

 

This was a Court of Protection decision, dealing with the application by the NHS for the following three declarations

 

a) DE does not have capacity to make a decision on whether or not to undergo a vasectomy and to consent to this procedure;

b) That it is lawful and in DE’s best interests that he should undergo a vasectomy;

c) It is lawful for the NHS Trust to take any steps which are medically advised by the treating clinicians at the trust responsible for DE’s care to undertake this procedure which may include the use of a general anaesthetic and all such steps as may be necessary to arrange and undertake the procedure including general anaesthesia.

 

 

 

 

The Court went on to note what made the declarations sought newsworthy (and indeed the case made national news)

 

            If the declarations sought are made it will, the court is told by the Official Solicitor, be the first time that a court in this jurisdiction has made orders permitting the sterilisation for non therapeutic reasons of a male unable to consent to such a procedure.

 

 

 

There was quite a well-balanced piece on this in the Guardian, for example

 

http://www.theguardian.com/law/2013/aug/16/court-sterilisation-man-learning-difficulties

 

It is important to note at an early stage, that if DE had capacity to make decisions for himself (and the Mental Capacity Act 2005 has as a starting point that people DO have such capacity unless demonstrated otherwise) then the Court have no real role in matters save for determining whether he does or does not have capacity. 

 

People get to make decisions for themselves, unless the Court declare that they don’t have capacity to make that decision; and in broad terms the capacity means that with help and guidance the person can understand the competing factors involved, can weigh up those factors, and can communicate their decision.  (It is REALLY important to understand that a person with capacity can still make what appear to be really stupid or bad decisions; capacity isn’t about people making logical decisions but that they understand  (a) that there are factors to take into account and what those factors are (b) that they should weigh up those factors and are capable of doing so and (c) can communicate their decision afterwards. The law doesn’t, or shouldn’t, interfere with people making foolish decisions, only with people who don’t have capacity to make a decision)

 

If he has capacity, the operation will only take place if both he and the doctors agree to it.  It irked me considerably how many of the reports of the case by the media made reference to DE “agreeing to the vasectomy” – if he had capacity to agree to it, the decision wouldn’t have been made by a Court, what he had were wishes and feelings about it which fell short of capacity to make the decision. Those are important to take into account in the stage AFTER capacity, which is “what is in this person’s best interests to do next?”

 

 

The history is fairly simple.

 

2. DE suffers from a learning disability. He lives with his parents FG and JK. With the dedication of his parents and the support of his local disability services, DE has prospered and achieved far beyond what may have been expected given his level of disability. Prior to 2009, not only had he achieved a modest measure of autonomy in his day to day life, but he had a long standing and loving relationship with a woman, PQ, who is also learning disabled.

3. In 2009 PQ became pregnant and subsequently had a child XY. The consequences were profound for both families; legitimate concerns that DE may not have capacity to consent to sexual relations meant that protective measures had to be put in place to ensure that DE and PQ were not alone and DE became supervised at all times. DE was clear that he did not want any more children. His relationship nearly broke under the strain but remarkably it has weathered the storm

4. There is no question of DE having the capacity to make decisions as to use of contraception. FG and JK formed the view that the best way, in his interests, to achieve DE’s wish not to have any more children and to restore as much independence as possible to him was by his having a vasectomy.

 

 

Unfortunately for me, I think the key issue is actually the matter dismissed in a single sentence at para 4 (my underlining)

 

I think there were 3 separate issues on which one needs to know if DE had capacity

 

(a)  Can he consent to sex  (if not, contraception not all that important, because the State can’t condone him engaging in sexual intercourse)

 

(b)  Does he have capacity to make decisions about contraception? (if he can, vasectomy only an issue if he DECIDES that he wants to go the vasectomy route)

 

(c)  Does he have capacity to consent to a vasectomy operation?

 

 

A capacity report undertaken in November 2012 concluded that DE did not have capacity to consent to sexual intercourse. That obviously posed significant problems for his relationship with PQ, and what obligations were on the other members of the family to prevent a sexual relationship taking place.

 

(There are some really big issues here about a case where two people with capacity issues love each other and wish to express those feelings physically, although they do not reach the level of understanding the law deems as being able to consent to sexual intercourse. Probably neither has the mens rea needed to commit the offence, but their carers could find themselves in legal difficulty for not having prevented such an offence occurring. Whilst it is VITAL that the law protects people who lack capacity to understand the nature of sex from being exploited by those who do, it seems to interfere profoundly with the private life of two such people in a relationship together. This is a really really tough issue, and I have no idea how one would legislate about it, but I suspect we are not that far off a Court hearing dealing with this specific issue)

 

 

 

The Court made an interim declaration following that report that DE did not have capacity to consent to sexual intercourse and the relevant Local Authority had to convene a safeguarding meeting and come up with a plan to protect DE from unlawful sexual activity.

 

At a hearing on 15 November 2012 in the light of Dr Milnes’ report the court made by consent an interim declaration that DE did not have the capacity to consent to sexual relations. The Local Authority, quite properly and appropriately, thereafter held a Safeguarding Adults’ Conference on 30 November 2012. A Protection Plan was put in place meaning that DE and PQ were not to be left alone without supervision. Inevitably this had a significant impact on all DE’s activities, for example transport home being provided instead of DE getting the bus to avoid chance meetings with PQ. MB summarised the impact on DE as having experienced the loss of:

a) Engaging without supervision/staff support, with the local community

b) Walking through town from one venue to another with a friend

c) Going to shops, making purchases, interacting with traders and passers by

d) Using the local gym and facilities on the same terms as any other participant

and that is before one factors in the loss to DE of any form of privacy or time on his own with his long term girlfriend.

At about this time PQ ended the relationship with DE to his considerable distress. At the time it was not clear why PQ had decided to do this but, in due course, it was realised that she had wrongly believed that these proceedings in some way related to XY and she thought that if she stayed with DE she might lose her baby. In addition to this fear it had had to be explained to PQ that if she and DE had sexual intercourse she would be committing a criminal offence. It is hardly surprising that, frightened and with a limited ability wholly to understand what was happening, PQ completely withdrew from DE. DE therefore suffered a further loss, namely the loss of PQ between about November and June of 2013.

MB initially felt that DE coped well with the increased supervision and filed a statement to that effect but, as time went on it became clear to her that there was in fact a marked adverse impact upon DE. Gradually his ability to go out and to do things on his own was being lost and by April 2013 there were considerable concerns about DE’s reduced level of independence. It has to be remembered that each achievement on DE’s part takes months if not years to be gained and if not used and reinforced is quickly lost. FG told me that as winter approached last year DE stopped going to the day centre on the bus on his own, she said DE said that it was because it was cold, but Dr Milne felt it may well have been a loss of confidence and fear of doing wrong

 

 

And so one can see that the legitimate desire to protect DE from unlawful sexual intercourse ended up having all sorts of detrimental impacts on his quality of life and independence.

 

Work was undertaken to try to raise DE’s awareness of sexual matters, to lift his understanding to a point where he COULD be judged to have capacity to consent to it, it being plain that DE and PQ wished to be in a relationship and wished physical intimacy to be a part of that.

 

34. The Official Solicitor has felt it necessary, notwithstanding the universal views now expressed by the witnesses, to explore the issue as to DE’s capacity to enter into sexual relations. At the conclusion or the oral evidence in relation to this aspect of the case, the Official Solicitor now accepts that the court should proceed on the basis that DE has capacity to enter into sexual relations. Having read all the reports and heard the evidence I am satisfied that DE has capacity to enter into sexual relationships, although it will be necessary for him to have so called ‘top-up’ sessions to ensure that he remembers how to keep himself safe from sexually transmitted infections and diseases.

            Whilst DE can consent to having a sexual relationship, it is accepted by all parties that he does not have capacity to consent to contraception and will not regain the necessary capacity. It is therefore remains for the court to determine whether or not it is in DE’s best interests to have a vasectomy. In order to carry out the balancing exercise required in order for the court to reach a decision it is necessary for the court to consider in some detail certain aspects of DE’s life and of his views in so far as they can be ascertained.

 

 

 

And then, on ability to consent to the surgical procedure of a vasectomy

 

52    t is agreed that DE lacks the capacity to weigh up the competing arguments for and against having a vasectomy. That is not going to change no matter how dedicated and skilful the work carried out with DE may be. His wishes and feelings in relation to having a vasectomy have rightly been explored. He has been broadly been in favour of the idea although in his most recent session with CH and ZZ on 23 July 2013 and with Dr Milnes, he expressed a view that he would prefer to use condoms. Neither CH nor Dr Milnes think these recent meetings are wholly to be relied upon. On 23 July, DE had just learnt that a very close friend had died and was deeply distressed, in addition, he had just had a session in which the issue of pain immediately following a vasectomy was discussed with DE. CH thought that this may have been the influencing factor. Dr Milnes’ final view is that if it is explained to DE that a vasectomy is foolproof in relation to “no more babies”, but that he might conceive with a condom he would go for the vasectomy.

53    I approach DE’s wishes and feelings in relation to a vasectomy with the utmost caution. DE does not have the capacity to consent to a vasectomy and that must inevitably colour the court’s approach.

 

Going back to my list then, DE had been determined to have capacity to have sexual intercourse, to lack capacity to make a decision about surgery and vasectomy.

 

That left issue number 2 – did he have the capacity to make his own decisions about contraception? If he did, the issue of surgery did not arise (other than that if he ASKED for a vasectomy, the medical professionals knew that he did not have capacity to consent to the operation)

 

What the heck is the test for a person’s capacity in making decisions about contraception? How did the Court establish whether or not DE had it?

 

            35.Whilst DE can consent to having a sexual relationship, it is accepted by all parties that he does not have capacity to consent to contraception and will not regain the necessary capacity. It is therefore remains for the court to determine whether or not it is in DE’s best interests to have a vasectomy. In order to carry out the balancing exercise required in order for the court to reach a decision it is necessary for the court to consider in some detail certain aspects of DE’s life and of his views in so far as they can be ascertained

 

And here

 

            54. In relation to the reported cases on consent to contraception there remains uncertainty as to whether a man needs to understand female contraception as well as male contraception before he is deemed to have capacity. In my judgment DE does not have the capacity to consent to contraception on any level. I therefore do not need to consider the issue and do not propose to comment on how a court, having heard full argument in a case where the issue is relevant, might decide.

 

I’m ever so slightly infuriated by this, if it is possible for such a state to exist.

 

It seems to me that before the Court embark on the best interests decision (which I consider was all done perfectly properly and I can quite see why the decision to declare that the NHS could perform the vasectomy was made) it was VITAL to decide what it was that DE did not have capacity to decide, and what the test for that capacity was.

 

Particularly given that he now had capacity to consent to intercourse, and that his capacity had been raised by intervention to reach that point. The capacity to consent to intercourse involves of course not just an understanding of the mechanics and the physical act, but the consequences of it (including pregnancy and the possibility of STDs)

 

I am struggling quite a bit to see how a person such as DE can be capable of understanding the consequences of sexual intercourse, but not making decisions about what contraceptive action to undertake. And of course, it takes two to tango, as the saying goes, so PQ’s ability to make decisions about contraception would factor into this.

 

[The Court said no in relation to the latter point, for these reasons. 

 

In my judgment the court should not factor into account any contraceptive measure PQ may be taking for two reasons:

i) The evidence is that PQ is unreliable in taking the contraceptive pill and has a phobia of needles so a Depo injection has been discounted.

ii) In the event that the relationship breaks down, it is likely that he will form another relationship. In the group of learning disabled people who form DE’s social circle, it is the norm for there to be relationships within the group; DE is popular and friendly and after 11 years with PQ accustomed to having a girlfriend. Even if PQ was wholly reliable in relation to her own contraceptive care, a future girlfriend may not be so assiduous.

 

I agree on point (i), am not so sure about point (ii)  – it seems to me that this would be a relevant factor in deciding when it arises, and not to fortune tell]

 

It was universally accepted that the decisions about how DE could have sex without producing offspring was something that he could not decide; but in nothing like the detail of the other two capacity decisions.

 

Once the Court accepted that DE did not have the capacity to make decisions about how to manage sex without producing offspring (and all parties accepted that he didn’t), the best interests decision was the next step, and in relation to this, I think the Court’s analysis is faultless from there on out.

 

The Court went on to balance the use of other contraceptives against a vasectomy, and used the reliability of those measures as a key factor; particularly taking into account the abilities and limitations of DE and PQ in reliably and properly undertaking those measures. The Court also went on to consider everything that DE and PQ had expressed about their wish for physical intimacy but not to have another child.

 

It is a very careful balance about what is best for DE, taking into account all of his circumstances and his wishes and feelings, and not putting too much emphasis on any one issue. I think it is a damn good judgment and decision.

 

I am just left a bit unsettled about the key issue – the decision under question was not “should DE have a vasectomy” but “should the State take over DE’s decision-making in relation to contraception”  (and thereafter, what’s better for DE – vasectomy or alternative contraception) and I remain very vague about what the test for capacity in relation to that question was, and why DE was considered not to satisfy it.

 

 

I can’t really blame the Court for not dealing with the issue of capacity to contraception in a more in-depth way, given that all parties accepted DE did not have it and the Judge concluding that she was completely satisfied that DE did not have it.

 

But I am left with a rather nagging feeling that it is hard to imagine that DE had capacity to consent to sex if he lacked capacity to make decisions about contraception  (understanding the potential negative consequences of sexual intercourse surely has to incorporate the persons ability to militiate against such consequences); and that perhaps a DE-focussed decision was made that declaring that he did not have capacity to consent to sex was going to have a massively detrimental impact on his life.

 

Although a declaration that a person can’t consent to an operation doesn’t mean that one progresses inexorably towards the operation being directed – a best interests decision needs to be taken, the same is not true of a consent to sexual intercourse.  Almost any capacity decision is followed by a best interests decision of what is best for the person. Almost any.

 

Save this one. The Court of Protection cannot declare that a person lacks capacity to consent to sexual intercourse, but that nonetheless a sexual relationship continuing or recommencing is in his best interests. Once that declaration is made, sex is off the agenda. And that clearly wasn’t in his best interests.

 

So I have a slight suspicion that there was an element of Judge Fudge on the contraception point, in order that DE and PQ could enjoy their relationship without producing further children (it being clear that neither of them wished to do so, but didn’t have the wherewithal to make sure that didn’t happen).  I am not critical in the slightest if that did happen, I think it was the right call for DE.

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Inherently nothing, nothing inherently

Posted on August 10, 2013 by suesspiciousminds

A (hopefully short) discussion about the inherent jurisdiction, particularly as it applies to adults.

I wrote about the Court of Protection popping on the High Court hat to make use of the inherent jurisdiction to get around an otherwise impossible jam, in A NHS Trust v Dr A 2013 http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html and it got me pondering.

As a quick summary, the inherent jurisdiction is a creation of the common law, i.e it was decided in cases before the Court rather than laws enacted by Parliament or regulations or codes drawn up by Ministers.  It essentially provides for the High Court to use unspecified but wide-ranging powers to solve a problem that could not otherwise be achieved by use of statutory powers. In the case of Dr A, because Dr A was detained under the Mental Health Act AND lacked capacity, and the treatment that was considered desirable for him was not in relation to his mental illness but his physical wellbeing; the construction of the Mental Capacity Act prohibited the treatment being authorised by the Mental Capacity Act, and it was treatment that couldn’t be legitimately compelled without consent under the Mental Health Act.

 

The Court’s solution was to make use of the inherent jurisdiction – as we know from that case, had they not done so, the man would probably have died, and we also know that the man went on to make a good recovery and was happy not to have died. So it was the right thing to do. But it was, nonetheless, the High Court using broad and unspecified powers to achieve an outcome that was specifically prevented by legislation enacted by an elected Government. Yes, that legislation was probably a mess and it hadn’t been properly thought through, but nonetheless, the High Court did something that the statute had specifically prevented.

So, my question is – Is the Inherent Jurisdiction a useful and helpful tool to have to allow Judges dealing with difficult cases the necessary flexibility to arrive at what they consider to be the right outcome, or is it a method by which Judges can grant themselves powers that have never been specifically handed to them?  Are we accepting that in exposure to real life, statutory laws will always have stress points and flaws and sometimes break completely and it is helpful to have the judicial Polyfilla of the Inherent Jurisdiction to come to the rescue? Or do we consider that if the UK Parliament wanted to make it lawful for Judges to make orders to sterilise patients, to effectively continue Wardship on someone who was an adult, to determine whether a person could marry, to authorise surgery on conjoined twins against the wishes of parents who were competent, to regulate the relationship between vulnerable adults and their adult son, to decide whether a parent’s views about cancer treatment should be overriden for their child, or to authorise force-feeding, that this should be done through statutory laws?   (Those are all genuine cases involving the use of the inherent jurisdiction to make such orders, and some went on to lead to the introduction of statutory mechanisms to resolve these problems)

Of course, if the inherent jurisdiction hadn’t been there, then the Court could have ended up being unable to make the decisions and orders that were deemed to be in the person’s best interests – it would have been no good to any of those individuals that the Government in four or five years time would bring about some legislation on forced marriages, or persons lacking capacity. Don’t we WANT Judges to be able to make the right decisions – they are seized of the facts, they hear the arguments – we wouldn’t want them to have to make a decision that they felt was not right for the individuals concerned merely because the law hadn’t anticipated this set of circumstances and made provision for it?

On the other side, however, it worries me to an extent, firstly because we are now getting into territories where there IS existing legislation to make provision for these things. Both the Mental Capacity Act and the Mental Health Act have very long and detailed provisions for the circumstances in which treatment can be undertaken without consent. Dr A happened to fit within both pieces of legislation – he was detained under the Mental Health Act, and was determined to lack capacity to make decisions about the feeding treatment under the MCA.  Whilst I consider that the final decision that was taken was right, and in Dr A’s best interests, I can’t get away from a nagging feeling that all of those statutory provisions and requirements were sidestepped by a Judge simply deciding that “X should be done, and I will do it under the inherent jurisdiction”

We surely needed the Mental Health Act and Mental Capacity Act so that it was clear (or comparitively clear) under what circumstances the State could interfere with a person’s life and autonomy, what would be required before the State could do so, what the checks and balances would be, what rights the person would have.  All of that seems to me to get a little lost when a High Court Judge can simply decide that they have the power to achieve the outcome they desire?

In children cases, the use of the inherent jurisdiction is moulded into the statute – it says what it cannot be used for, and gives parameters in which the State can invite the Court to use those powers. In adult cases, it is not incorporated or limited.

Sentences like this, from McFarlane LJ  (who I believe to be a fair and just Judge) still make me shudder a little   “It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”  DL V a Local Authority 2012  http://www.bailii.org/ew/cases/EWCA/Civ/2012/253.html

I don’t like the notion that Judges are able to consider that they have carte blanche with these powers unless Parliament expressly take them away.  Because another way of looking at it would be – that when you are deciding on compelling medical treatment for a person who doesn’t consent to it, you are looking at whether it can be authorised under either Mental Health Act, Mental Capacity Act or the doctrine of necessity, and that if it can’t, then it simply can’t be authorised.

Once you consider that in every case where the Court uses its Inherent Jurisdiction they are in effect making a decision that the State knows best and can impose a paternalistic decision upon people overriding their autonomy, it becomes something that is potentially concerning.  I say that not because I think any of the Judges who have used it have ever done so for reasons other than genuine belief that it was in the best interests of the individual; but because I firmly believe that people should have autonomy other than in circumstances specifically set out in statute law.  I would rather preserve Judges as the referee , as the person sifting the evidence, hearing the argument, being arbiters and determiners of whether the State has made out its case for taking decisions away from the individual under statutory powers;  and not stepping onto the pitch and taking part in the match itself.

Do I think that this principle is more important than a Court being able to solve an intransigent problem in an individual case?  That’s harder to say – faced with a life or death situation like Dr A and the statutory law as written meaning that the Court would be powerless to order the treatment which it had already decided was in Dr A’s best interests, it is hard to feel that they should be denied the chance to make the right decision. I perhaps feel that using the inherent jurisdiction to Polyfilla the cracks is ultimately less good for the individual than Judges being able to go back to Parliament and say “Look, you hadn’t envisaged this scenario – I have fixed it just this once, but what do you want Courts to do if it comes up again?@

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Deprivation of liberty and force-feeding

Posted on August 7, 2013 by suesspiciousminds

The Court of Protection grappled with a difficult issue in A NHS Trust v Dr A 2013

http://www.bailii.org/ew/cases/EWHC/COP/2013/2442.html

Apologies in advance – this is a long article, it is complex and if you don’t do mental capacity or mental health law you probably don’t need to read it.

The facts of the case involved a Doctor who began manifesting erratic behaviour, for example insisting that anyone in the colour red was a member of the Iranian Secret Police and that a book he was writing disproving evolution would make him famous after his death. Dr A also went on hunger strike, following the confiscation of his passport by the UK Border Agency.

Although one expert was of the view that Dr A’s behaviour was all an attempt to apply pressure to reverse decisions about his asylum case, the vast majority of the experts considered that he had had a genuine breakdown of his mental health.

Without going into the details too much, the Court were satisfied that Dr A was suffering from a delusional disorder impairing the functioning of his brain affecting his ability to use or weigh up information relevant to his decision as to whether or not to accept nourishment.  (And thus in terms, that he did not have the capacity to decide to refuse nourishment)

The Court then weighed up whether it was in Dr A’s best interests to receive nutrition by way of force feeding or not  – this is not a simple decision, and a number of competing factors were weighed up and considered. The Court determined that it would be in Dr A’s best interests to receive nutrition by way of nasogastric tube feeding.

However, an issue then arose about whether, having made the declaration that Dr A lacked capacity, and that force-feeding would be in his best interests, whether the Court actually had jurisdiction to compel it.

  1. I therefore conclude that it is in Dr. A’s best interests for this court to make an order that permits the forcible administration of artificial nutrition and hydration.
  1. I now turn to consider the power of the court to make the order in his best interests. The question emerged in the course of argument as to whether, in the circumstances of this case, the court had the power under the MCA to make an order for the forcible feeding of Dr. A. Subsequently, the investigation and analysis of that question has taken a considerable amount of time, both for the parties’ legal representatives and the court. It is alarming to find that the legal position on this fundamental issue is far from straightforward

 

The fact that the next part of the judgment is headed “Eligibility – a new gap?” will make practitioners in this field very nervous – the last gap went all the way to Europe, and ended up with the Mental Capacity Act and all of the impenetrability that the MCA has become in practice.

The Court had to look at whether force-feeding was a deprivation of liberty, and concluded that yes it was. This may well turn out to be important in other cases involving for example political protests,  Brady-type efforts to end ones own life or persons with eating disorders.

When determining whether the circumstances amount objectively to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds himself. In this case, there is no dispute that subjecting Dr. A. to forcible feeding amounts to a deprivation of liberty. In order to feed him he will be physically restrained by NHS staff against his will while a nasogastric tube is inserted. The restraint continues to prevent him removing the tube. On occasions, in this process, he is sedated. He is not allowed to leave the hospital. The staff are effecting complete control over his care, treatment and movements, and, as a result, he loses a very significant degree of personal autonomy.

The issue then was whether the Court had powers under the MCA to make an order that had the effect of depriving Dr A of his liberty. This becomes very complex, very quickly, even by MCA standards.

  1. 16A(1) of the MCA are clear:

“If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.”

And then a long trawl through Schedule 1A of the MCA which sets out when a person is ineligible to be deprived of liberty under the MCA shows that the MCA can’t be used to deprive a person of their liberty if they are being, or are capable of being , detained under the Mental Health Act.

In the light of the evidence suggesting that the criteria set by section 2 MHA might be met in respect of Dr. A., it seemed to me that it was at least arguable that he was “within the scope of the MHA” and therefore, by virtue of paragraph 5 of schedule 1A of the MCA, ineligible to be detained under the MCA.

The hospital actually detained Dr A under s3 of the Mental Health Act during the interim period between the Judge asking trial counsel how the heck this could be fixed and them coming up with solutions. Did that help?

  1. The consequence of placing Dr. A under section 3 was, however, merely to accentuate the difficulties about the application of section 16A because, although removing him from the ambit of case E of schedule 1A, it put him squarely within case A. On any view, he is both subject to a “hospital treatment regime” within the meaning of paragraph 8(1) of the schedule and also detained in a hospital under that regime. In those circumstances he is, prima facie, ineligible to be deprived of his liberty under the MCA and the Court of Protection may not include in any welfare order any provision which authorises him to be so deprived.
  1. Put boldly in that way, it will be seen that this might make it impossible for someone to be treated in a way that is outwith his “treatment” under the MHA if that treatment involves a deprivation of liberty. To take a stark example: if someone detained under section 3 is suffering from gangrene so as to require an amputation in his best interests and objects to that operation, so that it could only be carried by depriving him of his liberty, that process could not prima facie be carried out either under the MHA or under the MCA. This difficulty potentially opens a gap every bit as troublesome as that identified in the Bournewood case itself.

 

So, you can provide treatment to a person who is, or is capable of being, detained under the Mental Health Act, in accordance with the MHA  BUT if the treatment isn’t capable of being provided under the MHA you cannot then turn to the MCA as being a vehicle for providing that treatment even if the person does not have capacity and the Court has declared that the treatment is in their best interests, because of Schedule 1 A of the MCA.

Sorry, this is going to be  complex, it takes about five pages of going through the Act itself to get to that point – the Judge was so exasperated by what he described as  the ambiguity, obscurity and possible absurdity of the legislation, that he authorised counsel to look at the Parliamentary debates in a Pepper v Hart exercise to see if this idiocy was what Parliament had intended, or whether it was a cock-up.  (Judges hardly ever embark on the exercise of looking at what Parliament said about the construction of the Act  – it’s that Otto von Bismarck  “laws are like sausages – it is better not to see them being made” thing)

  1. The Official Solicitor now suggests three solutions to the problem described above:

(1) The necessary feeding and associated measures can be taken under the MHA. There is therefore no need for an order under the MCA.

(2) If the necessary feeding and associated measures cannot be taken under the MHA, an order can still and should be made under the MCA interpreted in accordance with the Human Rights Act 1998.

(3) If the necessary feeding or associated measures cannot be taken under the MHA or the MCA, an order should be made under the High Court’s inherent jurisdiction.

I shall consider these options in turn.

Authorising the treatment under the Mental Health Act

Understandably, the Official Solicitor cited the Ian Brady case as authority for the suggestion that force-feeding can be authorised under the Mental Health Act.

This is the key passage in the Brady judgment that sanctioned his force-feeding under the MHA  (a decision that frankly, I found a bit ‘iffy’ at the time, going much further than traditional views that one can forcibly treat the mental disorder but not physical disorders under the MHA)

71.   “On any view, and to a high degree of probability, section 63 (MHA) was triggered because what arose was the need for medical treatment for the mental disorder from which the Applicant was and is suffering. The hunger strike is a manifestation or symptom of the personality disorder. The fact (if such it be) that a person without mental disorder could reach the same decision on a rational basis in similar circumstances does not avail the Applicant because he reached and persists in his decision because of his personality disorder.”

The medical evidence in this case did not back that up

In this case, therefore, the clinicians treating Dr. A. feel strongly that artificial nutrition and hydration and ancillary treatment are, on the facts of the case, treatment for a physical disorder, starvation and dehydration, and not for the underlying mental disorder. Dr. A. is not suffering from an eating disorder. Whilst feeding him may make him feel better, it is not treating him for a mental disorder as it would be were he suffering from anorexia nervosa.

  1. On this point I have found the views articulated by the treating clinicians, and in particular Dr. WJ, persuasive. She does not consider that the administration of artificial nutrition and hydration to Dr. A. in the circumstances of this case to be a medical treatment for his mental disorder, but rather for a physical disorder that arises from his decision to refuse food. That decision is, of course, flawed in part because his mental disorder deprives him of the capacity to use and weigh information relevant to the decision. The physical disorder is thus in part a consequence of his mental disorder, but, in my judgement, it is not obviously either a manifestation or a symptom of the mental disorder. This case is thus distinguishable from both the Croydon case and Brady.
  1. I also accept the submissions put forward by Miss Paterson, and acknowledged by the Official Solicitor, that it is generally undesirable to extend the meaning of medical treatment under the MHA too far so as to bring about deprivation of liberty in respect of sectioned or sectionable patients beyond what is properly within the ambit of the MHA. I recognise the need for identifying, where possible, a clear dividing line between what is and what is not treatment for a mental disorder within the meaning of the MHA; but I venture to suggest that in medicine, as in the law, it is not always possible to discern clear dividing lines. In case of uncertainty, where there is doubt as to whether the treatment falls within section 145 and section 63, the appropriate course is for an application to be made to the court to approve the treatment. That approach ensures that the treatment given under section 63 of the MHA will be confined to that which is properly within the definition of section 145 as amended. It would help to ensure that patients with mental disorders are, so far as possible, treated informally rather than under section. Finally, it ensures compliance with Article 8 and provides the patient with a more effective remedy than would otherwise be available, namely a forensic process to determine whether the treatment is in his best interests.
  1. I therefore decline to make a declaration that artificial nutrition and hydration can be administered to Dr. A. under the MHA

Authorising the treatment under the MCA, by interpreting it in light of the Human Rights Act

I liked this argument, it is clever. If the MCA as drafted, puts a Court in a position of not being able to protect the right to life of a person who the Court has determined does not have the capacity to refuse treatment which would save his life, the Court ought to interpret the MCA in such a way that it does NOT clash with the article 2 right to life. And using the powerful tool of s3 (1) Human Rights Act to do so

Under section 3(1) of the Human Rights Act:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

 

  1. The second basis on which the Official Solicitor invites the court to authorise the forcible feeding of Dr. A. is under section 16 of the MCA. He submits that the provisions of the MCA read in compliance with the Human Rights Act and the European Convention permit the court to take this course. Mr. Moon and Miss Street submit, first, that, so far as it is possible to do so, the MCA must be interpreted so as to be consistent with the best interests of the person lacking capacity (section 1(5) of the MCA). Unless the court authorises the forcible administration of artificial nutrition and hydration to Dr. A. he will die. The court is thus under an obligation to interpret its powers in a way that ensures his life is saved.
  1. It is submitted by Mr. Moon and Miss Street, however, that the obligations on the court go further. Under Article 2 of the European Convention of Human Rights “everyone’s rights to life shall be protected by law”. Amongst the duties imposed on the State by Article 2 is the so-called “operational duty” requiring the State in certain circumstances to take preventative measures to protect an individual whose life is at risk: Osman v. United Kingdom [1998] 29 EHRR 245.

 

 

But it is still No

  1. The course proposed by counsel, though in some ways attractive, involves reading into section 16A a provision that would have the effect of fundamentally altering its clear meaning. The scheme of the amendments to the MCA, introduced in 2007, is plain. In certain circumstances defined in schedule 1A, the MHA regime takes precedence over the MCA. No argument has been advanced which has persuaded me to disagree with the assessment of Charles J in Re GJ (supra) that the MHA has primacy over the MCA and, in particular, his observation at paragraph 96 of the judgment:

“Case A is a clear indication of the primacy of the MHA 1983 when a person is detained in hospital under the hospital treatment regime and it would seem that when it applies P cannot be deprived of liberty under the MCA in a hospital for any purpose.” [my emphasis]

In such circumstances, and notwithstanding the uncompromising words of Lord Nicholls quoted above, any court, particularly a Judge at first instance, must at least hesitate before reading into a statute words that would have the effect of fundamentally altering its meaning and undermining the apparent scheme of the legislation. He should hesitate still further when the proposed reading in has not been the subject of full argument on both sides nor referred to the relevant Government department. Despite the great efforts of counsel, I am far from satisfied that all the consequences of their proposed reading in of words into section 16A have been fully identified. It may be that, with further thought, an alternative reading or reinterpretation may seem prevalent. For example, it may be thought that, if any statute or provision needs to be reconsidered to ensure capability with ECHR in this context, it should be the MHA rather than the MCA.

  1. I acknowledge, of course, my obligation under section 6(1) of the Human Rights Act not to act in a way that is incompatible with that Act. Were it not for the availability of the inherent jurisdiction, I might be more inclined to adopt the course proposed above or to arrange further hearings before making a decision. Happily, however, for the reasons I will now explain, I am satisfied that the powers available to me under the inherent jurisdiction enable me to comply with my obligations under that section.

Inherent jurisdiction then?

The Judge set out the body of authority which endorses the view that the Court hold an inherent jurisdiction in relation to adults just as it does for children, ending with the most recent authority.

90.   Confirmation is provided by the more recent decision of the Court of Appeal in DL v. A Local Authority [2012] EWCA Civ. 253 in which Davis LJ said at paragraph 70:

“Where cases fall precisely within the ambit of the MCA 2005 and are capable of being dealt with under its provisions there is no room for – as well as no need for – invocation of the inherent jurisdiction. However, even in the case of an adult who lacks capacity within the meaning of the MCA 2005, it appears that the inherent jurisdiction remains available to cover situations not precisely within the reach of the statute.”

  1. The issue is considered at greater length in the judgment of McFarlane LJ who, in reaching the same conclusion, pointed out the MCA contains no provision restricting the use of the inherent jurisdiction in terms of those found in section 100 of the Children Act 1989, “Limited use of Wardship and Inherent Jurisdiction in matters relating to Children”. On this, McFarlane LJ said at paragraph 61:

“It would have been open to Parliament to include a similar provision, either permitting or restricting the use of the inherent jurisdiction in cases relating to the capacity to make decisions which are not within the MCA 2005. In the absence of any express provision, the clear implication is that if there are matters outside the statutory scheme to which the inherent jurisdiction applies then that jurisdiction continues to be available to continue to act as the ‘great safety net’ described by Lord Donaldson.”

In essence, if Parliament wanted to stop the use of inherent jurisdiction to creatively solve problems, they need to legislate this explicitly.

This is the cunning argument deployed  (which involves assuming that when the MCA says “Court” it means only the Court of Protection, not the High Court, even though in practice, as here, it is likely to be the same Judge, sitting in the same room, who just metaphorically puts on a different hat for a moment.

 

93.   (1) The prohibition on making an order which authorises the person being deprived of his liberty is expressly restricted to the Court of Protection exercising its statutory jurisdiction under the MCA and is not, but could have been, extended to the High Court exercising its inherent jurisdiction.

(2) Following McFarlane LJ in DL, the clear implication is that Parliament did not intend to prevent the High Court exercising its jurisdiction to make an order in the best interests and in order to uphold the Article 2 rights of a person lacking capacity in the circumstances of a case such as this.

(3) Furthermore, Parliament cannot have intended to remove the safety net from a person lacking capacity who requires the orders sought to be made in order to prevent his death.

(4) The relevant concept is his ineligibility to be “deprived by this Act” (section 16A(1) and schedule 1A at paragraph 2).

(5) If a person is ineligible to be deprived of his liberty by the MCA, section 16A provides that “the court may not include in a welfare order provision which authorises the person to be deprived of his liberty”. In this provision:

(a) “The court” means the Court of Protection; and

(b) “the welfare order” means an order under section 16(2)(a) of the Mental Capacity Act by the Court of Protection.

I agree with those submissions.

So, having determined that the Court had power under the Inherent Jurisdiction (which is like the legal equivalent of Duct Tape, or perhaps more accurately Polyfilla to cover up the cracks), the Judge then had to consider whether he should go on to use that power.

  1. the court, as a public authority, cannot lawfully act in a way that is incompatible with a right under ECHR. I accept the submission that I am under an operational duty under Article 2 to protect Dr. A., a man who, as I have found, lacks capacity to decide whether to accept nutrition and hydration against the risk of death from starvation. By making the orders sought by the Trust under the inherent jurisdiction, I will be complying with that operational duty.
  1. In all the circumstances, I hold that this court has the power under its inherent jurisdiction to make a declaration and order authorising the treatment of an incapacitated adult that includes the provision for the deprivation of his liberty provided that the order complies with Article 5. Unless and until this court or another court clarifies the interpretation of section 16A of the MCA, it will therefore be necessary, in any case in which a hospital wishes to give treatment to a patient who is ineligible under section 16A, for the hospital to apply for an order under the inherent jurisdiction where the treatment (a) is outside the meaning of medical treatment of the MHA 1983 and (b) involves the deprivation of a patient’s liberty.
  1. Under that jurisdiction, I am satisfied, for the reasons set out above, that an order for forcible feeding of Dr. A. is in his best interests. I therefore make the orders sought by the applicant Trust, that is to say declaring that it shall be lawful for the Trust clinicians to provide Dr. A. with artificial nutrition and hydration and to use reasonable force and restraint for that purpose, and further declaring that, insofar as those measures amount to a deprivation of liberty, they shall be lawful.

An elegant fix of a mess caused by Parliament.

There is a postscript update on Dr A, which may be of interest

98.   On 1st July 2013 (before the transcript of the judgment was finalised) the Trust notified my clerk that Dr A had returned to Iran, having made, in the doctors’ opinion, a capacitous decision to do so. I received statements from Drs R and WJ and correspondence from the parties, detailing the clinical decisions and events, which preceded his departure. I am informed that Dr A had continued to be provided with artificial nutrition and hydration requiring restraint. He also received amisulpride, an anti-psychotic. His mental state gradually improved, in response to the medication. Dr A started drinking and eating voluntarily on 8 and 10 May respectively. His weight returned to a level within a normal range. The Trust states that Dr A first mentioned he was returning to Iran on 23 May 2013. He made the final decision on 4 June 2013; after taking medical advice and legal advice from his immigration solicitor. On 14th June 2013 Dr WJ rescinded Dr A’s detention under section 3 MHA; his mental condition having continued to improve. He returned to Iran on 24 June 2013. I will now make an order concluding these proceedings, discharging the declarations and the order for a review hearing.

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“Capacity to marry”

Posted on August 6, 2013 by suesspiciousminds

Sandwell MBC and RG, GG and SK and SKG 2013 and whether an arranged marriage where the individual had no capacity should endure or be dismantled

http://www.bailii.org/ew/cases/EWHC/COP/2013/2373.html

This was a Court of Protection case, heard before Mr Justice Holman. It involved two adult males, both of whom had significant capacity issues.

After considerable investigation and careful consideration by the local authority, the Official Solicitor and experts variously instructed by them, it is now common ground: first, that GG and RG each lack the capacity to make a range of decisions as to where they reside, their care packages, their contact with others, and certain other matters; and, second, that it is in their respective best interest that there be a range of declarations and other orders in terms which have been carefully drafted, and with one exception, are agreed.

 

The ‘one exception’ is of course, the majority of the litigation. In 2009, RG’s family arranged a marriage for him, to a woman named SK, and that marriage took place in India.

SK then came to the UK. It was her evidence, accepted by the Court, that it was only subsequent to the wedding ceremony that  she learned that RG had profound difficulties. Nonetheless, the marriage was consummated.

Mrs SK bears no personal responsibility at all for the events which happened. There is no question whatsoever of her having personally exploited the mental disability of RG. She was an obedient daughter, in a Sikh family, who compliantly participated in the arrangements that her family made for her marriage. Having married him, she now feels committed to him, and, indeed, says that she does now love him. She says that it would be impossible in her culture and religion for her ever to marry anyone else, and that if she were divorced, or her marriage was annulled, she would be ostracised in her community.

  1. The issues that now remain in relation to RG relate to the status and continuation of that marriage. It is accepted by Mrs SK that she cannot provide to RG the support and daily care and assistance that he needs, and always will need, and she no longer resists that he remains living in the accommodation provided and staffed by the local authority. She implores me, however, not to facilitate or permit steps to be taken to annul their marriage.
  1. At the outset of the hearing Mrs SK was also still asking to be permitted to have some sexual relationship with her husband, the more so as it would be culturally impossible, now, for her to do so with any other man. The evidence of Dr Xenitidis was, however, crystal clear that RG has no understanding at all what sex is, and, accordingly, that he lacks any capacity to choose whether to agree to sexual touching. As Xenitidis put it: “He does not even understand what sex is. Whether it is voluntary, or not, is a kind of luxury for him.”

That would place SK in difficulties with the criminal law, and specifically section 30 of the Sexual Offences Act 2003, in that making love with her husband could potentially land her in prison, the maximum sentence being life.

Section 27(1)(b) of the Mental Capacity Act 2005 expressly provides that nothing in that Act permits a decision to be made on behalf of a person consenting to have sexual relations. Accordingly, if, as is clear, RG himself lacks any capacity to consent to sexual relations, the court cannot provide any consent on his behalf, even if (I stress if) that might enable him to gain some physical pleasure from some sexual activity.

 For these reasons the order will include a declaration that RG lacks capacity to consent to sexual relations. It will be the duty of the local authority, as his carers, to take all reasonable steps to prevent him from being the victim of a criminal act, and the regular contact between Mrs SK and RG will have to be supervised to the extent necessary to ensure that there is no sexual touching between them. Mrs SK now accepts a condition of contact that she does not communicate to RG that she would like to have sexual relations with him, or go to the bedroom with him.

Turning to the marriage, the Court unsurprisingly found in the light of the expert evidence on RG’s capacity that he had no understanding whatsoever of what a marriage was, that he had not had capacity to enter into the marriage contract.

The argument then, and it becomes an interesting one, is what should happen with the marriage. Underlining mine

  1. There remains, therefore, the question of whether I should declare that it is in the best interests of RG that the Official Solicitor should present a petition for a decree of nullity on his behalf, there being no doubt that RG personally lacks any capacity to make a decision whether to do so.
  1. The Court of Protection cannot itself annul a marriage. So in relation to a petition for nullity all I can do in the present proceedings is authorise, and, if necessary and appropriate, direct that the Official Solicitor presents and pursues one. For that purpose, the actual decision where RG was domiciled on the date of the marriage, would fall to be made, not by me in these proceedings, but by the matrimonial court, once seised with a petition for nullity.

It might well have been an interesting position for the Official Solicitor (who were, on RG’s behalf opposed to petitioning for nullity) if the Court had declared that it was in RG’s best interests for them to do so. Clearly they would have to have either done so, or appealed the declaration.  

The LA were very keen for the marriage to be ended, chiefly as a matter of public policy

I have been told that within the area of this particular local authority there are a number of incapacitated adults who have been the subject of arranged or forced marriages, and that it is important to send a strong signal to the Muslim and Sikh communities within their area (and, indeed, elsewhere) that arranged marriages, where one party is mentally incapacitated, simply will not be tolerated, and that the marriages will be annulled

 

 

  1. In the forefront of Miss Pratley’s submissions is policy. The position of the local authority is encapsulated in paragraphs 7 and 8 of her cogent, written, outline submissions dated 28 June 2013, where she wrote:

“7: It is plainly a relevant circumstance that RG lacked the capacity to enter into the marriage, and continues to lack that capacity. Indeed, his lack of capacity is a fact of such importance that it would be difficult to argue it is not the starting point (or, if not the starting point, a circumstance of very significant weight) in determining best interests. It is submitted on behalf of the local authority that it is an overarching and compelling consideration in the best interests analysis. Whilst it is not asserted that it could never be in a person’s best interests for the court to decide not to take steps to end their marriage in these circumstances, only in exceptional cases will such a conclusion be sustainable.

8: This is because the court would otherwise make a decision, the effect of which would be that RG remain married in circumstances where he lacked capacity to marry, on the basis of circumstances, such as RG’s wishes and feelings and the impact on RG if his marriage was brought to an end, with little or no weight given to the fact of his incapacity on the basis that he is already married. It is impossible to reconcile this with the fact that a court could never take such considerations into account in allowing RG to marry in the first place. This would undermine the legal foundation of the institution of marriage in England and Wales, where consent is a fundamental element of a legally unassailable and enduring marriage contract.”

 

 

SK pleaded vehemently that the marriage should not be annulled, that as a consequence of her religion and culture it would cause her shame and might cause her to be ostracised.

The Official Solicitor took the view that RG would not want to cause SK any harm or distress, and when the issue that SK might have to permanently leave the UK (as she would if the marriage were annulled) he reacted very badly against this, and thus it was in his best interests not to annul the marriage, notwithstanding that he had not had the capacity to enter into it.

  1. The present wishes and feelings of RG himself, so far as they can be ascertained, are quite clear. Although he has such little understanding of marriage that he lacked capacity to marry, he, nevertheless, frequently uses the words “wife”, and “marriage”, or “marry”, in relation to Mrs SK. She visits him regularly, several times a week. Although the visits are quite short, he reacts to them with pleasure and appears to gain pleasure from the visits and from the relationship.
  1. RG reacts badly to references to divorce. Mr Dipak Mohan, his key social worker, said that if RG is told that his marriage is at an end, he is likely to take it extremely badly. When his brother told him that Mrs SK might be deported, he reacted extremely badly and aggressively

The Judge determined that the Official Solicitor was correct

  1.  Unquestionably, RG cannot gain the support, pleasures and benefits of a marriage, as normally understood. He cannot gain many other of the pleasures of life that are available to persons of normal capacity. But still he gains some pleasure and some benefits from this marriage and relationship.

 

  1. Like the Official Solicitor, I am completely unpersuaded that his best interests require or justify that it is now annulled. For these reasons I will exclude from the otherwise agreed order in relation to RG those parts which provide for the Official Solicitor now to present a petition for the marriage to be annulled.

There was obviously a tension in this case between public policy (the compelling argument that marriages arranged by families overseas with the knowledge that the bride or groom lacked any capacity to enter into it should not result in the families benefiting from the marriage enduring)  and the individuals in the case, with there being good evidence that RG would have been caused distress by the annulment – since SK would have had to leave the country and little evidence of positive benefit to him. The Judge found in favour of the individual rather than public policy.

Whilst the Judge was at pains to point out at the outset that the case turned on its facts and that he was not seeking to establish any general principles, it is not difficult to see that those acting in such cases in the future would point to the issues in this case as being broadly supportive of the marriage not being annulled on the basis of public policy alone, and that there would have to be benefits to the individual concerned.

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Fear of Commitment

Posted on May 10, 2013 by suesspiciousminds

Following the recent media outrage (or mock outrage, or manufactured outrage,  or slow news day outrage or perfectly appropriate outrage, depending on your standpoint) , there is now a practice direction on Commital for Contempt of Court, which, it makes plain, applies to Court of Protection cases too.

 The starting point is to try to do the committal hearing in public if at all possible, if there are sensitive matters, to deal with those by making a proper order about what can and cannot be reported, but if a case ABSOLUTELY has to be heard in private, there should be nonetheless a public notice  and a declaration in a public Court, stating the name of the person, broadly why they have been committed, and what the punishment is, and a suitably anonymised judgment published, put on Baiili, and available at reasonable expense to any interested party who asks for it.

 

All perfectly reasonable and sensible proposals. 

 

 

COMMITTAL FOR CONTEMPT OF COURT

 

PRACTICE GUIDANCE

 

issued on 3 May 2013 by

 

LORD JUDGE, LORD CHIEF JUSTICE OF ENGLAND AND WALES

and

SIR JAMES MUNBY, PRESIDENT OF THE FAMILY DIVISION and

PRESIDENT OF THE COURT OF PROTECTION

  1. It is a fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court.
  1. This principle applies as much to committal applications in the Court of Protection (rule 188(2) of the Court of Protection Rules 2007) and in the Family Division (rule 33.5(1) of the Family Procedure Rules 2010) as to committal applications in any other Division of the High Court.
  1. The Court of Protection and, when the application arises out of proceedings relating to a child, the Family Division, is vested with a discretionary power to hear a committal application in private. This discretion should be exercised only in exceptional cases where it is necessary in the interests of justice. The fact that the committal application is being made in the Court of Protection or in the Family Division in proceedings relating to a child does not of itself justify the application being heard in private. Moreover the fact that the hearing of the committal application may involve the disclosure of material which ought not to be published does not of itself justify hearing the application in private if such publication can be restrained by an appropriate order.
  1. If, in an exceptional case, a committal application is heard in private and the court finds that a person has committed a contempt of court it must state in public (rule 188(3) of the Court of Protection Rules 2007; Order 52 rule 6(2) of the Rules of the Supreme Court 1965):

(a) the name of that person;

(b) in general terms the nature of the contempt of court in respect of which the committal order [committal order for this purpose includes a suspended committal order] is being made; and

(c) the punishment being imposed.

This is mandatory; there are no exceptions. There are never any circumstances in which any one may be committed to custody without these matters being publicly stated.

  1. Committal applications in the Court of Protection or the Family Division should at the outset be listed and heard in public. Whenever the court decides to exercise its discretion to sit in private the judge should, before continuing the hearing in private, give a judgment in public setting out the reasons for doing so. At the conclusion of any hearing in private the judge should sit in public to comply with the requirements set out in paragraph 4.
  1. In every case in which a committal order or a suspended committal order is made the judge should take appropriate steps to ensure that any judgment or statement complies with paragraphs 4 and 5 and that as soon as reasonably practicable:

(a) a transcript is prepared at public expense of the judgment (which includes for this purpose any judgment given in accordance with paragraph 5 and any statement given in accordance with paragraphs 4 and 5);

(b) every judgment as referred to in (a) is published on the BAILII website; and

(c) upon payment of any appropriate charge that may be required a copy of any such judgment is made available to any person who requests a copy.

 

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“Cutting edge forensic linguistics”

Posted on May 2, 2013 by suesspiciousminds

A discussion of the Court of Protection case of PS v LP 2013

 http://www.bailii.org/ew/cases/EWHC/COP/2013/1106.html

 

An interesting case – I don’t cover Court of Protection stuff as often as I should, and this one throws up some interesting ideas about certainty, expertise and cutting edge science.

 This one involved a woman, LP, who had separated from her family and formed a new relationship with a man PP.  The family considered him to be an unhealthy influence on her. PP for his part said that the family had treated LP badly and that she had wanted nothing more to do with them.

 

Disaster struck on 25th August 2008 when LP suffered a cerebral aneurism which has left her severely disabled. She is gravely impaired. It is, I understand, impossible to obtain from her any indication of her wishes at the present time. She is said to be in need of twenty four hour care and resides at a nursing home provided for by the relevant PCT and she is fully CHC funded. It is uncertain whether she knows who or where she is. There is a possibility of an operation to deal with her hydrocephalus but it is by no means certain that this will improve matters. There is a chance it may improve communication and a little improvement might enable her to show like or dislike of ideas or people but any changes are said to be likely to be small.

 

Since that time, she had had no contact with her family. A letter and a will, essentially cutting them out of her life were prepared shortly before this cerebral aneurism

 

  1. On 27th July she apparently signed a document entitled, “Last wishes should my ex-family find Paul and me,” and on 28th July 2008 she prepared a document entitled, “Last Will and Testament.” The letter of wishes is badly spelt and drafted.
  1. The will is clumsily drawn and is likewise written in poor English. It is rambling in parts but that reflects an ignorance of the law and legal niceties rather than an incapacity in some way in that she leaves any inherited monies “in trust” for B, her great grandson, she leaves a necklace to DP, the wife of PP, and everything else to PP, her cohabitee. There was gift over in the event of PP’s demise to R. The will criticises “my ex-husband and siblings” “because of the abuse I received from them.” It does not mention her children but I suspect that is because she did not appreciate the meaning of the word “siblings.”
  1. The letter of wishes recounts a history of alleged physical and mental abuse from JR, PS, JP, PS’s son, and grandson, D2. It refers, in confirming her problems, to Detective Sergeant NL at a police station. It relates how she built up a relationship over the years with PP despite physical and mental abuse from BP. It says that her parents and her brother, R, were pleased that she had found happiness with PP. It ends by resuming criticisms of PS, JR, JP, D2, KR and her husband. There is no doubt that the PS family and BP will have found this letter very upsetting.

 

The family said that this document was not in fact prepared by LP, but by PP and that it was not something that she would have prepared and used words and a style that she would never have used.

 

Additionally, even if those were the wishes and feelings she had recorded shortly before her awful and sudden life-changing illness, were they to be adhered to now?

 

The Court heard evidence from all of the family, and PP, and from the police officer who spoke with LP and PP when the allegations of abusive behaviour by the family were made. The police officer was obviously unable to say whether the allegations were true, but was able to give evidence to the effect that there was nothing in the presentation that suggested that PP was the driving force, or that LP was under his thrall, or being coerced into saying these things.

 

The case then becomes quirky, because in order to consider whether the documents of July were written by LP, the Court authorised the instruction of two Professors, Professor C and Professor PJ, whose expertise was forensic linguistics, and both were operating “at the cutting edge of it”

 

Until today, I was not aware that there even was a field of forensic linguistics, let alone a cutting edge of it, but one lives and learns.

 

  1. How did Professor C’s evidence assist me? He is the Emeritus Professor of forensic linguistics at Aston University and wrote a report of 4th October of last year. I have no doubt about his expertise. His view was this:

“The linguistic evidence is consistent with the hypothesis that the wishes, will and PP’s text were all typed by the same person.”

But he was also cautious and he added this:

“There are, however, no distinctive linguistic features to enable me to express an opinion on whether the author of the three texts was the same.”

So he is much more cautious than Professor PJ and Professor PJ’s evidence, is therefore, the more important.

 

i.e he compared a sample of writing KNOWN to come from PP, with the documents in question and concluded that the writing is consistent with having all been by the same author, but wasn’t able to take the next step and say “The will and letter weren’t written by LP, but by PP”   but just rather that it wasn’t possible to exclude that as a possibility.

 

  1. Professor PJ gave evidence through the court TV video link. He is an Associate Professor of computer science at Duquesne University, Pittsburgh, USA. His specialism is the assessment and evaluation of authorship/ attribution of written pieces of work and he is the author of a programme called JGAAP, Java Graphic Authorship Attribution Programme, a computer authorship analysis system funded by the National Science Foundation of the United States. So his work, to quote Miss Hewson, is “cutting edge forensic linguistics.”
  1. He was asked by those acting for PS to consider the last wishes and the will and the statements of PP. He reported on 27th November to the effect that the letter of wishes and the statements were, in his opinion, written by the same person; in other words, that PP is the true author of the letter of wishes. He did not form the view, however, that the will was written by him but that was because it was of a notably different genre; i.e. a written will in legalistic phrasing. But he did not reject the hypothesis that all three could have been written by the same person.
  1. In addition to his first report, I have read questions put to him by the Official Solicitor and read his replies of 4th January and I have seen his supplementary report. I have noted that he accepted that a person is likely to use similar language and phraseology to that of his partner but he took the view they were not likely to be identical. That supplementary report to which I have referred was filed on 25th January. He had prepared that as a result of seeing an additional document of PP. He ran the same tests as before and noted again that he thought the same person was the author of that second statement.
  1. He maintains his conclusions on this basis: of sixteen tests that he performed, fourteen, he said, show the authorship was similar in that of the letter of wishes and PP’s two statements; and he became quite forceful and firm in his conclusion that PP was, indeed, the author of the letter of wishes.
  1. I have to say the professor’s written reports and his analyses are not an easy read. He has examined in his reports the difference between the style and presentation in various documents in the sixteen tests he conducted and come to the conclusions I have set out. At answer eighteen to the questions raised by the Official Solicitor, he sets out the experiments undertaken as to how he looked at, for example, vocabulary, sentence lengths, word pairs and so on.
  1. I am quite unable to assess the validity of this analysis as a discipline. It is new to me and I know of no UK expert, save the related expertise of Professor C, to which I shall again come, but I do not know the quality and reliability of this kind of expert evidence for it is a relatively new specialism.

 

 

 

Professor PJ goes on to say that he is 99.9% sure, looking at the statement prepared by PP, that the author of that statement was the same person as the author of the letter  expressing the wish not to be involved with her family or see them any more (and thus that LP hadn’t written them).

 

But of course, the Court had to be troubled by the degree of confidence one could have in this science.  And here we get to a very interesting (to me) issue.

 

Professor PJ doesn’t arrive at this conclusion by poring over the samples himself, but by using a computer analysis of the sample documents. And he was the creator of that computer programme, and accepted that over recent years he had made changes and adjustments to the computer programme  (the inference of course, being that these changes had been needed to make it more accurate and reliable, and that one couldn’t anticipate whether subsequent changes might be needed to fix current unknown inaccuracies)

 

In a situation like this, who is the expert? Professor PJ, or the computer? Can a computer programme be an expert? Does the computer have to give evidence ? (“I’m afraid I can’t help you with that…. Judge“)

 

Can the computer analysis be accurate, without the Court knowing much more about it?  Since after all, the science put into the computer programme could be completely accurate, but there could have been an error in the programming, Professor PJ not being an expert in computers but in linguistics.  

Even if the linguistic principles going into the computer are right, could there have been an error in creating the computer programme to analyse? How would one know?

 Could we ever reach a situation in which expert assessments are conducted by computers rather than people?  All exciting geeky sci-fi questions intriguing my imagination. A computer, if programmed correctly, couldn’t be biased, couldn’t be lying, couldn’t be recollecting poorly, couldn’t be inconsistent… but of course, “if programmed correctly” is a very significant element of that – how would you know for sure that biases, incorrect assumptions, improper weighting hadn’t been incorrectly incorporated into the initial programming.

[This stuff is so cutting edge, I haven’t even seen it in CSI  – I can now imagine a good storyline in which the computer programme proves who wrote a blackmail letter, or whether the suicide note was really written by the deceased…  And lo, in a quick search for a nice image, I find a good computer programme to assist Horatio Caine in his decision-making]

 horatio caine

 In the event, the Court were not persuaded to make the finding sought by the family that PP had written the letter of wishes, and thus it should be simply discarded.

 

  1. First, I do not doubt the family of LP have shown a considerable degree of care and concern for her in the proceedings before me. I do not think that BP or PS or anyone else in the family poses a physical risk to LP now, whatever the past history may be about which I make no findings. The question for me to look at with care is what is in the best interests of LP as to contact.
  1. I note, of course, that the husband and family of LP are unsophisticated. BP struggled to help me at times during the course of his evidence, although I have sympathy because of his having had two strokes; they have plainly affected his speech, his memory to a degree and his cognitive functioning, but I accept, of course, that his concern for his wife was palpable.
  1. Miss Hewson, second, describes that any decision I should make that BP and PS should be “banned” (her word) from contact would be “a draconian level of interference in LP’s private and family life,” and she seeks that I should draw that conclusion. Of course, it would be a breach of Article 8 rights were it the case that LP’s wishes were not being considered and assiduously weighed up by me and I hope in due course I will come to a careful consideration of the Mental Capacity Act but that Act is compliant with the Human Rights Act and I shall apply, in particular, section 4(6) in due course.
  1. But I remind myself of the decision of the Court of Appeal in the case of K v LBX [2012] EWCA (Civ) 79. In that case the Court of Appeal observed that the right approach under the 2005 Act was to ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights or if that violation is, nonetheless, necessary and proportionate. In that case Black LJ pointed out that:

“Giving priority to family life under Article 8 by way of a starting point or assumption risks deflecting the decision maker’s attention from one aspect of Article 8, private life, by focusing his attention on another, family life. There is a danger it contains within it an inherent conflict for elements of private life, such as the right to personal development and the right to establish relationships with other human beings in the outside world, may not always be entirely compatible with the existing family life and particularly not with family life in the sense of continuing to live within the existing family home.”

  1. Third, Miss Hewson contends the court should not act as some sort of divorce court. Well, of course, it should not and I am not, in deciding as I do, decreeing any form of divorce or judicial separation.
  1. But, fourth, there is no doubt in my mind that LP’s wish not to see her family was quite genuine and of her own volition at the time she expressed it.
  1. I say this because I accept the account of Detective Sergeant NL who seemed to me to be entirely credible. Moreover, I have noted his own expertise in dealing with the vulnerable and his being used to dealing, for example, with honour based violence so he would be more than aware of the possibility of a person’s wishes being overridden by the controlling or threatening behaviour of a member of the family, partner or spouse. No alarm bells rang for him. He saw no need at any time to interview LP on her own. Furthermore, she had the opportunity of saying she was acting under some kind duress when he took PP to the rear of the police station to interview him about the alleged sexual offence and LP said nothing to the desk sergeant or anyone else.
  1. Moreover, I must assume that at the time when she left her family and ran away with PP and at the time she saw the detective sergeant and when she signed the will and letter of wishes she has to be assumed to have capacity to make the decision that she wanted nothing more to do with her family unless the contrary is shown and it has not been.
  1. Fifthly, I do not find PP to be a dominating or bullying man. True he was indignant when Miss Hewson put to him that he had forged the will and the letter of wishes but he showed no sign of being intimidatory or controlling; rather I noted a man deeply affected by the catastrophic injury to LP and hoping, perhaps futilely, that she would somehow improve and be with him. He plainly has no financial motive in running away with her. Not only has she no assets but I understand he has lived on pension credit alone. This man is not a so called gold digger. But he is a man whose memory is inaccurate at times. He cannot have been asked about the sexual assault allegations of N in late 2008. He did not raise with the officer the issue of death threats in June 2008. There was no warrant for his arrest as he claimed. So he has tendency to misunderstand and overstate and his memory is at fault at times.
  1. But, sixthly, for all of that, I am constrained to find that LP signed the will and the letter of wishes and I am so constrained because the signature is similar to the untrained eye, albeit smaller, to the writing on the one postcard and letter of years ago that I have seen. In addition there is the clear evidence of KM. He, of course, did not know what he was witnessing but it is quite clear that LP wanted an independent witness and his account is clear and coherent. He was certain that PP was not there when the documents were signed so there is no obvious evidence of immediate intimidation or improper behaviour. If LP signed the documents of her own volition, then they must, on the face of it, be found to be what she wanted to say. In other words, she did not want to see her family, and that includes her husband of many years standing, and that she wanted to say the bitter things about the family that she then did.
  1. Seventh, I do not find that the poor drafting and inelegant expressions to be found in the letter of wishes and the will should immediately lead me to the conclusion that they are of no effect. Looked at in the round, LP made it quite clear who did she did not wish to see and I do not ignore her wishes simply because they are not expressed very well or elegantly.
  1. Eight, did LP really draft the will and the letter of wishes and feelings? That is a much more difficult question to answer. I do not see in Professor C’s written evidence how he could draw the conclusion quoted by me that he did and his conclusions as to the striking similarity between the will, letter of wishes and statement of PP are couched overall with such caution that I am unable to draw a clear and unequivocal conclusion from his evidence alone. Moreover, there is room for uncertainty, even on Professor PJ’s evidence, as to the will’s authorship so I cannot say she did not draft that or have a part in drafting it.
  1. What specifically of the letter of wishes? Much depends on the credence this court gives to the new discipline in which the professor specialises. There is no doubt the specialism of forensic linguistics is a developing one. The professor himself indicated that to me by conceding that his computer programme had been rewritten in part in recent years because, no doubt, of inaccuracies. I have not been told of any other case in the Court of Protection where this sort of evidence has been used, or, indeed, referred to any other English civil case where this discipline has been found to be of importance in determining the case, or, indeed, of great value or significant assistance. In fairness, I repeat Miss Hewson referred to my having to deal with ‘cutting edge technology’ in the course of the case.
  1. I do bear in mind the recent judgment of the President of the Family Division in the children case of In the matter of TG (A Child) [2013] EWCA (Civ) 5, although, of course, that judgment was issued after I had permitted the expert to be instructed. It seemed to me at the time to be right, however, to admit the investigations of the professor and I acknowledge he has formed a firm view that the author of the letter of wishes is the author of PP’s statements. But I bear in mind that even the professor has in various articles cited to me by Mr. Patel acknowledged difficulties in the technique of authorship attribution. Moreover, each of the tests that the professor employed on his case has a margin of error of up to twenty per cent. I am persuaded by Mr. Patel’s helpful analysis of the documents at paragraph 22E of his final written submission which I now quote:

“Lastly, looking at Professor PJ’s results, W1 is as similar to W2 as W2 is to S and both pairs are less similar than W1 is to S1. Professor PJ explained the difference by saying the gap between W2 and S is, in his opinion, due the difference in the genre of the two documents, W2 being notably different. However, that explanation could account for the difference between W1 and W2, rather than it being attributed to a difference in author. Further, it could also account for why W1 and S are similar to each other as they are documents which are not in a notably different genre. In the Official Solicitor’s submission, the failure to explain the matters set out above may have been due to the bias in instructions. Professor PJ may have been anxious subconsciously to favour an interpretation which supported the positions of the party instructing him and of Professor C for whom he was doing a favour.”

  1. And that leads me, of course, to a slightly worrying aspect of Professor PJ’s evidence which to an extent affects its standing; that is, the manner in which he had become involved. In saying this I make no criticism of the solicitor or counsel for PS. The letter of instructions was perfectly proper. But in evidence Professor PJ agreed he had accepted instructions as a favour to Professor C, whose conclusions, as I have set out, are somewhat uncertain. Second, he simply did not seem to comprehend that the basis of accepting instructions might give the appearance of bias. To say the computer has no friends and does not lie is to avoid the issue and, indeed, does not understand the difficulty. But he did accept that the account of the background that he had received risked introducing bias.
  1. So I view Professor PJ’s conclusions with some caution, though I by no means dismiss them on that basis alone. I cannot find that his conclusions were biased even if I have been given some cause for concern.
  1. I consider, however, that, even if PP did have a part in drafting the letter of wishes and has lied about that, it is much more difficult to discern what that part was. I do not and cannot find that LP’s will was overborne in drafting the letter so my conclusion is that, when PP insists he had nothing to do with drafting this, that, even if he might have played a part, it is not a matter that determines the issue.
  1. So, ninthly, I ask myself, nonetheless, does it matter if PP drafted or helped to draft the two documents or one of them? The other evidence is clear enough. A woman aged fifty nine, not then suffering from any discernible illness or disability at the time, chose to leave her family and her husband with whom she had had a relationship of forty years. She chose to go with PP. She chose to go to a police station with him. She chose only to contact her brother, parents and, if N is to be believed, N. She chose to leave her estate to PP with a gift over to her brother and a “trust fund” to B, the great grandson on whom she doted. These actions may be unkind, ungrateful and even mean spirited. These actions may be inexplicable but they were an adult’s decisions, however justified or unjustified, and not lacking in logical thinking. Even if she was being inaccurate in what she claimed, that is the point. I cannot find and have no evidence on which to base a finding that her will was overborne by PP. This is not a clear case of duress or undue influence. People take inexplicable decisions, if her decisions were inexplicable. I cannot look into the mind of a person back in 2008 and say that she was not then capacitous.
  1. Tenthly, does it matter even if PP has lied as to his involvement in drafting the documents? Assuming for one moment he did, after all, draft them or assist in drafting them, I apply, insofar as they are relevant, the directions in the criminal case of Lucas. I need to determine whether his purported untruths support or undermine his evidence. A witness may lie for many reasons and those reasons do not necessarily denote an attempted fraud or misleading of the court as to the true nature of the case. The alleged lie as to the authorship of the letter of wishes or the will may well have been an attempt by him simply to bolster the case. He is, after all, palpably at odds with the family of LP and wants no contact with them. More than that, he is plainly fearful of them. I cannot and do not find that, in having a part in drafting the letter of wishes and of the will, PP would have substituted his views for LP’s and I cannot and do find, in any event, that the document has been written after LP’s stroke. There remains no evidence that PP forged the letter and its contents are entirely consistent with what was said to the detective sergeant by LP.
  1. Eleventh, then, I do not find that Professor PJ’s evidence takes me to the point at which I must conclude there has been serious misleading of the court by PP. I do not find him to have forged any documents and I believe the will and letter of wishes, by whomsoever they were drafted, to express the genuine wishes at the time of LP, wishes that remained firm at the time of the aneurism. It is a very heavy burden on a party to show that PP has been guilty of fraud, forgery or duress of some sort and PS has not surmounted it.
  1. Twelfth, Miss Hewson asked me to find that the letter of wishes has no legal effect, given the uncertainty as to its genesis. I cannot find that for the reasons I have set out but I bear in mind that the time since it was signed has elapsed and, of course, in fact we cannot tell what LP would have intended in circumstances like the present.

 

 

Having established therefore that the letter and will were reliable evidence for what LP had intended at the time that she had capacity, the Court then had to look at whether those intentions should remain live today, some five years on, and after of course a very serious life-changing illness (which LP had not anticipated  – it wasn’t suggested that she knew it was forthcoming and was effectively writing a “living will”)

 

  1. First, not without very careful thought, I take the view I cannot direct that contact be immediately restored to husband or family and particularly PS, the Applicant, terribly sad though that is. It appears that LP took the decision that her future was with PP and she wished to break with the past. Accordingly, I declare that at present it is in the best interests of LP not to see her family. I say this with great regret and I hope not without sympathy for the family from whom she was estranged but this is not the time to experiment with contact. Unless things change, her wishes must be respected and the position remains as it is.
  1. I find that in coming to that conclusion I have not overridden Article 8 rights but, if I have and to the extent that I have, then that overriding is reasonable and proportionate.
  1. And, second, I come to this conclusion. The time may yet come when it is in the best interests of LP to see her family again but that can, in my judgment, only be when she is capable of expressing a view to that effect. Despite Miss Hewson’s elegantly expressed argument, it is not, in my view, appropriate for there to be a trial period of contact. That said, it is only right the extended family should be kept informed of developments. I, therefore, invite Mr. Patel, on behalf of the Official Solicitor, to suggest now a means by which after approximately every six months contact can be made with PS and her family whereby the family are told whether LP has developed an ability to express, or, indeed, has expressed a genuine wish to see PS and/or the remainder of her family in which event there will be permission to apply on forty eight hours notice for urgent directions to me and I shall reserve the case to myself when available

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