PB v RB & Ors [2012] EWCOP 4159

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.Case No COP12017112
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 September 2012
Before
DISTRICT JUDGE ELDERGILL
Between
PBApplicantRB1 st RespondentA London Borough2 nd RespondentCL3 rd RespondentDB4 th RespondentLA5 th Respondent
Mr Stephen Simblet (instructed by Campbell-Taylor) for ApplicantMr Chris Buttler (instructed by Irwin Mitchell LLP) for 1 st RespondentMs Kuljit Bhogal (instructed by the local authority) for 2 nd RespondentThe 3 rd-5 th Respondents not attendingHearing Hearing dates: 10-12 September 2012
Judgment§1 — INTRODUCTIONThis decision deals with a fact-finding hearing held on 10-12 September 2012.§2 — THE PARTIES TO THE PROCEEDINGSThe parties to these proceedings are as follows:PB Applicant Son of the person concerned RB First Respondent The person concerned (“P”), by her litigation friend, The Official Solicitor A London Borough/ALB Second Respondent The relevant local authority CL Third Respondent Daughter of the person concerned DB Fourth Respondent Daughter of the person concerned LA Fifth Respondent Daughter of the person concerned§3 — RB’s MENTAL CAPACITY for purposes of the Act, a person lacks capacity in relation to a matter “if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”Mental Capacity Act 2005, s.2(1).It does not matter whether the impairment or disturbance is permanent or temporary.Mental Capacity Act 2005, s.2(2).The parties agreed that RB lacks capacity to litigate and to make decisions about residence, contact and care.§4 — DR S’s REPORT ON PBMr B did not agree to being assessed by a psychiatrist from the relevant CMHT but he was willing to see Dr LS, who had examined him before in 2008.Dr LS is a consultant psychiatrist approved by the Secretary of State under Section 12(2) of the 1983 Mental Health Act as having special experience in the diagnosis or treatment of mental disorder.Dr LS was asked to provide a report setting out the current state of PB’s mental health; his recommendations as to any services which may assist PB; and his recommendations as to any strategies which may assist PB to manage his relationships with his siblings and (his mother's) paid carers. The underlying purpose of the report was to assist the court to determine the issue of Mrs B's best interests in relation to her care and her contact with her son.I am conscious that PB’s sisters are parties and that they will receive a copy of these findings. for purposes of this decision, I have kept my summary of Dr S’s report as brief as possible.The following is a summary of some of the most relevant passages in the report:
[1]In February 2002, a doctor provided a statement in relation to PB's eligibility for Incapacity Benefit. The main diagnosis was given as a ‘chronic anxiety state.’ (This may cast some light, I believe, on PB’s conduct in court, and why he left the court building and walked out on his previous legal representatives shortly before one of the hearings.)[2]In 2005, PB said that he could not live in a hostel because ‘the noise would be too much for me.’[3]In May 2008 he told Dr LS that he had in the past ‘locked himself away as problems with nerves, arguing all the time.’[4]He is clearly very close to his mother and it would be unfortunate if this relationship, the only one he has maintained throughout the years, were to be disrupted.[5]Mr B was dissatisfied with the visiting carers:
"people come round but they are rushing all the time, they have not got time to cook, it is the same old routine, for example they have left my mother unwashed again."
[6]He had not had any contact with a psychiatrist until Dr LS’s initial assessment in May 2008. At that initial interview, Dr LS ‘diagnosed a personality disorder with impulsive and paranoid features.’ He was offered a referral for Anger Management, which he declined. He did accept a trial of a low dose of olanzapine, to reduce his arousal levels.[7]At the follow-up appointment in June 2008 he reported a modest improvement with the olanzapine, and agreed to consider longer term psychological therapy. He was referred to the local NHS psychology service. He but did not pursue the possibility because "it is a waste of time seeing a psychologist, my mother said so, they cannot help me". He elaborated that "it is just a mild problem, no big deal, if you are not attacking people they attack you". When I challenged him and pointed out that he might be able to change, he again resisted this suggestion:
"If I change the way I am you find that people take you as a soft person and you end up like everyone else, doing something you do not want to do."
[8]He made little eye contact with Dr LS. He talked rapidly in a monotone, rarely checking to see the doctor’s response. There was no evidence of hallucinations, delusions or formal thought disorder and he was not clinically depressed.[9]Others were invariably against him and he was never in the wrong in such cases:
"people should not be picking on me – if they do, I shout at them – there is no point complaining as no one does anything. What else can you do? So I do not think there is much wrong with me. Now they are all on my back – the judge, the carers." "
Everyone is doing everything wrong to me – it is not a Court of Protection, it is a business, they are as corrupted as hell.’[10]At his initial NHS psychiatric assessment, in May 2008, PB was accompanied by his mother. He told Dr LS at the time:
‘I have a personality disorder, I do not like people around me, it makes me aggravated, it can end in a scrap. I cannot take too much noise.’
[11]‘There can be little doubt that Mr B is suffering from a personality disorder’ (paragraph 15.1).[12]He is deeply dysfunctional in most if not all areas of his life.[13]He would meet the criteria for a paranoid personality disorder. He agrees that he is excessively sensitive and does not forget perceived insults or slights. He also admits being suspicious, and the history as documented above provides many examples of his interpreting intentions as malign, … His combativeness and tenacious sense of personal rights are a constant thread running through the history and mental state.[14]He could not be shaken from his belief that therapy would not be helpful for him. Unless he is willing to accept treatment, the prognosis must be very poor, as paranoid personality disorders do not improve spontaneously with time. The only alternative open to the Court in my opinion is to strengthen the existing boundaries, adhere strictly to them and use legal means to enforce them if necessary.[15]There is no standard treatment for paranoid personality disorder, but psychological therapy and medication are used. Mr B has already received, and reported some benefit from, a low dose of an antipsychotic agent to reduce his hostility and insensitivity.[16]Various modalities of psychological therapy are advocated for personality disorders. Both psychodynamic and schema therapy are available within the NHS, although they are difficult to obtain and there are long waiting lists. Anger management courses are relatively easily accessed in the NHS.[17]As an interim measure, to assist him to manage his relationships with his siblings and his mother's paid carers I suggested two strategies to him for avoiding angry outbursts: one is to count slowly to 10 before responding to what he perceives as a provocative remark. The other strategy is that when he feels the urge to shout, he should immediately leave the room or building for a few minutes, returning only when he feels more calm.[18]In the first instance I would recommend that he be again referred by his general practitioner to the local NHS Psychological Therapy Service for an assessment. §5 — THE DISPUTED FACTS

The local authority sought to prove 13 alleged facts:

[1]8 March 2011:
‘PB called [the carer company] and was verbally abusive: “why the fuck did you send a carer to my mother? If you send a carer to my mother again I will fucking kick her out.” PB terminated the call.’
NB is a sector manager of the carers who visit RB at home. The local authority relied on his statement, in particular paragraphs 12 and 13 at page C/120, and he gave oral evidence to the court. NB told me that this telephone call was made by PB to the out-of-hours team, not to him. The out-of-hours team then emailed NB, who said it was not safe to visit RB that evening. The carer company responded by doubling-up carers (PB left court for ten minutes at this point, saying as he left, ‘Can’t hear that lie.’). Under cross-examination, NB accepted that he did not mention doubling the number of carers in his statement, and nor was it referred to anywhere in the court bundle. He accepted that he was reporting what the out-of-hours team had told him. He had no first-hand knowledge of what was done or said. No contemporaneous case notes had been produced in relation to the allegation. In his written response to the Scott Schedule, at H/255, PB accepted that he was upset about the issue of evening care. His mother had asked not to have evening care and at the time she had, or was believed to have, capacity to make such decisions (MG’s assessment just over one month before concluded that RB had capacity to live as she chose). It had been agreed with VW, a local authority mental health social worker for older persons, that RB’s care would consist of a morning visit and a lunch-time visit, i.e. no evening visit. PB was willing and able to provide the evening care and he was providing RB with a home cooked meal, which she preferred, and putting her to bed. Despite his mother’s wishes and this agreement, the carer company continued to send out carers in the evenings. These carers were young and inexperienced and were unable to provide the care that RB needed. All of this was communicated to the company but they continued to send carers. PB became increasingly frustrated as he felt that he was banging his head against a wall. 20. Did you say ‘why the fuck did you send a carer to my mother’? 21. ‘Only on the phone, remember.’ 22. Did you also say, ‘If you send a carer to my mother again, I’ll fucking kick her out.’ 23. ‘I did not mean it, just an expression.’ In his oral evidence, PB accepted that he terminated the call (‘Arguing all the time’) and that he did not tell staff subsequently that he didn’t mean what he had threatened (‘If go again … fucking kick her out’). He thought that ‘probably’ he did apologise but accepted that this was not written down anywhere. Furthermore, his response to the Scott Schedule made no mention of an apology and he could not remember who he apologised to or when. Counsel for PB told me that PB’s call followed a long cycle of correspondence and communication with the carer company about his mother not wanting evening care:
‘Given the lack of response, perhaps it was not surprising that matters reached this pitch.’ 24. Finding 1 25. On the balance of probabilities I find the allegation proven as stated: On 8 March 2011, PB called [the carer company] and was verbally abusive, saying ‘why the fuck did you send a carer to my mother? If you send a carer to my mother again I will fucking kick her out.’
PB terminated the call. 26. In terms of the context, I find that PB had become increasingly angry about the continuation of evening visits by carers. The language, volume and tone that he used to express his anger were triggered by his belief that evening visits were contrary to what had been agreed.[2]9 March 2011:
‘PB was verbally abusive and threatening towards a carer on the telephone. She terminated the call as a result. When PB called back he raised his voice and made threats: “If you put the phone down again I will fucking come round and smash the place up.” The second call was also terminated as a result of his threatening behaviour.’
This incident is said to have taken place on the day following the first allegation. The local authority again relied on the evidence of NB, at C/121 (para.16). He told me that this allegation also concerned a telephone call to the out-of-hours team. The carer said that she had disconnected the line because PB was screaming at her and threatening her. NB did ‘not know what these threats were.’ However, the out-of-hours team told him that when PB called back he made the threats recorded in the allegation. In his written response to the Scott Schedule, PB noted that no contemporaneous care note had been produced to substantiate what was claimed. As in the case of the first allegation, he was upset that the carer company continued to send evening carers and by the quality of care being provided. The carers were young and inexperienced, and unable to persuade his mother to accept their care. As a result, RB was left unwashed for more than a week. Since then, the care plan has been amended to provide a pool of 4-5 carers/support workers who are familiar with RB, to minimise the chances of her refusing care. In his oral evidence, PB admitted this allegation without demur: ‘That’s true.’ He made no attempt whatsoever to deny it. 28. Finding 2 29. On the balance of probabilities I find the allegation proven as stated: On 9 March 2011, ‘PB was verbally abusive and threatening towards a carer on the telephone. She terminated the call as a result. When PB called back he raised his voice and made threats: ‘If you put the phone down again I will fucking come round and smash the place up’. The second call was also terminated as a result of his behaviour.’ 30. In terms of the context, I find that PB had become increasingly angry about the continuation of evening visits and the quality of the care his mother was receiving.[3]5 April 2011:
‘Case notes record that PB called office on previous day accusing staff of not carrying out their job. He was very rude to Anna (office staff) and claimed there was no point in sending carers as they are not doing anything except giving medication. RB has been refusing personal care and PB expects carers to forcibly wash her. It has previously been explained to PB that carers are not permitted to do this.’
The local authority relied on H/187, which is an email sent by manager NB at 1.20pm that day to VW, a local authority mental health social worker. The email refers to PB calling the office ‘yesterday’, i.e. on 4 April, and being very rude to Anna (office admin). In oral evidence, NB told me that his email was based on information given to him by Anna. He had no personal knowledge of what was said or how it was said. He could not recall if Anna said in what way PB was rude to her or if she told him the words used. He could not say if it was true that the carers were not giving RB a wash at that time. it was certainly true that his care staff could not physically force her to wash. At the time, it was not clear if RB had capacity to decide whether or not to wash, but it was her wish not to be washed: Staff ‘would not overrule her if she said categorically that she did not want to wash.’ There were times when RB did not get on with staff so that they could not deliver care. In his written response to the Scott Schedule, PB stated that it was ‘uncontroversial’ that his mother did ‘not respond well to inconsistent and inexperienced carers.’ She often refused care in such circumstances. The social worker PH had noted that she ‘co-operated much better with support work staff with whom she was familiar, and that a significant effort had been made to recruit and retain experienced and consistent staff where possible, with a current core team of two workers.’ PB was pointing this out and understandably was upset that his mother was being left unwashed. The local authority noted that his written response did not admit or deny the allegation in the Scott Schedule but sought to explain the background from PB’s viewpoint. 32. ‘I agree I was rude to Anna … NB had been round and cancelled the evening care. Lot of issues. Not case that it’s justified, it’s frustration. Probably did swear on the phone. A bad habit … I did shout at her.’ 33. ‘Two young carers were sent, laughing as they went out, sending the wrong people, they did not wash her because they weren’t doing their job … RB was not refusing … Mum said they didn’t often offer to wash her.’ 34. Finding 3 35. On the balance of probabilities I find that the following part of the allegation is proven: On 4 April 2011, PB called the office accusing staff of not carrying out their job. He was very rude to Anna (office staff) and claimed there was no point in sending carers as they were not doing anything except giving medication. The significance of allegations 1-3 Counsel for the Official Solicitor invited me to accept that allegations 1-3 ‘are of some significance. They give rise to concern about PB’s conduct towards carers and are likely to occur again without injunctions.’ I accept that the three allegations are significant.

The significance of allegations 1-3

[4]19 April 2011:
‘PB refused access to carer.’
The local authority relied on the case notes at H/219a and H/219b, produced on the day of the hearing. The record at H/219b was made by NB who personally took the call from RB’s daughter CL. According to the email at 219b, sent by NB at 1.59pm on 19 April 2012, ‘The carers went at lunch as requested and PB was present. PB refused to allow access to the carers saying that Mrs B is fine.’ According to social worker VW’s note at 219a of a telephone call to PB at 3.23pm that day, ‘Spoke to PB who is agreeable for me to visit Mrs B tomorrow, 20 April 2011 … Mr B said the carers visited at lunch-time and he told them Mrs B was fine and as he was with Mrs B they did not come in.’ According to NB’s oral evidence, it was LA’s husband who went to the hospital, not CL’s; he did not go to the property himself; he could not remember which carers went; he could not say whether RB was at home to be visited or was still in hospital. PB’s oral evidence was likewise unsatisfactory and vague. Initially, he told me that his mother had gone into hospital the night before and had not yet returned home. Later on, he said that the door was open and the carers walked right in; he did not deny them access. Later still, he said that the carers ‘looked into building and did not want to come in. Mum was not there’; ‘I don’t even know if my mum was in … If she was there I wouldn’t have refused them access’; ‘I’m not sure if she was there’; ‘I wouldn’t have refused access, I wouldn’t have done that.’ Whatever happened on 19 April 2011, evidently it was not thought to be sufficiently significant at the time for any one involved to make a clear note, or to be able to recall the events now with any reliability. No one could tell me whether RB was at home at the time or was still in hospital. Counsel for the Official Solicitor agreed with PB’s counsel that the file notes were tenuous and their accuracy was disputed. 37. Finding 4 38. On the balance of probabilities, the court finds the allegation that on 19 April 2011 ‘PB refused access to carer’ not proven. Its evidential value is 0.[5]10 May 2011: PB refused access to the morning carers and told them not to come back at lunchtime (previously, the date was erroneously given as 5 May 2011). The local authority relied on the evidence of NB, at C/124 (para. 26). NB told me that carer K had reported to manager MC that PB had denied access. NB was reporting, and repeating, what MC said. According to PB’s response to the Scott Schedule, PB accepted that he had refused access to the carers in the morning. However, he pointed out that a meeting was due to take place that morning with social worker PH to discuss RB’s proposed move to B Lodge for respite care. Given the meeting, PB thought that carers would be in the way and he agreed with the company that no carers would be sent that morning. Because of a communication error, they were still sent and B told them to come back at lunchtime when the meeting would be over. In the circumstances, it was perfectly reasonable for PB to request that no carers attend that morning. Important discussions were taking place and PB was there to provide any care required by his mother. Under cross-examination, PB accepted that he refused the carers access and also that he told them not to come back at lunchtime: ‘That is correct.’40. Finding 541. On the balance of probabilities, the court finds the allegation that on 10 May 2011 PB refused access to the morning carers and told them not to come back at lunchtime to be proven.42. The court also finds that this breach was relatively insignificant and there were special circumstances that day which mitigated the refusal.[6]26 May 2011:
‘PB was extremely rude and abusive towards reception staff at RB’s GP’s practice. He used foul language in the presence of other patients and a letter had to be written to him about his conduct.’
The local authority relied on the evidence of the GP, Dr D, at C/152, para. 6. She was not called to give oral evidence. In his written response to the Scott Schedule, PB denied that he was extremely rude and abusive to reception staff (H/260). He was never sent a letter; rather, he was required to pick it up from the surgery, ‘when he conducted himself perfectly appropriately.’ Dr D’s letter was not in the bundle. He acknowledged that he was upset with the GP surgery because they were withholding his mother’s assessment from him. Under cross-examination, PB accepted that ‘there was a disagreement.’ He thought that ‘they had got out of, reneged, on their promise.’ He accepted that he raised his voice and tone. Initially, he said that it was not true that he swore at surgery staff but he then told me, ‘I did swear; that’s the problem I’ve got.’ ‘Knowing me, if I had an outburst I probably did.’ He had had ‘one outburst in 42 years at that surgery.’ 44. Finding 6 45. On the balance of probabilities, the court finds the following allegation to have been proved: that on 26 May 2011 ‘PB was extremely rude and abusive towards reception staff at RB’s GP’s practice. He used foul language in the presence of other patients and a letter had to be written to him about his conduct.’[7]7 June 2011:
‘PB had to be removed from the hospital by security guards, he was disruptive and verbally agitated.’
The local authority relied on the contemporaneous note at H/188, which is a record of a telephone call from Dr Shaw taken by EC. ‘Dr S fed back that son/PB had to be removed from hospital today by security guards, he was disruptive verbally agitated as declined access to [h]is mothers medical records.’ According to PB’s written response to the Scott Schedule, PB accepted that he had been upset. He had agreed with social services, in his mother’s presence and with her agreement, that she would have a capacity assessment and that a copy of the assessment would be made available to both of them. However, ‘the local authority then reneged on this agreement and denied PB access to the document.’ 47. Finding 7 48. On the balance of probabilities, the court finds that on 7 June 2011 ‘PB had to be removed from the hospital by security guards and was disruptive and verbally agitated.’[8]1 July 2011: PB shouted aggressively at a service user at B Lodge. He picked up a chair and was pointing it at the service user. PB was aggressive and out of control. RB was pleading with him to stop and go home. PT [Assistant Manager at B Lodge] felt unsafe around PB.’ The local authority relied on the statement of PT at C/107-108. PT did not make a contemporaneous note. She did forward a statement to head office but it is not in the bundle (her statement in the bundle uses the word ‘respondent’ rather than head office). In her oral evidence, PT said that she did not see what went on initially and she was relying on what the carers told her. I was told by PT that L is in his early 70s and suffers from dementia. He has a poor short-term memory. He is taller than PB, slender, strong, friendly and jovial. He mobilises well. PT was not aware that L had ever attacked, hit, sworn at, or intimidated a service user, staff member or visitor. He did not wander into other residents’ rooms. He ‘is a TV person who goes from his room to the lounge. He may be forgetful but he knows where his room, the lounge and the toilets are.’ He says, ‘my room is no. 67.’ The incident was reported to the police, ‘who took statements,’ including one from PB. The court had not seen these statements. PT did not know the contents of these statements. PT told me that statements were taken by care home staff from C (C/110), E (C/111) and CY (C/112). In cross-examination, it was suggested to her that the three of them described the incident in the same way, ‘almost word for word.’ Although their statements were similar, PT did not think that the three staff members ‘wrote them together’. As to this, I find that C and E’s statements are almost identical. Either one of them saw the other’s before writing their statement or they were drafted by them together. The standard of English in C’s statement is very poor. Neither her statement nor E’s imparts much information; only that they heard PB shouting at his mother, that the police were called and that PB accused L of holding him around the neck. CY’s statement is more informative. The first she knew of an incident occurring was ‘when I overheard RB’s son shouting aggressively to L never to touch him again’ (C/112). PB ‘rushed into the lounge to pick up a chair to point at L. And was about to use the chair against L. His mum was shouting telling him to stop. I pulled L aside and run to phone the senior on duty. PB still continued to exchange words with L, saying ‘I don’t want to see you with my mum.’ According to PT, CY called the main office to seek assistance at around 7.10pm. When PT attended the scene in response to CY’s call, she asked PB and L what was going on. PB said that L had held him around the neck and slapped him in the face.50. 1/7/201151. Time 7.20pm. L tried to put his arm round & he was goading me. I told L to back off. He did back off.52. Yesterday 30/6/2011. L done the same thing slap me round the face. But today he took it too far.53. Yours truly PB. Police spoke to PB and asked him to leave the building. He left when told to and was not charged with any offence. PB has consistently stated that L assaulted him and that he was acting in self-defence. He denies that he ‘lifted a chair to hit L with it.’ In his written response to the Scott Schedule, he stated that L had touched him provocatively on two previous occasions, slapping him in the face on 30 June 2011 (see C113). PB backed down on both of those occasions. However, on 1 July 2011, L took it too far when he grabbed PB around the throat. PB was very upset at being assaulted and he picked up a chair in self-defence to put some distance in between him and L. In cross-examination, PB said that L assaulted him, holding him in a head-lock and trying ‘to dig my eyes out. I’ve been stabbed in the head twice by a mental health person. I’m not going to allow that again.’ PB said that he did pick up a chair, in order to frighten L off. L wasn’t calming down and ‘still wanted a fight.’ There was no space to swing the chair. L was ‘outside in the hallway, I was in the kitchen, with the door frame in between us, preventing the chair from being swung.’ He did not lift L and throw him like a ball:
‘He was too strong. I couldn’t throw him on the floor.’
He did not go down, he came back at me. PB accepted that he was shouting at the top of his voice, that PT and his mother were telling him to calm down, that his mother was upset and that initially PT couldn’t get a rational response from him:
‘I’d just been assaulted.’
He began to calm down once L had sat down, and before he followed PT downstairs. He does not remember CY or anyone else standing between him and L. Counsel for the Official Solicitor referred PB to his note, C/113, and pointed out that his note referred to two incidents, one from the previous day. PB’s note suggested ‘that all L did was put his arm around you … There is nothing in the note about him attacking you, punches, holding you around the throat?’ PB replied that he didn’t remember CY or anyone else standing between him and L and confirmed that L did back off when PB lifted the chair. In his oral submission, counsel for PB reminded me that no charges were laid. The notes attached to PT’s statement were not in the correct form, and were almost word for word copies of each other. PB said he had been attacked by L and also by him the day before: see C133. There was no evidence that he has lied about that. Reports from the nurses record PB ‘speaking about [L] hold him in his neck’ and ‘shouting aggressively to L never to touch him again.’ PB’s response to the perceived threat was not unreasonable.’ PT admitted that she did not see what took place. In his oral submission, counsel for the Official Solicitor pointed out that there were two issues to determine: (a) whether the court accepts PB’s evidence on self-defence before Ms T arrived, including what Ms T said about L’s character; (b) in the light of (a) whether PB’s behaviour after Ms T arrived was justified? 54. Finding 8 55. As drafted, the allegation gives an incomplete and potentially misleading account of the event in question. On the balance of probabilities, the court finds that on 1 July 2011 a resident at B Lodge goaded PB and put his hand around PB’s neck. This resident had behaved in a similar fashion the day before. PB reacted by lifting a chair and pointing it at the resident and telling him to back off. Because of his problems with self-control, anger management, shouting and swearing, PB’s reaction to the resident’s behaviour was disproportionate, having regard to the location (a facility for frail, older, people), the resident’s mental health, age and circumstances and the distress caused to his mother and others. His mother and staff members were upset by his shouting and swearing. Some staff members thought that he was out of control and they felt unsafe. The police were called.[9]9 August 2011:
‘Dr D reported that PB had been verbally abusive on the telephone and had been verbally abusive in the surgery in May when a letter had to be written to him.’
The local authority relied on paragraph 7 of Dr D’s statement at C/152 and on the note made of Dr D’s telephone call on 16 August 2011:
‘Dr D reported son, PB, who has been verbally abusive over the phone on 9th August. Previously verbally abusive in the surgery in May …’
He was requesting access to his mother’s medical records and a mental health assessment for the Court of Protection. PB told me that he could not ‘remember what happened on that day.’ Dr D’s witness statement does not refer to any verbal abuse, and the note of her telephone call to the social worker on 16 August does not state what was said by PB that amounted to verbal abuse. 57. Finding 9 58. On the balance of probabilities, the court finds the allegation that on 9 August 2011 PB was verbally abusive to Dr D on the telephone is not proven. Its evidential value is 0.[10]15 August 2011:
‘PB could be heard raising his voice to RB on the telephone resulting in RB becoming very distressed and agreeing to end the call.’
The local authority relied on social worker EC’s email of 15 August 2011, at H/183, and on paragraphs 8-10 of social worker EC’s witness statement at C/73. For medical reasons, EC could not attend court to give oral evidence. It would appear from the email of Monday 15 August 2011 that the alleged incident took place on Friday 12 August 2011. EC and CL visited RB on that day and EC telephoned PB at his mother’s request and in her presence. RB became ‘very tearful and distressed’ and EC ended the call with her consent. In his written response to the Scott Schedule, PB ‘accepted that the conversation was about his mother’s move to TT. PB knew that his mother wanted to simply return home and that she was confused by all the changes and the pressure which had been placed on her to move to TT. PB was trying to explain this to his mum but she didn’t fully understand at the time so she was upset. At all times PB was protecting her interests.’ 60. Finding 10 61. As drafted, the allegation gives an incomplete and potentially misleading account of the event in question. On the balance of probabilities, the court finds that on 12 August 2011 PB raised his voice to RB on the telephone and that this contributed to her being very distressed and the call being ended. The call was instigated by CL and RB was already very upset and sobbing when the call began. Additional allegations There were three allegations not in the Scott schedule which the local authority sought to prove. These alleged facts were set out in Mr H’s statement of 29 August 2011, at C/240 and C/241, and they were not received by PB until 31 August 2011. The court accepted that the material was relevant and also the Official Solicitor’s submission that an adjournment to deal with the three allegations properly was not required. PB’s counsel was allowed time to take PB’s instructions on the three matters.

Additional allegations

[11]Sunday 6 May 2012: PB was present at his mother’s flat during his sister LA’s contact time and his presence was not justified by any need for him to provide his mother with emergency care. PB’s solicitor admitted on his behalf that he should have left ten minutes earlier (G/159). PB had not seen his mother since Thursday 3 May 2012. He arrived later than planned, having purchased a wheelchair and some scales for his mother on the way. She told him that she was starving and PB took time to prepare her lunch and dinner and to cut her toe nails. When LA arrived, it was clear that PB was about to leave. LA’s response to PB’s solicitor’s email can be found at G/164 and a carer’s note is at H/154. PB told me in his oral evidence that he was at his mother’s flat during his sister’s contact time. This was because his mother had not had a wash or anything to eat and he needed to provide emergency care:
‘Yeah, that’s correct … As soon as L arrived, I left anyway.’
PB described his presence as being ‘an accidental breach, an emergency, I did not regard it as a breach.’ He said that his sisters had been present ‘at my visiting times as well’ but did not give any examples or detail in support of this contention. 63. Finding 11 64. On the balance of probabilities, the court finds that on Sunday 6 May 2012 PB was present at his mother’s flat during his sister LA’s contact time. He was running late because of care that he had given to his mother. Although a breach of the order, there were mitigating circumstances in that he genuinely believed that his mother needed this care from him. He was preparing to leave when his sister arrived.[12]5 July 2012: Whilst in the lobby area of the court PB raised his voice and was verbally aggressive towards his two sisters, CL and DB. This abuse went on for about ten minutes by which time the sisters were reduced to tears and visibly upset. They left the room with the Official Solicitor’s counsel, to compose themselves.’ Mr H’s note of this incident can be found in the court bundle at C/240. In his oral evidence, Mr H told me that the parties, their representatives and witnesses were sitting in the waiting area outside Court 55. He ‘saw PB raise his voice and become verbally aggressive. He interrupted CL’s and DB’s conversation, saying “That’s all lies” … I’m the only one who cares about mum; the only one who does anything.’ He was speaking in a loud voice and with an aggressive tone and manner, providing a commentary on what they were saying for slightly less than ten minutes. He did not swear or physically threaten his sisters. DB was tearful and visibly upset. CL was also upset but Mr H did not see her in tears. The Official Solicitor’s counsel walked out of the room with the two sisters and, after that, it did not take PB long to calm down. Mr H said that he had been involved with the family for two years. He was shocked ‘and did not expect it in a court of law. I’ve always had a civil relationship with him. I can operate with him but he and his sisters do not get on.’ In his oral evidence, PB accepted part of the allegation. He agreed with who was said to have been present. He also agreed that he shouted at CL, to ‘tell her to stop lying all the time.’ He said that, earlier in the litigation, CL had alleged that he had misused £7,000 of his mother’s money. He remained where he was when CL and DB left the room. He said that he only interrupted once and that his sisters did not ask him to calm down. He did not see DB crying and denied making her cry:
‘You can’t blame me. It’s not my fault.’
Counsel for the local authority told me that Mr H’s oral account of what occurred accorded with her note of what happened, and counsel for the Official Solicitor invited me to prefer Mr H’s evidence. PB’s counsel reminded me that PB’s sisters were, and are, privy to the lawyers’ conversations because they are acting in person. They are personally involved in the discussions about changes to the care regime or order and this can make PB feel excluded and disadvantaged. The sisters had made serious untoward allegations about PB which he resented. With more active management, the incident ‘could have been nipped in the bud.‘ 66. Finding 12 67. On the balance of probabilities, the court finds that on 5 July 2012, ‘whilst in the lobby area of the court PB raised his voice and was verbally aggressive towards his two sisters, CL and DB. This went on for about ten minutes by which time one of his sisters was reduced to tears and both sisters were visibly upset. They left the room with the Official Solicitor’s counsel, to compose themselves.’[13]31 July 2012: When PB realised that care staff were present he did not leave as per his obligations but stayed and became verbally abusive towards the carer RD in front of his mother using inappropriate and threatening language. The police were called and PB eventually left. RB was very upset by the incident and did not attend the hairdressers. RB advised the carer that she did not want that to happen again. Although there may have been confusion about the time slots, PB should have left as soon as he realised a carer was present as per the obligation set out in the Court Order.’69. ‘The carer had called a cab to take PB to the hairdressers. About the time they were about to depart PB arrived at RB’s flat to visit. When he realised the care staff were present he did not leave as per his obligations but stayed and became verbally abusive towards the carer in front of his mother using inappropriate and threatening language. The police were called and PB eventually left. The carer recorded that RB was very upset by the incident and did not attend the hairdressers. RB advised the carer that she did not want that to happen again, a reference to PB being aggressive and abusive to the carer in front of her. A copy of the care notes for the day is attached [see H/340].70. It is accepted that there may have been confusion about the time slots for the care plan. However that does not excuse that PB should have left as soon as he realised a carer was present as per the obligation set out in the Court Order. It does not excuse PB’s behaviour whereby he was abusive and aggressive towards the carer in front of his mother. RB was distressed and upset by PB’s behaviour and it is concerning that PB was unable to control his temper in front of RB.’ In his oral evidence, Mr H accepted that RD’s attendance at that point in the day was unexpected. She did not normally visit at that time. There had been four or five changes to the care plan during the past few months and there may have been confusion. Mr H could not say that RD’s attendance at this time was discussed with PB in advance. The situation was unfortunate given the restrictions on PB. Mr H only learnt of the incident the following day. He tried to sort out the arrangements for the following week. In his view, PB ‘should have walked off [on seeing R] and contacted me’ about the situation. In her oral evidence, the carer RD accepted that her statement at C/246 and C/247 had been written by her on 5 September 2012. She said that RB ‘was all ready to go and looking forward to having her hair done. She then changed her mind. When PB asked where I was taking RB, his tone changed and RB changed her mind:
“No, my mum doesn’t want to go.”
PB was shouting loudly and RB was upset. He threw the papers around, saying, ‘where is the new care plan?’ Then RB asked about the care plan. PB was getting really angry and was shouting until the police arrived. He shouted for a few minutes. RB said, “why are you swearing?” I can’t remember which swear words he used. I simply remember RB crying and saying, “stop swearing.” RB was crying for a few minutes and seemed overwhelmed by the whole situation. I went into the bedroom to put some clothes away. PB started doing some chicken wings while waiting for the police. He was still agitated but had calmed down. RB was still emotional and asking why when I left, after 45-60 minutes. I had not seen RB that upset before.’ RD believed that she made the hairdresser’s appointment for RB about a week before and that it was for 3.30pm. She wrote the hairdresser’s appointment down on RB’s calendar. PB had been using that time of the week to visit his mother. He turned up expecting to see his mother there. He was frustrated and went into another room, the kitchen. He was shouting and kept saying, ‘Where is the care plan.’ He was upset that he was not able to see his mother as per the care plan. He asked RD to contact the office. Initially he said, ‘Hurry up and bring her back to see me,’ but his tone of voice then made his mother change her mind. In his oral evidence, PB said that no one had contacted him beforehand to tell him that his mother would not be available to see him. He believed that he had no other visit left that week because of a change to the day centre visiting arrangements. He did not shout at RD but he did say to her, ‘You can leave if you like; there’s no care plan in place.’ RD replied that she was not leaving and said that she was taking his mother to the hairdresser’s. At that point, RB said that she wasn’t going. RD made some phone calls. The only care plan there was one done the previous year by EC. 71. Finding 13 72. On the balance of probabilities, the court finds that on 31 July 2012 care staff were present with RB during PB’s contact time and a hairdresser’s appointment had been booked for her by a carer. The only care plan that could be found was one from the previous year. PB did not leave as required by the court’s order. PB became verbally abusive towards the carer RD in front of his mother using inappropriate and threatening language. The police were called and PB eventually left. RB was very upset by the incident and did not attend the hairdressers. 73. §6 — SUMMARY I agree with Ms Bhogal, counsel for the local authority, that the consistent theme is PB’s confrontational approach and ‘manner of communication’ when challenged or frustrated: his tone, volume, demeanour, volatility and offensive language. His behaviour often upsets his mother, sisters and professional carers, or alienates them, so as to reduce his chances of achieving the changes he seeks. I also agree with Mr Buttler, counsel for the Official Solicitor, that a key issue is whether his conduct indicates that ‘without an injunctive order there will be an obstacle to the provision of care to RB. That is why we are going down this fact-finding route.’ According to Mr Buttler, ‘PB’s inability to express his views without losing his temper indicates the need for such an order. If he is not getting his way there is a real chance that he will shout and swear at people.’ I do not believe that all of the current problems within the family can be laid at PB’s feet. However, it would not be appropriate or helpful to say more at this stage. I do believe that PB has made genuine attempts to modify his behaviour and to observe the court’s orders since December 2011, when I first participated in a hearing in this case. He is a devoted son and has taken very good care of his mother over the years. 74. ‘Unless he is willing to accept treatment, the prognosis must be very poor, as paranoid personality disorders do not improve spontaneously with time. The only alternative open to the Court in my opinion is to strengthen the existing boundaries, adhere strictly to them and use legal means to enforce them if necessary.’ Without compliance, the end point of any enforcement strategy is committal to prison for breaches of the court’s order. Therefore, I would ask PB to consider the only real alternative, which is to accept the help recommended by Dr S. To me, that is likely to be a much more constructive way forward.

Cited in 1 later judgment