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Manuela Sykes

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THEN AND IN THOSE CIRCUMSTANCES my directions are as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

There is, of course, no solution.

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

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

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

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

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

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

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

Any written statements made by her when she had capacity

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

Relevant beliefs and values

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

Ms S is the subject.

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

Applauds

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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“Cutting edge forensic linguistics”

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

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

But he was also cautious and he added this:

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

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

 

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

 

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

 

 

 

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

 

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

 

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

 

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

 

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

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

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

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

 horatio caine

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

 

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

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

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

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

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

 

 

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

 

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