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Car crash, Hot Tub, (wish they had a) Time Machine

 

 

I’m sure there are boring cases that come into the list of Her Honour Judge Lazarus, but I’m yet to read one.

 

She opens this cracker with the line

 

 

 

  • “ I likened it to arriving at the scene of a car crash, and wondered what one could do about it. This situation should never have arisen. It’s caused huge tension, including within any recommendation, and I’ve tried to keep X at the centre of it. ” This evidence from the independent social worker effectively summarises the key issues in this case.

 

 

Which, you’ll agree, is a belter.

 

Perhaps this opener is better

“Once upon a time, in a place now known as Montana, dinosaurs roamed the land. On a fateful day, some 66 million years ago, two such creatures, a 22-foot-long theropod and a 28-foot-long ceratopsian, engaged in mortal combat.”

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/06/16-35506.pdf

 

 

 And this might be my favourite line in any judgment

Dr Muir Wood asked her in cross-examination why she did not simply Google the word “prick” and she answered with admirable succinctness: “Because it would have shown me porn and penises

Martinez (t/a Prick) & Anor v Prick Me Baby One More Time Ltd (t/a Prick) & Anor [2018] EWHC 776 (IPEC) (11 April 2018)

http://www.bailii.org/ew/cases/EWHC/IPEC/2018/776.html

 

But the opener here is indupitably a cracker.

 

 

Z v Kent County Council (Revocation of placement order – Failure to assess Mother’s capacity and Grandparents) [2018] EWFC B65 (18 October 2018)

 

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B65.html

 

I’ll try to capture the background quickly and simply.

 

In December 2017, a different Judge made a Care Order and Placement Order in relation to a child, Z.

 

Z’s mother had some significant mental health problems and had spent time (including during the proceedings) in a psychiatric unit.

 

Early on in the 2017 case, people became concerned that mother might not have capacity to instruct a solicitor (i.e didn’t understand enough about what was going on in the case or what Courts were etc to be able to tell their solicitor what to do. If you have capacity, you can instruct your solicitor to ask for what you want – even if it doesn’t have much chance of success, that’s your right. If you don’t have capacity, someone else – often the Official Solicitor, will decide what the solicitor should ask for on your behalf)

 

The Court gave directions for mother to be assessed to see if she had that capacity. The mother was also insistent that her parents (Z’s maternal grandparents) should not be assessed as carers. She did not attend that assessment. The Court (not HHJ Lazarus, the initial Judge) made a series of orders basically saying that UNLESS mum attended a cognitive assessment she would be deemed to have capacity by the Court. She did not.

Mum told her solicitors, just before the final hearing, that she agreed to Z being adopted, and a Care Order and Placement Order were made.

 

(That’s important, because the Court didn’t ever actually resolve whether mum had capacity to instruct her solicitor to agree to adoption. Agreeing to adoption is very rare in care proceedings – sometimes parents decide not to oppose the plan, but in 25 years, I’ve only seen one parent actually consent to adoption in care proceedings. It ought to have rung some alarm bells about whether mum really understood what she was doing)

 

To make matters worse, as Z’s maternal grandparents had been shut out of the case in accordance with their daughter’s wishes, they did not find out that Z existed until FOUR DAYS AFTER the Placement Order was made. Z had been placed, 3 weeks before that, with foster to adopt carers who wished later to adopt Z.

 

When the maternal grandparents put themselves forward as carers for Z, everyone accepted that they were capable of caring for Z, AND IF they had been considered within the care proceedings, the Court would almost certainly have placed Z with them under a Special Guardianship Order and not gone the adoption route.

 

The grandparents applied to revoke the Placement Order and for the Court to make a Special Guardianship Order for Z, placing her with the grandparents.

What HHJ Lazarus was faced with was then a competing argument between the maternal grandparents, and the prospective adopters (who had been caring for Z for 11 months, with the intention always of adopting her)

 

The prospective adopters, Q and R, gave evidence together in the witness box :-

 

 

 

  1. Q and R were sworn and gave evidence together, in a process known colloquially as ‘hot-tubbing’. This was proposed by me and agreed to by all parties as a sensible and effective time-saving device, and I consider that in the process I gained a good impression of each of them and of them together as a couple.

 

[See, although my titles are madness, yet there is method in’t. I know a hawk from a hand-saw.]

 

Oh, by the way, R was the step-aunt of the child’s older siblings, so it was a quasi family placement, so not just a straight fight between family v adopters.

 

The case, as well as the nightmarishly difficult task of deciding what was best for Z, raised two important issues of law

 

  1. What happens when a parent is thought to lack capacity, but they don’t cooperate with the assessment that would answer that question?
  2. If a parent refuses to allow relatives to be considered as potential carers, is that the end of it, or is there a responsibility on the Local Authority to consider them anyway if the only other plan is adoption?

 

 

  • What happens when a parent is thought to lack capacity, but they don’t cooperate with the assessment that would answer that question?

 

 

There’s some lovely analysis here, set out carefully and precisely.

 

 

 

 

 

  1. c)       Under section 1(2) of the Mental Capacity Act “ A person must be assumed to have capacity unless it is established that he lacks capacity ”. This is more generally known as the ‘Presumption of Capacity’. My underlining points out a critical, and often misunderstood, element of this provision

 

(WordPress has lost its underlining function, so I’ve put the judicial underlining in red)

 

 

 

  1. d)       Sections 2 and 3 set out the factors to be considered in determining whether or not someone lacks capacity, and are not directly in issue here. However, section 2(4) provides: “ In proceedings under this Act or any other enactment , any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities .”

 

  1. e)       It is well established and follows from the wording of those provisions:

–         the Presumption is an important starting point;

 

–         however information may raise a question whether a person lacks capacity and so lead that Presumption to be questioned;

 

–         such a question is to be decided on the balance of probabilities by reference to the relevant factors in sections 2 and 3;

–         it is therefore a matter of fact to be determined on evidence by the court;

 

–         the Presumption is thus rebuttable, and may be rebutted if lack of capacity is established by that determination.

 

 

 

  1. f)       The philosophy and purpose behind this Presumption is not a matter for detailed explanation in this judgment, but one significant intention is to prevent inaccurately assuming lack of capacity in apparently vulnerable individuals without it being properly established on evidence. It is emphatically not there to obviate an examination of such an issue.   Nor can it have been Parliament’s intention to place a vulnerable person in danger of their lack of capacity being overlooked at the expense of their rights by a slack reliance on this Presumption, and as is made clear in the law I refer to below.

 

In short, whilst deciding that a person lacks capacity requires a judicial decision and evidence, that doesn’t mean that where you have doubts about a person’s capacity you just go with the presumption unless there’s a cognitive assessment to say otherwise.

 

 

 

 

  1. k)       Medical evidence is “ almost certainly ” required for the purposes of establishing lack of capacity.   In Masterman-Lister v Brutton and Co (Nos 1 and 2) [2003] 1 WLR 1511 at paragraph 17H Kennedy LJ said: “ even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists ”.

 

 

 

 

 

  1. l)           But what should be done if there is no expert evidence available?    

 

In Carmarthenshire County Council v Peter Lewis     [2010] EWCA Civ 1567 Rimer LJ was considering an application for permission to appeal against a decision in which the first instance judge had made an order that “ unless the applicant allowed an examination of himself by a particular specialist by a specified date, he was to be debarred from defending the claim ”. The purpose of the proposed examination was to assess capacity. In that case, the applicant did not allow the examination, and at the final hearing, the first instance judge determined the claim against him without further consideration of the issue of capacity. On appeal, Rimer LJ said this:

 

“ In my view the problem raised by this case is as to how, once the court is possessed of information raising a question as to the capacity of the litigant to conduct the litigation, it should satisfy itself as to whether the litigant does in fact have sufficient capacity. I cannot think that the court can ordinarily, by its own impression of the litigant, safely form its own view on that. Nor am I impressed that the solution is the making of an “unless” order of the type that Judge Thomas made. The concern that I have about this case is that an order may have been made against a party who was in fact a “protected party” without a litigation friend having been appointed for him ”.

 

 

  1. m)       In Baker Tilly (A Firm) v Mira Makar [2013] EWHC 759 (QB) the Respondent refused to co-operate in an assessment of her capacity. The Master hearing the case at first instance made his own assessment, based on the information available to him, that the Respondent lacked capacity. On appeal to the High Court, Sir Raymond Jack noted the dictum of Rimer J (above) that the court cannot ordinarily , by its own impression of the litigant, safely form its own view of capacity. But he also noted that “ In most cases where a question of capacity has arisen the person whose capacity is in question has co-operated with the court and the court has been provided with the assistance of appropriate medical experts ” and that “ counsel has not found any case where the court has had to resolve a situation as has arisen here where the litigant has refused to co-operate in an assessment of their capacity ” (paragraph 8). In the case then before him, having taken into account further information not available to the Master, he came to the opposite conclusion as to capacity. But it is noteworthy that there is no suggestion that the Master should not have attempted the exercise, or could have properly left the issue of capacity unresolved.

 

 

 

 

 

  1. n)         In Re D (Children) [2015] EWCA Civ 745 the issue before the appeal court was whether the court at first instance had failed properly to determine whether or not the mother had litigation capacity at the time proceedings were heard.

 

 

King LJ said this at paragraph 30: “ Evidence from a suitably qualified person will be necessary as to the diagnosis [cf. section 2(1) Mental Capacity Act]. This will usually be someone with medical qualifications. … ”.

 

 

And at paragraph 56:

 

“ This case does however perhaps provide a cautionary tale and a reminder that issues of capacity are of fundamental importance . The rules providing for the identification of a person who lacks capacity, reflect society’s proper understanding of the impact on both parent and child of the making of an order which will separate them permanently. It is therefore essential that the evidence which informs the issue of capacity complies with the test found in the MCA 2005 and that any conflict of evidence is brought to the attention of the court and resolved prior to the case progressing further . It is in order to avoid this course causing delay that the Public Law Outline anticipates issues of capacity being raised and dealt with in the early stages of the proceedings .”

 

In that case the Court of Appeal described the steps that had been taken at first instance to establish capacity as a “ serious procedural irregularity ” but declined to order a fresh capacity assessment and a retrial on the basis that the mother was not adversely affected and no practical difference was made to the hearing or outcome as a consequence. The court validated the proceedings retrospectively.

 

 

  1. o)       There therefore remain, to some extent, tensions between the dicta in the Court of Appeal cases referred to above, and arising between:

 

 

–           on the one hand the absolute necessity to determine an issue of capacity, as a matter of fact, with the assistance of expert or other medical opinion, and as a matter of urgency;

 

 

–           and on the other hand, the possible absence of an expert or other medical opinion through the parent’s non-engagement, refusal to attend assessments, or due to a failure to provide information by the relevant medical sources.

 

 

  1. p)       There does not appear to be a clear and authoritative decision that provides guidance with direct reference to this problem. It cannot have been intended that proceedings should be hamstrung and in stasis by an inability to determine this issue in the absence of co-operation with medical assessment or availability of medical evidence.

 

 

  1. q)       However, the key may be in the words ‘ ordinarily ’ and ‘ almost ’ in the Carmarthenshire and Masterman cases, and the word ‘ likely ’ in PD15B paragraph 1.2 which appear to give some leeway.

 

 

  1. r)         Paragraph 44 of the updated 2018 Family Justice Council guidance states: “ A parent may decline professional assessment. In those circumstances, it will be for the court to determine the issue on the best evidence it has available. ”

 

 

  1. s)         This may enable courts faced with this challenge where there is no expert or medical assessment evidence to meet the absolute requirement that capacity issues must be fully addressed and determined, and to do so by reaching appropriate pragmatic evidence-based decisions, while ensuring that both the overriding objective and the protected party’s rights are fully in mind.

 

 

  1. t)         Such a determination could be based on a careful review of the other relevant material that may be available, such as a report from a clinician who knows the party’s condition well enough to report without interviewing the party (if available and appropriate), other medical records, accounts of family members, accounts of the social worker or other agency workers who may be supporting the parent, and occasionally direct evidence from a parent. [2]    

 

 

  1. u)       Any such finding made without expert assessment evidence that leads to a declaration of protected party status due to lack of litigation capacity could always be reviewed upon expert evidence being obtained to suggest that the finding was incorrect, and by ensuring that the question of assessment is regularly revisited with the protected party by their litigation friend, their solicitor and the court. Such a review and correction is anyway the case where a party has regained capacity and the issue is addressed with the benefit of an updating expert opinion.

 

 

 

 

 

  1. v)       What can be derived as following from the above statutory provisions, guidance and case law as clearly impermissible or inappropriate, and would likely lead to a failure to apply the required procedural approach and lead to breaches of that party’s Article 6 and 8 ECHR rights? :

 

 

–             failure to grasp the nettle fully and early,

 

 

–             ignoring information or evidence that a party may lack capacity,

 

 

–             purporting to ‘adopt’ the Presumption of Capacity in circumstances where capacity has been questioned,

 

 

–             making directions addressing the capacity issue, but discharging them or failing to comply with them and thereby leaving the issue inadequately addressed,

 

 

–             failing to obtain evidence (expert or otherwise) relevant to capacity,

 

 

–             use of ‘unless’ orders,

 

 

–             similarly, using personal service or ‘warning notices’ on that party,

 

 

–             relying on non-engagement by that party either with assessments or the proceedings,

 

 

–             proceeding with any substantive directions, let alone making final orders, in the absence of adequate enquiry and proper determination of the capacity issue,

 

 

–             treating a party as having provided consent to any step, let alone a grave and possibly irrevocable final step, where capacity has been questioned but the issue not determined.

 

 

 

INVESTIGATION OF FAMILY MEMBERS

 

 

There’s a long and careful analysis of the principles with sources (which I’d recommend as vital reading for any lawyer or professional grappling with the issue of whether to consult with family members where the parent is dead-set against it but where adoption appears a realistic outcome if suitable family members are not found.) But here are the conclusions.

 

 

  1. s)         The legal and best practice framework and local policies set out above are a small summary of a much wider range of authorities, statutory provisions and guidance. In combination, the following principles can be derived:

 

 

–             Unless a child’s welfare requires it a child’s interests are best promoted by living with their family.

 

 

–             Interference with the living arrangements for children by a Local Authority must pass a threshold. If there is insufficient evidence to establish that a child is suffering or is likely to suffer significant harm the court, at a Local Authority’s invitation, cannot interfere with a child’s living arrangements.

 

 

–             Where it becomes clear to a Local Authority that a child is at risk of suffering significant harm there is a duty under section 17 Children Act 1989 to provide services to a child to try to allow them to live within their family.

 

 

–             When public law proceedings are contemplated and removal of the child from their primary carer is a realistic possibility the Local Authority should identify at the earliest opportunity if there are wider family and friends who may be able to care for the child, for example from their own records.

 

 

–             A referral to a Family Group Conference should if possible be made when proceedings are contemplated. One of the purposes of the Family Group Conference is to identify if there are wider family members who can offer support or care for the child.

 

 

–             Where capacity is an issue the Local Authority should consider if an advocate is necessary to assist a parent.

 

 

–             If a Family Group Conference referral is refused legal advice should be sought. Any parental objection to wider family members being assessed or involved in proceedings requires scrutiny.

 

 

–             Identifying alternative carers for a child should if possible take place during the pre-proceedings process under the Public Law Outline, failing which it should be raised with the court once proceedings are issued.

 

 

–             Once in proceedings the Local Authority still has a duty to continue identifying wider family members who may be assessed to care for the child. This is part of the duties required of Local Authorities to promote the child’s welfare.

 

 

–             A child’s right to respect for private and family life may include the right to know wider family members who have not been part of the proceedings and may not have met the child.

 

 

–             When adoption is being considered the Local Authority has a duty to ascertain the wishes and feelings of relatives regarding the child and the plan for adoption.

 

 

In this case

 

 

 

  1. o)         I acknowledge that there may be good reasons on occasions for other family members not being approached, but these need to be understood rather than glossed over. And, while there is case law relating to certain extreme examples where the question of who should be contacted about or made parties to family proceedings has been considered, there does not appear to be authoritative guidance on the type of circumstances as arose here in relation to Family Group Conferences.

 

 

  1. p)         Here, given the concerns over Y’s capacity the Local Authority should at least have been alert to consider very carefully her failure to put forward any relative. Reliance on her exercise of parental responsibility cannot sit together with the Local Authority’s own concerns about her capacity, without further careful enquiry.

 

 

 

 

 

  1. Errors, traps and temptations that should have been avoided :

 

(Can I please say how much I like these helpful subheadings in the judgment – albeit that I can only imagine how cringe-making it must be for those involved in the proceedings to listen when a Judge announces that as a chapter title…)

 

 

  1. I)                     Relying on Y’s purported exercise of parental responsibility in saying that she did not propose the maternal grandmother as a potential carer. In particular where she was thought to lack capacity, this is not a step that somehow relieves or prevents the Local Authority from considering what steps needed to be taken to meet its duties to consider other family members.

 

 

  1. II)                   Believing the Presumption of Capacity replaces or obviates the need for the court to determine the issue of litigation capacity on evidence as a matter of fact, or entitles the parties or the court to ignore a capacity problem, particularly where there were worrying recent accounts of Y being significantly unwell. It is simply a rebuttable assumption and a starting point. Any suggestion that capacity is in issue should lead to the opposite approach, namely to take steps that would enable the court to determine whether the assumption remains in place or lack of capacity is established.

 

 

III)                 Ignoring glaring evidence or information suggestive of lack of capacity. This is an abrogation of responsibility to acknowledge the implications of such information, albeit it is easier to shut an eye to it in order to avoid its inconvenient effects on the case, particularly where a case outcome appears obvious or a solution is readily to hand.

 

 

  1. IV)               Relying on Y’s non-engagement or non-attendance at hearings, or employing ‘unless’ orders as a basis for progressing the case and discharging directions critical to the question of her capacity. A vulnerable person who may be a protected party due to lack of capacity may well find it difficult or impossible to engage or attend without the appropriate support or identification of her status and appointment of a litigation friend. This compounds a breach of her Article 6 rights.

 

 

  1. V)                 Personal service and warning ‘Notice’ – these steps make no sense in law or natural justice if Y lacked capacity, and simply seem to lack common sense. What might such steps or notices actually mean to a vulnerable person who lacks litigation capacity?

 

 

  1. VI)               Discharging directions critical to the determination of the capacity issue, and not complying or following up on non-compliance with those directions. This is case management failure with direct consequences for the procedural propriety of the case.

 

 

VII)             Making permissive directions to obtain the treating clinician’s certificate of capacity, rather than mandatory and time-limited directions.

 

 

VIII)           Treating Y’s wishes and feelings obtained by the Social Worker and over the telephone with her solicitor as a capacitous decision consenting to very grave and complex and potentially irrevocable orders, compliant with section 52(5). Her diagnosis of emotionally unstable personality disorder and alcohol dependence were well known. Directions had been made that she should be subject to capacity, cognitive and psychiatric assessment, but had not resulted in any assessments nor other medical information being provided. There was no adequate information before the court to assist with any question of her abilities or suggestibility or understanding.

 

 

  1. IX)                 Her position was erroneously described as ‘consent’ and named as such in the order, when it was not put forward as formal consent in the Position Statement prepared on her behalf, and the exercise of considering whether her consent should be dispensed with by undertaking a welfare-based consideration of the checklist factors was not done, despite her solicitor flagging it up.

 

 

  1. X)                   As the Social Worker and Children’s Guardian acknowledged, the parties became caught up in the ‘excitement’ of having found a solution for X’s placement that avoided stranger adoption, and so lost sight of wider issues that had been overlooked.

 

 

  1. XI)                 The temptations of a precipitate approach, naturally abetted by the lure of completing a case within the required 26 weeks time-limit, and by the existence of ‘a solution’ for X which tempts professionals and the court not to address the harder, wider or longer questions which might cause any delay, leading everyone to push ahead to final orders despite serious procedural irregularities.

 

 

XII)               No party, representative nor the court spotted or voiced or prevented or corrected the series of avoidable errors around failing to address a key issue which had riddled the case from the outset, and the case was allowed to progress and ultimately extremely serious final orders were made on the back of those serious procedural irregularities. This collective shared failure seems something akin to group-thinking or peer pressure or a gross shared example of confirmation bias.

 

 

 

 

This is already a piece which is far too long, but in terms of the final decision, HHJ Lazarus decided that Z should stay with Q and R (the step-aunt) who had originally intended to adopt her, but under a Special Guardianship Order, and that there should be a Child Arrangements Order giving contact between Z and the grandparents.   The reasoning is too long to set out here, and it must have been a very difficult task – readers who are interested are referred to the judgment paragraphs 51 onwards. There was the involvement of an independent social worker whose evidence was very helpful to the Court in reaching the decision.

 

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Care proceedings can be retrospectively validated

 

Readers might remember the recent case where the President looked at a set of care proceedings where it had not been known at the time that the mother lacked capacity, and the outcome was that the orders were effectively overturned and the proceedings re-wound to the beginning.

 

[Actually, if you remember it, it is because of the bad pun in the title….

https://suesspiciousminds.com/2015/08/07/re-e-wind-when-the-crowd-say-bo-selecta/   ]

 

 

Here, the Court of Appeal were faced with a very similar issue – the mother in care proceedings conducted them  as though she had capacity and her lawyers fought hard on her behalf, but it turns out that perhaps she didn’t have capacity – at the very least there were two conflicting reports and the Court had not expressly resolved the issue.   She then appealed on that basis, arguing that the Care Order and Placement Order should be overturned and the case re-heard.

 

In this one, though, the Court of Appeal ruled that even though the original proceedings had been flawed, it would not have made any difference to the eventual outcome if she had been represented through the Official Solicitor rather than instructing her solicitor directly, and so the Court of Appeal could retrospectively validate the proceedings and orders.

Hmmm.

Not sure that I agree.   (I agree that the Court of Appeal’s analysis that they HAVE the power is right. Whether it was right to use it, I’m not so sure of. Of the two approaches, I think the one before the President is more in keeping with article 6 and a right to a fair trial. I think that instructing a solicitor involves rather more than just saying “I want to fight” and that the protections for vulnerable persons or Protected Parties are fundamental, and where they’ve been lost even due to honest mistake, that’s a fatal flaw in the process, not something that can be patched up after the event)

 

Re D (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed146431

 

There were two issues :-

 

  1. Had the original Court process been flawed because it had proceeded on the basis that mother had capacity when she in fact didn’t?
  2. If so, did those flaws amount to an irresistable basis for an appeal, or can the Court retrospectively validate the orders if that seems the right outcome?

 

The mother had been represented through the Official Solicitor in previous care proceedings, so the starting point in these ones was that an updating report on her capacity was sought. However, no doubt to avoid delay and ensure that there wasn’t drift past the 26 week timetable, the expert saw the mother within the first six weeks of giving birth. This is important, as it is no doubt happening in other cases.

The cognitive assessment therefore came with a significant health warning, although it did say that she lacked capacity

 

“The immediate post natal period (under six weeks) tends to be a somewhat volatile period in terms of health and mood. Cognitive tests undertaken during this period are likely to reflect mood variations and difficulties with concentration due to hormonal changes…. In this assessment, therefore I have drawn on the results of SD’s August 2012 assessment together with a brief corroborative assessment conducted on 4 .11.13”

 

That report from Dr Morgan also gave a further health warning, that when one repeats the tests in a short period of time, the results can be skewed.

Those representing the mother sought a further expert opinion, from a Dr Flatman. The Court of Appeal were criticial that the Part 25 procedures on expert assessments were not followed and as a result, mistakes were made.

In any event, Dr Flatman examined the mother and concluded that she DID have capacity to conduct litigation.

 

Here’s the error

 

 At the hearing before the District Judge on 20 January 2014 the District Judge was simply told that:

“there has been a cognitive assessment further filed to say that she does have capacity to give instructions to her legal representatives”.

Dr Morgan’s conflicting report was not brought to the attention of the judge, neither was the fact that Mr Flatman had failed to apply the proper test for assessing capacity. As a consequence no consideration was given as to how to resolve the conflict, whether by additional questions, an experts meeting or by hearing short oral evidence to resolve the issue. Ms Weaver was simply discharged as litigation friend.

41. When the mother came before the judge for the final hearing Ms Weaver attended as the mother’s IMCA and the case proceeded without further consideration as to the mother’s capacity.

 

There were two competing reports and the Court needed to resolve which opinion was correct (bearing in mind the starting point of the Mental Capacity Act is to presume capacity unless there is evidence to the contrary)

 
44. All those who are regularly involved in care proceedings are aware that such a situation is all too common and it is plain to see why issues of capacity are critical to those affected. The starting point for the court is not only that a party has capacity, but that every effort must be made to help a party without capacity to regain it. Only in this way which accords with the statutory principles found in MCA 2005, can a parent feels that his or her case has been presented in accordance with his or her wishes, no matter how unrealistic or unachievable those wishes may be when considered against the yardstick of the welfare of her child in question. On the other hand the MCA 2005 is designed to ensure that those vulnerable adults, who have not got the capacity to conduct litigation on their own behalf, are properly identified and provided with appropriate support and a litigation friend in order to ensure that they not prejudiced within the proceedings as a consequence of their disability.

45. Process is not all and should never, particularly when one is concerned with a child’s future, be slavishly adhered to at the expense of achieving the right welfare outcome for a child without delay. Having said that, I am satisfied that the informal course which was adopted in the present case went far beyond a pragmatic and practical approach to case management and amounted to serious procedural irregularity.

 

The answer to that first question then was, yes, the original process had been flawed.

The analysis of whether the Court has the power to retrospectively validate the flawed process is set out very carefully from paragraphs 46-58, and if you are interested in the nuts and bolts of that, then it is all set out.

In a nutshell, it is this

 
47. FPR 2010 r.15.3 qualifies the general rule that a protected party may only conduct proceedings by a litigation friend. In particular FPR 2010, r.15.3(3) provides:

“(3) Any step taken before a protected friend has a litigation friend has no effect unless the court orders otherwise.”

 

So if the Court orders otherwise, then the Court can proceed even though a person ought to have been treated as a protected party and could only conduct proceedings through a litigation friend.   [Of course, as the Court at first instance DIDN’T do that, since they wrongly decided that she DID have capacity and neglected to take into account that there were conflicting reports, the Court at the time DIDN’T  “order otherwise” under r 15.3]

 

However

 

Bailey v Warren [2006] EWCA Civ 51. Hallett LJ said:

“[95] Within CPR r.21.3 (4) there are no restrictions whatsoever on the court’s discretion to validate steps taken in proceedings before a litigation friend is appointed. A court can regularise the position retrospectively provided, as Kennedy L.J. observed in [31] of Masterman-Lister “everyone has acted in good faith and there has been no manifest disadvantage to the party subsequently found to have been a patient at the time”. He could not envisage any court refusing to regularise the position because “to do otherwise would be unjust and contrary to the over-riding objective ….

[96] It is for the judge to consider all the facts of the case before him, therefore, and where as here, there is no suggestion of bad faith, decide whether or not the compromise is manifestly disadvantageous to the patient”

 

And that was the line that the Court of Appeal took.

 

 

 

55. In the present case it is recognised that the outcome of the case would have been the same regardless of whether the mother had litigation capacity. There was therefore no forensic disadvantage to the mother. Further, thanks to the dedication of Mrs Weaver, there was in reality no difference in the nature and quality of the representation the mother received. Mrs Weaver’s title within the proceedings changed from IMCA to Litigation friend and back to IMCA depending on the current court order, but the manner in which she carried out her role remained the same. It is apparent from the attendance notes that Mrs Weaver, in whatever guise, was not about to agree to the orders sought by the local authority being made; she felt strongly that the mother’s best interests could only be served by the applications for care and placement orders being opposed, I am entirely satisfied that not only would the outcome of the trial have been the same had the mother been found to lack capacity, but that the case would have been conducted in exactly the same way on her behalf.

56. There is no question but that all involved have acted with good faith. In dissecting the progress of this case, as has been necessary in order to consider the important issues before the court, I do not lose sight of day to day life in busy family courts with Counsel and Judges over stretched in every direction. This case does however perhaps provide a cautionary tale and a reminder that issues of capacity are of fundamental importance. The rules providing for the identification of a person, who lacks capacity, reflect society’s proper understanding of the impact on both parent and child of the making of an order which will separate them permanently. It is therefore essential that the evidence which informs the issue of capacity complies with the test found in the MCA 2005 and that any conflict of evidence is brought to the attention of the court and resolved prior to the case progressing further. It is in order to avoid this course causing delay that the PLO anticipates issues of capacity being raised and dealt with in the early stages of the proceedings.

57. SSD is now 20 months old and has been in her adoptive placement for over half her life. Her future needs urgently to be secured. I am satisfied that notwithstanding the procedural failings which led to this court being unable to conclude with any certainty whether the mother was or was not a protected party at the time of the trial, she was not in the end adversely affected and no practical difference was made to the hearing or outcome as a consequence. In those circumstances it is open to this court to validate the proceedings retrospectively and in my judgment that should and will be done.

 

Not being allowed to see an expert report

 

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

 

NCC v AH and DH 2015

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

 

Dramatis personae

 

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

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

 

DH her husband.

 

The application

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

 

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

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

 

Law on non-disclosure

 

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

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

The next bit is even more suprising.

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

 

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

 

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

 

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

 

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

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

2000:

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

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

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

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

data subject, or another person.

 

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

 

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

 

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

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

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

 

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

 

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

Your Honour, I am afraid that I have not done a position statement, but may I just hand this up?

I think this summarises our position

I think this summarises our position

 

 

I thought of that gag this morning, and kudos to Cobb J for giving me the opportunity to deploy it.

 

Newcastle City Council v WM and Others 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/42.html

 

When a High Court Judge asks why you haven’t filed and served a position statement, don’t do THIS

 

 

  • I return to consider some of the matters outlined at the beginning of this judgment.
  • At the outset of this hearing not one of the respondents’ advocates had troubled to prepare a Position Statement. Counsel addressed me on the first morning of the hearing to explain the absence of these documents addressing me as if the requirement for such a document were a personal idiosyncrasy of mine. It is not. May I, for the record, remind counsel again of the following points: PD27A para.4.3:

 

At the commencement of the bundle there shall be inserted the following documents (the preliminary documents) –

(a) an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if practicable, to four A4 pages;

(b) a statement of the issue or issues to be determined (1) at that hearing and (2) at the final hearing;

(c) a position statement by each party including a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing;

(d) an up to date chronology, if it is a final hearing or if the summary under (i) is insufficient;

(e) skeleton arguments, if appropriate;

(f) a list of essential reading for that hearing; and

(g) the time estimate (see paragraph 10.1).

 

  • May I draw to their further attention PD27A, §4.4:

 

Each of the preliminary documents shall be as short and succinct as possible and shall state on the front page immediately below the heading the date when it was prepared and the date of the hearing for which it was prepared. Where proceedings relating to a child are being heard by magistrates the summary of the background shall be prepared in anonymised form, omitting the names and identifying information of every person referred to other than the parties’ legal representatives, and stating the number of pages contained in the bundle. Identifying information can be contained in all other preliminary documents

And PD27A para 6.4:

The preliminary documents shall be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a judge of the High Court and the name of the judge is known, shall (with the exception of the authorities, which are to be lodged in hard copy and not sent by email) at the same time be sent by email to the judge’s clerk

Sadly, this is once again one of those cases where poor planning and preparation had led to massive delays for the children,  and unfairness in the process, and once again, the misuse of section 20 played a part

  • The burden of judicial decision-making has regrettably been made significantly more complex by the failures of the professionals and child care systems involved with this family. To give prominence to those failures, I highlight some of them at the outset of this judgment:

i) At the time of the final hearing, the children have been in foster care for 93 weeks awaiting a decision about them;ii) The children were accommodated under section 20 of the Children Act 1989 (“CA 1989”) from July 2013 until March 2015, when interim care orders were made (under section 38 of the CA 1989) at the Issues Resolution Hearing;

iii) The ‘letter before proceedings’ (prepared pursuant to PD12A FPR 2010) was sent to the parents in January 2013, 73 weeks before the proceedings were ultimately issued (July 2014);

iv) The final hearing is taking place in the 43rd week, not the 26th week following issue (see section 14(2)(ii) of the Children and Families Act 2014);

v) The mother has significant learning disability; she has an assessed IQ of 61. She is assessed to lack capacity to litigate in these proceedings. There is a significant question whether she ever had capacity to consent to the accommodation of her children (it is said, per Dr. Thorpe, consultant psychiatrist, that “she did not appear to understand the reasons why her children had been placed in foster care”), and whether, in the circumstances, the children were for the extended period referred to above lawfully accommodated;

vi) On any of the outcomes proposed for the children, they will have to be separated; as indicated above, the family placement on offer is for the two older children only. The Local Authority does not contemplate an adoptive placement for all three siblings together;

vii) The youngest child has spent more than half his life waiting for a decision about his long-term future, which is, and has been for some time, essentially undisputed;

viii) The Children’s Guardian and Local Authority propose radically different outcomes for the older children. The Social Worker and the parties were only made aware of the final recommendation of the Guardian on the first morning of the hearing.

ix) The maternal aunt, who wishes to care for the children, suffers a serious and debilitating eye condition; it is identified and briefly described in the independent social work assessment of her capacity to care for the children. The aunt’s lawyers did not apparently explore the implications of this condition before the hearing began. The extent of her significant visual disability was astonishingly only revealed at the conclusion of her oral evidence, and only when I asked to describe it (she had obviously been struggling to read from the documents presented to her while giving evidence); this led to a short adjournment during the hearing to obtain necessary expert medical evidence;

x) In a case which generates a range of possible outcomes, and in which some of the key parties have vacillated about their preferences during the proceedings, none of the respondent advocates had prepared position statements prior to the final hearing (I exonerate Ms Moulder as she stepped in on day 2 of the final hearing to replace counsel who had unavoidably had to relinquish the brief at short notice, and for entirely legitimate reasons), leaving me, when reading into the case, to speculate about their final preferred outcomes;

xi) There was no attempt by the Local Authority to provide one pared-down trial bundle of the relevant material; I was provided with four lever arch files; no reading list and no reading time.

  • Lessons are obviously to be learned from the sorry state of affairs described in paragraph [3] above. I suspect that the facts outlined above speak for themselves. Lest they don’t, I expand more about them in the judgment which follows, and (in relation to (x) and (xi)) in the post-script which follows the judgment (see [105-111]).

 

I think that we are really close to the judiciary making human rights compensation orders in these cases – these children had on that reading been unlawfully accommodated for around 21 months, as the mother did not have capacity to consent to such accommodation.

 

Even more wretched than that, is that when the case was finally litigated, the Judge concluded that two of the children should be placed with a family member, their aunt. That could have been done much much earlier, and the children spent more time in care than was necessary. That’s a tragedy.

 

The judicial analysis and approach is excellent, and the judgment as a whole is worth reading.

 

Lest you think the whole thing is critical, the Judge was more than willing to lavish praise on those who deserved it.

 

 

  • Having identified some of the failures in the case, I turn next, and briefly, to one of its significant redeeming features. The role of the intermediary service.
  • I wish to pay particular tribute to Clare Jones and Rebecca Fletcher from Communicourt Limited who offered an excellent intermediary service to the Court for the mother in this case. The mother has significant communication difficulties, both with understanding and using language; this is likely to be attributable in part to her learning disability, and in part to acquiring English as a second language.
  • Ms Jones’ report, dated 20 February 2015, was clear and practical, providing guidance about how best to manage the case in a way which would optimise the mother’s participation. Ms Jones was regrettably unable to attend the final hearing, and the intermediary service was therefore provided by Ms Fletcher, who performed her role with great skill and discretion. Ground rules had been set by HHJ Hudson at the IRH; these were re-visited at the outset of the hearing. Specific ground rules were set for the mother’s evidence, which we all endeavoured conscientiously to observe.
  • Overall, I was satisfied that the mother had been enabled to participate in the process as fully and effectively as could possibly be achieved. I am indebted to the intermediary service for its assistance

 

 

Capacity to consent to sex – do you want a Hanc or a Hunc?

Mostyn J has just given a ruling in the Court of Protection  – London Borough of Tower Hamlets and TB 2014

http://www.bailii.org/ew/cases/EWCOP/2014/53.html

Within this case, Mostyn does two significant things.

 

The first is that he refines his own test for capacity to consent to sexual intercourse, and is much persuaded by Hedley J’s formulation.

Regular readers will be aware that the Court of Protection’s usual approach to capacity to consent to sexual intercourse is to look at three issues :-

 

(a) Understanding of the mechanics

(b) Understanding of the health risks

(c) Understanding of the risk of pregnancy.

 

Mostyn J says that he has changed his mind as to whether that is the right test

Although I am not going so far as figuratively to hold my hand in the flames like Cranmer I have had cause to reconsider my previous opinion.

 

Before Mostyn J, legal argument took place that bears some resemblance to that discussion in Gremlins 2 about whether a Mogwai is fed after midnight if he is on a plane crossing the international date line…

  1. I deal first with the pregnancy element. In A Local Authority v TZ [2013] EWCOP 2322 Baker J concluded at para 31 that in the case of a person clearly established to be homosexual it is ordinarily unnecessary to establish that he or she has an understanding or awareness that sexual activity between a man and a woman may result in pregnancy. In this case Mr McKendrick argues that because TB has had an IUD inserted she is in an equivalent position. The argument became increasingly far-fetched. We discussed a man who has had a vasectomy. A woman who is beyond childbearing. A man wearing a condom. Mr McGuire QC rightly captured the unreality of this debate in his final submissions when he said:

    “But following this link produces nonsensical results. What if a woman happens to have fertility issues? Or is already pregnant? Or is beyond childbearing age? Would knowledge of this link be irrelevant for a man? “

 

And as a result, Mostyn J decided that it would be best for the third part of the test to simply form part of the second part (health issues)

I have come to the conclusion that the third element of risk of pregnancy should not be a separate one. Rather it should be subsumed into the second which should simply be expressed as: “that there are health risks involved”. All sexual activity has some health risks. The most obvious ones are pregnancy or STDs. But over-robust sexual activity can cause wounding or bruising, external or internal. Any sexual activity can cause psychological harm. A simple criterion as I have suggested would resolve the dilemma I expressed in para 43 of D Borough Council v AB [2011] EWCOP 101, which on reflection came perilously close to introducing a quoad hanc dimension when I had been at pains to repudiate that.

 

If you are wondering what quoad hanc means   [i.e you are not my regular commentor Andrew, or David Burrows] it raises its head in this judgment here, where Mostyn J raises a complaint that a formulation is unnecessarily overcomplicated and goes on to explain it in Latin.   (I am biting my tongue here)

The first thing that the cases have decided is that the test for capacity to consent to sexual relationships is, to use rather laboured language, general and issue specific, rather than person or event specific: see IM v LM [2014] EWCA Civ 37 at para 79. In canonical language the incapacity must be quoad hunc not quoad hanc, in contrast to the position under section 12(a) Matrimonial Causes Act 1973 where the incapacity to consummate may be on either basis[2].

Quoad Hanc is where someone is not able to have sex with a particular individual, and Quoad Hunc is where they are not able to have sex with anyone.  i.e the difference between not being able to have sex with Hank (perhaps because he has body odour) and not being able to have sex even with a hunk (because you just can’t have sex with anyone)

 

[I am sure Andrew and David will be able to put it better than I have]

Having digressed a bit, is the capacity to consent to sexual intercourse test now just

(a) Understanding of the mechanics, and

(b) Understanding of the health risks  ?

 

Well, not so fast there Hank.

Mostyn J reminds himself and us that he had previously been asked to consider whether the understanding of the ability to say “yes” or “no” to sex should be a factor, and had rejected this. He has now changed his mind, and gives credit to Hedley J in relation to this

  1. I now turn to the question whether the relevant information should include as a separate element an awareness that lawful sex requires the consent of all parties and that that consent can be withdrawn at any time. In my previous decision of D Borough Council v AB I accepted at para 35 that I should not conflate the capacity to consent to sex and the exercise of that capacity. Therefore I rejected Dr Hall’s third head of capacity.
  2. In this case the OS agrees that being able to say yes or no to sexual relations is part of the weighing process under section 3(1)(c), and that this is made explicit by the terms of section 3(4)(a). Notwithstanding this concession Ms Greaney disputes that it should be an independent head of awareness because to do so would conflate capacity with the necessary exercise of free will. She argues that consent is the product of capacity and the exercise of free will.
  3. However, in A Local Authority v H [2012] EWHC 49 (COP) Hedley J with his customary erudition, sensitivity, lucidity and eloquence convincingly persuades me that I was wrong then, and that the OS is wrong now. At para 25 he said this:

    “And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component. “

  4. In my judgment this simply cannot be gainsaid. It was accepted by everyone in this case that sex between humans must involve more than mere animalistic coupling. It is psychologically a big deal, to use the vernacular. Hedley J’s formulation captures perfectly why and how that extra ingredient should be defined.
  5. Therefore I conclude that when determining the question of sexual capacity under the MCA the relevant information as referred to in section 3(1)(a) comprises an awareness of the following elements on the part of P:

    i) the mechanics of the act; and

    ii) that there are health risks involved; and

    iii) that he or she has a choice and can refuse.

    I would add that the excellent witness Dr Joyce was of the firm view that this third element was very important. I would also suggest, with all due humility, that the test as formulated by me has the merit of simplicity.

I have to say that for my part, I prefer this revised three part test.  I did have to quickly check whether it clashes with the Court of Appeal in Re IM v LM 2014 and I don’t believe that it does. So this is now the new test to be used.

 

[In the instant case, the woman understood the mechanics, understood that she enjoyed sex but did not understand that she could say no. Her husband for religious reasons believed that it was her duty to have sex with him on request – her general level of functioning was that of an 8 year old. Mostyn J held that she did not have capacity to consent to sex on the basis that she had no understanding of her ability to say no]

 

The second issue of import in the judgment was that there was a Deprivation of Liberty Element – this woman wanted to go back to her husband and was being prevented from doing so. In part because he intended to have sex with her about twice a week and she lacked capacity to consent.

That allowed Mostyn J to revisit his decision in Rotherham. And if you think that he has softened on that, as he has changed his mind on the capacity test, you are wrong.

  1. My decision of Rochdale Metropolitan Borough Council v KW [2014] EWCOP 45 has aroused a certain amount of criticism. For example, Sarah Lambert, the head of policy for the National Autistic Society has stated that:

    “This decision appears to directly contravene the Supreme Court’s ruling that liberty must mean the same for all, regardless of disability.

    Any move to revisit or unpick this definition would be a huge step back. NAS is deeply concerned that this decision will create avoidable confusion and uncertainty among health and social care professionals, potentially undermining essential protections for people with autism.”

  2. The appeal in Rochdale Metropolitan Borough Council v KW will be heard by the Court of Appeal on 4 or 5 February 2015.
  3. If nothing else, I think it is important that I meet the criticism that I have sought to encroach on essential protections for disabled people, and amplify my reasoning.
  4. In para 17 of my decision I said this:

    “It is clear that the driving theme of the majority opinions is a denunciation of any form of discrimination against the disabled. With that sentiment I naturally wholeheartedly agree. Discrimination is found where like cases are not treated alike. However, when making Lord Kerr’s comparison you do not have two like cases. You are comparing, on the one hand, a case where an 18 year old does not need protection and, on the other, a case where the 18 year old does. They are fundamentally dissimilar. The dissimilarity justifies differential treatment in the nature of protective measures. For me, it is simply impossible to see how such protective measures can linguistically be characterised as a “deprivation of liberty”. The protected person is, as Mill says, merely “in a state to require being taken care of by others, [and] must be protected against their own actions as well as against external injury”. And nothing more than that. In fact it seems to me to be an implementation of the right to security found in Article 5. “

  5. The suggestion that “the dissimilarity justifies differential treatment in the nature of protective measures” was not a personal idiosyncrasy. It is justified by high authority

Mostyn J goes on to set out those authorities, but I will pass over those – they are available in the judgment if you wish to see them.

57…The state is obliged to secure the human dignity of the disabled by recognising that “their situation is significantly different from that of the able-bodied”. Thus measures should be taken “to ameliorate and compensate for [those] disabilities.”

  1. But to characterise those measures as state detention is to my mind unreal. I referred to the historical context in which Article 5 of the ECHR 1950 came to be formulated. It followed the Universal Declaration of Human Rights of 10 December 1948 which in its preamble referred to “the disregard and contempt for human rights [which] have resulted in barbarous acts which have outraged the conscience of mankind”; which in article 3 guaranteed liberty; and which in article 9 proscribed “arbitrary arrest, detention or exile.” It was aimed at the midnight knock on the door; the sudden disappearance; the prolonged detention. Article 5 was not aimed at Katherine, seriously physically and mentally disabled, who is living in her own home and cared for round the clock by carers paid for by an organ of the state.
  2. In this case TB will not be cared for at a place which she understands to be her home. Further, she has the motor functions to achieve a departure in a meaningful sense. She will be monitored round the clock and were she to leave to try to go “home” she would be brought back. Her situation is therefore very different to Katherine’s, and the acid test is met. Although I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision. I therefore declare that TB’s care regime does involve detention under Article 5. Accordingly there must be at least six-monthly reviews by this Court, no doubt at some considerable expense to the public purse.
  3. At para 1 of my decision in Rochdale Metropolitan Borough Council v KW I referred to the very serious resource implications to local authorities and the state generally if periodical court reviews are required in such cases. Notwithstanding the arrival of the streamlined procedure recently promulgated by the Court of Protection Practice Direction 10AA there will still be tens if not hundreds of thousands of such cases and hundreds of thousands if not millions of documents to be processed. The streamlined procedure itself requires the deployment of much man and womanpower in order to identify, monitor and process the cases. Plainly all this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers

 

There’s some force in that – the Supreme Court have, in setting out the law, put many thousands of people in living circumstances which now amount to a breach of article 5, and the Court of Protection is going to be swamped with cases. Mostyn J has taken a pragmatic line, and we wait to see if the Court of Appeal think the same.  For my part, I think that the Supreme Court captured this point and the fact that on the ground it has enormous consequences for very many cases doesn’t detract from the principle.  The Supreme Court have explained what the test is, and the fact that it is going to have massive repercussions can only go so far.

 

Capacity and financial consent orders

 

MAP v RAP 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4784.html

 

I don’t often write on the financial side of legal family disputes (I haven’t done divorce law for about ten years, and it is the sort of thing that you rapidly lose expertise in), but this particular ancillary relief case also touches on capacity, and particularly capacity to enter into agreements, so it has some broader impact.

 

The High Court were dealing here with the wife’s challenge to a financial consent order that she had signed, having dismissed her solicitors. At a later stage, she considered that she had not been in a mental frame of mind where she could properly enter into that consent order – i.e the issue was whether she had capacity to sign it at the time, not just that she signed it and later thought better of it. She had had a long-standing difficulty with bi-polar disorder, which can be a fluctuating condition.   This was thus the wife’s appeal of the Judge’s order to approve the financial consent order as final settlement of the financial claims arising from divorce.

 

The appeal was determined by Mostyn J  (back on his area of particular expertise after something of a break)

 

The permission is sought to appeal this order well out of time on a number of grounds:
 

 

1. first, it is said that at the time that the order was made and indeed in the antecedent period leading up to the making of the order, there is prima facie evidence that the proposed appellant, the wife in the divorce proceedings, did not have capacity to enter into that compromise;
2. second, it is said that the court itself had no knowledge of the appellant’s state of mental health, and therefore approved an order on a false or mis-stated basis;
3. third, it is said that – and this ground has shades of duress – that the respondent husband exploited the appellant’s vulnerable position;
4. further, it is said that he at the material time was guilty of material non-disclosure;
5. next it is said that at the relevant time the appellant had inadequate knowledge and was without legal advice; and
6. further, it is said that, looked at overall, the consent order was wrong and should not have been approved, as it was manifestly unfair. It is said – I believe this to be arguable, but it is certainly not agreed – that the effect of the order was to divide the parties’ capital about 80 per cent to the husband and 20 per cent to the wife. Moreover, within the the share that the wife was left with were monies which derived from an inheritance from her mother, and indeed a considerable part of the share that the husband was left with derived from the wife’s mother’s inheritance;
7. finally, it was said that the agreement was demonstrably wrong and unfair because it provided for a clean break leaving the husband with his earnings and pension and the wife only with a modest pension for herself.

 

On the ground that the consent order was unfair, or so demonstrably wrong that a Judge ought not to have made it, even though it was a consent order, Mostyn J rejected that utterly

 

I say immediately before I turn to the facts, that inasmuch as a claim is advanced based on non-disclosure or that the consent order was generally unfair, I am completely satisfied that the proposed appeal has no prospect of success. As to the first, the evidence advanced for non-disclosure is but faintly put, and in my view does not come anywhere near establishing the criterion of arguability. As to the complaint that the agreement was generally unfair, that is not a valid basis for seeking to challenge a consent order. (See the decision of Mr. Justice Munby (as he then was) in L v L [2008] 1 FLR 26 at para.105).

 

The appeal therefore was squarely on the basis that the Wife lacked capacity to sign the consent order at that time. Mostyn J remarks that despite people arguing about divorce (and particularly money divorce) for over a century, this is the first time that this particular issue has arisen.

 

Mostyn J, borrowing from the  civil law, and civil procedures, arrives at the conclusion that an order made by consent by a party who lacks capacity to consent is an order that would be invalid and should be set aside. The difficulty of course, is in establishing capacity or lack of it  (remember from the Mental Capacity Act 2005 that the starting point is that a person HAS capacity unless there is evidence to the contrary). The order having been made, an appeal was an appropriate route to challenge it.

 

Mostyn J points to the provisions of Practice Direction 15B (not in force at the time, but in force now)

At the relevant time, I do not believe that Practice Direction 15B was in force, but a Practice Note issued by the Family Justice Council in April 2010 which is in the same terms, more or less, was available. Practice Direction 15B makes it clear that there is a duty on solicitors if they have concerns that a party may lack capacity, that they must notify the court. Paragraph 1.3 says:
 

 

“If at any time during proceedings there is reason to believe that a party may lack capacity to conduct the proceedings, then the court must be notified and directions sought to ensure that this issue is investigated without delay”.
 

It is a surprising fact that neither solicitor at any stage thought it appropriate to notify the court that there may be question marks over the wife’s capacity. The wife’s solicitors themselves were well aware that there were question marks in this regard as a letter was written by them to their opponents on 23rd January 2012 stating:
 

 

“We remain concerned as to our client’s capacity to provide instructions, and accordingly are seeking clarity on this point”.
I should say that that letter that was written when the wife was acting for herself but when her solicitors were presumably still formally on the record. It is fair to me to record Mr. Castle’s submission that at that time the view was taken by the author of that letter only on looking at the papers, but be that as it may that question mark should have led those solicitors to have notified the court. Equally, the husband’s solicitors were well aware in September 2011 that the appellant had been admitted to hospital, there was a letter to that effect, and they must have formed views as to the capacity of the wife, but they did not notify the court. Had the court been notified then I do not believe we would be in the position we now are.

 

What the Court had was evidence about the Wife’s mental health difficulties and that before the consent order had been entered into, her mental health seemed to have deteriorated in such a way that those advising her were concerned about her capacity. But the Wife stopped instructing solicitors and by the time she signed the consent order, she was representing herself. Thus, there was no hard and fast evidence about the state of her capacity and ability to make reasoned decisions on the day she signed the consent order.

 

Capacity for the purposes of entering into a compromise was discussed by the Court of Appeal in the first Dunhill v Burgin case and in the prior case of Bailey v Warren [2006] EWCA (Civ) 51. In that latter case at para.126, Lady Justice Arden said this:
 

 

“The assessment of capacity to conduct proceedings depends to some extent on the nature of the proceedings in contemplation. I can only indicate some of the matters to be considered in accessing a client’s capacity. The client would need to understand how the proceedings were to be funded. He would need to know about the chances of not succeeding and about the risk of an adverse order as to costs. He would need to have capacity to make the sort of decisions that are likely to arise in litigation. Capacity to conduct such proceedings would include the capacity to give proper instructions for and to approve the particulars of claim, and to approve a compromise. For a client to have capacity to approve a compromise, he would need insight into the compromise, an ability to instruct his solicitors to advise him on it, and an understanding of their advice and an ability to weigh their advice”.
 

Applying this test I believe that it is arguable, indeed strongly arguable, that between the time that the consent order was said to be formed in August 2011, right through to the time that the consent order was made on 19th April 2012 the wife did not have the requisite capacity while she was in hospital. In my view the case that she had capacity at that time is unarguable. Following her return from hospital it is true that she gained some kind of an improvement although she remained heavily medicated, but as against that one has to remember that she was making the impulsive and unwise decision to represent herself. So, I am of the view that there is an issue of capacity that deserves to be tried.
 

 

It is a pity that the Supreme Court has not pronounced, because there is a division between the judges in the jurisprudence as to whether the capacity in question should be investigated along a prolonged timeline, or just at the point of the contract itself. But, either way, I believe that the case is distinctly arguable, and so I would grant permission to appeal in relation to that ground as well as into the ground of lack of actual consent or withdrawal of consent. But, as I have indicated, I believe that this is a matter which can properly be tried at first instance.

 

Mostyn J did not determine the appeal finally, but merely those procedural points – could the Wife apply to set aside the consent order, would the consent order be invalid if she were proven to lack capacity at the time, and what the mechanism for the appeal would be.  The appeal itself was listed for two days and a lot will turn on the evidence in relation to capacity.

 

[It is possible, particularly when one looks at detailed consent orders about contact, that the same issues could arise. It would be prudent to look at Practice Direction 15B and to alert the Court if such concerns arise]

Korsakoff’s syndrome, alcoholism and capacity

The Court of Protection in X v A Local Authority 2014  were considering the case of a man who had Korsakoff’s syndrome, this is a disease of the brain almost exclusively seen in very serious alcoholics and it is where the drinking itself has damaged the structure of the brain, one of the manifestations being the difficulty in forming new memories.  This particular man, X, had been a lawyer prior to his problems, and had been a bright, intelligent and articulate man  (despite this, he chose to become a lawyer…)

http://www.bailii.org/ew/cases/EWCOP/2014/B25.html

 

In this particular case, the issue was whether the Court of Protection should decide that X lacked capacity to make decisions for himself, including about where he was to live, and to go on to make decisions for him in his best interests. One of the concerns was that if X were allowed to make his own decisions, he would fall back into alcoholism and cause himself further damage.

 

There was a dispute between professionals as to whether X lacked capacity

 

I move to section 3, the so-called functional test which, in my judgment, is the key point in this case. Section 3(1) says this: “For the purpose of section 2 a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate that decision, whether by talking, using sign language or any other means.” So the test is decision specific and time specific. So if I am to authorise X’s further detention, in other words in effect his deprivation of liberty, then he must currently lack capacity to make a decision as to residence, et cetera.
 

Now the issue is not entirely straight forward with this case. Sadly, his current treating psychiatric consultant, Dr. Al-Kaissy, is absent abroad and so I was unable to hear from her. I have seen, however, an undated mental capacity assessment by her and taken on board what she says in that she is quite sure that he lacks the appropriate executive functioning capacity. It is her view in that report, and also that of the social worker, who has known him for the duration of his illness, Ms Kingdom, that he continues to lack capacity; or rather I do not have an updated report from Dr. Al-Kaissy but the social worker remains of the view that he continues to lack that capacity. By contrast, Dr. Loosemore does not accept that he now lacks the appropriate capacity, a view supported by Lucy Bright, the social worker who, together with Dr. Loosemore, assessed him for deprivation of liberty purposes. I did not hear from Miss Bright but nonetheless I have read what she has to say and I notice that she said that he continues to have a poor short term memory and that he needs prompting in connection with washing and dressing. But she made a number of observations which I shall read. At D108 in the bundle she said this: “Both Dr. Loosemore and I had a lengthy interview with X and as a result of this interview Dr. Loosemore concluded that X has capacity to consent to his care and treatment at the V Care Home. I agree with this finding and, whilst I am aware that [X’s] capacity may fluctuate, it would be difficult to conclude that he lacks capacity from the information he gave and understanding that he displayed during the interview.” She continued to say this: “Given the conclusion reached by Dr. Loosemore that [X] has capacity to consent to his accommodation, care and treatment at the V Care Centre, he is not eligible for the Deprivation of Liberty safeguards and so this process now stops. I am aware others may challenge this finding and, given the variable way in which [X] can present, it may be worth a second opinion being sought, but the Mental Capacity Act is clear that someone’s capacity should be assessed when they are at their best”, and she goes on: “I would suggest that a way forward would be the care providers to draw up a voluntary contract with [X] about his length of stay at the unit including any support that they assess he needs accessing the community and how it can be provided with [X]’s consent. Efforts also need to be made swiftly to identify [X]’s long term accommodation needs and a suitable care package when he moves on from the rehabilitation unit.”
 

Dr. Loosemore reported in the same way and in his conclusion at D86 he says this: “I thought that Mr. [X] had capacity to decide on receiving care and treatment at the V Care Home. Although he did not like the experience of residing in the care home he is willing to stay for a period of assessment. If he were to be formally deprived of his liberty I think he would become distressed and aggrieved.” His conclusion was very plain that X does not lack capacity with regard to residence, et cetera.
 

In the course of oral evidence on Wednesday Dr. Loosemore firmly held to the view that X does not meet the statutory test, the functional test, under section 3 of the Act. He had seen X, he thought, for an hour, though Miss Bright wrote it was in fact 90 minutes. He by coincidence knew him when he was sectioned under section 2 of the Mental Health Act in December 2013 and certainly then he was very unwell. He conceded that X’s capacity could fluctuate, but he observed, as does Miss Bright, that he needs to look at him at his best and he remained of the view throughout cross-examination that X does not lack capacity to make decisions as to residence, et cetera. He did not accept that, because there was a risk that X would resume drinking, that implied a lack of capacity. He had not spoken to the treating psychiatrist, Dr. Al-Kaissy, nor to the key social worker, in the course of forming his independent opinion, nor had he explicitly in the course of the document he completed referred to the factors set out in section 3 of the 2005 Act, but he nonetheless was of the view that X had appropriate understanding and that he can retain information as necessary, and he had completed his analysis on that basis with that conclusion. Although the completed document he had to fill in for the assessment purposes does not permit detailed analysis, nonetheless he was of the view that section 3 does not apply in this case. He conceded of course he did not refer to the section in his report but pointed out that the form F6 does not provide for the section 3 criteria to be referred to. He was satisfied that X can give an account of where he is residing, what his role there and what the benefits of residing there are. X knew he was not about to leave but averred that he did not get on well with the other residents. He was sure that X’s mental state was improving and that he did not require detention at the V Care Home. He agreed that X had seemed reluctant to give up all drinking and enjoys a social drink, as he indicated also in evidence to me; but he also had said that he would abstain entirely if he had to. He conceded that it is always difficult to gauge with those who drink to excess as to the veracity of their promises. People who have a drinking problem make specious promises, he noted. He had not seen the current brief assessment of Dr. Al-Kaissy to which I have referred but he remained of the view that X now has capacity. He accepted of course Dr. Al-Kaissy has seen X regularly but it was his view that he was dealing now with a man very changed from the poor state in which he was presenting on 19th December of last year. Moreover, X had told him he was willing to stay voluntarily for a while and his view is that X is no longer disorientated, confused as to the date, et cetera, and, although he is a little repetitive, he is no longer rambling in his presentation. He described X as not fitting in with the rest of the ward but described him as rational and reasonable, logical in his thought processes. He had now the capacity to reflect on how he was and he agreed with the typed assessment of Miss Bright when considering the standard authorisation. He was shown the report of a neuropsychologist for 7th May but this did not alter his conclusions. I have to say that I found Dr. Loosemore to be a very persuasive witness. His view that X now has capacity was compelling.
 

Ms Andrea Kingdom is a very experienced and very concerned social worker. I have read her statement of 21st May which of course has been overtaken by events. Contrary to Dr. Loosemore’s opinion she thought X continues to lack capacity. There is no doubt of course that she knows him well and is very concerned about him, and I entirely accept that in law I am quite able to reject Dr. Loosemore’s opinion and find that X lacks capacity for the purposes of section 48 so I can make an interim order. She still feels that X has difficulty in retaining information and she was concerned, because he is a highly intelligent man, that he is able to mask his cognitive difficulties. She felt he had unrealistic expectations as to the future, constantly saying he hopes to live again with his first wife and even remarry her and live with her. She was concerned too because he has no real idea as to where he is going to live upon discharge. She is concerned because when he had had leave in the past he has sought to drink on one occasion and then been found standing dangerously near a busy trunk road. On an occasion, when he went out to A House, he sought to obtain alcohol and kept asking for it. She felt Dr. Loosemore had seen X but briefly and that it is after about two hours with him that his present difficulties continue to manifest themselves. She did not accept that X’s insight into his condition has appropriately increased and knew that he would not give up drinking. She was quite worried about him damaging himself. I listened very carefully to Ms Kingdom. I thought her evidence was very kindly and well intentioned. I make no criticisms of her professionally. I accept that there are many matters to be concerned about with regard to X but it is my view that he has shown rather more insight than she attributes to him. Of course she is used to patients who revert to mental illness and difficulties, but I do not accept that she has established the section 3 criteria to my reasonable satisfaction.
 

X gave evidence unsworn at the suggestion of all the advocates in the case. In the course of his brief evidence to me he indicated, first, a wish to live with and, if possible, remarry his first wife. He told me she has been in regular contact with him since he has been hospitalised and, to his surprise and gratification, he thinks their relationship is in the course of being re-kindled, though he does not wish to rush things. He showed a tendency to repeat himself. He told me the information about his ex-first wife four times during the course of his evidence. He told me that he had decided he wishes to stay in the V Care Home until he can obtain either a home with his first wife or rented property and he would need a garden, he said. I felt this was a somewhat incomplete plan but, in fairness to him, he then went on to say that he would make contact with agents to try and find a place to live. He told me he is separated from P, his second wife, and told me that his excessive drinking and then hospitalisation and sectioning had been a “bitter experience”. He was unable to explain why he was found standing by the main road, why he bought alcohol on leave and why he had sought alcohol when he visited A House. Now, I entirely accept that his plans for a reconciliation with his first wife and finding a home with her are vague and perhaps overly optimistic; but for all of that there was a degree of realism in what he said for he said he could not leave the home yet and would stay there till he found a place to go. His concept of his needs was plainly a little vague and I had to put to him that he would need visits from a C.P.N. and social workers to assist him to plan for his life. But I was left with the impression that this is not a man who is masking his illness or his cognitive capacity. His evidence, in my judgment, is more than that of just a man used to presenting a case in court and putting it simply in the best light for its own sake.

 

 

These are difficult issues, and even perhaps philosophically difficult. Does a person who is an alcoholic have capacity to make proper informed decisions about whether or not to drink? Are they balancing up the pros and cons when considering it? Or are they acting under the influence of an addiction or craving more powerful than their will?  Of course, we don’t as a society try to declare that all alcoholics lack capacity to make decisions for themselves, but in that narrow issue – “Can they decide whether to eschew alcohol?”  it is arguable that they don’t have capacity.

But for the purposes of the declaration sought, the capacity issues were much broader, and in those regards, the Court was satisfied that X did have capacity – he might go on to exercise his autonomy badly, he might make poor choices, he might put himself in harms way, but if he has that autonomy, he has the right to make the decisions for himself and live with the consequences.

 

I have carefully and, I hope, sympathetically borne in mind the findings and concerns of Ms. Kingdom. He may drink to excess again, but that, in my view, is an unwise decision rather than a sign of continuing incapacity. I accept, as I have said, his short term memory problems are still there but, if one applies the Re: F decision and the S.M.B.C. v. W.M.P. decisions to which I have referred then I cannot find sufficient evidence to justify a reasonable belief that he lacks capacity in the relevant regard.

 

X now has capacity to make decisions as to residence, care and medical treatment and that has been amply demonstrated in the case. Even if he has other problems he can reflect and logically reason, and is much improved from the man he was last December. That does not mean he will not relapse. It does not mean that he will not be foolish enough to resume drinking but, in my judgment, in all the circumstances it would be inappropriate to make a declaration under section 48 and in those circumstances, in the absence of a standard authorisation, his compulsory detention comes to an end.