A London Borough A Foundation Trust v VT & Ors [2011] EWCOP 3806

Case No COP11610001

IN THE COURT OF PROTECTION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 26/05/2011

Before

DISTRICT JUDGE RALTON

Between

A London BoroughApplicants

A Foundation TrustApplicant

VTRespondents

ST By his Litigation Friend the Official SolicitorRespondent

ATRespondent

Mr Bhose (instructed by the London Borough) for First Applicant

Ms Gee (instructed by Capsticks Solicitors) for Second Applicant

Mr Reeder (instructed by Kaim Todner Solicitors) for First Respondent

Mr Sachdeva (instructed by Miles & Partners Solicitors) for Second Respondent

Hearing Hearing dates: 24 to 26 May 2011

Judgment

[1]This is the final hearing of an application dated 13th June 2008 by the London Borough and the Foundation Trust under the provisions of the Mental Capacity Act 2005 (the “Act”) for decisions to determine:(1) where ST should live

(2) who should be deputy for ST's property and affairs

[2]The original respondent was VT who is ST's first wife.

[3]The case has evolved over the last 23 months since it began and the parties now are:(1) The London Borough as First Applicant

(2) The Foundation Trust as Second Applicant

(3) VT as First Respondent

(4) ST as Second Respondent by his Litigation Friend the Official Solicitor

(5) AT as Third Respondent.

[4]The primary matters on which decisions need to be made by the court are:(1) Should ST live at L (or possibly some other care home type accommodation in London) or in his property at X, Nigeria

(2) If ST remains at L, is he being deprived of his liberty and, if he is being so deprived, does that remain appropriate

(3) Should ST's property and affairs deputy be AT or Mr G, the current interim independent professional deputy?

Parties’ Final positions

[5]The positions of the parties have changed as the inquisitorial process proceeded and the evidence developed both in written and oral form before me. The final positions of the parties were as follows:(1) The Foundation Trust, VT, AT and the Official Solicitor are in favour of ST’s permanent move to Nigeria on certain terms; there is not complete agreement as to those terms which concern the care package and deputyship; the London Borough is neutral save that the terms should be those contended for by the Foundation Trust and the Official Solicitor;

(2) The London Borough, the Foundation Trust and the Official Solicitor are in favour of the interim professional deputy Mr G remaining in place permanently; VT and AT support AT's application to be property and affairs deputy in place of the interim deputy;

(3) The London Borough, the Foundation Trust, VT and the Official Solicitor perceive ST's current residential placement to amount to a deprivation of his liberty. AT did not address me on this matter.

[6]The hearing commenced on Monday 24th May 2010 and lasted three days. At the conclusion of the hearing I gave the parties my decisions but reserved judgement. My decisions are that:(1) it is in ST's best interests for Mr G to continue as ST's property and affairs deputy with specific authority to instruct and fund Chief A of X to directly or help to: (a) obtain, retain and pay for the medical, nursing and social care package to be assembled and supplied by Professor B, professor of Old Age Psychiatry at X; (b) obtain and pay for such hospital treatment that ST might require; (c) engage, retain and pay for the Nigerian Chapter of the African Gerontological Society to oversee ST's care arrangements; (d) hold such funds as are necessary to achieve (a) to (c); (e) manage ST's Nigerian property and financial affairs.

(2) provided (1) was complied with in full and appropriate arrangements made, it is in ST's best interests to return permanently to his property in X, Nigeria

(3) ST has been and is being deprived of his liberty at L; this being a necessary, reasonable and proportionate action pending ST's return to Nigeria and which I will authorise for a further 3 months.

(4) If, for any reason, ST were to remain at L for longer than three months I would require a review

(5) If the plan to return to Nigeria falters I am not currently satisfied that it is in ST's best interests to permanently remain at L and I would consider it appropriate for any further deprivation of liberty to be addressed by the Foundation Trust under the Deprivation of Liberty Safeguards leaving this court as a court of review. Further hearings would be required.

(6) There would be no order as to costs save for public funding assessments of the costs of VT and the Official Solicitor (the Deputy remaining entitled to costs out of ST’s estate in any event).

Capacity

[7]To possess jurisdiction to make decisions for ST I must be satisfied that ST lacks mental capacity to make those decisions. Appropriate declarations were made by myself on 27th May 2009 found within the order entered on 1st June 2009. As capacity is not in issue and nothing has changed to cause the matter of capacity to be revisited by the court I do not propose to say anything further on the matter.

The Law – Best Interests

[8]Once the jurisdiction of the decision maker is established, the decision maker, namely the court, must make a decision that is in ST’s best interests.

[9]Section 4 sets out certain steps the decision maker must carry out before making a decision and I find myself drawn to the following matters in particular in this case:

“(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (6) He must consider, so far as is reasonably ascertainable— (a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of— (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, .... (d) any deputy appointed for the person by the court, as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).”

[10]In my judgement Re P

[2009] EWHC 163

(a decision of Lewison J) and Re M

[2009] EWHC 2525

(a decision of Munby J as he then was) are authority for the following propositions (which are not exhaustive):(a) the decision must be made objectively after taking the section 4 steps; this is not necessarily the same as identifying what P would have wanted and the pre Mental Capacity Act 2005 approach of “substituted judgement” is not permissible now

(b) there is no hierarchy between the section 4 factors within the statute

(d) P's wishes and feelings will always be a significant factor

(e) the one overarching principle is that the decision maker must apply section 4 and make a value judgement upon P's best interests.

[11]So far as wishes and feelings are concerned in my judgement matters affecting weight to be given to them are:(a) the extent to which evidence of those wishes and feelings is reliable

(b) the extent to which P was expressing rationalinformed wishes and Feelings

[12]A useful example of the required exercise can be found in A NHS Trust & B PCT v DU, AO, EB and AU

[2009] EWHC 3504

which concerned an 86 year old Nigerian lady with serious medical needs who wished to return to Nigeria. Hedley J said within paragraph 10:

“It is an integral part of the concept of best interests when dealing with a person of this age that the court recognises the imminent possibility of death and the importance of making arrangements so as to secure that the experience of death may be in a context which is the most congenial and peaceful that can be devised. Also implicit in the concept of best interests is the importance of the country and culture of origin and the whereabouts of the family. They will often take precedence over, for example, the question of risk avoidance or the exact quality of care that may be available.”

[13]In short, the risks posed by a care plan to P’s life expectancy may be wholly outweighed by P’s wishes and values and P’s quality of life if those wishes and values are acceded to. Quality of remaining lifetime may well be rather more important than quantity.

[14]I had a trial bundle contained within two full lever arch files with a style of pagination which Heath Robinson might approve but I do not. Thankfully the number of documents to which witnesses needed to be referred was modest. Poor pagination is not just inconvenient; much valuable court time can be lost waiting for the right page to be turned up.

[15]In addition to the statements, expert reports and other evidence in the trial bundle I heard oral evidence from:(1) Mr D, Social Worker of the London Borough in the Mental Health Team for Older People

(2) Dr O; consultant psychiatrist for ST at L

(3) VT

(4) Dr E, consultant in diabetes and endocrinology

(5) Dr A, Consultant Forensic Psychiatrist and Visiting Lecturer for a Nigerian academic institution

(6) AT

In that order

[16]Upon completion of the evidence above, especially the evidence of Dr A, it became unnecessary to further canvass the views of two other court appointed experts being Dr J, independent consultant in old age psychiatry and Mr S, independent social worker as such evidence was unlikely to amount to more than further opinion on the ultimate decision to be made

History

[17]ST was born in Nigeria in 1933 and is of Nigerian race. He came to England in about 1956 and his primary place of residence to date has been in the London Borough. ST frequently visited Nigeria and would stay there at times.

[18]ST married a Nigerian, VT (who is one year younger than ST) in 1957; they had two children namely W (who has died) and AT. It seems that marriage subsists to date.

[19]ST married for the second time in Nigeria in about 1976 to YT and there are three children of that marriage. I am informed that YT is unwell and she has not played any part in these proceedings.

[20]Notwithstanding the second marriage VT told me she forgave ST and they remained together until 1994 when VT moved out of ST's house and acquired a council house.

[21]Although separated VT remained concerned for ST and would regularly visit him and cook for him.

[22]In the meantime, over the years, ST:(a) was employed on the railways (Dr J tells me ST is a retired railway security officer)

(b) acquired ownership of V as his home in London

[23]ST suffered from type 2 diabetes since at least 1985.

[24]On 22nd October 2007 ST was admitted to H Hospital with apparent collapse, hyper-osmolate, dehydration and urine retention. Poorly controlled diabetes was soon discovered and this is the first time (I think) that significant dementia is recorded by the health services.

[25]ST was transferred to K and was assessed by Dr O on 20th December 2007 and detained until about 25th January 2008 when he was discharged home into the care of VT. This arrangement broke down and on 6th February 2008 ST was readmitted via Accident & Emergency since which time he has remained in care homes (K, L and a period at M) and has been regularly visited mainly by VT and also by AT.

[26]On 15th June 2009 ST was moved from L to M where ST was so uncooperative in receiving insulin injections that a decision was made to return him to L.

[27]However, ST did have a successful prostate operation in about September 2009 which has meant that his urological problems requiring the catheter ended and the device was removed thereby bringing an end to one of the significant medical concerns relevant to a change in residence to Nigeria.

[28]ST currently resides in L which delivers a high intensity of care and monitoring. Nigerian Food is only available to ST via VT. No other care home in London is suggested for ST and VT no longer proposes to care for ST herself should he remain in London.

[29]The fundamental question to be answered by the court is whether it is in ST's best interests to return to Nigeria to live out the rest of his days. This is not something that can be tested and the reality is that any journey made by ST to Nigeria will be one way.

Care Plans

[30]Sensibly each party has reconsidered their care plan as further evidence was obtained and I am presented with 3 care plans which I summarise as follows.

[31]VT & AT’s Care Plan(1) AT would be property and affairs deputy for ST and would manage ST’s property and financial affairs both in London and Nigeria.

(2) VT and AT would make the necessary arrangements to: (a) transport ST to his X property and settle him in there (b) on behalf of ST engage, retain and pay for the medical, nursing and social care package to be assembled and supplied by Professor B, professor of Old Age Psychiatry at X (c) retain and pay for such hospital treatment that ST might require (d) engage such members of the family such as ST’s nephew TT as were available to assist with ST’s care and to provide full housekeeping (cooking, cleaning etc). Although VT’s plan does not require as much family input into providing care as that which she originally envisaged in her second statement, I am still left with the impression that where possible family members rather than outside professionals would be engaged. ST’S Care Plan (1). Mr G would remain as property and affairs deputy with specific authority to instruct and fund Chief A of X to: (a) engage, retain and pay for the medical, nursing and social care package to be assembled and supplied by Professor B, professor of Old Age Psychiatry at X (b) retain and pay for such hospital treatment that ST might require (c) engage, retain and pay for the Nigerian Chapter of the African Gerontological Society to oversee ST's care arrangements (d) manage ST's Nigerian property and financial affairs (2). Members of ST’s family would remain intimately involved especially with a view to assisting ST with emotional well being, comfort and housekeeping. (3). VT would be closely involved with transporting ST to X but one of he proposed nurses would first travel to London to give ST time to acclimatise himself to a new person in his care regime. (4). The backup plan in the event of serious deterioration in ST's health would be for admission to an appropriate hospital in X which might be permanent

The London Borough’s Alternative Care Plan

[32]ST would remain living at L. Mr G would remain as deputy. The status quo would be preserved.

Making the Decisions

[33]The majority of the time spent in this case has involved assessing the degree of risks of a move and balancing those risks against ST’s wish to move. I have applied the section 4 process as follows.

Extent to which ST has been able to participate

[34]ST has appeared in these proceedings by the Official Solicitor as his litigation friend; having seen all the evidence and matters such as Ms Miles' attendance notes of her meetings with ST (and others) I am certain that ST has participated as much as is reasonably practicable.

ST’s wishes, feelings and values

[35]ST was born in Nigeria, he is Nigerian, has maintained close links with Nigeria and developed property there. I accept that ST would expect to retire to Nigeria eventually to die in the land of his birth and that this is a value held by many Nigerians of ST's generation who would know that they could not:(a) expect to receive free health care in Nigeria and or

(b) rely on the safety nets which exist in England and Wales to attempt to protect those persons who are without capacity.

[36]I also accept (as confirmed by Dr A) it is customary for families to look after their own engaging such outside assistance as they need.

[37]There is very cogent evidence of an expressed consistent rational intention and wish of ST to permanently return to Nigeria to end his days there. All parties agree this to be the case. I also consider there to be consistent evidence of a wish by ST to not live in places such as M or L. I note that: (1) ST's IMCA reported on 15 April 2008 that:

“I introduced myself [to ST] and tried to explain my role to him, he seemed not to be able to understand my explanation as he thought that he was merely waiting to go back to Nigeria. He … wanted to return to Nigeria to gain access to his money. Staff at K said that ST firmly believes that he is in the UK for a short visit and that he must get back to Nigeria, they said that he will wander off if he has the opportunity and strongly feel that he needs to be placed in a secure EMI environment.” (2) It was known as long ago as May 2008 that VT wanted to support ST in a move to Nigeria and VT has been consistent in her evidence that ST has expressed to her a wish to return to Nigeria (3) ST has on occasions expressed such a wish to Ms Miles of the Official Solicitor; see for example the attendance note of the meeting at M when ST said: “I would prefer to live where I was born. I would like to live back in Nigeria. I would not like to live here. If you said London then maybe yes, but not here . … I would like to live in Nigeria, that is my hometown.” (4) In July 2008 a doctor recorded that ST “... being confused as to which country he is in at present has fairly consistently voiced his wish to be near his children and grandchildren who live in London.”

I observe that this might be regarded as something of an anomaly but I think that ST's responses are different when asked in which country he wishes to live in as opposed to which place. It is also consistent with a wish to be somewhere other than a care home. (5) ST has consistently expressed his intentions and wishes to return to Nigeria to Dr J, O and Mr S as recorded in the various reports. At paragraph 5 of Dr O's report of 30th December 2009 he says:

“I acknowledge that the patient has said that he realises he is towards the end of his life and that to die in his home country would be something he would value and that he has intimated that his perceptions of concerns he may have around matters of risk are such that he would willingly accept them”

[38]Family members have corroborated evidence of ST's wishes; see(1) letter from ST's niece dated 23rd March 2009

(2) Signed statement from ST's cousin dated 2nd September 2009

(3) Signed statement from ST's close friend dated 2nd September 2009

(4) The evidence obtained from the Official Solicitor and exhibited to his statement. There is consistent evidence of resistive behaviour on the part of ST to acceptance of treatment and assistance whilst in care; in her statement of November 2008 the review Officer in the Mental Health Team was speaking of ST's refusal to accept help with his catheter (prior to his prostate operation) and refusal to accept medication.

[39]40. Why the behaviour? ST does suffer from dementia. ST's environment and circumstances at L may be a contributing factor; there is evidence that:(1) ST is in the company of other residents of a lower level of cognitive and social skills and that he is under stimulated; see the London Borough's care plan of 13th February 2009;

(2) ST is subject to a high degree of control; there is uncertainty over the extent to which ST is checked up upon but there are frequent checks;

(3) There is evidence that ST is more co-operative if attended to by people he can recognise. Staff turnover and shift patterns mean that ST does not tend to recognise the people who attend to him;

(4) There is evidence that ST has been most unhappy e.g. by barricading himself in.

[40]Lastly, I am conscious of ST’s wish to be with his family. Either place of residence is likely to involve prejudice to some contact and enhancement of other contact for geographical reasons.

[41]I find that ST's wish to return to Z state Nigeria are strongly expressed rational and consistent with the values applicable to ST. I find that acceding to those wishes gives ST a real opportunity to be happier knowing he will die in the land of his birth.

Medical Needs & Life Expectancy

[42]I had the benefit of written and oral evidence of Dr E, consultant in diabetes and endocrinology whose evidence may be summarised thus:(1) ST was first diagnosed with Type 2 diabetes in about 1985; at that time his blood sugars were controlled by tablets; deterioration in 1990 resulted in ST becoming dependent on insulin;

(2) Prospects of successful control of ST's diabetes are affected by: (a) appropriate treatment being available to ST (b) compliance by ST with medical advice and proposed treatment (c) ST's diet and general health

(3) Ideally ST would be treated by injection of insulin after every meal to try to replicate so far as possible the actions of a healthy pancreas

(4) ST has not been receptive to ideal treatment; this has resulted in a compromise by which he receives as a “bare minimum” daily one long lasting insulin injection and an oral anti-diabetic agent taken as a syrup. At times ST refuses to accept even this level of treatment.

(5) ST has a history of consistently high blood sugars even when he is compliant (although the last tests are now some three months old). As I understood Dr E's evidence ST is never far away from a life threatening hyperglycaemia which carries a 50% mortality rate. ST could die at any time, even if he is compliant with treatment and it is unlikely that he would survive beyond another 5 years.

(6) ST's treatment regime comprises injections of insulin, taking of oral medication and monitoring of blood sugars by an electronic pin prick testing device. The regime is comparatively simple and the drugs and equipment required are widely available.

(7) Given ST can afford to pay for medical treatment there is no reason to suppose that the same medical treatment that ST currently receives cannot be obtained in X, Nigeria

(8) If a move to X results in ST being more receptive to treatment his prospects of survival will be better.

(9) There is no reason to suppose that ST is not fit to fly to Nigeria but this will be fully addressed in a further report.

Meeting ST's Needs

[43]If ST remains in London all his needs will be met subject to the caveat that ST may again become unreceptive to treatment. In particular:(1) some family members such as VT and AT will be able to visit him

(2) he will have the protection of the Mental Capacity Act 2005 including deprivation of liberty safeguards and access to a court to make all necessary decisions for him if necessary

(3) he will be cared for by a local authority which owes statutory duties to him

[44]What of the position in Nigeria? Two people have sought to assist me. The first is VT. In her second statement she put together a Nigerian care package which appeared rather attractive. VT, in conjunction with some members of the family would assemble a care package using family members, outside paid for services such as nurses and the medical services of Dr D a consultant at X Hospital in order to meet all of ST's needs. Dr D wrote a supporting letter on X Hospital headed paper which was to be read as part of that plan.

[45]The second person who has sought to assist me is Dr A whose evidence I find to be invaluable and essential to this case. His role can be summarised as investigation into and reporting upon VT's care plans and alternatives available in the Z region of Nigeria. Dr A is uniquely qualified to give such evidence because of his qualifications and knowledge of resources in England and Nigeria. He was able to show why VT's first care plan was unsatisfactory. His evidence has enabled revised care plans to be drawn. He has been able to give me a little assistance on the Nigerian legal system.

[46]Unfortunately a very serious problem with VT's care plan was uncovered by Dr A. Dr A told me Dr D is not and has never been a consultant at X Hospital. Why the lie? Dr A asked him; in his report of 2nd July 2009 Dr A tells me:

“Dr D told me that VT explained to him what the situation was and asked him if he would be willing to write a supporting letter. He said that he agreed to do so and said he would write the letter either on the letter heading of his private hospital or of his teaching hospital (not X Hospital). Dr D told me he was advised by [in oral evidence VT] that this would not be satisfactory as it was essential that the supporting letter should indicate that he was working at X Hospital and would therefore have ready access to ST. Against his better judgment he says that he agreed to write the letter of the 1st April 2009”

[47]In my judgment no criticism could be made of VT for setting out to Dr D what was required of him unless and until she knew or ought to have known that she was asking him to state something which was untrue. Through her counsel VT sought to cast doubt on the accuracy of the reported content of the conversation but at no time in her own evidence was VT able to explain to me or give a cogent reason why Dr D would proceed on a frolic of his own in which she had no hand. I find on the balance of probability that she was complicit in the lie.

[48]I am satisfied that VT is committed to ST’s wishes and welfare. However, my finding above coupled and my findings with respect to her role in the events which have concern ST's estate in England cause me to conclude that VT will engage in improper steps in order to achieve what she wants and to stay in control.

[49]The rest of Dr A's evidence, as updated, may be summarised as follows:(1) Appropriate medical and domiciliary care, drugs, equipment and resources be obtained in X if paid for; the standard is comparable to that available in England (this is not the case throughout Nigeria as a whole). Experienced clinicians would be in a position to ensure that genuine rather than counterfeit medication was obtained.

(2) He met with four family members in X being VT, TT, and two others. He spoke by telephone with LT. Whilst TT and LT might be able and willing to care for ST they would require considerable training (and I am not sure they really realised the extent of the burden they were offering to take on)

(3) Professor B, Professor of Old Age Psychiatry at X was in a position to offer a paid for combined medical nursing and social care package that would meet ST's needs thereby significantly reducing the need to depend upon family members to provide care (I observe that they would still be essential for social interaction, stimulation and well being)

(4) ST's property in X can meet his needs

(5) There are no suitable care type homes

(6) The Nigerian chapter of the African Gerontological Society, AGES, may be a suitable monitoring body to oversee ST's care arrangements. Whatever AGES' inexperience might be in carrying out this function, no other body has been identified that could carry out the monitoring

(7) Chief A is a Senior Advocate of Nigeria (equivalent to a Queen's Counsel) and could make an application to the High court in Nigeria for the appointment of a local public trustee to manage ST's Nigerian property and financial affairs on behalf of the deputy in England

(8) Dr A obtained costings; the budget for the B package, AGES, housekeeping and living costs would be about 2,972,000 Naira or £11,888 per annum. There was some concern that some figures e.g. for medications were too conservative but ST is in the fortunate position that he has enough capital in England to fund twice or thrice this sum for at least five years.

Views of Others

[50]Dr J, Dr O and Mr G were initially against the Nigerian care plan because they saw the risks of a move to Nigeria as being too great. The available reductions in risk has resulted in Dr O moving in favour of a move to Nigeria and Mr G taking a neutral stance. In his final report Mr S is in favour of a move to Nigeria rather than leaving ST “languishing” in a care home.

ST’s Estate

[51]There is no doubt that:(1) A deputy is required

(2) ST's estate is sufficient to fund his needs

(3) The deputy will be tasked with the prudent management of ST's estate to ensure it meets his needs for the rest of his life

(4) The deputy will need to put in place arrangements for the retention of a suitably qualified and authorised person to act as his equivalent (so far as that can be done) in Nigeria and to oversee and monitor those arrangements.

[52]ST's current estate comprises:(1) £408,000 held by the Deputy; there will be further legal and deputyship expenses to be deducted but no other significant capital expenditure is envisaged at this time; VT's claims are an unknown: in her first statement VT laid claim to a beneficial share in V Road. VT's counsel assured me she no longer laid any such claim although in oral evidence VT seemed to be maintaining a claim of some sort. It is apparent to me that any matrimonial claims VT may possess have not been resolved.

(2) State pension income and potential private pension income

(3) Two properties in Z: S House in X and other property in Y with unknown values generating rental income.

[53]To some extent in her first statement and to a greater extent in her second statement VT has sought to provide the court with assistance on the nature and extent of ST's estate. VT told me that the X property is managed by a lawyer who collects the rents; he wrote a supporting letter dated 23rd April 2009 stating he would be prepared to continue this role for a fee but he did not provide any accounts. The Y property is managed by ST's cousin who collects the rents and pays them into ST's bank account with a Nigerian bank. VT was able to provide a fair amount of financial information; see schedule 2 to her second statement. However, I was surprised by the lack of disclosure of the raw material (such as bank accounts or receipts) which enabled her to provide that information notwithstanding the deputy's requests for the same. Some documentation such as copy deeds might not be in her gift to provide but that does not explain the complete absence of supporting documentation. I am left with an overwhelming impression of a desire to retain absolute control within the family.

[54]The story of V Road from when ST ceased living there is very peculiar. Mr G told me that:(1) In September 2009 he discovered from estate agents he had instructed to view the property that it was occupied by young Hungarian women claiming to have tenancy agreements made by an Hungarian letting agency

(2) he made contact with a Mr R of that agency who had wanted to buy the property

(3) he was then told by AT of a wish to rent out the property

(4) 'Q' had undertaken extensive works to the property so that it could be used for multiple occupation but the works being carried out without local authority consents or approvals and being unfit for purpose (as well as reducing the value of the property by £50,000). Q had been encouraged to do this by Mr R and AT and disclosed that he was receiving £4,000 in rental which is what VT aspired to do in her statement.

(5) The deputy had to take possession proceedings which were initially defended by Mr R

[55]VT and AT were asked about their involvement with these events. Their initial evidence was that they did not know of these goings on until Mr G made his discoveries (thus AT challenged (4) above). VT wanted to sell the house and she told me when she found that the house was occupied she challenged the occupiers to leave.

[56]Initially in his evidence AT presented a picture of being closely involved with ST in respect of ST's properties and affairs and I was also given the impression that AT would manage the same when ST could not. However, it became apparent that AT last went to Nigeria in the 1980's and his evidence then appeared to be on the lines of ST keeping him informed about ST's enterprises. The COP1A completed for AT in September 2009 does not contain the detail one would expect from someone with intimate knowledge to share and is all the more surprising for there being such little information about the bank accounts (given AT told me he collected the statements).

[57]So far as V Road is concerned AT's evidence to me was one of ignorance of what was going on until about September or so of last year. I could not begin to reconcile his evidence of having intimate knowledge of ST's property and affairs with his ignorance of the arrival of the builders and the negotiations with members of the letting agency. I am incredulous that once AT saw there were builders in the property knocking it about he felt that nothing more was to be done than inform his solicitors and make a competing deputyship application. I am also incredulous that he took the same attitude upon discovering that the builders had been replaced by persons living in the property.

[58]59. When Mr G recovered possession of V Road it was boarded up. According to AT this resulted in post being left outside of the property; this could have been resolved by making redirection arrangements with the post office or, I suppose, the installation of an external postbox. In any event this was a matter to be sorted out in consultation with Mr G. AT sought to break into the property to, he says, restore a letterbox. I do not accept his explanation.

[59]I find on the balance of probabilities that AT knew of and was complicit in the works and lettings that were occasioned and that the purpose of these arrangements was to make money from V Road, money which to date has not been accounted for at all by the letting agency or AT. Whilst I do not find that VT was complicit in the works and the lettings I do find she had some knowledge of what was going on and chose to turn a blind eye.

[60]A further matter which arose during AT's evidence and after closing submissions commenced are whether he has a disclosable conviction; AT having declared that he had no such convictions in the COP4 he signed on 28th October 2009. It has been ascertained that AT has a disclosable conviction because he was sentenced to 3.5 years imprisonment.

[61]AT contends that he is the appropriate person to be deputy and that he is capable of managing affairs both here and in Nigeria without engaging in the use of a lawyer in Nigeria; he is supported by VT. He emphasises, and I accept that ST would wish his elder son to take on the role of deputy and that ST would hold as a value the appointment of his eldest son as deputy.

[62]The decision of who to is to be ST's deputy must be made in ST's best interests as for any other decision made for him.

[63]If there is to be a move to Nigeria, there will be obligations on the deputy to undertake complex arrangements with a counterpart in Nigeria, the established competence of the deputy to be able to undertake complex tasks is an exceedingly important matter in the decision making process and, in my judgment, the lack of established competence on the part of AT to manage international transactions alone is such that I would not appoint him notwithstanding cultural expectations and values and the views of VT and AT.

[64]Further, I have no doubt that AT's lack of candour and the way in which he has been involved with ST's property at V Road to date mean that his competence, integrity and reliability are very much in question and I am not satisfied that he is either able or sufficiently trustworthy to undertake the very important role of property and affairs deputy for ST.

Deprivation of Liberty

[66]Thus far deprivation of liberty has been authorised by orders of this court.

[67]In paragraph 4 of his report dated 30th December 2009 Dr O states:

“I would unambiguously state that it is my view that ST is currently settled and not showing distress. I no longer feel he is being deprived of his liberty … I believe he accepts care offered without evidencing any signs of distress …... he has repeatedly indicated he is happy with the support that he has received and he is currently not making active steps to leave our care. He has no ability to judge what would be the risks he would be exposed to were he to leave his current care arrangements.”

[65]Given HL v UK

[2004] 40 EHRR 761

and the decision of Baker J in Re E

[2010] EWHC 621

and the case law referred to in that judgment it is clear Dr O is not addressing the correct criteria. ST is patently being deprived of his liberty because:(1) ST is not free to leave L; passive acceptance of his circumstances does not answer the question (such passivity is probably due to ST being in institutional care for over two years now).

(2) ST does not have capacity to agree to being deprived of his liberty

(3) there has been and remains express evidence of ST’s wish to live in Nigeria or with family in London and not in M or L; ST has manifested his wish. Obstruction of that wish amounts to deprivation of liberty.

(4) ST is in an exceedingly controlling, intensive environment where he is regularly checked up on night and day. That is not a criticism of L; it is simply a description of ST's environment. In my judgment once there is significant regulation of the life of a person without capacity, that person is being deprived of liberty.

[66]Therefore I have no doubt that ST is being deprived of his liberty.

Conclusions

[67]On the matter of residence I need to decide which is in ST’s best interests:(1) The place where he wishes to end the rest of his days being his country of birth

(2) The pace where he currently resides.

[68]A change in residence meets ST’s wishes and values; there are risks of a move to Nigeria but in my judgment steps can be taken to ameliorate those risks to an acceptable level. In contrast I agree with Mr S that by not changing ST’s residence I would be leaving him languishing in a care home where his liberty is being restricted.

[69]In my judgment it is in ST’s best interests to return to Nigeria to live in his property in X provided that the additional arrangements I have identified as to care package and deputyship are also put in place.

[70]The London Borough, in consultation with all other parties shall draft:(i) an order which includes such provisions as are necessary to facilitate ST's move to his home in X

(ii) in consultation with Mr G the specific authorities he requires to carry out his functions which, if I approve the same, will be added to the order appointing Mr G as property and affairs deputy.

[71]I direct that the further medical report and drafts are filed with the court by 4pm 18th June 2010; in the event of any dispute I direct the parties to file brief submissions and I shall attempt to resolve any dispute without an attended hearing or give further directions.

Costs

[72]Rules 156 to 158 apply with respect to costs.

[73]No party other than AT seeks a costs order other than public funding assessments where appropriate.

[74]Mr G, the deputy pursuant to the order of 27th August 2009, is not a party and is is already entitled to recover his costs from the estate of ST. For the avoidance of any doubt he remains entitled to recover any fixed or assessed costs incurred as a result of his attendance in these proceedings.

[75]AT seeks an order for payment of his legal costs from ST's estate. This is not opposed by VT but is opposed by all other parties.

[76]At one time AT did retain Silverman Sherliker solicitors with respect to these proceedings and I have the impression they were retained by AT to make and progress his application. They have since ceased to be AT's solicitors.

[77]Application of Rules 156 to 158 alone would cause me to conclude that the majority of AT's costs (75%) concerned ST's property and affairs and should be paid out of ST's estate.

[78]Further to Rule 159 I depart from the general rule because of the findings that I have made with respect to AT's actions. Given:(a) all the circumstances

(b) how unreasonable it was for AT to pursue his application

[79]I make no order as to costs.

[80]I conclude by expressing my gratitude to counsel for their assistance in this case. District Judge Ralton 28th May 2010