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Woman who sparked versus Magical Sparkle Powers

You might remember this Court of Protection case

A life that sparkles

where a woman was found by the Court of Protection to have capacity to refuse medical treatment, even though doing so would be likely to bring about her death. The woman had some unusual (though capacitous) ideas about how she wanted to live, and she preferred to leave life whilst she still felt glamourous and sparkling, rather than to limp on in life and eventually fade away. It was an interesting case, with a lot to debate. As a result of this decision, she did die, leaving three children, one of whom was still a minor. Very sad case.

Sadly, some of the mainstream Press, having spent years sobbing outside the doors of the Court of Protection wanting to be let in to report responsibly, rather let themselves down, with the reporting they carried out



  • The application came before me on 9 December 2015. In summary, the statements filed in support of it show that:


i) V and G have been distressed by having to be involved in the COP proceedings, and by the extensive media interest in the information about C and their family that was provided to the COP, which appears to them to have been precipitated not only by a wish to report and comment on the bases on which the COP reached its decision but also to attract prurient interest in their mother’s sexual and relationship history (including her relationship with her children V, G and A).ii) At the time of the hearing before MacDonald J, neither V nor G anticipated the possibility that C and her family would be named in the press and that photographs of them would be published. Their attention was entirely taken up with the decision the COP was required to make and its implications.

iii) C’s youngest daughter, A, is a teenager who was already suffering from fragile mental health which has manifested itself in her physical conduct. The suicide attempt of her mother and her subsequent refusal of life-sustaining treatment despite A’s request to her to accept treatment, with which A had a direct and stressful involvement, have understandably had an appalling impact on A’s emotional and psychological wellbeing.

iv) A has already been negatively affected by the media coverage of the family, despite attempts by her father to shield her from it. Inevitably, A has now been told about certain very limited aspects of the COP’s reasoning, including negative descriptions of her mother’s character, which have upset her further. A’s father and one of her teachers are sure that if her mother is named, this will have an even more serious effect on A’s mental wellbeing and her ability to cope at school. V also asks the court to have regard to the serious risks of harassment of A not only directly from people around her, e.g. at school, but also on the internet including and in particular through social media.

v) There have been numerous attempts by journalists to contact the family and people with a previous relationship with C and her children.

vi) Family photographs have been obtained and published in a pixelated form.


  • Before the reporting restrictions order was extended:


i) At around 5.30 pm on Wednesday 2 December 2015 a reporter from the Daily Mail went to the home of A’s father (an ex-husband of C) where A lives. A answered the door and without saying who she was the reporter asked to speak to her father using his name, V asked who she was and was told that she was a journalist from the Daily Mail, A’s father came downstairs and the journalist asked if he would talk to her about his ex-wife. He refused and the journalist left.ii) On the evening of 2 December 2015 a reporter from the Mail on Sunday was asking questions about C in one of the pubs in the village where A and her father live. This was reported to V by friends in the village.


  • More generally, the evidence indicates that on unspecified dates (a) the Daily Mail and the Sun contacted C’s third ex-husband in America, and (b) a journalist went to see the husband of the housekeeper of flats where G had once lived seeking G’s current details on the basis that he was writing a memorial piece about G’s mother and was sure that G would want to speak to him. During his visit he opened C’s Facebook page.
  • Some of the coverage contains pixelated photographs of C, V and G. It is plain that some of these photographs have been chosen as photographs that emphasise the aspects of the published accounts that are of prurient interest and there is at least a risk, particularly in respect to C, that she would be recognised by some people.
  • Examples of reporting in the Times (4 December), the Daily Mail (6 December) and the Sun Online (6 December), are highlighted by V:


i) the Times ran a pixelated photograph of C on its front page with a caption “Voluntary death. The socialite allowed to die at 50 rather than grow old had a narcissistic disorder, doctors said. A court ruling blocked her identification. Page 7”. The article at page 7 was under the headline: “I won’t become an old banger” there was a further pixelated photograph of C standing by a car and a pixelated photograph of one of C’s adult daughters,ii) the Daily Mail at pages 26 and 27 published the same pixelated photograph as that on the front page of the Times and the article had the headline: “Revealed: Truth about the socialite who chose death over growing old and ugly —- and the troubling questions over a judge’s decision to let her do it”. Near the end of the article it is stated: “For the husband and daughters she leaves behind, the manner of her death is heartbreaking”, and

iii) the Sun Online has two headlines: “Mum who fought to die was “man eater obsessed with sex, cars and cash” and “A Socialite who chose to die at 50 rather than grow old was a “man eater obsessed with sex, money and cars”, a pal claimed yesterday” and published two pixelated photographs of C at a younger age each showing her with a drink in hand. In one in which she is wearing a low-cut party dress and in the other she is raising her skirt, standing by a vintage motor car and wearing what appears to be the same outfit as she is wearing in the photograph on the front page of the Times and in the Daily Mail.


There’s an old Aesop fable about a frog and a scorpion. The scorpion wants to cross a river and asks the frog if he can ride across on the frog’s back. No, the frog responds, you’ll sting me and I’ll die. Wait, says the scorpion, if I was foolish enough to sting you whilst we were crossing, we’d both die – you from the sting, but I would drown, so it won’t be in my interests to sting you. The frog agrees. Midway across the river, the scorpion begins stinging the frog. The frog shouts, if you keep doing that, we’ll both die. The scorpion says, I know, but it’s in my nature.



It really isn’t in the longer term interests of the Press to sting the frog of transparency by using that additional access to behave so irresponsibly and despicably, but it’s in their nature.

Anyhow, this is Charles J’s decision on the Reporting Restriction Order.

V v Associated Newspapers Ltd 2016


The first law Geeky point, hence the title, is what jurisdiction the Court of Protection have to make a Reporting Restriction Order. The argument goes like this :- (a) The Court of Protection exists to determine whether a person has capacity, and if not, what is in their best interests and you have already ruled that this woman HAD capacity, so your involvement stops and (b) as she is now dead, whatever jurisdiction you had over her affairs is now gone. Decent points.

Charles J concluded that the CoP did still have jurisdiction, and in any event, if they don’t, then the High Court will just use Magical Sparkle Powers (TM)


  • I have concluded:


(1) The COP has jurisdiction after the finding that C had capacity and her death to make the reporting restrictions order sought by the Applicant but insofar as it may be necessary or appropriate I will also make it as a High Court judge.

There is a longer answer here:-

Jurisdiction of the COP to make a reporting restrictions / anonymity order after it has determined that C had capacity and/ or after C’s death

  • As I have already mentioned this jurisdictional point is raised by the media Respondents but they do not resist me making an injunction as a High Court judge. They base the argument on the finding of capacity made by MacDonald J. The Applicant addresses the relevant jurisdictional effect of this finding and of C’s death.
  • The media Respondents rely by analogy on In re Trinity Mirror Plc and others [2008] QB 770 concerning s.45(4) of the Supreme Court Act 1981 which provided that in “all other matters incidental to its jurisdiction” the Crown Court was to have the like powers, rights, privileges and authority as the High Court. The Court of Appeal held that the Crown Court has no inherent jurisdiction to grant injunctions and that unless “the proposed injunction is directly linked to the exercise of the Crown Court’s jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking”.
  • Section 47 of the MCA is worded slightly differently and provides that: “the court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”. It is generally accepted that the COP does not have an inherent jurisdiction so the issue is whether it can grant an injunction because it is exercising that power “in connection with its jurisdiction“.
  • At the time that the reporting restrictions order was made in this case by Moor J, sitting as a judge of the COP, I consider that it is clear that he was making that order in connection with the jurisdiction of the COP to determine initially whether or not C had capacity. In my view, it follows that he could in reliance on s. 47 have made that order for a period extending beyond any finding made that C had capacity, or the death of C (as to which see further below), if he had thought that that was appropriate. He did not do so.
  • The effect of the argument of the media Respondents is that if the hearing on 13 November 2015 had been before a judge, other than a High Court judge (which is not the practice in serious medical treatment cases but could occur in other cases) that judge having determined and announced his decision that C had capacity as a judge of the COP had no jurisdiction to continue, vary or discharge the injunction granted by Moor J. To my mind, that would be an unfortunate and odd result particularly, for example, if C had asked for it to be discharged. However, in my view, it does not arise because I consider that the termination, continuation or variation of an injunction made by the COP in the exercise of its jurisdiction conferred by s. 47 would also be within the jurisdiction so conferred as being “in connection with its jurisdiction”.
  • However, by its terms the injunction that was granted by Moor J expired on the death of C and so the present application is for a new injunction that was made at a time when for two reasons the COP no longer had jurisdiction over C and was therefore functus officio.
  • The Applicant points to a number of sections in the MCA which give the COP jurisdiction to make orders in respect of persons whether they have or lack capacity (see ss 15 (1)(c), 21A, 23 and 26(3)) but, in my view, this does not provide an answer because in this case the COP was not exercising jurisdiction under any of those sections.
  • To my mind the question on this application is whether the COP has power to grant a new injunction because it relates to proceedings that were before it although by reason of its decision and/or the death of P it no longer has any jurisdiction to make the welfare order sought. The answer is determined by considering whether in those circumstances it is exercising a power “in connection with its jurisdiction“. In my view the answer is that it is. This is because, in my view, the nature and extent of the relevant Article 8 rights relied on flows from the existence of the earlier proceedings before the COP, in which it exercised its jurisdiction and I see no reason to construe s. 47 to limit the power it confers to the period during which that jurisdiction continues to exist over the subject of the proceedings.
  • Indeed, I agree with the Applicant that the principle that legislation should be interpreted so far as possible to be compatible with Convention rights supports this conclusion because:

i) it promotes the grain of the legislation (the MCA), andii) it enables the court best placed to carry out the balancing exercise between competing Convention rights to perform that exercise.

  • That grain links back to the points I have already made that the jurisdiction of the COP invades not only the life of its subject P but also on many occasions the lives of others and in particular P’s family members.
  • Conclusion. I can make the injunction sought as a judge of the COP and I do so. However to avoid any jurisdictional argument in the future, and if and so far as this is necessary, I also make it as a High Court judge exercising the jurisdiction of that court.


The central issue here was whether the Press could report the story, and deal with both the human interest angle and the issue for public debate (the case being categorised – incorrectly, as a ‘right to die’ case, which is always interesting to the public – in fact, it is not a development of law at all, because people with capacity have always been able to refuse medical treatment, which is all that happened here) WITHOUT identifying the woman at the heart of the story. Clearly, the Press knew who she was, because they were able to doorstep people who knew her, look at her Facebook page and print pixelated images of her.



  • The naming propositions are reflected in the following points made by Mr Steafel:


The Daily Mail considers it has a duty to the public to report fairly and accurately on what happens in the courts. In order to engage the interest of members of the public in the kinds of issues the court decides, it is however necessary to publish articles and reports that people actually want to read. That means telling our readers about the facts of the cases, including the real people and places involved, and sometimes publishing pictures that relate to these people and places.

Where proceedings are anonymised, it is more difficult to engage our readers as the real people involved in the cases are necessarily invisible and the stories therefore lack a vital human dimension. It is human nature to find it more difficult to take an interest in a story about problems arising from, say, dementia or the right to die if the story does not feature identifiable individuals. If we cannot publish stories about important issues that people are drawn to read, this will inevitably limit and reduce the quality of public debate around these issues. It is in my view important in a democratic society that we should encourage informed debate I believe that the media, including the popular press, fulfils a vital function in this regard. By reading about the experiences of others, readers are likely to be able to identify with those people and understand what they are going through. But they are much less engaged – and correspondingly less focused on the surrounding public debate – where they cannot identify with real people, places and events. Pictures are a hugely potent way of engaging readers and one of the problems with covering anonymised cases is that it is impossible to include pictures in our stories which identify those involved.


  • I agree that fair and accurate reporting is vital if the public interest is to be promoted and I acknowledge that whether something is fair involves a value judgment and does not equate to it being balanced.
  • On the intense scrutiny that is required of the rival propositions relating to anonymisation I consider that a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off. But, I hasten to accept that this distinction:


i) simply reflects the strength of the reasoning that underlies the relevant COP Rules and Practice Directions, the established Scott v Scott exceptions and the positon referred to by Lady Hale that in many, perhaps most cases, the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved, and soii) provides weight to the general arguments for anonymity to promote the administration of justice by the COP generally and in the given case, and does not

iii) undermine the force of the naming propositions as general propositions, with the consequence that the COP needs to remember that it is not an editor.


  • As I have already said (see paragraphs 94 and 95 above) the weight to be given to (a) the naming propositions, and (b) the conclusion on what generally best promotes the administration of justice will vary from case to case and on a staged approach to a particular case the weight of the naming propositions, and so this aspect of the factors that underlie and promote Article 10, will often fall to be taken into account in the context of (i) the validity of the reasons for their application in that case, and (ii) the impact of a departure in that case from the general conclusion on what generally promotes the administration of justice in cases of that type. This means that those reasons and that impact will need to be identified in a number of cases.
  • As I have already mentioned, although he refers to and relies on the naming propositions Mr Steafel does not say why in this case the relevant public interests, rather than the gratification of a prurient curiosity or interest of the public:


i) would be or would have been advanced by the identification of C and members of her family in the publicity that took place,ii) was advanced by the reporting that contained pixelated photographs and focused on C’s lifestyle, or

iii) why he says the balance will change on A’s 18th birthday between reporting that does not name C and her family and reporting that does.

Accordingly he does not say, as an editor, why in this case the view expressed by Theis J that “there is no public interest in C or her family being identified” either is wrong or will become wrong when A is 18.


The Press had the chance to set out arguments and provide evidence as to why naming the woman was necessary for the proper and accurate reporting, rather than to gratify prurient curiousity, and they did not do so. Nor did they take up the Court’s offer of the ability to file evidence setting out why they felt the previous reporting and methodology were appropriate…


  • S0, to my mind, in this exercise the COP needs to consider why and how the naming propositions, and so the proposed naming or photographs of C and her family members that links them to the COP proceedings, would or would be likely to engage or enhance the engagement of the interest of the public in matters of public interest rather than in those of prurient or sensational interest.
  • This has not been done in this case. But in contrast evidence has been put in on the likely harm to the relevant individuals that such reporting would cause.
  • The ultimate balance in this case on the dispute relating to duration. On one side are:


i) the Article 8 rights of all of C’s children,ii) the weight of the arguments for a reporting restrictions order in this case, and so of the general practice in the COP of making such orders in analogous COP cases where the family do not want any publicity and have given evidence of matters that affect their private and family life and that of P of a clearly personal and private nature,

iii) the acceptance by the media Respondents that until A is 18 the balance between the Article 8 rights and Article 10 rights in this case justifies the grant of a reporting restrictions order,

iv) the compelling evidence of the extent and nature of the harm and distress that reporting that identifies C and any member of her family as respectively the subject of (or members of the family of the subject of) the COP proceedings and so of MacDonald J ‘s judgment would cause, and

v) the ability of the court to make a further order if and when circumstances change.


  • On the other side are the general propositions relating to the benefits of naming the individuals involved.
  • I accept that Thiess J’s statement that “there is no public interest in C and her family being identified” and my indications of agreement with it at the hearing go too far because of the well-known and important naming propositions and the public interests that underlie them. But, in my view, the absence of an explanation of why:


i) the accepted balance changes on A’s 18th birthday and so of why identifying C and her family and linking them to the COP proceedings and the publicity at the end of last year would then promote the public interests that underlie Article 10, or why those public interests could not in this case then still be properly and proportionately served by reporting that observes the reporting restrictions order, orii) more generally why any such identification would at any other time promote (or have promoted) or its absence would harm (or would have harmed) the public interests that underlie and promote Article 10

means that the naming propositions have no real weight in this case and balance of the competing factors comes down firmly in favour of the grant of a reporting restrictions order until further order.


As there was to be an Inquest, and Inquests are open to the press and public, the Court did need to consider whether the Reporting Restriction Order should cover the naming of this woman or her family emerging from the Inquest.

The extension of the order to cover C’s inquest.


  • The earlier orders provide that the injunction does not restrict publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public. It seems to me therefore that the result the Applicant seeks would be achieved by changing the word “including” to “excluding”.
  • This is much closer to the position in Re S and Potter P addressed such an application in Re LM [2007] EWHC 1902 (Fam) where he said:


The Overall Approach

53. In approaching this difficult case, I consider that I should apply the principles laid down in Re S, ————-

54. There are obvious differences between proceedings at an inquest and the criminal process, most notably that the task of the Coroner and jury is to determine the manner of the death of the deceased and does not extend to determining questions of criminal guilt. In various cases that has been held to be a matter of weight in respect of witnesses seeking to protect their own personal safety. However, in this case, the inquest to be held is into the killing of a child, L, in the situation where a High Court Judge has already found as a matter of fact that the mother was responsible for L’s death and the application is made because harm is indirectly apprehended to a child who is a stranger to the investigative process. It is presently uncertain whether criminal proceedings will in fact be taken against the mother. If so, and the Coroner is so informed, then no doubt he will further adjourn the matter pursuant to s.16. of the Coroners Act 1988. If that is done, then the question of publicity and reporting restrictions in those proceedings will fall four square within the principles propounded in Re S. If not, and if, as seems likely, the mother continues to pose a danger to any child in her care, then, if continued, the reporting restrictions in the care proceedings would prevent that fact from reaching the public domain, despite its clear public interest and importance.


  • He carried out a detailed balance between the competing rights emphasising the strength and importance of a public hearing of the inquest and so the general conclusion on what promotes the administration of justice in such proceedings. Having done so he refused the injunction sought that the parents should not be identified.
  • Here the important issue of child protection is absent.
  • In the note of counsel for some of the media Respondents dated 28 January 2016 points are made about the importance of a proviso permitting the reporting of other proceedings conducted in open court, including a coroner’s court. But after the Applicant sought this extension junior counsel responded (as mentioned in paragraph 49 above) that his clients are neutral on this point.
  • As the approach of Potter P confirms an application for restrictions on the reporting of other proceedings conducted in open court engages important and powerful interests against the making of such an order. However, in my view:


i) the expressed neutrality of some of the media Respondents reflects a responsible and understandable stance that in isolation the inquest is unlikely to give rise to issues of public interest or to any such issues in respect of which the general propositions in favour of naming C or her family will have any significant weight, andii) in any event, I consider that that is the position.


  • The essential question is therefore whether, unless the court makes a further order, C’s family should be at risk of publicity relating to the inquest that makes the connection between them and the COP proceedings and so effectively of suffering the harm and distress that any other reporting that identifies them and makes that link would bring.
  • The history of the prurient nature of some of the earlier reporting is a clear indicator that such reporting might be repeated. But, even if that risk is discounted I have concluded that the balance comes down firmly in favour of extending the order to cover the inquest.
  • The main factors to be taken into account overlap with those to be taken into account in respect of the duration of the order.
  • On the one side are:


i) the points set out in paragraph 167 (i) to (v) as the inquest is likely to take place before a is 18 andii) the points set out in paragraph 175.


  • On the other side are:


i) the powerful and weighty reasoning that underlies the conclusion and practice that the administration of justice is best served by inquests being heard in open court without reporting restrictions, andii) the general and accepted force of the naming propositions absent any evidence or reasoning that they found a need for reporting of the inquest that makes the link with the COP proceedings.


And the order therefore stops the Press naming the woman as a result of reporting on the Inquest – they can still report on the Inquest itself. It obviously doesn’t mean that the Inquest itself is barred from naming her.


The judgment also annexes some helpful procedural guidance on applications for Reporting Restriction Orders within the Court of Protection.

Appointing a professional as deputy, rather than a family member


Again, a Court of Protection case.  This time by Senior Judge Lush.

Re A 2016

The first thing that leaped out at me in reading this was that the applicant, who was asking that a professional be appointed as a deputy to manage the affairs of her mother, had instructed a QC. That’s pretty rare, and tells me that the case might have a bit of substance. The person opposing the application, D, was the son, and he was in person.

The mother A was 78 and the Judge says “comes from a titled family”, so one assumes there’s some pot of money.  I have to say that from the brief description of her, I liked her enormously.


“She told me that she still hears voices but wasn’t able to tell me what they have said recently. She told me about her hobby of sending letters and cards to famous people. She was very keen to discuss the Queen and her plans to send a Christmas present that the Queen would appreciate. When I asked what this would be, she replied, ‘Books, make-up and a lollipop.’ She then told me that she wants to send a ‘woolly animal toy’ to David Cameron’s daughter. Mr Cameron is one of the famous people that she is most interested in and she told me that he had proposed marriage to her in the past, despite having a very glamorous wife already. A told me that she had met the Prince of Wales several times and that he was ‘very easy to be with’. She went on to say. ‘He has eighteen women lovers. I wish he liked me’.”


It was very clear from the assessment of her that she lacked capacity to manage her own affairs. There were some previous proceedings about appointing a deputy in 2013, and I note that the Judge remarked that within those proceedings, D’s conduct had been such that a cost order of £7,500 had been made against him.


  • After only eighteen months as A’s deputy, C now wishes to stand down, and on 15 January 2015 she filed an application seeking an order that Suzanne Jane Marriott, a partner in Charles Russell Speechlys, Solicitors, London EC4, be appointed in her place.
  • She also made an application for Mrs Marriott, once appointed as deputy, to exercise A’s power to appoint new trustees of certain settlements and appoint herself as a trustee.



Reading between the lines, and explicitly, D’s frequent and lengthy correspondence had been a factor in C no longer wishing to act as deputy and wanting a professional person to do so.

D generates an enormous volume of correspondence and, even though most of the points he makes are irrelevant, tiresome and repetitious, his correspondence needs to be read by the recipient, if only to confirm that that is simply hot air. Naturally, Mrs Marriott is concerned about the costs implications for A’s estate if she is required to respond to every item of correspondence or e-mail sent to her by D. Accordingly, the applicant has asked the court to direct that Mrs Marriott need only reply to communications from D that appear to be pertinent to her role as deputy, and that she needn’t reply in relation to any relevant point that he raises more than once.


D had two chief reasons for objecting to the appointment of Mrs Marriott as a deputy – the first (sensible) was that a professional deputy will generally charge from the estate, whereas a family member would not. The second was less sensible

(a) she is an expert in ‘tax avoidance’, which, I assume, he regards as morally wrong [Mrs Marriott’s response is that her experience of tax avoidance, as distinct from tax evasion, is no greater than that of any other private client lawyer based in the City of London]


To be honest, if you have to have someone else managing your financial affairs, that person having a solid working knowledge of the best lawful ways to minimise tax payments from it seems to me to be rather a good thing.




  • Since 1959 a family member has acted as A’s committee and subsequently as her receiver and deputy. Sadly, because of D’s conduct, no suitable family member is now willing to act as A’s deputy for property and affairs and there is no alternative to the appointment of a professional.
  • In my judgment, it would be in A’s best interests to appoint Suzanne Marriott as her deputy and as a trustee of the 1978 Settlements for the following reasons.
  • The checklist in section 4 of the Mental Capacity Act is not tremendously helpful on this occasion. I have no idea of A’s own wishes and feelings about the application, and shall assume that she has no particular views on the matter. According to Professor Howard, “she is not able to understand how the Court of Protection and her niece could operate on her behalf and in her best interests.”
  • As regards the views of others who are engaged in caring for her or interested in A’s welfare, the respondent, D, has made his views known and they are outnumbered by those of the applicant and her mother and siblings and the professionals at Macfarlanes who have been looking after the affairs of A and other members of her family for decades, all of whom support C’s application.
  • Few people, if any, are better qualified than Mrs Marriott to act as A’s deputy and trustee. Charles Russell Speechly’s website says that:


“Suzanne specialises in cross border and UK tax planning, wills, trusts, contentious trusts and probates, Inheritance Act claims, estate and succession planning, international wills and trusts, non-domiciliaries, mental incapacity and Court of Protection work, heritage property, art, landed estates and charitable trusts. She acts as trustee, executor, deputy, attorney and charitable trustee for many well-known clients and is often appointed by the court in these roles where there are disputes. Suzanne is a notary public practising in the City of London and is a member of STEP, ACTAPS, and the CLA.”

[These are the acronyms of the Society of Trust and Estate Practitioners, the Association of Contentious Trust and Probate Specialists, and the Country Land and Business Association respectively].


  • She and her firm have substantial experience of acting as professional deputies and the role of other partners and members of staff should not be underestimated. In July 2015 the OPG published a set of ‘Deputy Standards’ for professional deputies, Standard 3 of which requires professional deputies to “maintain effective internal office processes and organisation”. Amongst other things, this involves establishing clear and effective governance between the named deputy and staff delegated to carry out the day-to-day functions of the role.
  • Both Suzanne Marriott and Charles Russell Speechlys also have considerable know-how in dealing with landed families and private wealth management. I imagine that, in selecting Suzanne Marriott as a potential replacement for C, Macfarlanes consciously looked for someone with a similar practice to their own but with more experience of contentious Court of Protection matters.
  • I concur with the observation made by Mr Justice Newey that, although Charles Russell Speechlys’ fees are likely to be large, it is improbable that they will be excessive because the Senior Courts Costs Office will carry out a detailed assessment of their general management costs on the standard basis each year.
  • With a view to keeping the costs as proportionate as possible, and because I believe that it would be in A’s best interests to do so, I shall allow the applicant’s request, to which I referred in paragraph 33 above, and direct Mrs Marriott to reply only to communications from D that appear to be relevant to her role as deputy and not to reply to any irrelevant communications or to any relevant point that he has raised more than once.


[That last paragraph might seem very appealing to lawyers and deputies around the country who are faced with people like D. ]


Court of Protection and Criminal Injuries compensation


Slow start to the year, I’m afraid. It seems to be only the Court of Protection who are really publishing any judgments so far.

PJV v The Assistant Director Adult Social Care Newcastle City Council 2015


This one relates to a 23 year old man, who as a child suffered significant brain injuries as a result of being shaken. No convictions resulted, but the persons present at the time he was shaken as a baby were his mother, her boyfriend and his maternal uncle.  An application for compensation was made to the Criminal Injuries Compensation Authority. He was removed from his mother’s care but went back to live with her in 1994 and has lived with her ever since. That had been the proposal put forward by the Local Authority at the conclusion of the care proceedings, that the best place for him was his mother, even if she could not be excluded as a potential perpetrator of his injuries, and the family Court agreed.

His difficulties were serious.

The Appellant will never be able to compete in the open labour market, will never be capable of independent living and will always require daily support. He is not capable of managing his financial affairs and cannot carry out basic tasks such as shopping or cleaning. His difficulties are permanent and are unlikely to improve. He may be able to have children and to marry.


That being the case, the amount of compensation awarded was significant. In July 2012, the sum of £3 million pounds was awarded. As by that stage, the man was an adult, albeit one lacking in capacity, the issue for the Court of Protection was to decide how that compensation should be managed.

This particular case was an appeal, decided by Charles J.

The noteworthy passages are probably these:-



  • I apologise on behalf of the court for the time it has taken to deal with this case.
  • Standing back and for whatever reason it is the case that since some time before June 2012 the Appellant has not had the benefit of an interim award of £500,000 and that since June 2013 he has not had the benefit of the balance of his award in a sum of over £2 million.
  • This is a sorry state of affairs.



In terms of pragmatic solutions to this issue from now on, which might affect other cases



  • There is no need for an application to the Court of Protection to finalise an award that CICA, in the proper exercise of its powers under the relevant scheme, decides should be held on trust and so requires to be paid to trustees on trusts that include and do not conflict with terms that CICA is so entitled to require.
  • A deputy appointed by the Court of Protection can be authorised to negotiate and finalise the terms of such an award and so of the trust and to enter into the “Acceptance of Final Award” or the equivalent document for an interim award on behalf of P and thereby finalise the claim.
  • There are number of ways by which such trusts can be declared and evidenced and so by which the result can be achieved that the award moneys are paid to and from the outset are held by trustees on terms properly required by CICA and wanted by the applicant. A convenient and sensible way is that adopted in practice by CICA when the applicant has capacity (i.e. a declaration of trust by original trustees setting out the trusts over the award which will start to operate on payment). No doubt trust lawyers could set up other ways to give effect to the terms and so the trust created by the finalisation of the process of an application for compensation to CICA under the relevant scheme.


Charles J was fairly sniffy about the approach of the CICA to the litigation and that it had required some considerable work to extract from them the important principles and policy.

He did also indicate that the CICA’s decision on quantum of an award was not necessarily the last word on that issue.  (A view contrary to that taken by the CICA)



  • Whilst I acknowledge that in one sense it can be said that the award is in the discretion of CICA, in my view what Senior Judge Lush says in paragraphs 31 to 34 of his judgment must be qualified to make it clear that the decisions made by CICA are not “entirely” in its discretion. This is because it has to make its decisions on a correct interpretation of the relevant scheme and its exercise of discretion under it is subject to challenge applying public law principles. Indeed routes of challenge are provided in the schemes and then from a decision of a First-tier Tribunal.
  • This means that an applicant and so the Court of Protection, a deputy or attorney does not simply have to accept CICA’s decision and can challenge quantum and the terms that CICA seeks to require.
  • Having said that I acknowledge the point made by counsel for the Official Solicitor that a challenge may result in the award not being made or its payment being delayed. But CICA, as a body governed by public law principles, is bound to act fairly and that is likely to preclude a commercial negotiating stance along the lines accept what is offered now or you will not or may not get an award.



If you are, for some reason, deeply intrigued by the intricate workings of this case and want to read the full judgment, I will warn you that (a) It involves Trusts and trust law (b) it involves the detailed wording of both the Mental Capacity Act and two CICA schemes and (c) The Judge deciding the case was Charles J  (whom I believe may have had a hand in the scripting decisions of the Phantom Menace that decided to turn a film about people fighting with swords made out of light into a film instead chiefly about Trade disputes, embargos and the inner workings of an intergalactic United Nations).  If Charles J ever decides to publish a thriller, I do not foresee that Tom Cruise will be purchasing the movie rights.  Read it if you absolutely have to.




The lady who wanted to sparkle – follow up


You have probably heard that C, the lady I wrote about on Wednesday, where a Judge had decided that she had capacity to make her own decision to refuse treatment, that decision being in keeping with her unusual approach to life rather than being a sign that she lacked capacity to make the rational decision that almost all of us would have made, died this week.


The Press made an application to be able to name her.  That’s a very tricky one.  On the one hand there is transparency and this case has certainly attracted a lot of media interest (and frankly given the biographical details in the story, I’m sure that the Daily Mail with their resources can find out who C was in about 30 minutes of investigation).  I don’t think this is prurient, I think there is some genuine public interest in the story and the issues, and of course a piece in a paper works far better when it is a real person not the letter C.

On the other, this case threw up very personal details in order to uphold C’s right enshrined in the Mental Capacity Act 2005 that everyone is assumed to have capacity unless proved otherwise and thus to refuse treatment unless proved they lack capacity – C did not bring the case to Court, she was brought into Court by the Trust and she won the case. So why should she be named when she did nothing whatsoever wrong in law? There are also the children to think of, one of whom is 15.


The final decision is not made yet, but an interim Reporting Restriction Order was made, preventing publication of the name until the matter can be properly litigated.


I read in the week, sadly with bad timing on the day that I learned that C had died, the article in the Guardian by Zoe Williams. That article attacked the Judge and linked his decision with other very controversial outbursts by Judges – arguing that the Judge’s setting out of the history showed an inherent sexism.  I felt that the article was ill-concieved and had missed all of the real substance of the case.  I normally rate Zoe as a writer, so the tone of the piece, particularly the attack on C’s children surprised me.


I then saw the piece by Lucy Series from The Small Places blog, that made me look at it in another way. I think this is the best piece of writing on C’s case and the issues that it throws up of ‘who are judgments written for in a transparency climate?’  and ‘should they be written in the same way as they used to be’?

I wish I could write like Lucy does. I dash stuff off the way that Kerouac wrote “On the Road”  – typing furiously, getting all of my thoughts on the page  – Kerouac wrote so fast that he taped paper into one giant sheet to save him the distraction of having to stop and put a fresh sheet into the Hermes  (and I’m reminded that Truman Capote famously said of his method “That’s not writing, that’s typing”).  Lucy is much more the Truman Capote style of constructing the piece, making the words all do their share of the work, not having a sentence in that doesn’t say something important and say it in just the right way, and it being more like inspecting a gorgeous diamond from a variety of angles rather than listening to someone excitedly blurt out what’s on their mind.   Hopefully, there’s a place for both Kerouac and Capote in legal blogging.


It would be difficult to find a more callous and calculating attorney

Yet another financial abuse case. Once again, one where the Deputy or Attorney would have benefited greatly from having one of my coffee mugs with “It’s not your Fucking Money” printed on it.


Re SF 2015


In this case, Sheila who is now 87 had appointed her son Martin to manage her financial affairs through an Enduring Power of Attorney.


Martin had withdrawn from her funds, £117,289.45 for “out of pocket expenses”, whilst not paying his mother’s care home fees which had been mounting up and had reached £29,000 in arrears.

In justifying this, he stated that he had been ‘billing’ at a daily rate of £400 per day, which is what he would charge in his role as a consultant.  This then included billing his own mother for visiting her. Nice.


“In my first witness statement dated 30 March 2015 I stated … that Martin had claimed a total of £49,143.19 since the EPA was registered on 7 August 2009. In Martin’s witness statement he has stated that Hugh James Solicitors sent him a cheque for the amount of £68,146.26. Martin has stated he paid this into his own account in part payment for the costs he had incurred. This amount added to the £49,143.19 amounts to a total of £117,289.45. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses.

Martin states that he charged for the visits he made to Sheila when he would visit to check for signs of physical abuse due to her mistreatment at [her previous residential care home in Llandrindod Wells]. Martin is an attorney under the EPA, which covers property and financial affairs only. Therefore his visits to check for physical abuse, even if they were necessary to safeguard Sheila, were not part of his role as attorney. Therefore, the Public Guardian believes Martin was not entitled to claim expenses for these visits.”



  1. As regards the amount of remuneration he has paid himself, Martin said in his witness statement dated 1 October 2015 that:

    “In my view these are not excessive, considering I have been fighting this battle with Powys LHB since 2004. If I had not spent the large amounts of time on this case, then my mother’s estate would still be illegally paying the full costs of care, and the 2013 compensation would never have been forthcoming. Finally, I have not taken any gifts from the estate (which could have been in the region of £33,000 from 2004 to 2015).

  2. At the hearing Martin said that he had charged his mother a daily rate of £400 for visiting her and for the work he put into the claims against Powys Local Health Board. This was his usual daily charging rate when he was a self-employed independent consultant prior to his retirement.
  3. In response to the Public Guardian’s application generally, Martin said:

    “I see no need to replace myself. I am the sole heir and because of my mother’s dementia and current poor health, there is no need to protect the estate’s financial interests, which are effectively mine.The OPG have now recommended that [a deputy] is appointed from their own panel. I would expect any appointed deputy from the OPG to seek to assist the Police in bringing criminal charges against Powys LHB, and to recover the monies owed from Powys LHB. If this is not part of the remit then appointing will be a waste of time and any costs incurred will be to the detriment of my mother’s estate and my own financial interest in my mother’s estate. However, it is apparent that the OPG do not want to pursue the recovery of monies owed from the Powys LHB. The OPG appears to be acting on behalf of Powys CC and Powys LHB, and as such is effectively colluding in their fraudulent behaviour. Consequently I believe that the OPG is not a fit or proper organisation to protect the interest of my mother’s estate.

    On the face of it, the OPG’s desire for me to repay money from my mother’s estate makes little sense. I am the sole beneficiary of the estate and any restitution I made would come straight back to me on my mother’s death, which considering her present state of health, is likely to be sooner rather than later. “


Once again, we have a Deputy or Attorney mistakenly thinking that becoming a Deputy or Attorney is actually Cate Blanchett for early access to an inheritance that they expect to acquire.  Nor is it, as he claimed, the purpose of the role to safeguard his own inheritance.


All of this led the Judge, Senior Judge Lush to conclude this :-



  1. One would be hard pressed to find a more callous and calculating attorney, who has so flagrantly abused his position of trust.
  2. Martin hasn’t paid his mother a personal allowance since June 2014 because toiletries were free in her previous residential care home and he resents having to pay for them now in the nursing home in which she has been living since February 2013. He even begrudges her having her hair tinted.
  3. The assertion that he hasn’t taken “any gifts from the estate” adds nothing to his credibility. If anything, it highlights his lack of it. He was referring to the £3,000 annual exemption for inheritance tax (‘IHT’) purposes, but Sheila’s estate is well below the threshold at which IHT becomes chargeable and no one is entitled, as of right, to receive a gift of £3,000 each year.
  4. As regards the non-payment of Sheila’s care fees, I agree with the Public Guardian’s stance that “whilst Martin attempts to resolve the dispute (with Powys Local Health Board), it would be in Sheila’s best interests that he continues to pay her care fees.”
  5. There is no evidence to support Martin’s suggestion that “if my mother’s care fees are paid from now onwards, Powys LHB will seek to avoid refunding monies owed.” The letter from Powys Local Health Board to the OPG, dated 12 March 2015, to which I referred in paragraph 21 above, shows that the Health Board has acted in good faith and reimbursed any fees that were overpaid in the past. Martin, on the other hand, has persistently acted in bad faith.
  6. As for his claim for reimbursement of out-of-pocket expenses for acting as his mother’s attorney, paragraph 6 of Part A of the prescribed form of Enduring Power of Attorney, which he and his mother signed on 23 October 2004, stated that:

    “Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). If your attorney(s) are professional people, for example solicitors or accountants, they may be able to charge for their professional services as well. You may wish to provide expressly for remuneration of your attorney(s).”

  7. Sheila did not expressly provide for Martin to be remunerated and if he intended to charge a daily rate of £400 for acting as her attorney, he should have applied to the court for authorisation pursuant to paragraph 16(2)(b)(iii) of Schedule 4 to the Mental Capacity Act 2005. By not doing so, he behaved in a way that contravened his authority and was not in the donor’s best interests.
  8. The Public Guardian believes the amount of £117,289.45 is an excessive amount to claim for out of pocket expenses. I would put it more strongly than that. I believe that charging one’s elderly mother a daily rate of £400 for visiting and acting as her attorney is repugnant.
  9. Martin suggested that the appointment of a panel deputy would be a waste of time and money because his mother’s estate is effectively already his. I disagree. The panel deputy will, for the first time in eleven years, place Sheila at the centre of the decision-making process, rather than view the preservation and enhancement of Martin’s inheritance as the paramount consideration.
  10. Having regard to all the circumstances, therefore, I am satisfied that Martin is unsuitable to be Sheila’s attorney, and I shall revoke the EPA and direct the Public Guardian to cancel its registration. I shall also direct an officer of the court to invite a panel deputy to apply to be appointed as Sheila’s deputy for property and affairs.



Is he the most callous attorney ever?


Well, in trying to think of a worse one, I can only come up with Harvey Dent from the Batman universe,  the District Attorney who later became a gangster named Two-Face.   [And to be honest, that may be slightly unfair on Harvey  – though possibly not as unfair as Tommy Lee Jones portrayal of him in Batman Forever, in which he was so hammy he needed a bodyguard to protect him from David Cameron between takes ]


Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

Heads I bill my mother £400 for visiting her, tails I deny her hair-tinting treatment

Winding your way down on Baker Street

The Court of Protection, in Aidiniantz v Riley 2015 were dealing with a high level of conflict between family members relating to the affairs of an 88 year old woman who lacked capacity to manage her own finances and other matters as to where she should live.


The family had been the creators of the Sherlock Holmes museum in Baker Street, which one imagines does quite well and probably has been doing even better in recent years as both Hollywood, US television and the BBC have each had their very own popular version of the character.


At the hearing, the Judge, Mr Justice Peter Jackson, found that the press were in attendance. It emerged that the press had been sent a press release about the case – that press release was not a neutral one approved by the Court but a partial, tendentious and sensationalised one.


  1. A preliminary point arises about the extent to which the proceedings can be reported. They were heard in private, in accordance with the Rules, at a hearing at which members of the press were in attendance. Two questions now arise: should the press be allowed to report the hearing, and should there be a public judgment naming the parties? Submissions have been made by the parties and by David Barrett and Mario Ledwith, journalists representing the Telegraph Media Group and Associated Newspapers respectively.
  2. It is relevant that on 25 September a media alert was issued by a PR company, notifying members of the media that this hearing would be taking place. The alert is in highly partisan terms, and includes lengthy quotations attributed to Stephen. It was this that brought the journalists to court.
  3. The respondents, having initially denied that they were responsible for the arrival of the press, were then faced with the press alert. They say that it was issued on the instructions of Mr Siddiqi and that the quotes from Stephen are not genuine but were invented by Mr Siddiqi to convey Stephen’s views. They say that they did not know what Mr Siddiqi had done until the hearing was under way.
  4. I have not heard evidence about this aspect of the matter and it is unnecessary to reach a conclusion about it. Mr Siddiqi is described by the respondents as “a long-time friend/associate of the family who has closely followed and advised the family on their affairs.” I am, to say the least, sceptical that he was acting without the knowledge and approval of the respondents, but it makes no difference. Even if Mr Siddiqi did not tell them what he was doing, he knows them well enough to know that he was doing what they wanted. Indeed, Linda made all the points that appear in the media alert when giving evidence.
  5. The relevance of this is that it alerts the court to the risk that the proceedings will be used as a platform to publicise unproven allegations.



The Press were very candid that their interest in the story was not in the arrangements to be made about Grace Aidiniantz, but in the quarrel that was going on between the family – it was the fight that they were interested in.


The Judge had to balance those competing interests – privacy and freedom of the press, our old friends article 8 and article 10 who have been arm-wrestling one another ever since the Human Rights Act was passed.



In the film "Over the Top", the role of Article 10 is played by Mr Stallone

In the film “Over the Top”, the role of Article 10 is played by Mr Stallone


[Hey, if I HAD a google image of Johnny Lee Miller arm-wrestling Benedict Cumberbatch whilst both dressed as Sherlock Holmes, I would have gone with that. I have to work with what I have. Oh, wait…]



This is them just BEFORE the match. Referee out of picture saying "We want a good clean fight"

This is them just BEFORE the match. Referee out of picture saying “We want a good clean fight”


  1. As to the issue of publication of this judgment and the naming of the parties, Mr Tyler QC submits that:

    (1) Real weight should be given to the general rule that the hearing should be in private: Independent News Media Ltd. v A [2009] EWHC 2858.

    (2) There is scant genuine public interest in publication of the current proceedings. The press is avowedly not interested in the issues about Mrs Aidiniantz’s care, but in the family dispute.

    (3) Mrs Aidiniantz’s privacy and dignity should be protected, even though she is incapacitated.

    (4) John has brought these proceedings in good faith, and should not thereby be exposed to vilification by the respondents. His wife and children would also be affected by publicity, as might employees of the family business.

    (5) Litigants generally should not be deterred from approaching the Court of Protection by the fear of consequent publicity.

    (6) Public identification of the parties to this “private family dispute” is unlikely to bring reconciliation closer and is likely to fuel conflict.

  2. The position taken by the journalists is that: (1) This is the latest in a long line of public disagreements between the parties that have been extensively reported in the press, evidenced by news reports from 2013 onwards.

    (2) The disagreement about Mrs Aidiniantz’s health is not in itself of public interest but is the current forum for the ongoing family dispute, which is of public interest, particularly given the family’s business interests.

    (3) Anonymisation of the judgment would make it impossible for the press to report this latest chapter in the very public disagreements between the parties.

    (4) Blanket reporting restrictions are not required to protect Mrs Aidiniantz’s privacy and dignity. There is no intention to report details of her care arrangements or medical condition, beyond saying that she is aged and infirm.

  3. There is in my view good reason for the court to publish its judgment in this case in a form that names the individuals involved:(1) Happily, very few families descend to the level of mutual acrimony that exists in this family. It is in the public interest for the public, if it is interested, to see the consequences. It is in the public interest to know how the court process operates in a recognizable case. It is in the public interest to know what it all costs: in the past year this family has spent £270,000 on this branch of its litigation alone. It is not in the public interest to suppress all that information: on the contrary, knowledge of how one family has behaved may deter another family from behaving likewise.

    (2) In this case, publication of an anonymised judgment would be futile. So much information is already in the public domain that any anonymised judgment would inevitably be linked to the family. The press would be placed in an impossible situation in knowing what it could and could not report.

    (3) It is undesirable that there should be any greater difference of approach than is necessary between two courts dealing with different but related aspects of the same dispute. As recently as 4 June 2015, an extensive public judgment in relation to financial issues was given in the Chancery Division.

    (4) This is not just “a private family dispute”. These parties have repeatedly chosen to air their differences in the courts. There is little likelihood of reconciliation. A public judgment will not make matters any worse for Mrs Aidiniantz than they already are. The parties might even reflect on their future conduct if they know that it may come to public attention.

    (5) Mrs Aidiniantz’s right to privacy and dignity is undoubtedly an important consideration. Even though she herself will not be aware of publicity, her reputation is affected by it being known that she is at the heart of the family discord. However, in the overall circumstances, I do not consider that the publication of this judgment amounts to a significant further intrusion into her privacy. It contains little personal information and makes no criticism of Mrs Aidiniantz: on the contrary, any fair-minded reader would be bound to feel sympathy for an elderly parent in her situation.

  4. The contents of this judgment can therefore be published, but there will be no other reporting of the hearing.



The Judge sets out all of the background, for those who are interested. He then gives his decision, saying that unusually this is a case where in determining what is in Grace’s interests he can give no weight to the views of the family


  1. Discussion
  2. It is not disputed that Mrs Aidiniantz lacks capacity to make decisions about the matters in issue within the meaning of the Mental Capacity Act 2005, and I so find. I also consider that as a result of her circumstances she is a vulnerable person in need of the protection of the court.
    1. It therefore falls to the court to make decisions in Mrs Aidiniantz’s best interests, applying the provisions of s.4 of the Mental Capacity Act 2005. In doing so, it must consider all the relevant circumstances and, in particular, take the following steps:
    • Consider whether it is likely that Mrs Aidiniantz will at some time have capacity in relation to the matter in question.
    • So far as reasonably practicable, permit and encourage her to participate as fully as possible in the decisions affecting her.
    • Consider Mrs Aidiniantz’s past and present wishes and feelings, the beliefs and values that would be likely to influence her if she had capacity, and the other factors that she would be likely to consider if she were able to do so.
  • Take into account the views of anyone engaged in caring for Mrs Aidiniantz or interested in her welfare as to what would be in her best interests.
    1. As to the first three of these matters:
    • While it is possible that if Mrs Aidiniantz’s physical health improves she may recover some degree of decision-making capacity, this is not foreseeable at the present time.
    • Mrs Aidiniantz has participated as fully as possible in the decision-making process by means of the involvement of Mr Gillman-Smith, Ms G and Ms Gieve.
  • Mrs Aidiniantz is someone with strong family values, whose already much-reduced ability to assert herself has long been overborne by the ferocity of the family conflict. She would want to be at home if it were possible. She would want to have normal, easy relations with all her children if it were possible.
  1. The obligation to take into account the views of those caring for Mrs Aidiniantz or interested in her welfare takes me to the heart of the difficulty in this case. I am aware of the views of her four adult children and have set them out above.
  2. Having done that, I have concluded, uniquely, that I should attach no weight at all to their views about their mother’s welfare. These children have, in my view, forfeited the right to have their views taken seriously on the question of what is in their mother’s best interests. They have no insight into her obvious longing for peace. The evidence of John and Linda showed only bitterness and contempt for each other. Neither side sees how important the other is to their mother. None of them reflects on their own behaviour. Instead, every action is dictated by the wish to get the better of the other. I have referred to John’s aggressive efforts to get Stephen and Ruth out of 1 Parkgate Road and his willingness to put his mother in a home he knows nothing about. I have referred to the respondents’ blatant attempts to obstruct John’s contact. As soon as Mrs Aidiniantz’s voice was heard by outsiders, however faintly, they physically removed her; in 2014 it was to Linda’s home, and a year later to the day it was to Florida. That trip was a blatant defiance of the court’s intentions and it is a measure of their lack of insight that the respondents imagine that it would be seen in any other way.
  3. Nor can I attach weight to the views of Ms AH. Normally the views of a professional carer in the midst of a family dispute will be of value, but she has become too emotionally involved and partisan to see where Mrs Aidiniantz’s best interests lie.
  4. I have some sympathy for Mrs Aidiniantz’s sister Ruth, but she is in the same camp as Linda, Stephen and Jennifer and has not been able to moderate their behaviour.Decision
  5. Turning to the issues and taking account of all the circumstances, I conclude that it would not be in Mrs Aidiniantz’s interests to return to 1 Parkgate Road. In the first place, I accept the evidence of Ms G that she needs the care package that is on offer at the nursing home. Two medically qualified staff are needed at all times. Ms AH and those she enlists to help her are unqualified and unsuited to demonstrating the necessary professional standards. Secondly, and more decisively, it is impossible to approve an arrangement that returns Mrs Aidiniantz to her home when her children have turned it into a warzone. If John took over 1 Parkgate Road, things would be no better. Mrs Aidiniantz needs a safe haven from her children’s activities, and that is what she has found in the nursing home. She would not have this respite in a setting that was controlled by either camp.
  6. The family collectively has the means to pay for Mrs Aidiniantz’s care in the nursing home. When promoting their preferred options, both John and Linda said that they would pay for them if necessary but would expect a contribution from the other. Now that the identity of the placement has been resolved, the family should act in accordance with that principle.
  7. As to contact, I will adopt the plan supported by the nursing home and the Official Solicitor for separate daily visiting by both sides of the family. Outings that are acceptable to the home on medical grounds can take place, but I suggest that visits to 1 Parkgate Road are approached with caution.
  8. Each side of the family can bring whoever they want with them during their contact times, provided the home is content with this. There is no more reason to prevent John from bringing his family than to prevent Jennifer from bringing hers. If she is invited by the respondents, Ms AH can visit from time to time, but she will not be resuming her role as a carer. If anyone thinks it is a good idea for Mr Siddiqi to visit, they can share their time with him.
  9. I note that the Official Solicitor proposes that visiting should be restricted to family members and that contact with others can take place on trips outside the home. He expresses concern about the role played by Ms AH and Mr Siddiqi. There is in fact no sign of any harm having come from their few visits to date and, given the way in which the family members themselves behave, I cannot share the view that the exclusion of other partisans would allow Mrs Aidiniantz to feel “free of influence”. The management of the home should be left to manage these issues.
  10. While Mrs Aidiniantz resides at the care home, there is no need for a welfare deputy. The management of the home will protect her day-to-day interests.
  11. Finally, I shall not appoint a property or affairs deputy, nor require the Official Solicitor to carry out further financial inquiries into Mrs Aidiniantz’s affairs. I agree with the Official Solicitor that any financial abuse of the elderly is a serious matter, but that here a third party investigation would be complicated, expensive and unlikely to be of benefit to Mrs Aidiniantz, whose needs are currently being met. I will make the appropriate orders for the reception of her modest pensions. Other disputes about money, property and shares can be pursued by her children elsewhere if that is their choice.Costs
  12. The parties can make submissions on costs, and I will consider them on their merits. I will nonetheless indicate my current thinking in an attempt to foreshorten matters and save further expense.
  13. The parties’ costs are, broadly: John £104,000

    Respondents £110,000

    Official Solicitor £57,000

    The Official Solicitor has been given security from the parties equally for the full amount of his costs. There is no reason why the public should bear any of those and I expect to order that the Official Solicitor’s costs will be met equally by the parties.

  14. As to costs as between the parties, the normal rule is that there should be no order. Each side rightly cautions the court against assuming that because there are so many allegations and counter-allegations it is a case of “six of one and half a dozen of the other”. I make no such assumption but nevertheless reach the conclusion that there is little to choose between these parties in regard to their litigation conduct and their conduct towards their mother. While the respondents’ conduct during these proceedings has been even worse than the applicant’s, it would be unrealistic to separate these matters from the overall history. Any departure from the ‘no order’ principle would probably be in the form of an order that each side should pay the other side’s costs as a mark of the court’s indignation.





"Benedict! HEY Benedict, you bum! What happened to the good clean fight I asked for? That ain't ARM wrestling"

“Benedict! HEY Benedict, you bum! What happened to the good clean fight I asked for? That ain’t ARM wrestling”

An unmusical Mozart – a patient’s right to say no to surgery


The Court of Protection dealt with a challenging case in Wye Valley NHS Trust v B 2015. The case was decided by Mr Justice Peter Jackson, and as ever he brings analysis, kindness and humanity to bear on a very difficult issue in the Court of Protection.


Here a man who clearly lacked capacity to make a fully informed decision, had expressed extreme hostility towards having an operation to amputate his foot. The medical professionals were clear that if he did not have his foot amputated, that the infection in it would spread and eventually kill him.


The Court had to decide whether it was in the man’s best interests to have the operation against his will or whether it was in his interests to respect his autonomy and wishes even though it would have adverse consequences.

A person who has capacity to understand the medical advice and risks and consequences would be able to say no to surgery in any event. What the Judge had to do here was consider what weight to give to the man’s wishes and the context of those wishes being expressed by a person who did not have the capacity to fully weigh up the pros and cons.


  1. Where a patient lacks capacity it is accordingly of great importance to give proper weight to his wishes and feelings and to his beliefs and values. On behalf of the Trust in this case, Mr Sachdeva QC submitted that the views expressed by a person lacking capacity were in principle entitled to less weight than those of a person with capacity. This is in my view true only to the limited extent that the views of a capacitous person are by definition decisive in relation to any treatment that is being offered to him so that the question of best interests does not arise. However, once incapacity is established so that a best interests decision must be made, there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.
  2. This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an “off-switch” for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view.
  3. In this case, the Trust and the Official Solicitor consider that a person with full capacity could quite reasonably decide not to undergo the amputation that is being recommended to Mr B, having understood and given full thought to the risks and benefits involved. However, the effect of their submissions is that because Mr B himself cannot balance up these matters in a rational way, his wishes and feelings are outweighed by the presumption in favour of life. It is, I think, important to ensure that people with a disability are not – by the very fact of their disability – deprived of the range of reasonable outcomes that are available to others. For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront that it would be to others who are more fortunate.
  4. In some cases, of which this is an example, the wishes and feelings, beliefs and values of a person with a mental illness can be of such long standing that they are an inextricable part of the person that he is. In this situation, I do not find it helpful to see the person as if he were a person in good health who has been afflicted by illness. It is more real and more respectful to recognise him for who he is: a person with his own intrinsic beliefs and values. It is no more meaningful to think of Mr B without his illnesses and idiosyncratic beliefs than it is to speak of an unmusical Mozart.
  5. Further, people with Mr B’s mental illness not uncommonly have what are described by others as “religious delusions”. As appears below, he describes hearing angelic voices that tell him whether or not to take his medication. Delusions arising from mental illness may rightly lead to a person’s wishes and feelings being given less weight where that is appropriate. However, this cannot be the automatic consequence of the wishes and feelings having a religious component. Mr B’s religious sentiments are extremely important to him, even though he does not follow an established religion. Although the point does not arise for determination in this case, I approach matters on the basis that his Article 9 right to freedom of thought and religion is no less engaged than it would be for any other devout person.
  6. This is another manifestation of the principle that the beliefs and values of a person lacking capacity should not be routinely undervalued. Religious belief has been described as a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science: R (Hodkin and another) v Registrar General of Births, Deaths and Marriages [2014] AC 610 at [57]. Religious beliefs are based on faith, not reason, and some can strongly influence the believer’s attitude to health and medical treatment without in any way suggesting a lack of mental capacity. Examples include belief in miraculous healing or objections to blood transfusions. There may be a clear conceptual difference between a capable 20-year-old who refuses a blood transfusion and an incapable elderly man with schizophrenia who opposes an amputation, but while the religiously-based wishes and feelings of the former must always prevail, it cannot be right that the religiously-based wishes and feelings of the latter must always be overruled. That would not be a proper application of the best interests principle.
  7. Having commented on the process of evaluating wishes and feelings, I refer to the Law Commission’s current consultation paper No. 222: Mental Capacity and Deprivation of Liberty. It proposes [Proposal 12.2] that s.4 of the Act might be amended so that an incapacitated person’s wishes and feelings should be assumed to be determinative of his best interests unless there is good reason do depart from the assumption. It is said [12.42] that there is insufficient certainty about the weight to be given to a person’s wishes and feelings and that prioritising them would reflect to some degree the approach of the United Nations Convention on the Rights of Persons with Disabilities.
  8. In the above discussion, I have identified some of the circumstances in which the wishes and feelings of incapacitated individuals might be unjustifiably undervalued. However, my respectful view is that the Law Commission proposal would not lead to greater certainty, but to a debate about whether there was or was not “good reason” for a departure from the assumption. To elevate one important factor at the expense of others would certainly not have helped the parties, nor the court, in the present case. All that is needed to protect the rights of the individual is to properly apply the Act as it stands.


For my part, I think that the proposal by the Law Commission would be a beneficial addition for dealing with these cases, putting a rebuttable presumption that a person’s expressed wishes should be followed unless there are strong reasons for the contrary. Whilst many Court of Protection Judges (including this one) have a very healthy respect for autonomy and the wishes of the patient, some still tend to veer towards the wrapping P in cotton wool and the patrician approach.


Lastly, I refer to the principle at s. 4(4) that so far as is reasonably practicable, the person must be permitted and encouraged to participate as fully as possible in any decision affecting him. In this case, given the momentous consequences of the decision either way, I did not feel able to reach a conclusion without meeting Mr B myself. There were two excellent recent reports of discussions with him, but there is no substitute for a face-to-face meeting where the patient would like it to happen. The advantages can be considerable, and proved so in this case. In the first place, I obtained a deeper understanding of Mr B’s personality and view of the world, supplementing and illuminating the earlier reports. Secondly, Mr B seemed glad to have the opportunity to get his point of view across. To whatever small degree, the meeting may have helped him to understand something of the process and to make sense of whatever decision was then made. Thirdly, the nurses were pleased that Mr B was going to have the fullest opportunity to get his point across. A case like this is difficult for the nursing staff in particular and I hope that the fact that Mr B has been as fully involved as possible will make it easier for them to care for him at what will undoubtedly be a difficult time.


[that noise you can hear is me applauding]


The Judge sets out the pros and cons of the best interests decision very well – the judgment is short, and well worth a read for those sections.

  1. Conclusion
  2. Having considered all of the evidence and the parties’ submissions, I have reached the clear conclusion that an enforced amputation would not be in Mr B’s best interests.
  3. Mr B has had a hard life. Through no fault of his own, he has suffered in his mental health for half a century. He is a sociable man who has experienced repeated losses so that he has become isolated. He has no next of kin. No one has ever visited him in hospital and no one ever will. Yet he is a proud man who sees no reason to prefer the views of others to his own. His religious beliefs are deeply meaningful to him and do not deserve to be described as delusions: they are his faith and they are an intrinsic part of who he is. I would not define Mr B by reference to his mental illness or his religious beliefs. Rather, his core quality is his “fierce independence”, and it is this that is now, as he sees it, under attack.
  4. Mr B is on any view in the later stages of his life. His fortitude in the face of death, however he has come by it, would be the envy of many people in better mental health. He has gained the respect of those who are currently nursing him.
  5. I am quite sure that it would not be in Mr B’s best interests to take away his little remaining independence and dignity in order to replace it with a future for which he understandably has no appetite and which could only be achieved after a traumatic and uncertain struggle that he and no one else would have to endure. There is a difference between fighting on someone’s behalf and just fighting them. Enforcing treatment in this case would surely be the latter.
  6. The application, which was rightly brought, is accordingly dismissed.
  7. I conclude by thanking the parties and witnesses for the quality of their contributions and by paying tribute to the high standard of care and treatment that Mr B is now receiving.