RGS, Re [2012] EWCOP 4162

This judgment is being handed down in private on 23 November 2012. It consists of 56 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.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 11831647
COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/11/2012
Before
DISTRICT JUDGE ELDERGILL-
Re RGS
Hearing Hearing dates: 2 November 2012
Judgment
§1 — INTRODUCTION
RGS is the person concerned in these proceedings (“P”).
The decision for the court is whether one of the parties, his son RBS, has litigation capacity. RBS insists he has, others are less sure.
This decision should be read in conjunction with my order and directions of 12 October 2012, which recited some of the difficulties reported at that time, and how the court proposed to try to resolve them.
§2 — THE PROCEEDINGS
There are two distinct sets of applications before the court in relation to which RBS’s litigation capacity needs to be determined.
The substantive applications
The first set involves applications for court orders made by X County Council, which acts as RGS’s deputy for property and affairs (the ‘substantive applications’).
The parties to the first set of applications are:

§5 — PARTIES’ POSITIONS CONCERNING RBS’S LITIGATION CAPACITY

[1]The Court of Protection’s functions and its case management powers are set out in the Mental Capacity Act 2005 (‘the Act’), the Court of Protection Rules 2007 (‘the rules’) and various practice directions.[2]The law takes what people call an ‘issue specific’ or ‘functional’ approach to capacity. In other words, it examines a person’s ability to make a particular decision at a particular time, not their ability to make decisions generally.[3]There is a presumption of capacity. In other words, everyone is assumed to have capacity to make the decision(s) in question unless and until it is established that they lack capacity.[4]Lack of capacity must be established on the balance of probabilities.[5]For the 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.’ It does not matter whether the impairment or disturbance is permanent or temporary.[6]For these purposes, a person is unable to make a decision for themselves if they are unable:• to understand the information relevant to the decision,• to retain that information,• to use or weigh that information as part of the process of making the decision, or• to communicate their decision (whether by talking, using sign language or any other means).[7]This is the ‘section 3 test’.[8]The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision.[9]A person is not to be regarded as unable to understand the information relevant to a decision if s/he is able to understand an explanation of it in a way that is appropriate to their circumstances (using simple language, visual aids or any other means).[10]The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as able to make the decision.[11]A person is not to be treated as lacking capacity to make the decision in question unless all practicable steps to help them to do so have been taken without success.[12]A person does not lack capacity simply because they have a mental disorder or disability (sometimes called a ‘status approach’ to capacity).[13]More particularly, a lack of capacity cannot be established merely by reference to their age or appearance, a condition of theirs such as a mental illness or learning disability, or an aspect of their behaviour which might lead others to make unjustified assumptions about their capacity.[14]A person’s appearance, conduct or conversation may give rise to misleading doubts and one needs to be especially careful in the case of litigants who may merely be stubborn or eccentric. See Court of Protection Practice 2012, Ashton et al, at p.922.[15]Likewise, a person is not to be treated as lacking capacity to make the decision(s) in question merely because their decision is unwise (sometimes called an ‘outcome approach’).[16]While a person cannot be found to lack capacity simply because their proposed decision is unconventional, irrational or unwise, an unwise or irrational decision may raise significant doubts about their capacity and trigger an assessment of it.[17]The correct test of capacity must be applied and lack of capacity established.[18]Being ‘unable to decide’ does not mean literally that. In practice, the person may be very capable of choosing a course of action for themselves.[19]Demonstrating incapacity involves establishing that the person’s capacity to make the decision in question is fundamentally compromised by the fact that the functioning of their mind or brain is impaired or disturbed. In other words, because of this impairment or disturbance, they are unable to understand, retain or weigh the information relevant to the particular decision, or are unable to communicate their decision. A link must exist, otherwise their decision is merely thoughtless or unwise.[20]The test is not purely about cognition or capacity to reason. A person may understand the relevant information, be able to retain it, and intellectually be able to acknowledge its significance, but be unable to give it any proper weight, because of an overwhelming phobia, obsessive thoughts, compulsive behaviour or abnormally impulsive behaviour attributable to an impairment or disturbance of their mind or brain. It is therefore going too far to say that the quality of the decision is irrelevant as long as the person ‘understands’ what s/he is deciding.As Ashton et al note, ‘in Mitchell v Alasia [2005] EWHC 11 (QB), Cox J relied on qualities such as impulsiveness and volatility when deciding that the claimant was incapable of managing and administering his own affairs.’ Similarly, in The NHS Trust v Miss T [2004] EWHC 2195 (Fam), although there was no problem in respect of T's intellectual capacity, and she was able to acknowledge intellectually that her belief was delusional, her wishes were driven by a delusional belief that any transfusion would only add to the evil circulating within her system.[21]Whether an individual has capacity may depend on the nature and complexity of the decision(s) to be made.[22]Because capacity is issue-specific, a person may have capacity to make some decisions for themselves (e.g., capacity to marry) but lack capacity to do other things (e.g., to make a will).[23]For the same reason, a person may have capacity to make a decision on the specific issue which is the subject of legal proceedings but lack capacity to litigate about it. For example, a person who lacks the capacity to litigate, and acts by a litigation friend, may turn out to have capacity to decide to refuse the medical treatment being considered in the litigation. Likewise, a parent may have capacity to consent to adoption but lack capacity to act in the litigation without a litigation friend.[24]Although an adult who lacks litigation capacity may have capacity with regard to the substantive decision that is the subject of the litigation, it is rarely true that an adult who lacks capacity to make the substantive decision has litigation capacity. The logic is that if, in a ‘capacity to decide where to live’ case, the person concerned lacks capacity to decide where to live, s/he will also be unable in the litigation to receive, consider, assess and weigh advice before giving instructions to her or his lawyers. SeeSheffieldCity Council v E & Anor [2004] EWHC 2808 (Fam) (02 December 2004).According to Munby J (as he then was), there is no principle, either of law or medical science, which necessarily makes it impossible for someone who has litigation capacity at the same time to lack subject-matter capacity. However, only in unusual circumstances will it be possible to conclude that someone who lacks subject-matter capacity can nonetheless have litigation capacity.[25]In this case, the specific issue is whether RBS has capacity to conduct this litigation.[26]Where the decision(s) to be made concern the conduct of litigation, there appears to be no substantive difference between the capacity test now found in section 3 and the previous common law principles expounded in cases such as Masterman-Lister.[27]The previous case law therefore continues to be highly relevant. This is not surprising because the statutory test is built on common law foundations. See Munby J (as he then was) in Re MM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443 and Andrew Edis QC, sitting as deputy High Court Judge, in Saulle v Nouvet [2007] EWHC 2902 (QB). Likewise, the statutory principles in section 1 by and large follow the common law approach.[28]Because capacity is issue-specific, it is RBS’s capacity to conduct these proceedings that is in issue. The question is not something to be determined in the abstract.[29]Because this is so, anyone who gives an opinion as to a party’s litigation capacity needs to know something of the proceedings, and their nature, history and complexity.[30]A person may have capacity to bring or defend a small claim in court, where the nature of the dispute and the issues are simple to understand and weigh, but lack capacity to litigate in a case where they are more complex.[31]In this sense, litigation is analogous to medical treatment. Just as medical procedures vary very considerably, so too does litigation. Some litigation, like some medical treatment, is relatively simple and risk free. On the other hand, some litigation, like some medical treatment, is highly complex and more or less risky. Someone may have the capacity to consent to a simple operation but lack the capacity to consent to a more complicated, perhaps controversial, form of treatment. SeeSheffieldCity Council v E & Anor [2004] EWHC 2808 (Fam) (02 December 2004), Munby J.[32]The court must ask whether, with the assistance of necessary explanations from legal advisers and experts, the party is capable of understanding ‘the issues on which his consent or decision is likely to be necessary in the course of those proceedings.’ Chadwick LJ in Masterman-Lister, at para. 75.[33]Consistent with the present section 3 test:(a) A person ‘should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language.’ Chadwick LJ in Masterman-Lister, at para. 79.(b) A person should not be regarded as lacking capacity to litigate merely because their litigation decision is one that ‘would not be made by a person of ordinary prudence.’ Ibid.(c) The ‘mental abilities required include the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision.’ Kennedy LJ in Masterman-Lister, at para. 26,[34]Capacity ‘to pursue a claim requires capacity to take a decision to compromise that claim; and that capacity to compromise requires an understanding of what the effects of a compromise will be …’ Chadwick LJ addressed the same point in Masterman-Lister, at para [83].[35]Provided a claimant has capacity to deal with all matters, and to take all lay client decisions up to and including a decision whether or not to settle a personal injury claim, it does not matter that they lack capacity to decide (even with advice) how to administer a large settlement. Again, this is because capacity is issue-specific, and a deputy can be appointed to manage the award for them, at the end of the proceedings.[36]One must be careful, however, not to split intertwined decisions that can only be split in a narrow, artificial, way. Where the compromise is not a self-contained transaction but inseparably part and parcel of the proceedings as a whole, the proper question is not the narrow one of whether the litigant has capacity to enter into that compromise but the broader one of whether s/he has capacity to conduct the proceedings. See Dunhill v Burgin [2012] EWCA Civ 397.[37]In terms of procedure, Kennedy LJ observed in Masterman-Lister that, ‘Even where the issue does not appear to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being satisfied that incapacity exists.’[38]Medical opinion is, however, only part of the evidence. Other relevant evidence may include evidence from family members, or from other professionals such as lawyers and social workers, conduct observed by the court and the person’s correspondence, emails, etc.[39]Subject to the obvious exception of brain injury damages claims, it does not follow that the other party is entitled to file evidence disputing lack of litigation capacity and the need for a litigation friend. See Folks v Faizey [2006] EWCA Civ 381.[40]In this case, RBS has refused to undergo a medical examination in order to assist the court in determining his litigation capacity.[41]Surprisingly, there appears to be little guidance as to the best approach to take where a party whose litigation capacity is in issue refuses to be examined.[42]The relevant procedural guide in Family Court Practice advises that:(a) The court should investigate the question of capacity whenever there is reason to suppose it may be absent;(b) Doubts should be resolved and proceedings stayed until this has been done;(c) The rules assume that it is known whether a party lacks capacity, so any doubt must be addressed as an issue in the proceedings and a finding of fact made;(d) ‘Where significant doubt arises, the court will expect this party to produce evidence to dispel that doubt. Proceedings may be stayed until the party submits to a medical examination … The court has no power to force the party to submit to an examination.’[43]In this case, as is not uncommon, it may be in the interests of the party whose litigation capacity is in doubt for the proceedings to be stayed, but in P’s best interests for them to proceed. The son does not want his father’s paintings sold so he would be delighted for the deputy’s application to be stayed.[44]The only realistic option is to proceed to a fact-finding hearing at which all of the relevant available evidence is examined.[45]Litigation friends are not litigants and their functions are ‘essentially vicarious’. The main one is to carry on the litigation on behalf of, and in the best interests of, the incapacitated person. They must make all the decisions that the person would have made had s/he been able to do so. See B v B [2010] EWHC 543 (Fam), Bennett J.[46]Litigation friends are responsible to the court for the propriety and the progress of the proceedings, and are personally liable to the other parties for the costs of unsuccessful proceedings. However, they are entitled to be indemnified out of the incapacitated person’s estate ‘if it was proper to institute the proceedings, and they have been conducted with propriety.’ Ibid.[47]A litigation friend has no status as regards the affairs of the protected party outside the proceedings in which s/he is appointed (unless also appointed as their deputy).[48]It is not usually appropriate to appoint a solicitor to be a party’s litigation friend because of conflicting roles but ultimately each case turns on its own facts. There may be a lack of willing or suitable candidates and these days public funding issues may limit what can be done.[49]Where, in Court of Protection or care proceedings, a litigation friend is appointed for a relative or carer, they may feel that no one is advocating for them because of the duty on all concerned to consider and promote the best interests of the child or ‘person concerned’. The litigation friend must do their best to protect the relative or carer’s interests but is not required to advance any argument they wish. Because it is the best interests of the child or the ‘person concerned’ that is the touchstone by which the court must assess the case, the litigation friend must consider what is in their best interests when deciding whether a case their party wishes to forward is arguable. In such circumstances, this is not a violation of the party’s rights under Article 6 (1) of the European Convention on Human Rights. RP and others v United Kingdom, Application No. 38245/08, 9 October 2012. §5 — PARTIES’ POSITIONS CONCERNING RBS’S LITIGATION CAPACITY The county council and Mr A took neutral positions concerning RBS’s litigation capacity. They saw their function as being to assist the court to determine the issue. The council did observe in its position statement that RBS ‘either does not understand the nature of the present proceedings or chooses not to accept the authority of the court. That may be because he is too unwell to do so or that he has the capacity to do so and chooses not to.’ RBS apart, no representations were received from the other parties. There is a presumption of capacity and lack of capacity must be established on evidence. In this sense, RBS has nothing to prove. It seems proper therefore to set out first the evidence which may indicate that he lacks litigation capacity — what he naturally described as ‘the case against him’ — before setting out his response. As will be seen, he had in his favour the presumption of capacity, reinforced by his evidence and that of the witnesses he called, and by his position statement and oral submissions. §6 — EVIDENCE INDICATING A POSSIBLE LACK OF LITIGATION CAPACITY In simple terms, two things must be proved:[1]that RBS suffers from an impairment or disturbance in the functioning of the mind or brain;

and, if so

[2]that this has affected his capacity to understand, retain and weigh the information relevant to conducting this litigation, such that it can properly be said that it has been established on the balance of probabilities that he is unable to make the relevant litigation decisions for himself. I do recognise the constitutional importance of a citizen having access to the courts and, wherever possible, being able to argue and present their case as they wish. The appointment of a litigation friend in circumstances such as these can only ever be a regrettable necessity. Evidence of an impairment or disturbance of the mind or brain Because RBS refused to undergo a medical examination, the main evidence of an impairment or disturbance of the mind or brain was as follows:

§9 — MOVING FORWARD: Issues for the court

[1]The social worker PF’s statement, dated 18 August 2010, that RBS has a long history of involvement with mental health services and had ‘recently been released from a mental health establishment.’ He ‘can be irrational and unpredictable’ (para 14(c)).[2]RBS’s own oral evidence, which was that:(a) His first admission to a psychiatric unit was at around the age of 16. He is now 58 years old. He has had approximately six in-patient admissions, two under section, the longest for 28 days.(b) For many years, he was diagnosed as suffering from paranoid schizophrenia. Recently, his diagnosis was changed to bipolar disorder.(c) Consistent with this diagnosis, his current medication consists of sodium valproate, a mood stabiliser, and sertraline, an anti-depressant, both in low dosages.(d) He has had periods of elevated and depressed mood, and some of his hospital admissions have occurred when his mood has been elevated. He told the court that he can do risky things ‘when high’.(e) He accepts that his illness has a disabling effect in some areas of his life in that he receives the lower rate of the mobility component, and the middle (day) rate of the care component, of Disability Living Allowance. In both cases, this is because of a need for supervision on account of his mental health problems. The statutory criteria for such an award are as follows: That he is so severely disabled physically or mentally that he requires from another person continual supervision throughout the day in order to avoid substantial danger to himself or others. That he is so severely disabled physically or mentally that disregarding any ability he may have to use routes which are familiar to him on his own, he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time.(f) He accepts that his illness has an incapacitating effect, in that he is unable to work for reasons of mental ill-health, and so receives Incapacity Benefit. (In one email, he stated that he has been on Incapacity Benefit since 1989.)(g) He accepts that his letter to the court of 17 January 2011 gives an accurate picture of how he was at that time. In this letter, he stated:
‘I have not been well recently and was hospitalised at [a psychiatric unit] for approximately six weeks. All my thoughts and paperwork on this matter are very muddled and I am now being helped by several of my friends … I am now acting in person as I cannot afford [E & Co’s] legal fees.’ (h) According to his COP9 application notice of 12 May 2011, ‘My own health diagnosis is Bi Poler Effective Disorder [sic]. I do not wish to end up back in hospital, or be in contempt of court.’ (i) He accepts the accuracy of his solicitor’s letter to the deputy of 4 August 2011: ‘As I am sure you are aware, my client is suffering from issues [a]ffecting his mental health and wellbeing and as such this matter has become most difficult indeed for him to deal with.’ (j) He accepts that his solicitor’s letter of 6 October 2011 fairly stated how he was, and how things were for him: ‘… we write to inform the Court that our client is now complying with the Court’s previous orders … This is taking some time given the vulnerability of our client and his own mental health issues which are at times causing some difficulty …’
[3]According to his solicitor’s letter to the deputy of 9 November 2011:
‘Our Client has a long history of ongoing treatment for his mental health condition and, as we believe you are aware, for over two months last year his illness led him to being placed in [X mental health unit]. Unfortunately, therefore, a lot of our Client’s recollection has been severely disturbed by this event and the ongoing stress and anxiety …’
[4]His conduct as described below. Although RBS told me that he is more settled now that his divorce proceedings have ended and he can concentrate on his father’s situation, he did not contest that he has ‘an impairment of, or a disturbance in the functioning of, the mind or brain,’ namely a bipolar disorder. Given his long history of ill-health, the fact that he continues to receive treatment and his recent conduct, I am satisfied on the balance of probabilities that he has ‘an impairment of, or a disturbance in the functioning of, the mind or brain.’ Evidence that he is or may be unable to make relevant decisions The next issue involves examining what evidence there is which indicates that he is unable to understand the information relevant to the litigation decisions, or is unable to retain that information, or is unable to use or weigh that information as part of the process of making the litigation decision(s), or is unableto communicate his decision(s). I decided not to hear oral evidence from the solicitor he recently disinstructed in these proceedings, who has extensive knowledge of the proceedings and attended as a friend of the court. This was because I did not wish to risk damaging their relationship which on the whole has been good, an important line of communication and of benefit to all. It is important to realise that RBS has not been filing and serving evidence in the conventional manner. However, his emails to court staff and others, and the newspaper and internet accounts written or given by him, contain a significant amount of information about his approach to the litigation issues since around the end of May:[1]Habeas corpus applications Apparently, RBS has made three applications for a writ of habeas corpus ad subjiciendum since the attended hearing on 14 June 2012, the last two being made on or around 22 and 24 October. Two of these applications were for an order releasing his father from ‘false imprisonment’ at X Manor. The other application seems to have been a pre-emptive strike against what he described as a threat by me to commit him to prison for contempt of court, for unlawfully publishing my orders and information about the proceedings. Indeed, he seemed to think he might be facing 3-6 months imprisonment at this hearing, despite the absence of any application to commit him. It appears that his solicitor had quite properly reminded him of the court’s power to imprison him for putting orders and information about the proceedings on Facebook. It would have been remiss not to warn him of the risks he was taking. In fact, paragraph 40(i) of my last order and directions, dated 12 October 2012, simply lists one of the issues which the court needs to consider as being: (i). The appropriate way in which to enforce compliance with court orders. The court intends to be as compassionate as possible. There are a number of aspects to the habeas corpus applications that may have a bearing on RBS’s litigation capacity: Firstly, he applied for the writ on behalf of his father, ‘who has been imprisoned in a secret hearing of court.’ In fact, a consent order declared that it was in his father’s best interests to reside at X Manor. RBS himself consented to that order. There was no ‘secret hearing’; indeed there was no hearing at all because the consent order was sent to the court. On 1 June, the media applied for permission to attend future court hearings, having been contacted by RBS, and I readily agreed. Secondly, he ‘requested a jury trial and to be tried in public.’ RBS is not on trial and the case is not in the Crown Court. He told Ms Round initially that habeas corpus is available to anyone imprisoned without a jury. Thirdly, the draft writ submitted with the application was addressed to ‘The Secretary of State for the Home Office,’ who is not involved in the case. His father is in a care home. Fourthly, when these misunderstandings were put to him, he accepted that he did not speak with his solicitors before making the habeas corpus applications. His solicitor would have advised him not to; therefore, he obtained the assistance of the Justice For Families Campaign Group, or its website [72]. Fifthly, he appeared to believe that the reason why the initial habeas corpus application failed was because undue influence was exerted by the deputy on the Official Solicitor. Sixthly, because the existing consent order declares that it is in his father’s best interests to reside at X Manor, the appropriate application was to inform this court that he no longer agrees that the current arrangements are in his father’s best interests, and to ask it to review the situation. Making three habeas corpus applications instead, and no personal welfare application to this court, simply creates unnecessary complications.[2]Application to the European Court of Human Rights RBS has also applied to the European Court of Human Rights, which he seems to have believed would somehow suspend and/or trump these proceedings. In an email intended to inform me of his application, he states:
‘Thanking you for a speedy resolution to this most unpleasant problem you now have in being held to account for your personal actions in Strasbourg a far superior court than COP also independent of UK (email dated 18 September 2012). He also seems to have believed that his application would trump other court proceedings involving him: ‘[X county court] will need to take directions from Strasbourg ECHR’ (email dated 19 September 2012). His email of 25 September 2012 states, ‘I will continue to investigate the domestic authorities on a daily basis, reporting any new relevant evidence to ECHR as I think fit’ [59]. His application misunderstands some of the law. For example, his complaint under Article 6(1) is that his father ‘has been Falsely imprisoned and not had a trial by Jury of 12 of his piers.’
However, his own consent order declares that it is in his father’s best interests to reside there; and he is not there because of any criminal charge or trial. The explanation given for his lack of success in securing his father’s return home is that all complaints departments in the UK take ‘the official Political stand point’; rather than that he has not applied to the court for a review. This court recognises the importance of the European Convention on Human Rights and the jurisdiction of the European Court of Human Rights. It always seeks to act in accordance with these important principles and human rights.[3]Inability or unwillingness to make relevant applications to this court Not only was the declaration that it was in RGS’s best interests to reside at X Manor made with his son’s consent, so too was the order appointing X County Council to be his father’s deputy for property and affairs. In effect, RBS has been attacking his own orders on Facebook. His recent failure to remember, or acknowledge, previous agreements and orders, and his consequential tendency to make inappropriate applications, has led to the other parties being caused a great deal of avoidable anxiety, work and expense. It has also had the effect of suspending all dialogue between the parties as to how to resolve the litigation issues.[4]Filing of evidence Since the end of May, the court, the deputy and his solicitors seem to have been bombarded at times with emails, requests, demands and snippets of information, and this has made it virtually impossible to progress the litigation and resolve the issues. Understandably, court staff have taken the view that sending in emails about habeas corpus, the Convention and various other matters, often copied to numerous people who are not parties, is not making an application, or filing evidence for the judge to consider. Some of the emails copied to the court appear to have had little or no relevance to the litigation issues before this court, such as RBS’s emails about the acquisition of an Indian takeaway restaurant. (If I understood correctly his email at [49] and his oral evidence, the link for him is that the estate agents involved in the sale of the Indian takeaway restaurant also valued his father’s cottage for the county council and are compromised by this).[5]Misunderstanding and/or misreporting the court’s orders On 15 June 2012, it appears that RBS sent an email to the court, thanking the judge ‘for allowing the media to report fully on this case.’ He appears to have given the same message out to third parties:
‘The media is allowed to report on COP case as ordered by Judge Eldergil’ (email of 10 September 2012). When I asked him about these emails, rather surprisingly he said that he had not believed that my order of 14 June 2012 permitted the press to report the proceedings. His email to N county court about another case of his, dated 24 July 2012 and copied to this court, states that: ‘All cases are conjoined financially …. In the COURT OF PROTECTION my finances are conjoined with my Fathers on the order of Judge ELDERGILL.’
The cases are not ‘conjoined’ or linked cases. His solicitors in the divorce proceedings did apply to me for permission to copy to the family court information about the deputy’s repayment claim in relation to his unauthorised use of his father’s money and shares. This was to ensure that the division of matrimonial assets took account of this potential liability. I allowed his solicitors to inspect the court file, including my minute sheets, and to copy and disclose any documents they thought relevant. Nothing has been kept secret from the parties. His email of 24 July 2012 also states that:
‘[X] COUNTY COUNCIL and myself are in a conflict at … the court of protection … regarding … their attempts to sell family heirlooms without court orders’
That is incorrect. My deputy orders include a clause along the following lines:
‘The deputy is not authorised to dispose of any personal effects which may have a sentimental value to [the incapacitated person] or his family or descendants, such as photographs, personal letters, mementoes, family records, heirlooms and the like; and as far as practicable the deputy is to ensure that he has with him such of the same as are likely to give him pleasure or comfort, and that the remainder are safely stored.’
There was a clause to that effect in this case. Therefore, the county council applied to the court for permission to sell the paintings, his children were notified of the application, and his son objected and notified the press. It was the very fact that the county council sought a proper order that alerted him to the application and resulted in a hearing. Although, at the hearing on 14 June 2012, he agreed to see one of the court’s Special Visitors, subsequently extraneous factors seem to have interfered with his capacity to weigh this relevant litigation issue: ‘Since the report on BBC1 about history of English Law & HABEAS CORPUS, I have carefully considered my position, and clearly state I do not agree to a special visitor arranging to see me. As in the above program, the Star chamber court was eventually abolished, similar is already being considered of the COP, a court that has no Jury to prove guilt and to have powers of Life imprisonment Ridiculous’ (Email of 23 July 2012)[6]Understanding of the rights of the other parties In his email of 25 October 2012 [48], RBS requested that only persons who know him or his father be allowed to speak at the hearing on 2 November. He also demanded ‘a trial by jury as is my right.’ In an email to a witness he hoped would appear at this hearing, published on his Facebook page [53], he states that the witness’s statement will be ‘very beneficial especially as to [the social worker’s] insinuations … I am sure we can word your statement to show him in a very bad light.’ According to his email to his sister of 24 October 2011:
‘[The] county council would like all of Fathers money back you took Cash and Cheques give back his possessions you removed from [the] cottage, failure to do so is contempt of court and you will be imprisoned by Judge Eldridge whom I have met and asked for him to wait till you pay our Father back, as I am doing in full.’
That is not correct. His sister wrote to the court on 9 April 2011 to inform me that she had complied with the court’s directions, adding, ‘Please feel free to contact me if I can be of any use.’ On 18 May 2011, RBS attended a hearing, during which — according to the recitals in the order — he said that he believed that his sister still had some of their father’s documents and property. The order therefore required him to provide the deputy with a list of his father’s property which he believed was missing and she might have. It required nothing of her. I find therefore that he gave his sister a false account and one which would have caused her false alarm. Many other examples can be found in this judgment of occasions when RBS has conducted the litigation in ways that were unfair to the other parties and failed to respect their rights under the rules, and natural justice.[7]Understanding of some of the dynamics underlying the litigation In his oral evidence, RBS told me that the county council was guilty of ‘perverting the course of justice’ by forcing one of his witnesses, his social worker care co-ordinator, to withdraw. There is no evidence of that. According to SC’s letter to the court of 29 October 2012, he wished to withdraw his evidence as he was concerned that ‘it seems to be reducing the clarity in regard to this case.’ As regards his first habeas corpus application, on 15 October 2012 the C local newspaper published a story on its front page and page 2 concerning RBS and his father’s situation:
‘Justice Bean, who presided over the case, instructed the council to appoint an official solicitor to act for them, said [RBS], ‘but although at first she agreed a week later she mysteriously refused to pick up the case. It is obvious to me that this was because [X County Council] just didn’t want the hearing to go ahead’ [22]. In his oral evidence, RBS accepted that the newspaper had accurately reported what he said. In fact, the Honourable Mr Justice Bean ordered that RBS’s application be served on the Official Solicitor, who was at liberty to join the application if he saw fit. However, the application would be dismissed if no such application to join the proceedings was made within 28 days. No such application was made, presumably because the habeas corpus application was misconceived, and RBS was unable to produce any evidence of impropriety. There are two other passages in an email of 16 August 2012 which suggest that he may not have a firm hold on the causes and dynamics of the litigation: ‘… this neighbour has CCTV pointing at my house, may I ask what business is it of his to keep me under 24/7 observation . He may say it is to protect his property, but my Fathers and my property are our concern not his. [It] is through [the] greed and interference of a neighbour that I and my Family are in this predicament.’
[8]Sending numerous emails to a member of the court’s Listing & Appeals office Over the course of the summer, RBS has sent many emails to Ms E, a member of the court’s Listing & Appeals office who manages and administers cases on behalf of the judges. These emails include: (a). Facebook invitations dated 31 July 2012 (’RBS wants to be your friend on Facebook’), 9 August 2012 and 5 September 2012 (In both instances, ‘Check out my photos on Facebook,’ ‘RBS wants to share photos and updates with you’) (b). Twitter invitations dated 4 September 2012 (‘Find out why I love Twitter. Instant updates about news, sports, entertainment. And you.) and 21 September 2012 (c). An invitation to join his professional network on LinkedIn (Email dated 6 September 2012) These emails and invitations are unwelcome and inappropriate, and interfere with the management and resolution of the litigation concerning his father.[9]Inability or unwillingness to litigate or negotiate realistically There has been a very marked change in RBS’s approach to the litigation issues since the end of May. Previously, negotiations were proceeding quite constructively and without too much animosity. In his statement of 5 September 2010, RBS stated, ‘I believe if his paintings and furniture were sold it might be possible to purchase an annuity payable until death.’ This, he said, might be sufficient to pay top-up fees at X Manor or carers at his father’s own home. According to his own email to the deputy of 18 October 2011, ‘I will be proposing to repay my Father as I have already in writing promised all along whenever it is achieved.’ In stark contrast, his recent ‘position statements’ and negotiating positions have effectively made it impossible to progress the litigation. His demands of the county council and the court have been wholly unrealistic, even if viewed merely as an initial bargaining position: DEMANDS IN POSITION STATEMENT FOR HEARING ON 14 JUNE 2012 I [RBS] SON OF [RGS] DEMAND 1). MY FATHER BE RELEASED FROM HIS IMPRISONMENT CONDITIONS AT X MANOR WITH IMMEDIATE EFFECT. 2). HE IS ALLOWED TO DECIDE ALONG WITH MYSELF WHERE HE WISHES TO LIVE. 3). I AM APPOINTED HIS DEPUTY TO REPLACE X COUNTY COUNCIL WHOM ARE NEGLIGENT AND NOT ACTING IN HIS BEST INTEREST. 4). X COUNTY COUNCIL IS LIABLE FOR HIS TOTAL CARE COSTS TILL DEATH. 5). OFFER IS MADE TO HIS IMMEDIATE FAMILY SON AND DAUGHTER FOR COMPENSATION FOR THE NEGLIGENCE OF [X COUNTY COUNCIL] 6). ACCOUNTABILITY IS ACKNOWLEDGED WITH REMOVAL FROM THEIR JOBS OF THE PERSONS DEALING WITH 1 HIS FINANCES, 2 HIS WELFARE. 7). ABOLISH THE COP IN ITS CURRENT FORM AS I AM BEING TREATED AS GUILTY UNTIL PROVED INNOCENT LIKE THE INQUISITION THIS WILL PROTECT MANY PEOPLE ALL RETROSPECTIVE AND FUTURE CASES SHOULD HAVE OPPORTUNITY TO HOLD THIS COURT TO ACCOUNT. I WISH TO BE HELD IN CONTEMPT OF THE COP. In relation to demand (2), he could not see why his sister or the professionals should have any input into the decision, and seemed incredulous that it had been suggested: ‘Why?’ RBS told me that these were still his demands. On being pressed, he said that his ‘demands’ were now ‘requests’.[10]Publishing information about the proceedings RBS’s recent and persistent refusal to adhere to laws concerning the private nature of the proceedings could be simple defiance or the consequence of an impaired or disturbed mind or brain. On 12 June, he indicated by email that he wanted as much media attention as possible at the hearing on 14 June, and that ‘all nationals and internationals’ had been notified. His contacts on Facebook were growing ‘at a huge rate’. He stated that he had booked himself into an expensive London hotel and had invited the media to see him there before and after the hearing. The hearing was ‘about obtaining his father’s release from over two years imprisonment. I may be imprisoned myself for contempt of court for sending you this.’ In fact, the hearing was to consider the deputy’s application as to the sale of his father’s paintings.97. POSTER DETAILS98. [RGS]99. Imprisoned Life100. Secret COURT101. OF PROTECTION102. 2nd November103. Please attend104. Media now allowed105. by court order, tel [RBS’s own telephone number]106. [RBS’s own email address] This poster was handed over for display in the windows of various local shops, including the local library, garage, café, kebab takeaway and fish and chip shop [53]. His preparation for this hearing also included emailing the editor of a local newspaper [53]:
‘I am looking for as many witness’s as possible too totally embarrass both [the council] & the court … I personally want to take the blame for any publication in the media that this inequitous court has attempted to gagg as such I have been asking locally for the poster attached for as many people as possible to attempt to attend this hearing on what is a National & International SCANDAL.’
In between the hearings on 14 June and 2 November, he has published a great deal of information about the proceedings on his Facebook page, including my order and directions of 12 October 2012. On 15 October 2012, the C newspaper published a story on its front page and page 2 concerning the case and his father’s situation. This commented on the Official Solicitor’s role in relation to the habeas corpus application (see above) and criticised the county council:
‘Apart from their grave treatment of my father, [the County Council] have threatened me with proceedings and possible imprisonment because I resisted their heartless, bullying tactics. But I will continue to refuse to co-operate with them while they are treating my family with such contempt’ [22]. On the same day, he published the following comments on his Facebook page: ‘[Local newspaper article] very sorry Judge Eldergil, on Friday you told me via someone else, I would be imprisoned for 3 to 6 months as you do not like public interest from Media in Fathers case. Go ahead & see what ECHR has to say. You are directly violating my Human Rights Articles 5, 6, 8, 10, 14. today Fax and postal of your conference call details evidence sent Strasbourg, I take full responsibility for this article — with P Solicitors … and 95 others at Y Beach.’ [25] ‘THIS IS WHAT ONE CALLS LEGLISED THEFT. I WILL NOT ALLOW THIS COURT OR ALL THE … VULTURES TO HAVE ONE PENNY OF FATHERS ASSETS.’ [27] On 16 October 2012, he published the following comment on his Facebook page: ‘JUDGE ELDERGIL THREATENS imprison me with 3 to 6 months for contempt in putting our case in the Media, 5, 6, 8, 10, 14 these are HUMAN RIGHTS articles he has directly violated.’
He has uploaded a video of himself reading to his father the article in C local newspaper about his father’s situation:
‘Father, with me today while I read him the article in the [C newspaper]all about him on page 1 & 2 back ground noise is all the other inmates getting ready for lunch, usually much more noisy than this with much shouting.’ [24] The article includes information about the proceedings and parties. A caption describes where the video was recorded as X Prison, rather than X Care Home. A photograph of him and his father on his Facebook page includes the caption, ‘Father giving the V for victory sign like old Winn[i]e he says he feels like a prisoner of war …’
Other comments on his Facebook page include:
‘Rather than send me to prison, seems judge now is looking at locking me up for not having Capacity, then taking all my possessions to look after me, who is the mad one here!’ [24] ‘UK courts are now trying to impose direct censorship total gagging on all media even face book no freedom of speech.’ ‘very sorry Judge Eldergil … Go ahead and see what ECHR has to say … I take full responsibility for this [local newspaper] article.’
In his email of 25 October 2012 [48], he indicates that he needs to take a robust approach towards me:
‘I need to take a robust approach to the courts actions as they suggest doing so to myself with Judge ELDERGILL continued threats to my personal freedom to attempt to silence me contacting the Media in the PUBLIC INTEREST’ [50]. However, a few lines later he says that since I ordered the media’s attendance, I should pay for it: ‘Since the media’s attendance is by order by Judge Eldergill … it must be [at] his expense.’
He tended to say that I quoted his emails out of context; but when I ask him to tell me the correct context within which to understand the passages, he is unable to do so. One aspect of having capacity to litigate in Court of Protection proceedings must be the party’s capacity to understand, retain and weigh the rules about confidentiality, why confidentiality is important, the harm one may do to others if confidences and/or privacy are breached, the possible penalties for breaching the law and the appropriate way to contest the issue if publicity is desired. Here, yet again, I felt that his position was inconsistent. At the hearing, he told counsel for the local authority that he could not see what he could be arrested for if he broke the court’s orders. When reminded by counsel for the local authority that he had told me that in fact he knew he was not permitted to publish my orders, or information about the proceedings on Facebook, he replied, ‘Why should I be gagged about what happens to me and my father?’ Then he said that he did not think that the court ‘has authority over me and my father, it’s not a criminal court … I’m asking for a trial by jury.’ As with many of his emails, there was a tendency to veer from one position to its opposite, one minute acknowledging a fact or legal requirement, the next denying it; not surprisingly, therefore, recently he seems to have found it impossible to adhere consistently to any rules or directions. He said that he was not bothered what people would think of him if national newspapers published the information reported locally and knew of his unauthorised dealings with his father’s property.[11]Failure to follow court rules, orders and directions I first met RBS at the court hearing on 18 May 2011. He had recently been sufficiently unwell to require a period of in-patient treatment. He was involved in upsetting divorce proceedings and was not having contact with his son. He was subject to a number of other pressures, in particular having to come to court that day to explain apparently unauthorised dealings with his father’s money and shares. Given his state of health, and the fact that he was clearly very anxious about the possible consequences of his actions, the court took no action in respect of the breaches but reserved the right to do so later if similar problems arose in future:
‘(7) The court also reserves the right to take action in relation to the contraventions of previous orders, which includes dealing with those contraventions as contempt of court, but will have regard to RBS’s compliance and co-operation today and in the future before deciding whether any action is required, together with any new evidence of misappropriation and the matters referred to in section 4 (his father’s best interests, including any wishes and feelings of his father).’ (Court’s order of 18 May 2011) For a period after that hearing, RBS did, in my view, do his best to adhere to the court’s directions and he tried to resolve the issues constructively. The negotiations concerning his unauthorised dealings and occupation of his father’s house made some progress, albeit slowly because of his vulnerability, the complexity of the issues, and chaotic or missing records and receipts. Progress seems to have halted towards the end of 2011. Consequently, in the spring of 2012, the deputy applied to the court for permission to sell his father’s paintings in order to meet some of his outstanding — and mounting — liabilities. RBS’s response appears to have been to publicise the deputy’s application, in the hope that publicity would pressurise the deputy into withdrawing or reviewing their application, or improve his chances of a favourable court outcome. In an email addressed ‘TO JUDGE’ dated 9 June 2012, he wrote: ‘I present you with my card, as you will know your court is attracting vast media attention. You may not be wanting national publicity for your actions, accountability, existence. The people of PRC [People’s Republic of China] are now very interested … I trust you will now accept accountability to the international community. I very much look forward to meeting you again Sir. Best regards etc.’
In an email dated 14 June 2012, he wrote to an acquaintance:
‘As you are chinese [sic] person you have no fear of being in contempt of UK court, or any repercussions thereof … Currently [X] COUNTY COUNCIL ARE FIGHTING THE UK MEDIA !!!!!! they have no chance in this case very easy for you to win.’
In his email of 25 October 2012 [48], he stated that I had ‘not yet taken any action’ against him, ‘in over 1 year’, and he invited the court ‘to put up or shut up’ [49]. The ‘court is like an old woman cannot decide what to do but just threatens ... I need to take a robust approach to the courts actions.’ I have pointed out to him that he can’t both eat his cake and still have it. If he does indeed have litigation capacity then he is accountable for the way in which he decides to conduct the litigation. ‘Who decides?’ — He decides, and, as a general principle, the counterpart of capacity and autonomy is accountability for acts autonomously done. If he has litigation capacity, and simply chooses not to comply with the law and court’s rules and directions, then the possible sanctions for deliberate, serious and repeated breaches include prison, fines and costs orders which require him to pay all or part of the extra costs inflicted on the other parties. If he lacks litigation capacity then, subject to certain relatively rare exceptions, taking a punitive approach to someone who is unable to comply with litigation rules and directions would be unjust. I would be punishing him for something beyond his control or in respect of which his responsibility is clearly diminished. I have told him of one of the relatively rare exceptions, which is where I am forced to balance his vulnerability and needs against those of the children at the margins of the case. As it happens, I am a judge who believes that there are cases where prison is the appropriate sanction for contempt of court. The option exists because it has been found to have utility in appropriate cases where a party does not comply with court orders concerning residence, contact, confidentiality and the like. It is simply that I do not believe that it is appropriate in the case of people who suffer from a significant mental illness which affects their behaviour, and which also makes them wholly unsuited to a custodial regime. I have spent a good deal of time in prisons and psychiatric units over the years, and enough time with RBS to know that his health would be unlikely to survive it.[12]Making allegations on Facebook (and possibly other websites) about named individuals in the employment of the deputy RBS has made a number of allegations against the county council and its staff on his Facebook page, some particulars of which I have given in this decision. Other remarks I will not repeat. He knows what he has written. Evidence to suggest that two are linked and his actions are more than merely unwise It is essentially common ground that RBS has a relevant medical condition. His recent conduct of the litigation, and the litigation decisions he has made, have certainly been problematic. Are the two connected? Is he unable to understand, retain and weigh information relevant to his litigation decisions because of mental ill-health? Or have his recent litigation decisions been made autonomously, with capacity, not because his mind or brain was disturbed at the time? Some of the evidence summarised above suggests that recent litigation decisions were the product of a disturbed or impaired mind or brain. That therefore was the case that RBS had to answer. §7 — RBS’s position and evidence109. ‘… X COUNTY COUNCIL … pay his wages if he gave evidence against them he may loose his job, he has been influenced from originally agreeing, to give evidence oral & written evidence, now withdrawing his statement, thus I believe X County Council are perverting the course of justice.’ He also made the following points:110. ‘I confirm my Capacity to Litigate …. I will continue to litigate in person unless I am correctly sectioned under the current mental health acts now in force, have the official solicitor take over my property and affairs similar to the situation X County Council and this court have already done to my own Father RGS, having ROBBED & IMPRISONED HIM FOR LIFE against his wishes and best Interest.’111. ‘Produce my Father as witness before this court and ask him a direct Question where does he want to live, (not are you happy here).112. You are ROBBING him and IMPRISONING him for life, he has the right to defend himself against a life sentence.’113. ‘I will speak directly with the Media I refuse to obey any gagging order, believing I will not receive a fair hearing in a secret court.’ He stated that his father was illegally detained by the county council for a period in the past, between October 2009 until 13 August 2010, rather than (by inference) now, although his recent habeas corpus applications suggest that this is not his position invariably. Witnesses I received witness statements from his friends Mrs WW (dated 28 October 2012); Mr PW, her husband (dated 28 October 2012); Ms FC; Ms JP (dated 28 October 2012); and Mr AH. The first three of them attended to give evidence and to be questioned on their statements. Mrs WW told me that: (a). In her opinion RBS has litigation capacity, which she understood to be ‘full senses to come to court and put his father’s case for coming home.’ He ‘is compos mentis at putting his own case,’ able to understand and weigh the issues and aware of the risks involved in breaking court orders.’ (b). He ‘put his father before himself and was worthy of being listened to.’ (c). She had not seen the independent visitor’s report, any professional reports or the consent order which RBS approved stating that it was in his father’s best interests to reside at X Manor. (d). She did not think that all of the emails read in court helped to resolve the outstanding issues. (e). She was not aware that he had ‘disinstructed’ his solicitor. (f). She was aware that he had admitted taking some of his father’s money and shares, which he had used to refurbish his father’s house. (g). She was not aware that the local authority had been appointed to manage his father’s property and affairs by consent.

(h) He was a loving son, doing all he can:

‘I don’t condemn him.’ (i). His father should be asked whether he wishes to be in his own home, not whether he is happy at X Manor. Mr PW, the husband of Mrs WW, adopted his wife’s statement. The ‘neighbourhood’ would be delighted to have RBS’s father back. He did not know of the consent orders, habeas corpus applications, etc, and therefore his evidence was subject to the same caveats as his wife’s. Ms FC told me that: (a). She knew of the consent orders the week before the hearing, but not from RBS. (b). As concerns the habeas corpus applications, RBS was just trying everything that came into his mind. (c). She was aware that he was not following his solicitor’s advice. (d). His father had expressed a wish to come home; he could walk ‘perfectly well and was a perfectly lovely man.’
He would require professional carers but would benefit from his son’s company and support, and from being able to see the boats:
‘His life is cigarettes and [home].’ (e). Staff at X Manor controlled him by controlling his cigarette supply, using cigarettes as a reward. He was not empowered. In her written statement, Ms JP stated that: (a). She is a first cousin once removed of RBS, his mother being her cousin. (b). RBS ‘is perfectly capable of looking after his father at the family home, providing a safe and caring environment.’ (c). To the best of her knowledge, he had put in place a ‘twenty-four hour complete care package.’ (d). In her opinion, he ‘has full capacity to litigate in person and put forward his case in a court of law.’
In his written statement, Mr Hodgson, the builder involved in renovating the cottage, stated that: (a). RBS ‘has full capacity to Litigate in a Court of Law to contest the case brought against him by [the] COUNTY COUNCIL, to enable the return of his Father to his own Home … with 24/7 care.’ (b). RGS was ‘bored out of his mind’ at X Manor, ‘together with inmates who much worse than himself, institutionalised by the carers and frightend to have any empowerment to complain as they have control over his cigarettes.’ (a). Much of their evidence concerned the question of whether it is in his father’s best interests to return home, which they seemed to believe was a purpose of the hearing. Presumably, RBS told them this. In fact, he had not made a personal welfare application or asked for a review of the consent order. (b). Because capacity is issue-specific, it is RBS’s capacity to conduct these particular proceedings that is in issue. However, his witnesses were unaware of much of the relevant litigation history. For example, they had not seen the independent visitor’s report or any other professional reports. Nor had they seen the consent orders approved by RBS, declaring it to be in his father’s best interests to reside at X Manor and appointing the county council as his deputy. Nor had they seen many of his emails. Mr and Mrs W were not aware that he had ‘disinstructed’ his solicitor. One friend thought that a ‘twenty-four hour complete care package’ was in place. Necessarily, these caveats affect the weight to be given to their opinions concerning his litigation capacity. For reasons which are explained below, the court will now review the personal welfare of RGS, the feasibility of him returning home and whether this is in his best interests. The evidence of RBS’s witnesses demonstrates that his father has a loyal, intelligent and kind-hearted group of friends who provide him with valuable social support. That is a very relevant factor when it comes to reviewing the feasibility of a return home. However, neither RBS nor their friends are able to provide personal care, so that (and the affordability of paid care) will also be a critical issue. The evidence of RBS’s witnesses as to his litigation capacity indicates that they believe he has capacity to make decisions for himself (and indeed his father) on a general day-to-day basis, and that he is able to articulate his beliefs and argue his point of view. However, capacity is issue-specific and the weight of their evidence is affected by the caveats referred to above. In my opinion, their evidence had less impact in relation to the litigation capacity issue. §8 — FINDINGS concerning RBS’S LITIGATION CAPACITY Having regard to the evidence and the law, on the balance of probabilities I find as follows:[1]RBS has a long history of mental ill-health for which he continues to receive treatment. The current diagnosis is bipolar disorder.[2]Having regard to his medical history, the treatment being prescribed, and his anxiety, vulnerability and conduct during the proceedings, I am satisfied that he has ‘an impairment of, or a disturbance in the functioning of, the mind or brain.’[3]After his discharge from hospital, he was very well-supported by his new solicitors, who specialise in mental health law. The hearing on 18 May 2012 was stressful for him and he did struggle to cope with the proceedings. However, with their help and encouragement, for some time he was able to adhere to the court’s directions and did his best to address the litigation issues.[4]His solicitors’ letters accurately capture the position during the second-half of 2011. The matter was ‘most difficult indeed for him to deal with.’ It was not the case that he did ‘not want to adhere to the Court Orders, it is simply the case that at present he cannot cope with such matters himself.’ He was ‘now complying’ with previous orders and providing the deputy with a full and detailed account of his actions. This was taking time given his vulnerability and his own mental health issues, which were ‘at times causing some difficulty …’ His recollection of matters had been severely disturbed by his hospital admission ‘and the ongoing stress and anxiety concerning … his father and his own … divorce proceedings.’[5]At this time he was capable of understanding, with the assistance of explanations from his legal advisers, the issues on which his consent or decision was likely to be necessary and of retaining and weighing that information.[6]Some progress was made but it stalled towards the end of 2011. Consequently, in the spring of 2012, the deputy applied to the court for permission to sell his father’s paintings in order to meet some of his outstanding — and mounting — liabilities.[7]This application, and/or the conclusion of the divorce proceedings, resulted in an offer being made. By a letter to the deputy dated 21 May 2012, his solicitors offered £33,175.92 in settlement, which RBS undertook to ‘repay’ as soon as is possible; a rental agreement allowing him to rent his father’s cottage for £800-1000 per month; and a contribution from his father towards the legal costs of his divorce proceedings.[8]The litigation took a strikingly different direction shortly after this offer was made, possibly because the deputy did not agree these terms.[9]RBS publicised the deputy’s application towards the end of May 2012, seemingly in the belief that publicity would encourage the deputy to withdraw or review their application, or improve his chances of a favourable court outcome.[10]It is possible that RBS’s changed behaviour since the finalisation of his divorce simply or mainly reflects his new financial situation and/or a rechanneling of his energies. He told the court that he is more settled now that his divorce proceedings are over and he can concentrate on his father’s situation.[11]However, the very marked contrast between his conduct of the litigation in the second half of 2011 and his conduct of it since May 2012 suggests otherwise. Some important decisions made by him since May seem to indicate an inability to understand, retain or weigh information relevant to the conduct of this litigation. For example:(a) He no longer understood, or retained, the very relevant information that he consented to a declaration stating that it was in his father’s best interests to reside at X Manor.(b) Consequently, when it came to deciding how to progress the Court of Protection litigation, he was unaware that his habeas corpus applications were effectively an attack on his own order. Since June, he has made three habeas corpus applications, and an application to the ECHR, but no personal welfare application to this court.(c) Likewise, he was unaware that the court had not ‘imprisoned’ his father by rejecting an application for his father to live at home; rather, he had not made such an application since consenting to him residing away from home.(d) Similarly, he no longer understood, or retained, the very relevant information that he had consented to an order appointing X County Council as his father’s deputy for property and affairs.(e) There was no ‘secret hearing’ at which these decisions and orders were made; he consented to them being made.(f) His misunderstanding of important aspects of the litigation includes a failure to understand or retain the fact that I have not gagged the media — not yet anyway. On 1 June this year, the media applied for permission to attend future court hearings and I readily agreed. The newspapers have not yet made their substantive application to be allowed to report the proceedings. However, I have already indicated to RBS on more than one occasion that as a public servant I have no objection at all to him criticising me or the court publicly. However, how that is done must be decided after all the parties have had an opportunity to make their representations. It is unjust, and an abuse of other people’s legal rights, for him to try to determine that issue unilaterally and pre-emptively by publishing information on Facebook.(g) His tendency to make inappropriate applications, because he cannot understand or retain the relevant litigation history, has led to the other parties being caused significant anxiety, abuse, work and expense. It has also prevented any continuing dialogue on the litigation issues.(h) He was reminded by his legal advisors of the need to be sensitive, to make sure that he sent emails ‘only to those needed,’ and of the dangers of posting comments about ‘local council officers’ on his Facebook page. He did not speak with his solicitors before making the habeas corpus applications and he has now ‘disinstructed’ them. He no longer seeks ‘the assistance of necessary explanations from legal advisers and experts,’ with which assistance previously he was able to conduct the litigation.(i) Since the end of May, he seems to have bombarded the court, the deputy and his solicitors with emails, requests, demands and snippets of information. This chaotic approach has made it virtually impossible to progress the litigation and resolve the issues. Some of the emails appear to have had little or no relevance to the litigation issues, such as those concerning the acquisition of an Indian takeaway restaurant. This also suggests that his litigation capacity is impaired.(j) He has sent unwelcome and inappropriate emails to a member of the court’s Listing & Appeals office which have interfered with the management and resolution of the litigation.(k) There is a persecutory flavour to some of his thinking which results in him misinterpreting the causes of other people’s decisions and actions. He accused the county council of ‘perverting the course of justice’ by forcing one of his witnesses to withdraw. As concerns his first habeas corpus application, he said that the Official Solicitor ‘mysteriously refused to pick up the case. It is obvious to me that this was because [the council] just didn’t want the hearing to go ahead.’ He explained his lack of success in securing his father’s return home on the basis that all complaints departments in the UK take ‘the official Political stand point.’ He wrote that his neighbour had kept him ‘under 24/7 observation’ and it was because of the greed and interference of a neighbour that he and his family were ‘in this predicament.’(l) Some litigation decisions appear to have been influenced by extraneous factors. His decision to withdraw his consent to having his litigation capacity assessed was taken following a BBC report on English law, habeas corpus and the Star Chamber (as, presumably, were his habeas corpus applications).(m) At times he seems to have misunderstood or misreported court orders, claiming that the court has allowed the proceedings to be reported and that this case is ‘conjoined’ with other litigation involving him. Although the purpose of this hearing was to consider his litigation capacity, much of his position statement and evidence was concerned with ‘obtaining his father’s release from over two years imprisonment.’(n) His positions and evidence have often been highly inconsistent. Intellectually, he can understand information relevant to the litigation when it is explained to him in broad terms, at the time it is explained. However, he veers from one position to another within lines of the same email or within a minute or two in oral evidence. One moment he acknowledges a fact or legal requirement, the next moment he denies it. Not surprisingly, therefore, recently he seems to have found it impossible to adhere consistently to any rules, directions or advice. He tends to say that I have quoted his emails out of context; but when I ask him to correct me by telling me the proper context within which to understand the passages, he is unable to do so.(o) Making litigation decisions in Court of Protection proceedings often requires being able to understand and weigh the private nature of information seen by the party, or discussed in their presence, and the fact that much of it was provided and received subject to a duty of confidentiality. There is some evidence that RBS is unable to understand or give proper weight to these considerations before making litigation decisions. Having publicised matters in China, in an email addressed ‘TO JUDGE’ dated 9 June 2012, he wrote: I trust you will now accept, accountability to the international community.’ His approach to this hearing was to seek as many witnesses as possible to ‘totally embarrass both [the council] & the court …’ His A4 poster publicising the hearing and inviting local people to attend, was handed to local shops, including a kebab takeaway and fish and chip shop. Seemingly, he could not understand that this level of local knowledge of his father’s circumstances might embarrass his father if he returns home, either permanently or for visits. Nor could he see that it might affect his position and standing in his local community. He seemed unable to understand why confidentiality is important, the harm one may do to others if confidences or privacy are breached, the possible penalties and the appropriate way to contest the issue if publicity is desired. Simply taking the matter into one’s own hands, without allowing others an opportunity to present any competing considerations, is potentially damaging to his father, because the decisions are taken without proper, calm, deliberation.(p) His highly adversarial approach to the litigation suggests that he is unable to understand that the deputy has been caring and generous towards him. He has been permitted to reside rent-free at his father’s cottage, there have been no applications to commit him, despite fairly vicious public attacks on council staff, and his unauthorised dealings with his father’s assets have been discounted. This is not a case of a bullying local authority abusing its powers over a vulnerable adult and their family; quite the opposite.(q) When the subject came up at the hearing, it clearly had not occurred to him that if he was persistently breaking my orders and directions, this was likely to have some impact on the extent to which I feel that I can trust him to comply with undertakings or orders that he may ask the court to make. For example, that he will return his father to the care home if he is permitted to take him home or on visits; that his visits do not need to be supervised; that he will adhere to any financial compromises; that he will co-operate with the deputy in relation to financial assessments of home care plans; and that he will co-operate with social services and paid carers if his father can return home. He seemed impervious to the fact that his conduct might be damaging the case he now wants to put to the court.(r) He lacks capacity to take a decision to compromise the various claims and an understanding of the effects of agreeing or refusing a particular compromise. His negotiating demands have been unrealistic to an extent that in my opinion indicates impaired or disturbed thinking. The council is subject to national laws concerning the financial contributions which people who receive care are required to make. Rather than repay some of the money used by him without proper authority, he now demands that the council pays him and his father compensation, and sacks staff. His father must be ‘released immediately from imprisonment’ despite the consent order and the lack of any application to review it. He describes the care home as X Prison and his father as a prisoner-of-war. For himself, he demands ‘a trial by jury as is my right.’(s) Any compromise of these proceedings will not be a self-contained transaction but inseparably part and parcel of the proceedings as a whole, involving making intertwined decisions most of which could only be split in a narrow, artificial, way.[12]The weight to be given to his witnesses’ opinions concerning his litigation capacity was affected by the fact that they were unaware of relevant events and developments in the proceedings. Their opinions were formed without knowledge of relevant facts.[13]As a result of all the collateral issues raised, this litigation is highly complex and more or less risky. On the present evidence, he lacks the capacity to conduct this particular litigation. More specifically, he lacks ‘the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision.’ Of course, mental health problems wax and wane and hopefully this will change.[14]It is not the case that the court has found him to lack litigation capacity at present merely because one or more of his litigation decisions ‘would not be made by a person of ordinary prudence.’ On the current evidence, a link can be demonstrated between his medical condition and his capacity to understand and weigh the relevant information when making litigation decisions.[15]Because I have not yet had the assistance of a medical report concerning his litigation capacity, and on the basis that my decision interferes with a citizen’s usual constitutional rights, I shall make an interim declaration that he lacks litigation capacity, under section 48. I told him my decision at the conclusion of the hearing and invited him to now see the Special Visitor. That is an opportunity for him to show me that my anxieties misplaced and my findings erroneous.[16]If that medical examination does not take place, or takes place and results in a medical opinion that he lacks litigation capacity, then it is likely the declaration will be made final.[17]If the examination takes place, and the medical opinion is that he has litigation capacity, I will review the interim declaration in the light of the medical evidence. Ultimately, medical opinion is only part of the evidence and a decision as to a party’s litigation capacity is a judicial decision — but one which must give proper weight to expert medical opinion that the individual is not suffering from an impairment or disturbance of the mind or brain, or if they are that it is not affecting their ability to understand, retain and weigh relevant information.[18]I have decided that his solicitor Mr A should act as litigation friend. Although this is unusual, and some would say not ideal, on balance I believe it is appropriate and justified. Mr A still has a friendly relationship with Mr A and the complexity of these proceedings means that it would be unduly expensive and time-consuming for someone unfamiliar with the litigation history to adequately understand all of the litigation issues and to be in a position to protect his interests. An experienced mental health lawyer acts in Mental Health Tribunal proceedings without an intermediary and will know how best to balance his instructions and legitimate interests with the requirement that decisions are in his father’s best interests. Unlike RBS’s friends, he knows the full relevant history and from his contributions to date I am confident that he will serve RBS well while being mindful of his duty to the court.[19]As a final obvious point, even if my finding that RBS lacks litigation capacity is made final, he should be encouraged to participate fully in the proceedings through his litigation friend. He is very welcome to attend hearings, to file statements and evidence through his litigation friend, and as a devoted son to keep the court informed of his views as to his father’s best interests. Mr A has always helped him to do that and I am sure that he will ensure that RBS is able to contribute, but in a way that is in keeping with the rules and the rights of others. §9 — MOVING FORWARD: Issues for the court The following matters must be addressed:[1]The

Litigation costs and other costs of the parties

[2]The application concerning the sale of RGS’s paintings[3]The need for a statutory will[4]RGS’s residence[5]RBS’s

Litigation capacity

[6]Unauthorised publication of information about the proceedings[7]The media applications Litigation costs and other costs of the parties The general rule in property and affairs cases is that the parties’ legal fees are chargeable to ‘P’s estate,’ i.e. to RGS. In personal welfare proceedings, the general rule is that each party pays their own costs. Where proceedings involve property and affairs and personal welfare issues, the costs are to be apportioned between the respective issues. I can depart from the general rule in the circumstances set out in rule 159. Broadly speaking, I can order one of the parties to pay all or part of the costs of the other parties if I believe that their conduct has been sufficiently unreasonable to justify doing so. RGS’s funds are limited. It is critical that the financial cost to him of these proceedings does not affect his future care options or exceed what is in his best interests. Given that the trigger has been whether heirlooms have to be sold, a ‘Jarndyce v Jarndyce’ situation cannot be allowed to develop which means they have to be sold to pay the legal costs incurred in deciding whether they should be sold. RBS’s conduct has resulted in a great deal of local authority and legal time being spent trying to keep abreast of rapidly-changing developments. Hopefully, the appointment of a litigation friend for him will help to ensure that the approach in future is more proportionate to what his father, the local authority, the court and others can afford. Sale of paintings and/or other assets of RGS By consent, the county council was appointed to make decisions for RGS about his property and affairs because he was found to lack capacity to make these decisions for himself. RGS’s approximate weekly income is £256 and his outgoings £513. This includes care home (and other care fees) of £390 and personal spending of £50. There is, therefore, a monthly shortfall of approximately £1200, or £14,400 per annum. That has to be budgeted for in the same way it would have to be if he still had capacity to pay the bills himself. It is simply that, because he lacks capacity to decide ‘how to balance the books’, the deputy must make that decision for him, or (where there is a significant dispute) the court. In addition to this monthly shortfall, RGS may have liabilities of around £107,800 in unpaid taxes, care home fees, legal fees, accountancy fees, deputy costs and other professional costs. Sadly, I have to say that it seems plain to me that his son is responsible for the greater part of the legal and deputy fees. To recap, there are liabilities of around £107,800 and his assets are reducing at a rate of £14,400 per annum. Where is this money to come from? If RGS had capacity, it would be for him to decide how best to meet his liabilities and satisfy his creditors. However, it now falls to me. There are unsold foreign shares of £10,000 which may not be easy to realise; savings of £8,500 or so; and miscellaneous items in storage worth around £10,000, some of which may be heirlooms or have a family sentimental value. We are still well short and so must turn to other possible sources, none of which are ideal from RBS’s perspective:• . £78,283.78 owed, or possibly owed, to RGS by his son, RBS The relevant documents show that RBS received £125,723.10 from the sale of his father’s shares, and £135,795.58 of his money in all, once one has added money withdrawn from Halifax accounts, share dividends and a loan. After deducting expenditure made by him on his father’s behalf, he was asked by the deputy to acknowledge ‘in a formal fashion’ a debt to his father of £78,283.78. RBS was in the middle of divorce proceedings at that time and it was thought unlikely that he could raise that sum. The deputy therefore suggested that it be taken into account on his father’s death, by way of a hotchpot clause in his Will. According to RBS’s email to the deputy of 18 October 2011, ‘I will be proposing to repay my Father as I have already in writing promised all along whenever it is achieved.’ Following the conclusion of the divorce proceedings, on 21 May 2012 his solicitors offered £33,175.92 in settlement, which RBS undertook to ‘repay as soon as is possible.’ This was, however, part of a wider offer which included in return being allowed to rent his father’s cottage for around half its rental value and a contribution from his father to the costs of his divorce proceedings. To complicate the picture, it may be that RBS has some assets after all. Following his divorce, it appears that he still owns at least two properties in England. It is not known if he is renting out these properties and at this hearing he was unwilling to tell me what property he owns. According to his email to his sister of 24 October 2011: I still have my other properties which I am renting out and my income is increasing dramatically …. I am living AT [father’s] cottage which has a lovely new central heating system and is real warm in the winter as it also has great double glassing (sic) and complete refurbishment with modern kitchen etc. Complete landscaping of the garden and the winch now works so I can bring my new boat up and down the beach. I have been catching lots of fish and swap them for all sorts of things which is great fun. I still go on fantastic holidays last one a couple of months ago to Hong Kong for three weeks. Soon off to Tenerife …’ In contrast, according to his solicitor’s letter to the deputy of 9 November 2011, ‘his statement on 30 June 2011 that he held money of his father was a mistake, he has under £25,000 in bank and building society accounts.’ RBS told me that he receives Disability Living Allowance and Incapacity Benefit, which are not means-assessed. These benefits aside, his financial circumstances are opaque, and it is not possible to know precisely what he can afford to repay at present or in the near future. If because of his own financial circumstances he seeks his father’s indulgence — now the court’s indulgence —he will need to let me have the relevant figures, with reliable, supporting, evidence.• . £22,000 owed, or possibly owed, to him by his daughter, L.• . His cottage, which has a sale value of £475,000 (but is subject to one or more charges) and a rental value of around £1,680 per month. Again, the position is opaque, or at any rate hotly disputed. RBS was allowed to live in his father’s property rent free pending the resolution of his divorce proceedings, in the hope that he would be able to move back into his own house once those proceedings were resolved. The court ordered that the deputy should not attempt to remove him from the property. (Obviously, Court of Protection orders are not to be used to summarily evict the occupiers of residential premises.) Initially, RBS based his case on need, rather than any legal right. For example, according to his solicitor’s letter to the deputy of 9 November 2011:
‘… our client would ask … whether you might be so kind as to allow him occupation of the property until such time as his divorce is finalised so as to provide him with the knowledge and security that he will have a property to reside in and therefore should not fear that he may be made homeless … It is our client’s biggest fear that he will be made homeless and this is currently detrimentally affecting his mental health and well being.’
RBS has also claimed, however, that his father’s home cottage is now his own dwelling. Consequently, he has said, it cannot be taken into account by the council when calculating the financial contribution towards care costs due from his father. Where a resident no longer occupies a dwelling as his home, its value should be disregarded if it is occupied in whole or in part as their home by a relative who is incapacitated (or aged over 60). Different views are taken as to whether the owner can permit a relative to move into their home after going into a care home, whether this amounts to depriving oneself of an asset, and whether the relative must already be occupying the dwelling as their home when the owner goes into a care home. If the purpose of the regulations is to protect vulnerable people from homelessness, rather than to enable them to exploit the rules as a means of acquiring a personal benefit at the public expense, i.e. getting other people to pay, RBS may have an uphill task. See the National Assistance (Assessment of Resources) Regulations 1992 and the CRAG (Charging for Residential Accommodation Guide) guidance issued by the Department of Health. On other occasions, he put his case on the basis that he has his father’s permission to reside at the cottage. According to an email to the court dated 21 March 2011, headed as a complaint about the county council:
‘I am on INCAPACITY BENEFIT and have my Fathers written permission to live in his house … I wish to advise you that I live at [his] address and have been on INCAPACITY since 1989. According to government regulations my Fathers house should therefore not be included in any calculation for his care home fees’
. See note immediately above. For some time, the deputy’s position, as set out in their letter of 18 November 2011, has been that:
‘It is not possible to give assurances regarding the continued occupancy of [his father’s cottage]. It was your Client’s choice to leave his home to live at the property and, as we have suggested in the past he should return to live in one of his own properties to avoid uncertainty around his accommodation.’
The possibility of RGS returning home in the near future is a further complication. This is because the value of a dwelling may also be ignored if a resident’s stay in a care home is temporary and he intends to return to that dwelling, or is taking reasonable steps to dispose of it in order to acquire a suitable property to return to. See the National Assistance (Assessment of Resources) Regulations 1992, reg. 2(1), and the CRAG guidance, para. 7.002. Having regard to RBS’s occupation of the cottage, his opposition to the sale of any of his father’s assets, and the lack of any repayments by him, it is possible that RBS has his own financial and sentimental reasons for resisting the deputy’s financial proposals in respect of his father. •. His paintings, worth perhaps £50,000. These include a Lucien Pissarro dated 1906, worth £20-30,000. I am told that RGS sold a similar painting in the past, in order to purchase shares, and that his daughter is agreeable to the remaining paintings being sold. According to RBS’s statement of 5 September 2010, ‘I believe if his paintings and furniture were sold it might be possible to purchase an annuity payable until death’ which might be sufficient to pay top-up fees at X Manor or carers at his own home. Clearly, his position has changed since then. •. Other possible options In the current climate, it seems unlikely that RGS will receive NHS continuing healthcare funding. However, in some cases this avenue is worth trying. Likewise, on the face of it, a deferred payments scheme is unlikely to resolve matters. A move to a different, cheaper, care home has, on the face of it, nothing to commend it. 167. ‘I also object to my Fathers estate being yet again plundered by law vultures legalised thieves, whom do not even know him … Not for his benefit Sir, but clearly Yours the court and ancillary hanger ons’ [51]. That takes matters no further. I shall be happy to accept all realistic proposals and advice from the parties. However, failing fairly swift agreement, I shall have to cut the Gordian knot. The main possibilities appear to involve the following options or a combination of them: •. Renting the cottage at a rent of £16,800 per annum, with RBS returning to his previous place of residence (This may involve authorising the council to take possession proceedings). •. Renting the cottage to RBS at an under-value of £1,000 per month, provided this does not disadvantage the public or his sister (perhaps by off-setting it against any money which she owes her father, or by bringing it into hotchpot). •. The sale of the cottage, or further charges on it. •. The sale of properties belonging to RBS. •. The repayment of some or all of the £78,283.78 owed, or possibly owed, to RGS by RBS. •. The repayment of some or all of the £22,000 owed, or possibly owed, to him by his daughter, L. •. The sale of paintings, furniture and heirlooms. •. Deferring the payment of some family debts by the use of a hotchpot clause, provided that this does not disadvantage the public and leaves enough money for RGS’s future care. It is not appropriate for RBS to be appointed as his father’s deputy for property and affairs, in place of the county council. The conflict of interest is too great and, in any case, his previous unauthorised dealings with his father’s assets make this impractical. The statutory Will application The deputy has applied to the court for it to determine whether it is in RGS’s best interests to make a statutory Will on his behalf and, if so, in what terms. That application did not include the information required by Practice Direction 9F. The usual procedure in such cases is that the Official Solicitor, or another suitable person, is invited to act as litigation friend for the person thought to need a statutory Will. Before determining the terms of any Will made for RGS, the court will need to consider the case for a hotchpot clause and ensure that the Will is in RGS’s best interests, when viewed in the round with any orders made in relation to the repayment of debts by his children, the sale or occupation of his cottage, the disposal of heirlooms and so on. The court is aware of the following history: (a). A handwritten ‘Last Will and Testament’ in the possession of the deputy, dated 26 August 2009, includes the statement, ‘With nothing left to any of their children; my grandchildren.’ The fact that it is in the format of a letter, is incorrectly witnessed by one witness, and is written out in someone else’s hand affects the weight to be given to it, even as an expression of wishes. (b). On or around 24 September 2009, a safeguarding concern was raised that RBS was ‘attempting to persuade his Father to change his Will.’ (c). According to RBS’s statement of 5 September 2010, ‘Over a year ago I know he made a Will and lodged it with his Executor. He is a Mr H.’ (d). According to L’s statement of 7 September 2010, in the recent past her father was ‘very angry with her brother for trying to make him change his Will … when my brother brought him a new Will form for my father to sign he lost his temper ripped up both his old and the new Will and said he wanted to die intestate.’ Her father ‘would never have made the statement that he did not wish any of his grandchildren to inherit anything. My father was always a kind, generous and fair man.’ (e). On 18 May 2011, RBS told the court that he believed that a neighbour was in possession of a Will signed by his father and by one witness (sic) in 2009. He said that he did not himself possess, or know of, any other Wills or Codicils signed by his father. This information was read over to him at the time and he confirmed that it accurately recorded his oral evidence. (f). In an email dated 3 October 2012, RBS stated that he objected to the statutory Will proposed by the deputy for his father because he believed that his son and his sister’s children should be excluded from their grandfather’s Will:
‘I will be sending this evidence to Strasbourg France & asking for full disclosure as to how they have arrived at such a WILL is not what my Father WANTS!’
He says that, because of the ‘acrimonious’ circumstances of his two children’s divorces, he would not want their children included in his Will. I am concerned by the possibility that a Will of questionable validity exists which excludes person(s) whom the testator might be expected to provide for. I will listen carefully to the representations of the parties but, if lack of testamentary capacity is established, at present my view is that it is in RGS’s best interests to make a statutory Will. It would be prudent, avoid upsetting and expensive litigation later and ensure that his grandchildren’s situation is considered fairly. I also believe that it would be helpful, and actually cost-effective, to have the Official Solicitor’s expertise as the litigation friend. This will also help to ensure that the final orders are in RGS’s best interests when viewed in their entirety. It seems to be common ground that the starting point for the Will should be an equal division of the estate between both children. The evidence, I am told, indicates that he wished to treat both of them equally. The issues to be determined therefore appear to be: (a). Confirmation that RGS lacks testamentary capacity (or otherwise); (b). Whether to include his grandchildren as substitute beneficiaries; (c). Whether to include a hotchpot clause (see above); (d). Ensuring the court’s orders are in RGS’s best interests when viewed in their entirety. Residence, contact and other personal welfare issues concerning RGS 186. ‘My father dearly wishes to be in his own house and not at X Manor as he gets so annoyed and frustrated at all the petty rules and regulations that are around him there, and wishes to be living in his own home at … for the rest of his natural life looking out over the river. 187. I spoke to him on the phone about this last night and he realises he will need 24/7 care and his reply was, “Great can I have a nice blond to look after me!!”’ The friends who gave oral evidence would also welcome this. They told me that RGS has expressed a wish to go home, can ‘walk perfectly well’ and is ‘a perfectly lovely man.’ He would require professional carers but would benefit from his son’s company and support, and from being able to see the boats:
‘His life is cigarettes and [his home].’
RGS’s preference is disputed — as probably is the extent to which any preference is based on an adequate understanding of his care needs, the feasibility of home and residential care, the extent to which he will enjoy living at home and so forth. His wishes and feelings are critical. After all, why would anyone wish to inflict care on a fellow human-being that is contrary to their wishes if they can be cared for in accordance with their wishes? His daughter seems to believe that her father is well placed, and best placed, where he is, as do the professional carers. On 20 May 2010 the Age Concern IMCA (Independent Mental Capacity Advocate) reported that: 188. ‘There does not appear to be any occasions documented where [RGS] has expressed wanting to leave [X Manor] or has shown any distress or upset at being there …. 189. I asked [him] if he was happy living [there] and [he] replied, “I have no complaints and am quite happy, would just like to have my cigarettes …. 190. It is my opinion that [he] would be at very high risk if he returned home due to previous self neglect.’ Apparently, RGS did not think that it was worth extensively adapting his home to make it fit for him to return. Some people were concerned about his food and fluid intake, and ‘general neglect,’ before his hospitalisation and transfer to residential care. On 18 August 2010, the social worker PF stated that RGS had poor short term memory, was disorientated in time and space and could remember his name but not his date of birth. He found ‘it difficult to cope with the behaviour of his children and, as a result, restrictions were placed on their visits to him at [X] Manor.’ On 16 September 2012, a report was prepared by an independent visitor, S, who is a member of the Association of Independent Visitors and who, coincidentally, has 16 years experience as a Court of Protection visitor. She visited RGS at X Manor on 6 September 2012. She found it to be ‘a very comfortable and homely environment providing good quality accommodation for its residents’ [29]. Furthermore, in her opinion, he ‘is well placed in this home where his needs, both care and material, are being met. The client was able to tell me that he is very happy in the home and staff are kind to him’ [30]. 191. ‘The client requires 24 hour care as he would self neglect and would not be able to cope if living alone.’ 192. ‘All members of staff I spoke with … told me that the client has never asked them to return to his former home.’ 193. ‘He told me that he has no desire to return to his house as “I have no children to look after and there is no-one to look after me.”’ 194. ‘He did not want to go anywhere else.’ I am told by RBS that that his aunt does not wish to see her brother just at the moment. The ‘immediate, urgent, issue’ therefore is to arrange a visit home for his father [51]. RBS ‘totally’ objected to any visit being made to his father by a court visitor without him being present as ‘a waste of time and public money’ [51]. I don’t agree. The court visitors will need to see his father alone but no doubt will also wish to speak with RBS. Whether they also need to see father and son together is a matter for their professional judgement. I understand that RBS also considers that I should not give advance warning of any visit I make to his father, on the basis that I will receive a false impression of the care home. It is not my function to assess the suitability of the care home. I am not an expert. It is my function to ensure that I have an accurate understanding of his father’s wishes and feelings. RBS’s litigation friend and solicitor can accompany me and, as an officer of the court, make a note of what his father tells me, for copying to RBS and the other parties. Two other issues to consider in terms of RGS’s current residence are his smoking rights and his access to the internet. Smoking is a legal activity and he is allowed to smoke, but apparently he smokes less than he would like. He has extreme vascular problems which resulted in toe amputation. He is subject to the usual indoor smoking regulations; and it may be that his opportunities are also limited by needing staff to accompany him outdoors and/or by his vascular condition. He was a 40-60 a day man, apparently, and it is common ground that he is an enthusiastic smoker who has always derived pleasure from the habit, which he wishes to continue. It would be impertinent of me to interfere with his life-long pleasures and habits — his preferences are perfectly clear — provided that he is not about to cause himself significant pain or distress, such that if he had capacity he would be likely to limit his smoking to the current level. If a choice has to be made, my duty to him is to make decisions that help him to live out his life as a happy man, who does not suffer unduly, rather than as a sensible man. As concerns his internet access, this issue involves freedom of expression and, if a form of contact, cannot be prohibited by a deputy. I am not sure if this is something RGS seeks, or something which RBS wishes to arrange so that his father can access his Facebook pages. As a general principle, he ought not to be denied any internet and email facilities that the other residents enjoy provided he has the capacity to derive some benefit. The only caveat would be if lacks capacity to decide this for himself and using the facility causes him more distress than benefit because of misinformation and/or interference with his care. In order to keep the rising costs as proportionate as possible, I have decided to commission visits and reports from two court visitors: A Special Visitor and a General Visitor. As I explained to the parties at the hearing, a set fee is payable to court visitors. Given the fee, and the complexity of the issues, these reports will be in the nature of ‘scoping reports’. If, when taken with the other independent evidence, they indicate very firmly that it is in RGS’s best interests to remain at X Manor then I will consider whether it is appropriate to proceed any further with the review. If, however, the reports suggest that there is a feasible alternative to the current arrangements, which accords with RGS’s wishes and may be in his best interests, then I will consider with the parties how this can be explored and/or progressed in a way that is affordable. I will also be visiting RGS myself, to hear what he wants to say to the judge in his case. The steps to be taken in respect of the personal welfare issues are therefore: (a). A Special Visitor visit to RGS and a scoping report dealing with: (i) His testamentary capacity (ii) His capacity to decide for himself where to reside, what care he requires and what contact to have with his children (iii) If he lacks capacity to decide for himself where to live and what care to receive, his wishes and preferences concerning the same, and whether it is likely to be in his best interests to receive treatment and care at X Manor, to return home or to be cared for in some other way. (iv) If he lacks capacity to decide for himself what contact to have with his children, whether his care and treatment needs mean that it is likely to be in his best interests for contact with his son to be supervised. (v) Whether it is likely to be in his best interests to visit his cottage, either for day trips or for longer periods. (vi) Any observations as to his smoking habits and access to the internet or email, in particular his capacity to enjoy the same. (vii) The extent to which reports about him in local and national newspapers are likely to distress him and/or affect his future care (if at all) and whether he has capacity to consent to the publication of such information. (viii) When conducting their visit, the Special Visitor is requested to ask RGS where he would prefer to live, and to consider whether it will be helpful to see him with his son at some point. (b). A Special Visitor visit to RBS and a report dealing with: (i) His litigation capacity in connection with these proceedings and (if the visitor does not consider it wholly artificial to give such an opinion, having regard to the fact that many issues are interconnected) whether he has capacity to make litigation decisions in relation to any of the applications before the court should they later be heard separately (deputy’s application, personal welfare, statutory Will). (ii) Whether he has capacity to consent to the Joint Applicants publishing reports of these proceedings. (iii) The effect of these proceedings on his mental health and how any adverse effects can best be minimised and/or managed. (iv) The extent to which he has, and has had, capacity to decide to publish information about these proceedings in contravention of the law. (v) Whether, having regard to his current mental health, he is likely to be able to comply with any undertakings and orders concerning his father which require him not to remove his father from X Manor without agreement and/or to return him there after visits home or out with his son. (c). A General Visitor visit to RGS and his cottage and a scoping report dealing with: (i) Whether it is likely to be feasible for him to be cared for at home. (ii) The likely annual cost of such care. (iii) Whether home care would be likely to be in his best interests. (iv) If it would not be in his best interests, whether it would be in his best interests to visit his cottage, either for day trips or for longer periods. (v) Whether it is in his best interests that his son’s visits to him are supervised and, if so, to what extent. (vi) His views as to making provision for his grandchildren, now or in his Will. (vii) When conducting their visit, the General Visitor is requested to ask RGS where he would prefer to live, and to consider whether it will be helpful to see him with his son at some point. (d). The two court visitors may conduct their visits and/or report jointly if they so wish. (e). The judge to visit RGS with Mr A (his son’s solicitor and litigation friend), so that he has an opportunity to tell the judge anything he wishes him to know. Litigation capacity RBS’s litigation friend should explore with the deputy and the other parties ways of advancing and, where appropriate, agreeing litigation issues. However, the court does not envisage approving any consent orders until a final declaration has been made as to his litigation capacity. If RBS has (or regains) litigation capacity, the court will need to take a robust approach to some issues so as to ensure that the costs are proportionate to their significance and what his father can afford. Unauthorised publication of information about the proceedings 200. ‘(7) The court also reserves the right to take action in relation to the contraventions of previous orders, which includes dealing with those contraventions as contempt of court, but will have regard to RBS’s compliance and co-operation today and in the future before deciding whether any action is required, together with any new evidence of misappropriation and the matters referred to in section 4 (his father’s best interests, including any wishes and feelings of his father). Put differently, I am counting the breaches and reserve the right to take the conventional action in respect of all of them, but hope to avoid having to do so. Ideally, he will bear in mind the benefit to him of now seeing the court visitor, and the cost to him of continuing to breach orders, such that when the time comes I cannot trust him to observe undertakings he offers, or orders he asks me to make, concerning his father’s personal welfare. He must also refrain from doing anything that injures the children’s interests and feelings, and those of his sister and individuals who are simply doing their job by carrying out the court’s or deputy’s instructions. Hopefully we will not reach the tipping point. Media applications concerning attendance and reporting of proceedings 201. ‘I will speak directly with the Media I refuse to obey any gagging order, believing I will not receive a fair hearing in a secret court.’ Precisely how these important issues are resolved will depend on the discussions between the parties, their legal submissions and the outcome of the visitors’ reports concerning litigation capacity, best interests, and other relevant matters. I have made it clear to RBS that in principle I have no objection at all to him criticising me and the court publicly, calling for the court’s abolition, and so on; and, of course, he has already made a head start in this respect. I have no wish to restrict his freedom to express himself publicly more than is absolutely necessary. How this is done needs to be carefully considered before a decision is made, because it could have a detrimental impact on his father (who may lack capacity to consent to confidential information about him being publicised) and on the welfare of others, in particular the children and his sister. Some of the obvious considerations include the private lives, feelings and Article 8 rights of RGS, his children and their children; Article 10; the importance of freedom of expression and a free press; the risk of (public) self-incrimination; the fact that some information is already in the public domain, but not nationally; the likely effect of publicity on RGS's health, treatment and care; its likely effect on his son’s mental health and welfare; how useful the usual rules and principles are in this case given RBS’s medical history and the likelihood of future periodic breaches; and the need for the deputy and care home to be able to respond to unauthorised disclosures of information, and unfair or inaccurate accusations — which, if uncorrected, may discourage vulnerable people to seek or accept the professional help they need. RBS showed me a letter to a local newspaper in response to one article:
‘If what was written was factually correct, this has to be a case of misguided county council officials at the worst. Is this treatment of old people what our fathers and forefathers fought for?’
What I would hope RBS can reflect on is that the unilateral disclosure of information by him is both unfair and unsafe, and that there is a difference between secrecy and privacy. When he refused to disclose what property he owns, he can only have been claiming a right to privacy. I assume he did not see it in terms of secrecy or being secretive. Similarly, when he refused to see the court-appointed doctor, I assume that he was claiming a right to privacy. His own GP is not a ‘secret doctor’ because the press have no unqualified right to be present during their consultations, or to report what is said. All patients 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 in court on 2 November benefits from, and enjoys, their privacy. This is not part of an over-powerful state but traditional English liberalism, a way of preventing the state and the public from over-powering the individual. Society is made up of individuals, and each individual 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. The existence of a private sphere of action, free from public coercion or control, is indispensable to that independence which everyone needs to develop as an individual. That is not secrecy or an abuse of state power, but John Stuart Mill:
‘To individuality should belong the part of life in which it is chiefly the individual that is interested; to society, the part which chiefly interests society.’
Not to allow an incapacitated person the same 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 on their behalf: what kinds of decisions they are making, the quality of those decisions, and so forth. 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. If anonymity is in RGS’s best interests, I hope that the court and the parties can agree a way forward that allows the key issues and the respective views of the parties to be reported: X’s son said that, his witnesses said that, etc. The press has worked well with the court and the other parties, and hopefully this constructive relationship will continue. §10 — ISSUES TO BE KEPT UNDER CONSIDERATION BUT ON WHICH FURTHER EVIDENCE AND SUBMISSIONS ARE NOT REQUIRED AT PRESENT RBS has alleged that the deputy has intercepted his ‘personal confidential mail,’ contrary to Article 8 of the European Convention on Human Rights and data protection legislation. This may, perhaps, be an error on the Post Office’s part. The court’s initial interim order of 20 May 2010 authorised the local authority to ask the Post Office to redirect his father’s mail. It is possible that the relevant sorting office is not distinguishing between letters to R[G]S and R[B]S, who presently occupies his father’s cottage. For the moment, I will simply direct that the deputy reinvestigates what has occurred and reviews the current arrangements with the Post Office, in order to try and ensure that RBS’s mail is not redirected accidentally. §11 — Possible issues concerning which the court is taking no FURTHER action at present No one has applied for a deputy to be appointed for RBS or for someone to be authorised to act as his litigation friend in other court proceedings. Quite properly, X Council does not believe that it could also act as his deputy for property and affairs because of the likely conflict of interest. §12 — DECLARATIONS, ORDERS AND DIRECTIONS Having regard to the above evidence and considerations, I make the following

order

UPON Hearing counsel for the deputy and from RBS and three of his witnesses in person WHEREAS (1). The purpose of the hearing was to decide whether or not RBS has capacity to litigate in these proceedings. (2). On its own motion, the court has considered whether it would be in the best interests of RGS for the existing consent order concerning his personal welfare to be reviewed by the court. (3). The deputy has applied for an order authorising it to execute a statutory Will on behalf of RGS. (4). The court has given directions as to the preparation of a statutory Will on behalf of RGS and directions as to how the other outstanding issues should be progressed. The outstanding issues are: (a). The litigation costs and other costs of the parties (b). The deputy’s application concerning the sale of RGS’s paintings (c). The need for a statutory will (d). A review of where it is in RGS’s best interests to reside, care and contact (e). RBS’s litigation capacity (f). The unauthorised publication of information about the proceedings (g). The media applications (5). The Official Solicitor already acts on RGS’s behalf as his litigation friend in relation to the media applications. (6). The court is satisfied on the evidence presently available to the court that RBS lacks capacity to litigate in these proceedings. However, being conscious that it has not received medical evidence as to this, it has decided to make an interim declaration only at this hearing, so as to give him a final opportunity to undergo a medical assessment of his litigation capacity. IT IS HEREBY DECLARED IN THE INTERIM THAT (1). Pursuant to section 48 of the MCA 2005, there is sufficient evidence to justify a reasonable belief that RBS may lack capacity to litigate in these proceedings. (2). It is in his best interests that Mr A is appointed to act as his litigation friend in these proceedings until further order. AND THE COURT NOW ORDERS AS FOLLOWS (1). Mr A is appointed to act as RBS’s litigation friend in these proceedings until further order. Visitor Reports (2). The Public Guardian shall arrange for a Special Visitor to visit RGS and to file a report dealing with:(a) RGS’s testamentary capacity(b) His capacity to decide for himself where to reside, what care he requires and what contact to have with his children(c) If he lacks capacity to decide for himself where to live and what care to receive, his wishes and preferences concerning the same, and whether it is likely to be in his best interests to receive treatment and care at X Manor, to return home or to be cared for in some other way.(d) If he lacks capacity to decide for himself what contact to have with his children, whether his care and treatment needs mean that it is likely to be in his best interests for contact with his son to be supervised.(e) Whether it is likely to be in his best interests to visit his cottage, either for day trips or for longer periods.(f) Any observations as to his smoking habits and access to the internet or email, in particular his capacity to enjoy the same.(g) The extent to which reports about him in local and national newspapers are likely to distress him and/or affect his future care (if at all) and whether he has capacity to consent to the publication of such information.(h) When conducting their visit, the Special Visitor is requested to ask RGS where he would prefer to live, and to consider whether it will be helpful to see him with his son at some point. (3). The Public Guardian shall also arrange for the same Special Visitor to visit RBS and to file a report dealing with: (a) His litigation capacity in connection with these proceedings and (if the visitor does not consider it wholly artificial to give such an opinion, having regard to the fact that many issues are interconnected) whether he has capacity to make litigation decisions in relation to any of the applications before the court should they later be heard separately (deputy’s application, personal welfare, statutory Will). (b) Whether he has capacity to consent to the Joint Applicants publishing reports of these proceedings. (c) The effect of these proceedings on his mental health and how any adverse effects can best be minimised and/or managed. (d) The extent to which he has, and has had, capacity to decide to publish information about these proceedings in contravention of the law. (e) Whether, having regard to his current mental health, he is likely to be able to comply with future undertakings and orders concerning his father which require him not to remove his father from X Manor without agreement and/or to return him there after visits home or out with his son. (4). The Public Guardian shall also arrange for a General Visitor to visit RGS and his cottage and to file a report dealing with: (a) Whether it is likely to be feasible for him to be cared for at home. (b) The likely annual cost of such care. (c) Whether home care would be likely to be in his best interests. (d) If it would not be in his best interests, whether it would be in his best interests to visit his cottage, either for day trips or for longer periods. (e) Whether it is in his best interests that his son’s visits to him are supervised and, if so, to what extent. (f) His views as to making provision for his grandchildren, now or in his Will. (g) When conducting their visit, the General Visitor is requested to ask RGS where he would prefer to live, and to consider whether it will be helpful to see him with his son at some point. (5). The documents copied to the Visitors shall include this judgement. (6). The reports shall be filed by 4pm on Friday 18 January 2013. (7). On receiving the reports referred to in the preceding paragraph, court staff shall immediately refer them to the judge and copy them to all of the parties. (8). By 4pm on Friday 11 January 2013, the judge will visit RGS with Mr A (his son’s solicitor and litigation friend), so that he has an opportunity to tell the judge anything he wishes him to know. (9). Mr A shall take an accurate note of what RGS tells the judge and shall file and copy his note to the parties by 4pm on Friday 18 January 2013. Directions concerning the statutory Will application (10). Subject to consenting, the Official Solicitor is appointed to act on RGS’s behalf as his litigation friend in relation to the statutory Will application. (11). The issues to be determined appear to be: (a) Confirmation that RGS lacks testamentary capacity (or otherwise); (b) Whether to include his grandchildren as substitute beneficiaries; (c) Whether to include a hotchpot clause; (d) Ensuring the court’s orders are in RGS’s best interests when taken together. (12). Within 5 working days of receiving this order, the deputy shall send to the Official Solicitor: (a) A copy of this judgment, pages 41-43 of which summarise the known history in relation to the statutory Will issue; (b) Copies of all previous court orders made in these proceedings; (c) Copies of all other information in the deputy’s possession which is relevant to the statutory Will issue; (d) Insofar as the Official Solicitor requires any or all of them, the documents listed in Practice Direction 9F. (13). Any statements or submissions which the other parties wish to make concerning the preparation and terms of a statutory Will on behalf of RGS shall be filed and copied to the other parties by 4pm on Friday 8 February 2013. (14). Any statement made by the Official Solicitor concerning the preparation of a statutory Will shall be filed and served by 4pm on Friday 22 February 2013. (15). Upon receipt of this order, the deputy shall copy to the Official Solicitor any financial information which the Official Solicitor requires for the purposes of funding legal representation for RGS. Directions concerning the other issues (16). Any statements and other evidence that the parties wish to rely upon in relation to the Visitors’ reports and the following matters shall also be filed and served by 4pm on Friday 8 February 2013: (a) RGS’s residence, care, personal welfare and contact with his family (b) The sale of RGS’s paintings and/or other assets (c) The future occupation and/or sale and/or rental of RGS’s cottage (d) The repayment of any monies owing to RGS (e) How RGS’s liabilities and future care needs can best be settled or financed (17). For the avoidance of doubt, all statements filed with the court must be served on the lead Joint (Media) Applicant, namely Independent Print Ltd, as well as on the other parties. (18). Until further order, no party, persons (whether acting by themselves or in any other way) or companies (whether acting by their directors, employees or agents or in any other way) shall publish or broadcast, in any newspaper, magazine, public computer network, internet site, social network or cable or satellite programme service: a) any orders or directions disclosed to them in connection with these proceedings; b) any other information relating to proceedings in the Court of Protection concerning RGS. (19). For the avoidance of doubt, paragraph (18) has effect even if this order is not sealed. Roundtable meetings and future hearings (20). During the fortnight commencing Monday 25 February 2013, the parties shall seek to agree what information or further information relating to these proceedings may be published by the Joint Applicants and upon what terms. (21). The parties may hold a roundtable meeting at any time provided that the Official Solicitor agrees. (22). If considered appropriate, the parties may submit a consent order for the court’s attention in relation to any or all of litigation issues following receipt of the Visitors’ reports. (23). The preceding paragraph does not prevent the parties from discussing and seeking to agree litigation issues before receiving the Visitors’ reports but the court will not make or approve any final orders or declarations until a final decision has been made by it as to RBS’s litigation capacity. (24). This case is to be set down for a final two-day hearing of all outstanding issues on the first-available date after Monday 18 March 2013. The parties shall liaise with the court as to a convenient date. (25). The deputy shall file an agreed bundle at least 7 days before the hearing and any position statements shall be filed at least 2 days before the hearing. (26). The parties and any person affected by this Order may apply to vary or discharge it on 48 hours notice. (27). Save as varied by this order, or inconsistent with it, the court’s previous orders in these proceedings remain in force. (28). If at any stage any of the parties consider that a hearing is likely to be necessary before 18 March 2013, whether for directions or in order to determine issues, that party must promptly file and serve an application form in Form COP9, in which is set out the reasons, a time estimate, and whether the hearing should be by telephone or personal attendance. (29). This judgment and/or any part of it may be published by the Joint Applicants if and only if both the Official Solicitor and the deputy agree that it or that part of it may be published by them. (30). All communications with the court in response to this order shall state the above case number and be sent to: Court of Protection Thomas More Building (4th Floor) Royal Courts of Justice Strand London WC2A 2LL To: X County Council Public Guardian (Visits Section) Official Solicitor Mr A (Solicitor) on behalf of RBS 247. L 248. Independent Print Limited (lead Joint Applicant)