PB, Re [2014] EWCOP 14

[2014] EWCOP 14

Case No COP 12264888

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 21/03/2014

Before

MRS JUSTICE PARKER

Between

NCCApplicant

Ms Ulele Burnham (instructed by NP Law) for Local Authority

Ms Amy Street (instructed by Guile Nicholas Solicitors) for First Respondent

Mr Stephen Reeder (instructed by Maxwell Gillott Solicitors, London) for Second Respondent

Hearing Hearing dates: 9-11th and 13th December 2013

Judgment

MRS JUSTICE PARKER

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mrs Justice Parker :

[1]PB, aged 79 at the date of the hearing, is the subject of proceedings brought by Norfolk CC in the Court of Protection and pursuant to the inherent jurisdiction. There is no dispute that she lacks the capacity to litigate, as does her husband TB, aged 50. The Local Authority is represented by Ms Ulele Burnham, PB by Ms Amy Street, and TB by Mr Stephen Reeder, both instructed through the Official Solicitor as litigation friend.

[2]The issue is whether PB has capacity to decide whether to live with TB, what contact to have with him, and what her care arrangements should be (that issue, it is common ground, includes where she is to live); and, if she is to be accommodated in local authority care, whether she is deprived of her liberty and if so whether this should be authorised by the Court. There is an interim declaration to that effect.

[3]The current court directed regime is that: i) PB lives at F House, a specialist care home, ii) She is subject to the same care and support regime as existed in relation to the Standard Authorisation which was due to expire in March 2013, iii) Her contact with TB is regulated by the multi-disciplinary team responsible for her care and support package.

[4]Both PB and TB object to the restrictions on their contact with one another and PB has stated that she does not want to live at F House.

[5]Ms Burnham submits that PB lacks capacity in respect of the disputed decisions. On behalf of PB and TB the Official Solicitor submits that her lack of capacity has not been established on the balance of probability.

[6]It is common ground that PB has the capacity to understand and retain relevant information and to communicate a decision, and that the relevant question is whether PB can “use and weigh” the information that she has in making the relevant decisions. TB’s influence over her is also an important feature.

[7]If it is not established that PB lacks the relevant capacity Norfolk seeks declarations and orders to the same effect under the inherent jurisdiction which will include restrictions on her movement. The Official Solicitor resists such an order.

[8]The case was listed before me for 4 days on circuit at the end of December 2013. As a result of(a) other listings put in by the court, including 9 hours listed work on day 4,

(b) the fact that I wanted to think about the precise formulation of my rulings, I gave my decision at the end of the hearing, with brief reasons, which have been recorded by counsel. I was just about to go on extended leave.

[9]I declared that PB lacks capacity, and it is lawful under MCA 2005 to make declarations that she lacks capacity to make decisions as to her residence and care and her contact with TB and also deprive her of her liberty.

[10]It turned out to be fortunate that I had reserved judgment, since Ms Street put in a further written submission on the law after I had made my decision. In the meantime the Court of Appeal has handed down judgment in IM v LM & others

[2014] EWCA Civ 37

, a decision on a different subject matter but which importantly deals with a number of aspects of the MCA 2005, in particular the ability to “use and weigh”, and it also touches on the relevance of influence.

The Mental Capacity Act 2005: some general principles

[11]The 2005 Act is an important and innovative piece of legislation designed to protect but also to address the convention rights and welfare and other interests of incapacitated individuals so as to make capacity and best interests decisions, as well as regulating financial affairs. There are a number of important strands, including: i) The presumption of capacity. ii) Capacity is subject matter specific and a person may be capacitous in some respects and not in others. iii) Recognition of the principle of autonomy (a particularly difficult area where a person lacks capacity). iv) Incapacity is not to be judged on whether a decision is “unwise”. v) Not to be paternalistic whilst still protecting the vulnerable. vi) All practical steps must be taken to help a person to make decisions (i.e. to enhance capacity) before that person is treated as unable to make a decision.

[12]Notwithstanding MacFarlane LJ’s statement in PC v City of York Council

[2013] EWCA Civ 478

that “the central provisions of the MCA 2005 have been widely welcomed as an example of plain and clear statutory language” the areas of debate have not diminished. Sometimes, it seems to me, a holistic approach is lost. This is not of course to suggest that the statutory criteria can be replaced by an overall welfare based approach.

[13]At the conclusion of this judgment I shall make some suggestions as to how court time can be best utilised and the court best assisted to come to a timely decision in line with the overriding objective. Four days is a long time in court. It proved difficult to accommodate in practice.

The background

[14]PB has a longstanding diagnosis of psychiatric ill-health. She has been the subject of social services intervention for some time. Until 2006 she was living with TB in his one bed-roomed flat in a small Norfolk town. The couple has a long history of travel round the country, and on some occasions presented as homeless. On a number of occasions in 2006 TB left PB in various places around England from which she had to be rescued. An adult safeguarding decision was made (by Social Services and her mental health team) that she should be placed at F House. In May 2006 TB moved in with her but the placement broke down. A further attempt was made to accommodate TB there in June 2008 but he returned to his flat. PB visited him there, although there was increasing concern about exceptionally insanitary conditions. Both are incontinent. By January 2011 at an after care review it was decided that TB’s health was becoming increasingly affected by conditions there. She was asked to stay 6 nights a week at F House but did not comply.

[15]PB’s treating psychiatrist Dr Khalifa advised that PB was unable to decide what was best for her. She reported that at the time PB accepted this, and that when taken to F House had no objection. She expressed a wish to be with her husband, but in Dr Khalifa’s view was not able to see the risk involved. Catherine Thompson, her social worker, also assessed capacity and best interests. Both independently concluded that PB was unable to use and weigh information relevant to the risks to her heath at TB’s flat. Ms Thompson found in particular that PB was unable to provide direct answers to questions. A Standard DOLs Authorisation was granted in April 2011.

[16]In August 2011 a best interests assessor decided that PB had capacity as she gave “considered answers to questions”. The standard authorisation was discharged. She moved back to live with TB. The care package included two carers’ visits daily. This was to assist with PB’s continence needs because she needs to have her pads changed regularly. Two carers were required, but TB and PB would not allow more than one daily visit, and they often went out to avoid the carers. When a visit was made it was apparent that conditions had not improved. It is not necessary for me to describe them in detail: the premises were clearly disgusting and a health hazard. PB was often in a urine soaked bed. Industrial cleaners had to go in on several occasions.

[17]On 6 March 2012 PB was admitted to hospital by ambulance having been found by TB’s sister-in-law in a filthy state and suffering from a serious chest infection. She was discharged on 10 March to F House. TB took her on a train trip to Cambridge and abandoned her. When she was found and returned she had wet and soiled herself but made no attempt to obtain assistance. On 17 March 2012 she was found on the ground in the market place and taken back to F House by ambulance. The next day TB took her out again and she remained away for three days until TB left her at a bed and breakfast some way away where she was found by the police incontinent in bed. She went back to F House but TB took her out. He later telephoned to say that she was on the floor in the market and that he was taking her to London. The next day he took her to the police station saying that she did not like the care home and that they needed accommodation. On 2 April they telephoned to say that they were in Norwich but were intending to travel to Devon. The next day TB telephoned to say that she was on her way to visit her sister in London. By then she had an untreated urinary tract infection. On 3 April she stayed in a guest house in Cambridge. On 4 April she was found in TB’s flat. She did not know how and why she had come to be in Cambridge. She had an Addenbrooke’s Hospital tag on her wrist but could not explain how it came to be there. It became apparent that she had been admitted as an emergency. She agreed that she was “not really well enough” to go on these trips. She said that she did not know whether she would go off with TB again stating, “I don’t think I would”. PB later returned to F House. A further standard authorisation was granted on 14 April 2012.

[18]On 17 April 2012 TB’s landlord, a Housing Association, obtained an injunction preventing PB from returning to TB’s flat.

[19]A best interests assessor, Wendy Masters, conducted an assessment and found that PB refused to acknowledge any concerns. She asserted that she was not provided with care at F House. That was not the case. She said that she wanted to leave and that her husband would look after her “beautifully”. She would not discuss the physical conditions at the flat. Ms Masters considered that she lacked capacity since her assessment of the reality of her situation was “grossly disproportionate” to her situation. A further capacity assessment in July 2012 found that PB “blocked” any information that impacts on her relationship with her husband and whether it was safe for either of them for her to live with him. She was “simply unable to accept the facts,” and dealt with her history by a mixture of denial, deflection and distraction. The assessor found herself “forced” to conclude that she lacked capacity. As a result, Norfolk County Council, which had been on the verge of issuing proceedings since 2011, decided to do so.

[20]On 17 December 2012 Dr Khalifa provided a capacity assessment and advised that PB lacked capacity to litigate and to make decisions about residence, care and contact. These proceedings were commenced on 13 February 2013.

[21]Permission was granted to make the application on the papers by order of DJ Owen on 31st January 2013. Interim declarations as to PB’s lack of capacity in respect of the relevant decisions, the joinder of PB and TB, the requirement that PB’s RPR and the Manager of F House be notified and invited to become parties if they so wished, and the requirement that material documents be served on the Official Solicitor were ordered by DJ Batten on the papers on 13th February 2013. Between issue and the end of July 2013, three further orders were made by District Judges:(i) (hearing 21 February 2013) the Official Solicitor was not present nor represented but the Clinical Team Leader of the relevant Foundation Trust was present, the court was persuaded that a court order with regard to deprivation of liberty was preferable to a standard authorisation (and this has been continued at all subsequent hearings); further steps were to be taken to involve the Official Solicitor; other orders were made with regard to privacy and disclosure

(ii) (on paper 14 February 2013) an interim declaration of incapacity was made (and confirmed at all subsequent hearings); PB and TB were joined as parties; PB’s Relevant Person’s representative and the manager of F House were to be notified of the application and invited to become parties if they so wished; and the Official Solicitor was to be served

(iii) (hearing 28 March 2013) the Official Solicitor was appointed litigation friend, provision was made to inform PB’s brother and sister and the care home about the proceedings; NCC and PB were permitted jointly to instruct a psychiatrist to report on capacity issues, and an independent social worker to report on best interests, care and contact with PB; directions were made as to filing of reports and letters of instruction; and a final hearing with a time estimate of three days was listed in July 2013; further provision was made for disclosure of documents.

[22]Dr Barker, consultant in old age psychiatry, was instructed. Dr Khalifa had not provided, and not been asked to provide, a full report over and above her certificate.

[23]Dr Barker’s report of May 2013 suggested that PB might have capacity, but the Official Solicitor considered that his report was unclear. I agree. The Official Solicitor sent questions by letter. On 7 June 2013 he put the matter on paper before a District Judge who ordered that the matter be restored for further directions on 18 June 2013. The case was then transferred to the High Court by further order on the papers of 25th June 2013. The District Judge noted that the question of PB's capacity was ‘complex and unresolved’ and might require consideration of the inherent jurisdiction. The instruction of the independent social worker was suspended.

[24]On 10 July 2013 Moor J ordered a second report from Dr Barker (which in fact became the third, because in the meantime he answered the questions). He directed that further information be sought from PB’s siblings. That latter information gives their view as to PB's history, capacity and her marriage. It was referred to in Ms Burnham’s position statement but not addressed in submissions. He ordered Dr Khalifa to respond by way of report. The interim declarations were again continued, and further case management orders were made for filing, expert’s meeting, and service of position statements. He vacated the July hearing, and set down the hearing for four days at Cambridge County Court in late December 2013 for the capacity issues to be determined. It was listed on Monday to Wednesday, and then Friday, for counsel’s convenience. This caused listing problems in itself at this busy county court. By 22 November 2013 the parties were to agree(i) a schedule of any findings to be made

(ii) witness timetable.

[25]In September 2012 PB and TB were permitted to take short outings together as part of a period of “positive risk taking”. These were suspended the next month after she failed to return from an optician’s appointment.

[26]PB is not really mobile, she has significant problems with incontinence, and her health is fragile. She spends much of the day in bed, and is essentially dependent on a wheelchair for locomotion.

[27]TB has been allowed to stay with her at F House. There are problems because of his incontinence (he often does not use the bathroom but urinates or defecates in her room), his behaviour can be difficult, and he can obstruct caring for PB. He has been aggressive to staff. I do not criticise him. He is not responsible for his actions. But F House cannot accommodate him full time because of his behaviour.

[28]Norfolk considers that she should continue to live at F House, with visits by TB including overnight stays.

[29]There was also an issue, which had been rather lost sight of during the run-up to the hearing, as to PB’s physical health. She has problems swallowing. She is in discomfort. All her food has now to be liquidised. She did not want to have an endoscopy. She did not like the idea. But gastro–oesophageal problems can be very serious. They may require intervention, and quality of life can be enhanced and life preserved.

[30]At the hearing I had three reports from Dr Barker and two from Dr Khalifa. Neither of them gave me a clear view on capacity. They had met, and produced a schedule of agreement (there were no disagreements). Their overall view on capacity was still unclear.

[31]TB suffers from schizophrenia. He is presently living in the community with support. TB’s consultant psychiatrist Dr Ayuba, who has not been called to give evidence, reported to this court in August 2013 that TB is a vulnerable person; he is at risk of self-neglect, unable to look after himself, and vulnerable to others taking advantage of him. He told Dr Ayuba that “he does not have the ability to be able properly to look after himself in independent accommodation. Neither will he have the means to look after his wife, as he appreciates that her needs are more than his own, and he might not be in a position to be able to support himself and his wife, and… they will both require sheltered accommodation of some kind”. This was consistent with what he told me at court. It was not advanced on his behalf that he would live at F House.

[32]PB and TB have also both said in discussions that they want to live in Bideford in Devon. PB had a happy holiday there many decades ago when married to her first husband. They have no concrete plans, no accommodation and no support network there.

[33]PB accepts that TB has not been willing to allow carers in to assist with PB’s care.

[34]In April 2013 TB wrote that he felt that with help PB could decide where she should live.

[35]I have no doubt that TB has done his best to cope. Probably nobody would be able to do so without support. When he reflects he accepts that PB needs to be at F House. But he is unable (and this is common ground) himself to assess what is in PB’s interests on a day to day basis.

[36]PB believes strongly in marriage and that it is her duty and function to comply with her husband’s wishes.

The submissions on behalf of PB and TB

[37]Both submit that PB has capacity and therefore the court has no power to restrict her contact with her husband. Ms Street has put the case on PB’s behalf fully and robustly.

[38]Through Mr Reeder TB has played a very full part in these proceedings including cross-examination of the experts. Mr Reeder also firmly challenged the capacity issue, on the ground that his client had an interest in establishing that his wife’s incapacity had not been established. He advanced slightly different arguments on the law from Ms Street.

[39]No concrete proposals were put forward as to where PB and TB were to live together. In my view the issue was not just whether PB was able to take a decision that she wants to be with her husband, but as to where she should live, in what circumstances, and with what care package.

[40]This case is a prime example of the need in Court of Protection cases to have regard to the factual matrix and evidence, and the actual rather than theoretical decisions to be made: both by the protected party, and by the Court.

The hearing itself

[41]PB wrote to me before the hearing. In particular she wrote that “I should like to point out that it is the right of every individual to choose for himself or herself whom to live with and where to live and not to live under the shadow of regimentation and have to live in an institution”.

[42]I was asked prior to the hearing, and when I had had no opportunity to assess the background, whether I would see PB at the hearing. I reserved that decision for the trial. At court I was also asked to see TB. I was happy to do so, but stressed that care has to be taken as to how a meeting shall be treated. The protected party does not give an sworn/affirmed account, and in particular if the meeting takes place only in the presence of the judge, with no opportunity to test the evidence, then in my view no factual conclusions save those which relate to the meeting itself should be drawn, in particular with regard to capacity (see YLA v PM and Another

[2013] EWHC 4020 (COP)

at [35].

[43]As it turned out, neither wished to give evidence. They each asked to speak to me in the courtroom with all representatives present. This took place on day three. PB spoke to me first, followed by TB. Each sat close to the bench and was at liberty, as I told them, to talk about what they felt and wanted, and any other topic. They were not cross examined, and I did not ask any questions. I did speak to PB about the medical procedure which she was reluctant to undergo.

[44]PB is likeable, highly intelligent, sophisticated and articulate, well-read and knowledgeable. She writes poetry. With regard to marriage she told me “Let no man put asunder” and “once a couple are married - meant to be together”. She denied that she had been ill for 50 years. She stated “I haven’t lived with my siblings for 50 years”.

[45]It is obvious to me from all that I have read and heard as well as from the meeting that PB’s intellectual understanding is at a high level. She stated “I understand that this Act only came in in 2005. I wonder whether it’s working out as it should be”.

[46]She told me, when asked what she wanted to happen, “I’d like to be free to wander the universe without being told to sit down and be quiet”, “I’d like to get my poetry published”, “I’d like [TB] to be always at my side”, and “I’ve never hit a carer” (the evidence is that she has).

[47]TB is also likeable, and he was articulate and sincere. He said “How do you take decisions” “we have a lot of confidence in one another, we should be living together as man and wife”, “The social worker has done a good job”. He wants to go back to F House to be with PB. He volunteered that he had “tapped the manager on the nose”.

[48]I accept that whatever their respective problems this couple has a long standing and committed relationship and that they love one another dearly. There is no issue as to their capacity to marry: the marriage was celebrated many decades ago. PB told me that social services are trying to “break up her marriage”. That is a false perception. There is no question of this. I accept (as Dr Khalifa told me) that as far as Norfolk Social Services and the mental health care team are concerned her marriage has always been considered to be of paramount importance and that Dr Khalifa, Ms Thompson and others and others have worked to preserve the quality of their relationship as a couple, while promoting PB’s physical and mental wellbeing.

[49]The issue, arising from capacity, and on the local authority’s case in any event, is her safety, care and protection.

Findings of Fact

[50]Norfolk County Council has prepared a schedule of proposed findings. Ms Street challenged some minor aspects of the facts asserted. I have had to take into account hearsay evidence. I am entitled to do so (see McFarlane J, as he then was, in LB Enfield v SA, FA and KA,

[2010] EWHC 196 (Admin)

. Ms Street submitted to me that I must take care as to the weight which I place on hearsay evidence. I accept this, but see no reason to doubt the accuracy of the information provided to me, which is corroborated by much other information which I have.

[51]Catherine Thompson, who I thought an excellent social worker, gave compelling evidence about PB’s functioning and in support of the Findings of Fact schedule. I accept her evidence, taken in conjunction with the records. She expressed her firm, consistent and clear view as to capacity, based on her on experience of PB, and the records, to which I must pay great regard.

[52]I am satisfied of every element of the schedule. i) PB was unable to recognise the need for basic levels of hygiene for treatment of a chest infection. In April 2011 TB’s flat was so filthy that she could not safely receive her depot medication there. ii) PB was discovered in TB’s flat on 6 March 2012 in a filthy state, unresponsive and with laboured breathing as a result of a chest infection. Hospital admission was required. iii) In early April 2012 PB travelled to Cambridge with TB with an untreated UTI and had to be returned to Norfolk by Cambridgeshire Police, TB having left her in Cambridge on her own. PB was discovered in TB’s flat distressed and miserable, sodden with urine and with her trousers half-way down. (PB disputed this but I heard convincing oral evidence of the social worker’s direct observation). TB’s flat was cold and there was no food or drink. PB refused to return to F House for respite. iv) PB has an unrealistic view of her care needs and how they will be met if she were to live with TB without appropriate social care intervention. v) Between early 2011 and March 2012 PB and TB often refused access to those engaged to provide essential care services leading ultimately to a serious decline in her physical and mental health. vi) PB undertook a series of impulsive trips with TB which resulted in serious health risks to PB and/or serious risks to her emotional and psychological welfare and safety occasioned whether by being left to make her own way back, being together with TB but without sufficient funds/resources to return, or being left in entirely unsanitary conditions. vii) PB is manifestly unable to respond to her own personal and health needs or to protect herself from risk when resident/staying with TB. viii) PB has limited ability to recall/take account of harm or risk of harm to which she has been exposed in the past when with TB or to avoid such harm from materializing in the future. ix) PB has repeatedly demonstrated deference to, and over-reliance and dependence upon, the views/desires of her husband even when to do so places her at significant risk of harm. x) PB is at significant risk of not receiving adequate care and support in the absence of restrictions on or regulation of contact with TB. xi) TB is unable to understand or act appropriately in relation to PB’s care needs (albeit that this is linked to his own needs). xii) PB and TB are together unable to maintain basic levels of hygiene and self-care and/or to access appropriate care and support when living/staying together in the community. xiii) There is a clear documented history of TB being physically violent to PB. I accept that this has happened. (The records are clear, no convincing or indeed any serious argument has been advanced as to why they may be inaccurate or false, TB has accepted hitting the manager in the home).

[53]Ms Thompson’s unchallenged statements describe: i) The steps that she has taken to assist PB understand the issues. ii) PB has had serious hygiene problems which have compromised her health. She has suffered from untreated chest and urinary tract infections, and infected skin lesions due to poor hygiene. iii) There have been times when PB has complained of violence from TB, and when she has asked for a separate room from him at F House. He has been observed to be aggressive to her. iv) Sometimes she has refused to get up out of bed when he arrives. v) She has described herself as unable to resist TB’s demands, in particular to travel with him. vi) Their plans are vaguely expressed, with no regard to the practical realities, and their need for care. When asked what she would have in Bideford and not in Norfolk she said “sunshine” and when asked what she could be offered in Norfolk she said “nothing but blood, sweat and tears.” She then refused to discuss the subject any more. She has a fixed view that there is no need for a care package in Bideford because once there her care needs would not exist. vii) When asked in August 2013 how she would keep clean and healthy because PB said that TB did not like carers coming in. PB replied “that’s your thought” and then described herself as “stuck”.

[54]In her oral evidence Catherine Thompson told me, and I accept, that: i) PB is not a volitional risk taker. ii) She cannot weigh up the information for herself. iii) She understands the theory but not the practice. iv) She can give plausible answers. v) But then she blocks explanation of the real risks and benefits of the decision. vi) She gives the same answer every time. vii) She cannot look after herself and requires continuous care. viii) Her lack of reality is illustrated by, for instance, her repeated statement, when asked about how she feeds herself, “I make a good omelette” whereas in fact she never cooks. ix) When in a state of intense anxiety she is effectively paralysed and gets into a state of ‘frozen panic’. This can last for hours. In this state she cannot make any decision at all about anything. Ms Thompson described the occasion when she was in wet clothes on the floor, where she had been for hours, unable to move or do anything. x) When her anxiety reaches high levels she just lies on the floor motionless. Sometimes she lies down in the street. xi) Her response to TB is a result of his pressure on her, and not just loyalty to him. xii) She has never said words to the effect “I know and accept the risk, this is the price I pay for my marriage”. xiii) Ms Thompson has never been able to achieve a reasonable discussion of the options with PB. xiv) She does not have the capacity to decide on residence and contact principally because she does not have capacity to decide on her care needs. xv) She told me frankly that the capacity issue has inhibited planning for PB’s needs.

[55]It was put to Ms Thompson on PB's instructions that PB is prevented from walking and unnecessarily confined in a wheelchair when she goes out. Ms Thompson denies this. PB needs a wheelchair. She cannot walk very far and she has to be prevented from lying down in the street. If she does so it is very difficult to lift and remove her. 56. Mental Capacity Act 2005 ss 1-3 “PART 1 PERSONS WHO LACK CAPACITY 1 The Principles(1) The following principles apply for the purposes of this Act.

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. 2 People who lack capacity (1) For the purposes of this 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. (2) It does not matter whether the impairment or disturbance is permanent or temporary. (3) A lack of capacity cannot be established merely by reference to – (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. (4) In proceedings under this Act or any other enactment, any question whether am person lacks capacity within the meaning of this Act must be decided on the balance of probabilities. (5) No power which a person (‘D’) may exercise under this Act- (a) in relation to a person who lacks capacity, or (b) where D reasonably thinks that a person lacks capacity, is exercisable in relation to a person under 16. (6) Subsection (5) is subject to section 18(3). 3 Inability to make decisions (1) For the purpose of section 2, a person is unable to make a decision for himself if he is unable – (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means). (2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means). (3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision. (4) The information relevant to a decision includes information about the reasonably foreseeable consequences of – (a) deciding one way or another, or (b) failing to make the decision”. PERSONS WHO LACK CAPACITY

Psychiatric opinion

[56]Dr Barker saw PB in April 2013 and again in October 2013 (with TB). He reported on 10 May 2013, provided answers to questions on 7 June 2013 and reported for the third time on 25 October 2013. “Unusually”, he said, he left his final view on capacity to me.

[57]PB’s treating psychiatrist Dr Khalifa has known PB since 2007. Dr Khalifa reported on PB on 9 August 2013 and made a witness statement dated 7 November 2013.

[58]Particularly since PB presents in a sophisticated manner, as Dr Khalifa told me, it has been an advantage for me to have had the treating physician with long term knowledge to give evidence on the issues. Dr Khalifa stems from Sudan but has worked in Ireland before coming to practice in England as a consultant in old age psychiatry. English is not her first language and her idiomatic understanding has some gaps. That gave rise to a misunderstanding in writing, as will be seen. Her reports were also not clear, taken in conjunction with the joint statement (appended hereto).

[59]There is a considerable degree of consensus between the experts: i) Dr Barker thinks that the diagnosis is schizo-affective disorder. Dr Khalifa thinks it is residual schizophrenia. I agree, as the doctors agreed, that this makes no difference to their overall views. ii) Both agree that PB has cognitive problems. Dr Khalifa says that she has compromised executive function stemming from her frontal lobe. This is a known problem in schizophrenia. Dr Barker accepts that she has frontal lobe damage, which he described as “mild brain damage”. Dr Barker also thinks that she has an “ageing brain”.

[60]Dr Khalifa explained in oral evidence (which she gave the day after Dr Barker) that: i) Executive dysfunction is progressive. ii) It is implicated in planning, judgment, and decision making. iii) PB has problems with working memory, keeping information “on line”, and manipulating the information to make a decision. iv) She suffers from “poverty of thought” (a global reduction in her quality of thought where the person keeps returning to the same limited ideas). v) She shows “negative thinking” and lack of initiative. vi) She is unable to judge situations. vii) She has problems in “set shifting”: that is in shifting her choice to a new one in the face of negative feedback, and the ability to stick to a new choice. viii) She has problems in doing more than one thing simultaneously. ix) Other problems are of selecting appropriate responses and inhibiting inappropriate ones, of generating plans and resolving problems. x) She cannot compare the risks and the benefits.

[61]This formulation had not been put forward by Dr Barker and he was not asked about it, since Dr Khalifa’s formulation was not elicited until she gave evidence. But the upshot is that it was not challenged. Nothing that Dr Barker said was inconsistent with it.

[62]Dr Khalifa states that PB suffers from intense anxiety which can reach clinical levels and which prevents her from making a decision. She “gets stuck”, as described by Ms Thompson. Dr Barker thinks that many people without mental health problems have problems making difficult decisions. But he agrees that PB’s anxiety can reach clinical levels so that it constitutes impairment/ disturbance.

[63]Broadly, Dr Barker is not certain about the extent to which PB’s decisions may be based on her beliefs about marriage, and to what extent TB’s influence leads her to be incapacitous all the time.

[64]Dr Barker states that PB is heavily influenced by her husband. When not with TB she has capacity (in his original report he wrote “has considerable capacity”) but may be incapacitous when with him. He does not know to what extent influence may be taken into account in deciding that she is incapacitous.

[65]In his report and evidence he suggested that PB may simply be making a decision based on her commitment to marriage over her own wellbeing which is unwise but which is not caused by her mental impairment. “If she has preferred to ally herself with her husband she may accept the level of squalor”. In cross–examination he said that in his view her decisions “are not solely driven by mental impairment” and “it is difficult to judge whether it is cognitive impairment, or other factors which lead her to make unwise, or incapacitous, decisions when with TB”.

[66]He said that assessment of whether she was unable to use and weigh might be skewed if PB had chosen to withhold information. She might have different thought processes but was choosing not to disclose that to him. There is evidence that she understands the issue but she may not want to give evidence which may “damage her cause”. This may be a natural denial.

[67]That is the best summary of Dr Barker’s views which I can provide. His views were in fact set out in a number of different formulations. Mr Reeder has set them out in his closing document. I need not review that in detail. Dr Barkers’ final position in evidence was that the issue of PB’s capacity is finely balanced and should be decided by the court. He ‘leans’ to the conclusion that she has capacity to make decisions about residence, care and contact in optimal conditions He wavered somewhat as to whether he thought that PB lacked capacity when not with TB, and eventually concluded that he thought that she might do. “I agree that PB lacks capacity in certain situations, for example because of anxiety, mental disorder or influence. I don’t know if she has capacity in optimal circumstances, but I have not seen sufficient evidence that she lacks capacity then”. Ms Street says that the Official Solicitor “interprets” Dr Barker to have said that he thought that the presumption of capacity had not been rebutted.

[68]Dr Khalifa’s consistent position in oral evidence was that PB’s mental illness, anxiety and influence from TB all contribute to her inability to weigh information. She lacks capacity at all times, sometimes at a greater level that at others.

[69]Dr Barker had drafted the joint statement after their joint meeting. Dr Khalifa told me, and I accept, that he sent it to her and she signed it without further discussion. They recorded agreement that capacity was “finely balanced”. Dr Khalifa told me that she had misunderstood. She did not consider capacity to be finely balanced. She regarded PB and always has as clearly lacking capacity. Furthermore, although they agreed that PB had “considerable capacity” when not subject to TB’s direct influence (adopting Dr Barker’s phrase, by which he seems to have meant something different) both in her report and the joint statement, she did not mean that PB ever had capacity. She “would not separate influence and major psychiatric disorder.” In any event TB's influence is pervasive. Whenever PB has to consider decisions about living with him or spending time with him she either cannot recall or use and weight the information or is paralysed by anxiety, or both.

[70]The joint statement does not clearly address the capacity issue and Dr Khalifa’s clear view only emerged at court. Dr Khalifa told me also that she had wanted to “harmonise” their views. I accept this. Dr Barker’s view was never clearly enough expressed and it seems to me that she thought that this was the best they could do since there was no prospect of getting any clearer formulation. She was wrong to sign up to an accord when in fact there was none. But I am sure she did not appreciate that this would prolong the debate and the enquiry.

[71]Both agree that “whether or not the Court finds that she lacks capacity, she is a vulnerable adult and as such requires protection in the context of her relationship with TB.”

The assessments

[72]I regard the history as of key importance in this case. I also regard what PB has said in assessments as a key feature.

[73]In September 2013 PB’s solicitor Ms Nicholas took PB though the schedule of findings of fact. PB could not address the concerns. I agree with Ms Burnham that she consistently slid away from discussing the points, making excuses, dodging the questions, and saying in response to discussion of the hygiene issues “it’s all in the past”. In a separate part of the conversation PB told Ms Nicholas that it was true that she had a limited ability to take account of harm to her. When asked why she thought it was true she said “because it’s not false”. Dr Khalifa thought that showed a distorted mental process. I accept her view. Dr Barker agreed with Ms Burnham’s formulation that PB was “denying, avoiding, distracting, not completing the discussion.”

[74]Dr Khalifa placed considerable weight on her own meeting with PB at F House in August 2013. Dr Khalifa reports that PB accepted that she needs support from carers, social worker and mental heath nurse. She accepted that TB’s resistance to their visits might prove to be a problem. But “when I asked her what she thinks the long term consequence of her care needs not being met might be she said not very pleasant and she might be very ill”. Dr Khalifa comments that “although she was able to identify the consequences of her care needs not being met, that she might be ill or in an unpleasant situation, (she)…was not able to think what will happen if TB does not adequately meet her needs.” Dr Khalifa noted that in 2011 when Ms Masters put it to her that her care and continence needs had not been properly managed she replied “balderdash”. When reminded of the evidence she replied “no comment” and when asked what would happen if her needs were not met she said “not very pleasant” and “I might die”. Consistently with Dr Khalifa’s later opinion Ms Masters commented that “although she was objectively able to consider the consequences she failed to understand that this was actually happening to her, and believed that TB was adequately meeting her needs”.

[75]These attributed statements all appear in the court documents. They have not been challenged. Dr Barker was reluctant to address this part of the evidence. He said that he had not been there and so could not comment. There was in fact no reason to doubt the veracity of the accounts. When I persuaded him to deal with this on an “as if” basis, he said that these exchanges were “relevant” to capacity, if due to mental disorder.

[76]Dr Barker had placed weight on his own interviews with PB on 29 April 2013 and 10 October 2013. When he asked why the conditions in the flat had deteriorated so that they could not live together, why they had not kept it clean or accepted care, she said that it would not have mattered, as she was “not wanted in the county”. This was an obviously false belief. He asked her why she had gone off with TB on long journeys and then got stranded, so that sometimes they were brought back by social services, and told her that this did not sound very wise. She said “but romantic”. She told Dr Barker that she always did what TB wanted because she didn’t want to lose him, and also that she did not feel able to stand up to TB because he is a very “forceful personality”. When he asked her whether her behaviour was “reckless” she responded that she had been “acquiescent” and that this was because she had not insisted on carers coming in, and she tried to keep on good terms with him, because she loved him. “He’d do things on impulse, I’d go along with him”.

[77]As Dr Barker noted, PB acknowledged to her that she was not well enough to go on trips, although evidence showed that she had continued to accompany him, and that his care of her had been abusive and neglectful, and that he had hit her.

[78]I do not agree with Dr Barker that the reported discussions, which seem to me to be one of the key features of the case, show a “nuanced view of the risk.” What she said to him is all of a piece with the discussions with others: an intellectual acknowledgment of the risk, but an inability to use and weigh the information when making the decision. Furthermore I see nothing to suggest that PB has made a reasoned decision that she will put herself at risk in the cause of her marriage and because of love.

[79]Ms Street and Mr Reeder asked me to prefer the opinion of Dr Barker to Dr Khalifa. I decline to do so. i) I do not agree that Dr Khalifa was approaching the task of assessment from a Mental Health Act “diagnostic” standpoint or safeguarding perspective. ii) Dr Barker’s evidence was speculative, approached more as a philosophical or academic debate than an opinion. As I have commented above he was reluctant himself to factor a consistent body of information from reliable sources as to PB’s thought processes. He focused on his own assessment rather than looking at the history, in particular the stark picture presented by Ms Thompson’s evidence. iii) His emphasis on PB’s sophisticated, dextrous use of language, which was not in dispute, caused him to lose focus on the issue of using and weighing the information and the inability to take any decision at all: getting "stuck”, “going along with it”, “acquiescent” (a word which struck him by its “sophistication”). iv) He had no evidence that PB was deliberately concealing information from him, or her motivation if she was. What she said to him was consistent with “sliding away” from the issues. v) Dr Barker took the individual elements but did not put them together. He did not address the matters in issue. As I have said, the question was not the wish to be with her husband. The issue was not whether she was wise or unwise to regard their trips together as “romantic” or to regard the bonds of marriage as sacred; but whether she is able to decide where and with whom she is to live and how her care is to be managed. vi) Dr Khalifa broke down the elements then approached capacity on a holistic basis. I found her oral evidence clear and focussed, well argued, cogent and compelling. vii) I am satisfied that PB suffers from impairment/disturbance which directly results from the psychiatric disorders identified by Dr Khalifa. viii) I do not accept Dr Barker’s opinion that PB is only under TB’s influence when she is actually with him. I agree with Dr Khalifa that TB’s influence remains effective even when not she is not with him. This is apparent from the conversations recorded above with Ms Nicholas, Ms Masters, and Dr Khalifa. ix) And finally key issues on which he focussed are, as he accepted, matters of law or of judgment for the court.

[80]Those key issues lead on to the legal dispute.

The law

[81]Incapacity in this context must mean with regard to the “matter in issue”. Furthermore, “for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist (s 2(1)).” The key words “because of” should not be replaced by “referable to” or “significantly relates to”: PC v City of York Council

[2013] EWCA Civ 478

[82]Ms Street submits that “because of” in Section 2 MCA 2005 means “is the sole cause of”. Mr Reeder submits that it means “is the effective cause of”. Ms Burnham suggests that it means “is an effective cause of” and submits that there is no material distinction between “the sole cause” and “the effective cause”.

[83]Ms Burnham refers by way of analogy to the Equality Act 2010, where the words “because of” have been construed as meaning “a substantial reason”: it need not be the main reason so long as it “an effective cause”. She cites pre- EA 2010 authority: Owen v Briggs and James,

1982 ICR 618

(CA) and O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1997] 1CR 33. I note other analogous areas of statutory interpretation where a purposive construction has been adopted. Under s 423 Insolvency Act 1996, in order to set aside an impugned transaction its “purpose” must have been to defraud creditors. Purpose does not mean sole purpose: substantial purpose or intention is sufficient(Inland Revenue Commissioners v Hashmi)

[2000] 2 BCLC 489

, 504,

[2000] BPIR 974

. Under s 37 Matrimonial Causes Act 1973 there is power to set aside a transaction made with the intention to defeat a claim for a financial remedy. The intention to defeat the claim does not have to be the dominant motive in the transaction; if it is a subsidiary (but material) motive then that will suffice: Kemmis v Kemmis (Welland and Others Intervening), Lazard Brothers and Co (Jersey) Ltd v Norah Holdings Ltd and Others

[1988] 1 WLR 1307

[1988] 2 FLR 223

[84]I agree with Ms Burnham that where there are several causes it is logically impossible for one of them to be “the effective cause”. I agree that to hold otherwise would lead to an absurd conclusion because even if impairment or disturbance were the most important factor, wherever there were other factors (however little part they might play) the s 2 MCA 2005 test would not apply.

[85]There is nothing Convention incompatible in the concept that multiple factors may affect a decision. Otherwise a person with impaired capacity whose disturbance/impairment of mind operates to disable her from weighing and using information would not fall within the protection of the Act.

[86]It seems to me that the true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction.

[87]The issue is not, as Mr Reeder puts it, whether “the effect of PB’s views about her marriage is itself an impairment or disturbance or results from an impairment or disturbance”.

[88]The question is whether PB lacks capacity in respect of the matter in issue by reason of a disturbance or impairment in the mind or brain so that she cannot use and weigh her choices (which may include choices impelled to whatever extent by such beliefs of feelings) so that he/she is unable to understand, retain, or use and weigh them.

[89]Ms Street and Mr Reeder also submit that Dr Khalifa approached the test the wrong way round. They submit that the Code of Practice stipulates that the first step is to decide whether there is a disturbance of mind, and the second to decide on capacity whereas McFarlane LJ in PC v City of York

[2013] EWCA Civ 478

stated that this should be considered in reverse order. In my view MacFarlane LJ did not purport to lay down a different test: nor did he take the questions in the reverse order, but simply stressed that there must be a causative nexus between the impairment and the incapacity.

[90]I do not consider that it matters what order the expert addressed the issues so long as she or he observes the causative nexus. Dr Khalifa identified the impairment or disturbance, which she described compellingly and in detail, and then clearly advised that this caused the inability to use and weigh.

[91]When Dr Khalifa was asked whether PB’s inability to use and weigh the information was “due to” her constantly and clearly communicated views about marriage and her role within that marriage as TB’s wife, Dr Khalifa rightly rejected this as the relevant question and repeated her opinion as to PB’s condition and its effect on the ability to use and weigh. I do not agree that this was “ducking the question”. Dr Khalifa said and repeated that it is difficult to separate PB’s impairment or disturbance of functioning of mind and brain from the question of influence.

[92]I regard PB’s condition as the cause of her inability to use and weigh. Her inability to challenge TB may at one time have stemmed from a belief in the ties of marriage: I do not know. But now she is unable to use and weigh the information because of the compromise in her executive functioning and her anxiety.

Unwise decisions: risk and personal autonomy

[93]A person is not to be treated as unable to make a decision merely because he makes an unwise decision (s 1(4)).

[94]In IM v LM at [42] the Court of Appeal specifically approved Bodey J’s rejection in Re A (Capacity: Refusal of Contraception)

[2010] EWHC 1549

, (Fam)

[2011] Fam 61

that “reasonably foreseeable consequences” in s.3(4) of the Act should not be “construed widely to include an understanding of what would be involved in caring for and committing to a child. Bodey J (considered)… that it set the bar too high and risked a move away from personal autonomy in the direction of social engineering. ‘He said (at para 61): ‘I am persuaded that the wider test would create a real risk of blurring the line between capacity and best interests. If part of the test were to involve whether the woman concerned understood enough about the practical realities of parenthood, then one would inevitably be in the realms of a degree of subjectivity, into which a paternalistic approach could easily creep. What exactly would the woman have to be able to envisage about parenthood, who would decide, and just how accurate would her expectations have to be? … This translates into the statutory embargo in section 1 (4) against finding incapacity on the basis that a given decision would be 'unwise'…”

[95]The Court of Appeal in IM v LM approved Bodey J’s approach. The Court of Appeal also approved Hedley J in A NHS Trust v P

[2013] EWHC 50 (COP)

that the purpose of the act is not to wrap every protected person in “forensic cotton wool”, and also Baker J’s view in A Local Authority v TZ

[2013] EWHC 2322 (COP)

(where he found capacity to consent to sexual relations) of the importance of “respect for autonomy in matters of private life, particularly in the context of the statutory provisions of the MCA and specifically the presumption of capacity and the obligation to take all practical steps to enable a person to make a decision.” Also in A NHS Trust v P, Hedley J said, and the Court of Appeal in IM agreed that a person with a learning disability who may not be able to make decisions about many aspects of care:

“… may very well retain capacity to make deeply personal decisions about how they conduct their lives … It cannot be the case that merely because a person has significant difficulties in functioning in the community, it can be presumed that they lack capacity to make profoundly personal decisions. They may in fact do so but that has to be assessed on an individual basis.”

[96]In IM v LM at [62] the Court of Appeal, in the context of sexual relations, approved

the judge at first instance:

“The respect that a person with disabilities such as LM is entitled to must mean that she is given opportunities which may carry with them at least some levels of risk.”

And added that:

“the intention of the Act is to allow a protected person as far as possible to make the same mistakes as all other human beings are at liberty to make and not infrequently do.”

[97]The Court of Appeal re-emphasised in IM v LM that decisions to enter into sexual relations are “visceral”, instinctual or emotional (as indeed is conception), and do not require complex intellectual analysis. It is not necessary to weigh risk which may be ignored by capacitous individuals, such as emotional entanglement or heartbreak. But it does require understanding of the immediate consequences and risk: sexually transmitted disease and pregnancy.

[98]This decision requires PB to factor in immediate and serious consequences. The principle of autonomy must have limits, or there would be no intervention under the MCA 2005.

[99]Where a decision has consequences of a serious impairment of health or welfare, the court is not considering a decision which is merely unwise. Ms Street submits that the foreseeable consequences must be proximate and not remote. The foreseeable consequences here are all too proximate, and have been repeatedly demonstrated. PB is unable to use this information to take into account foreseeable proximate consequences.

Influence/overbearing of the will

[100]In R v Cooper

[2009] UKHL 42

[2009] 1 WLR 1786

at [13] the Supreme Court noted that “The commission therefore recommended the functional approach: this asked whether, at the time the decision had to be made, the person could understand its nature and effects…”. However, the commission went on to accept that understanding might not be enough. There were cases where people could understand the nature and effects of the decision to be made but the effects of their mental disability prevented them from using that information in the decision-making process. The examples given were an anorexic who always decides not to eat or a person whose mental disability meant that he or she was “unable to exert their will against some stronger person who wishes to influence their decisions or against some force majeure of circumstances”: para 3.17. (underlining added for emphasis).

[101]I do not accept as Ms Street submits that the underlined passage supports the proposition that the impairment or disturbance must be the sole cause of the inability to make a decision. It does support Ms Burnham’s submission that inability to exert the will against influence because of the impairment or disturbance is relevant.

[102]I do not accept that pre MCA authority is irrelevant. It has been held that the jurisdiction of the High Court is not usurped where capacity has been lost because of the influence of another or the impact of external circumstances, and only regained because the court has regulated exposure to such influences which if subsequently reasserted will cause capacity to be lost once more Re G (an adult) (Mental capacity: Court’s Jurisdiction)

[2004] EWHC 222 (Fam)

and a Local Authority v SA and others.

[103]In Re A (Capacity: Refusal of Contraception)

[2011] Fam 61

at [73] Bodey J specifically found that Mrs A’s inability to use and weigh was the consequence of the influence of a husband to whom she was fiercely loyal. Ms Street says that this decision is not relevant in the instant case since the words “because of” were not the subject of argument. In my view the issue of influence is a general one, and not limited to the causal nexus between impairment or disturbance of functioning of mind and brain and inability to make a decision. In that case the legal focus was the capacity to use and weigh information in order to make the decision. I do not accept that Bodey J was approaching the case on the wrong “inherent jurisdiction” test.

[104]In IM v LM the Court of Appeal recorded Peter Jackson J’s observation that the threshold for those who wish to establish that a person cannot make a decision because they are overborne by influences from others must be a high one “in relation to an act which is so very hard to rationalise.” The Court did not further comment on this formulation. I assume that they approved it. There is no suggestion that influence is not a relevant consideration. They specifically approved Bodey J in Re A (Refusal of Contraception).

[105]As I have commented the type of decision to be made in this case is quite different from a decision to engage in sexual relations. It requires consideration of quite complicated choices and an assessment of past and future. In any event the influence/pressure of TB is common ground and is overwhelmingly demonstrated.

[106]PB is under TB’s influence whether he is physically present or not. Every time she is asked to make a decision about him his influence, in conjunction with her psychiatric condition, cognitive deficits and anxiety, prevents her from using and weighing the information.

[107]But in any event by reason of her condition alone, even without the influence of TB, in my view PB lacks capacity to use and weigh. The history over March and April 2013 in particular demonstrates that PB was not able in reality to make any decision at all which related to TB, or to her care needs. And what she has said during the course of these proceedings demonstrates the same process. Her impairment /disturbance is the effective cause, the primary cause of her inability to make a decision.

[108]I have had the advantage, which the experts have not, of surveying all the material in this case and in particular the oral evidence of Ms Thompson. PB, notwithstanding her high intellectual capacity and verbal dexterity, and in spite of her superficial and partial acknowledgement of the risks, is simply unable to factor into her thought processes (i.e. use and weigh) the realities of the harm that she will suffer if she resumes living with TB or has uncontrolled contact with him. And perhaps, even more importantly, she is unable to weigh up the risks to her of being in an unsupported environment, with or without him, without a package of care. This is not to be paternalistic, or to fail to allow her to experience an acceptable degree of risk. It is not a question of allowing her “to make the same mistakes as all other human beings are at liberty to make and not infrequently do.”

Inherent jurisdiction

[109]I expressed the view at the conclusion of the hearing that if I did not find that PB lacks capacity I would have made an order in the same terms pursuant to the inherent jurisdiction. This is not strictly necessary, but I understand that the Official Solicitor will consider whether to appeal the decision following receipt of the judgment.

[110]Miss Street submits that if PB has capacity that the court cannot impose a residence regime. She submits that the authorities only sanction, in essence, an adjunctive, supportive regime to restrain and protect from others.

[111]All accept that the inherent jurisdiction can be invoked where capacity is vitiated by constraint, coercion, undue influence and other disabling circumstances which prevent her from forming and expressing a real and genuine consent: see Munby J (as he then was) in Re SA

[2006] EWHC 2942

(a forced marriage case). I accept that this can result from improper influence of another person (indeed this is what is asserted here). Vulnerability, I accept, is a description rather than a precise legal formulation.

[112]The reported cases are all fact specific. But I do not read them restrictively, as I am urged. In Re G (an adult) (Mental Capacity: Court’s Jurisdiction)

[2004] All ER (d) 33

(Oct) Bennett J determined the place of residence of a vulnerable adult who had regained capacity. He held that he could not ignore the consequences if the court withdrew its protection. If the declarations were in her best interests, the court was not depriving G of her right to make decisions but ensuring that her stable and improved mental health was maintained.

[113]Macur J, as she then was, in LBL and(1) RYJ and

(2) VJ stated that the court has the ability via the inherent jurisdiction “to facilitate the process of unencumbered decision making by those they have determined free of external pressure or physical restraint in making those decisions”. I do not see that formulation as restricting the exercise of the inherent jurisdiction to prevent placement in a care home, subject to deprivation of liberty issues. In Re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) No 2

[2012] WLR 1439

, the Court of Appeal confirmed the inherent jurisdiction as a safety net to protect vulnerable adults subject to coercion or undue influence. The inherent jurisdiction exists to protect, liberate and enhance personal autonomy, but any orders must be both necessary and proportionate. Miss Burnham submits that what is proposed is protective and necessary and proportionate and is not a coercive restricting regime. I am inclined to the view that a regime could be imposed on PB if that is the only way in which her interests can be safeguarded. To be maintained in optimum health, safe, warm, free from physical indignity and cared for is in itself an enhancement of autonomy. In Re L injunctive relief was granted against the parties’ adult son. That in itself was an interference with autonomy in one sense (freedom of association) and an enhancement of autonomy in another (protection against coercion).

[114]I see no indication that the inherent jurisdiction is limited to injunctive relief. Each case depends on the degree of protection required and the risks involved. And the court must always consider Article 8 rights and best interests when making a substantive order.

[115]Ms Street of course submits that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and “lawful pursuant to

Article 5 of the Convention

”. She cites Lord Hope in R (Purdy) v DPP

[2010] 1 AC 345

:(i) there must be a legal basis in domestic jurisdiction

(ii) The rule must be sufficiently accessible to the individual affected by the restriction and

(iii) it must be sufficiently precise for the person to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law.

[116]If I made such an order here a regime would be imposed by a court of law through a legal process of which notice had been given and it would be perfectly possible for a person of sufficient capacity to understand its effect. That fulfils the “Purdy” criteria.

[117]However Ms Street also submits that there would be no or insufficient connection between the deprivation of liberty and “unsoundness of mind” within the meaning of Article 5. That would be the only basis upon which I could impose restraint.

[118]A person who is incapacitous does not necessarily suffer from unsoundness of mind (see again for instance the anorexia cases). I note that deprivation of liberty is specifically authorised under the 2005 Act in cases of incapacity without reference to unsoundness of mind. It has never so far as I am aware been suggested that the DoLs provisions are in breach of Article 5.

[119]“Unsoundness of mind” is not the same as “incapacity”. PB has a diagnosed psychiatric condition which compromises her decision making. If it is not established that she lacks capacity this would be on the narrowest interpretation of MCA 2005 (“because of”) and would not impinge upon her diagnosis or her vulnerability, which results from her psychiatric condition.

[120]Ms Street concedes that TB’s influence would be highly relevant under the inherent jurisdiction. PB cannot litigate on her own behalf. The Official Solicitor would be entitled to make an application on her behalf for injunctive relief against TB in her best interests. I would be entitled to make an injunction of my own motion under the inherent jurisdiction preventing him from coming into contact with her, if the Official Solicitor declined to do make an application. If such an order were made she would have nowhere to go. In fact she cannot presently return to his flat in any event because of the landlord’s injunction against her.

[121]In my view the inherent jurisdiction does extend to orders for residence at a particular place. If that constitutes a deprivation of liberty then in my view the court could authorise it pursuant to the inherent jurisdiction.

[122]Assuming that it would not constitute an unlawful deprivation of liberty in my view I would be entitled to make an order for placement against her will pursuant to the inherent jurisdiction. There are serious risks to PB if she is not properly cared for or if she is not protected against TB. Both Dr Khalifa and Dr Barker recognise that reality.

Interim outcome

[123]It is in PB’s best interests to remain at F House. I am not in a position to decide on the longer term solution. In the meantime the local authority will ensure that she is able to spend time with TB. She may be able to spend time with him in his flat if accompanied. The risk if she goes alone is that it will prove impossible to get her back. Also she needs her care needs met. PB will be able to visit F House and to stay overnight. The local authority will take steps to arrange a holiday for them, and for them to spend at least part of Christmas together.

[124]Finally, PB’s health needs must not be overlooked. Dr Khalifa was clear that PB must be encouraged to have an endoscopy. I told her that I really thought that it was in her interests and she agreed to think about what I said. I am glad to hear that after the hearing the Official Solicitor did take this on board and PB has undergone the procedure, as a result, she says, or encouragement by me.

[125]I am satisfied that it is lawful and proportionate for PB to be deprived of her liberty by the court with controlled contact to TB until a statutory authorisation can be obtained. In these circumstances it is the least restrictive measure.

Case management and the Court of Protection

[126]I stress that I do not wish to criticise the advocates in this case. But I take this opportunity to offer some general guidance derived from my experience in Court of Protection cases from the point of view of the decision maker. This is not a new stance: I have raised the same points in other cases. But over the years some effective steps have been taken to control and manage family cases from which lessons have been learnt. Even more progress is being made under the impetus of the family justice reforms.

[127]Adoption of a practical approach does not detract from intellectual analysis and rigour. Lord Wilson of Culworth as a puisne judge described himself as “family lawyer of practical disposition”. The reality and practicality of the subject matter of the decision can in my experience sometimes get lost in Court of Protection cases. So can the focus on effective administration of justice. The quest to address arguments of increasing subtlety can, as in this case, paralyse effective decision making by a Local Authority and hamper the ability of the court to deliver a decision. All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources, and other court users. I do not accept that(i) every possible point must be put

(ii) the belief of a protected party is relevant to the issue of capacity. As Lord Judge reminded the profession in Rv Farooqi and Others

[2013] EWCA Crim 1649

, it is for counsel to decide what question to ask and not the client. The fact that a client may lack capacity is not a green light for unmeritorious or unrealistic arguments to be put forward.

[128]Everything comes at a price. And every penny spent on litigation is in reality (because it all comes out of the public budget) a penny taken away from provision for care. There were many court hearings whether attended or not, at most of which almost nothing of any materiality was achieved. One of the problems may have been lack of judicial continuity. It took many months for a fact finding hearing to take place. The Court is still not in a position to determine best interests. I had to read and reread reams of material and law reports after my return from leave to conclude this judgement.

[129]I recognise the importance of this field of litigation. I recognise the need to promote the Convention rights of as well as to protect the vulnerable and the incapacitated. But in cases under the Children Act 1989 equally important human, Convention and protective issues arise. As in the Court of Protection, the court has to have regard to the overriding objective. Experts are not routine and have to be “necessary”, and the necessary expertise may come from the social worker.

[130]Baker J in CKK and KK

[2012] EWHC 2136 (COP)

and Butler-Sloss J in Ms BS v An NHS Hospital Trust

[2002] EWHC 429 (Fam)

[2002] 2 All ER 449

reminded clinicians that a close professional relationship with P might lead them to be drawn to a supportive or emotional rather than analytical approach to capacity. I do not read these comments as supporting the appointment of an “independent” expert as the first line approach before the treating clinician has even set out the reasons behind the certificate of incapacity. Second opinions must be justified: and not just ordered as a matter of routine until there is no reason to doubt the first.

[131]I am told Moor J queried the need for further evidence and the time estimate but was assured by the Official Solicitor that this was "reasonable" in order to ensure that the matter could be "properly resolved" by the Court. I cannot imagine that Moor J envisaged that there would be five reports in all, a “schedule of agreement” which was in fact not truly agreed, all of which led to considerable confusion, muddle, and prolongation of the court process. It certainly led to a prolonged examination of the witnesses, as fine distinctions in use of language and formulation of ideas were pursued and analysed.

[132]The social care evidence has been crucial. The assessment of capacity is in the end for the Judge on the basis of all the facts (see in particular Baker J in CC & KK & STCC

[2012] EWHC 2136 (COP)

) echoed by me in YLA & PM MZ COP 1225464. After all a single expert can be challenged by the process of cross-examination.

[133]Attempts have been made to encourage if not direct Court of Protection practitioners to comply with basic sensible rules of case management in order to assist the judge. Moor J’s attempt to bring some order to the proceedings failed. The most basic of requirements, to provide a witness time estimate template, was ignored. Thus at the commencement of the hearing I was met with an assertion that there was insufficient time available: particularly for lengthy cross-examination. I had to take counsel in detail through the list of potential witnesses, and the issues which they were to address, in order to create a plan for the hearing of the case. This took up time. All this should have been done beforehand and a late return was no excuse. Specialist counsel had been on board throughout. Ms Street submitted that Dr Barker’s evidence was still so unclear as to require two hours cross-examination by her alone. I managed to shorten this a little. Even so the case proceeded much more slowly than was necessary. In my view this should have been a two day case at most.

[134]Before seeking a four day listing the advocates should have provided for Moor J a precise broken down time estimate of what time was required for each witness, submissions and judgment, focused on the actual issues, or likely issues. I insist on this at directions hearings, and I find that I can usually shorten the individual times required, and the overall time estimate, very considerably in the process. Time estimates must be adhered to.

[135]A judge cannot easily understand the issues, or give an effective ex tempore judgment, without a chronology of essential dates. I asked for one at the outset. It was produced part of the way though the hearing, obviously in a hurry, and a number of important dates, particular court hearings, were not included. I had to trawl though the applications and orders in the bundle and the many lengthy statements in order to produce the analysis of the history above which I have found so essential here.

[136]Fact finding schedules should be produced in a way which makes it easy for the Judge to utilise them as a tool for delivery of judgment. The contents of the document produced were in fact useful, but difficult to use. I hope it is not churlish to complain that it was created in landscape rather than portrait, that when answered the page references were omitted, and there was no space for the judge’s comments. It would have been even more useful if there had been a chronology.

[137]The evidence could have been addressed much more shortly. The actual issues raised were: i) The psychiatric evaluation of PB. ii) The extent to which TB’s influence or pressure affected capacity: the legal issue arising from that was a matter for the judge. iii) The extent to which PB’s beliefs may have been causative of her decision making: the interpretation of the words “because of” was for the judge and not the witnesses. iv) Whether any potential decisions were simply unwise: again as Dr Barker recognised this was really a matter for judicial evaluation.

[138]The joint statement should have addressed starkly: i) Is there impairment or disturbance, if so what is it and what is its effect? ii) What is the decision to be made? iii) What is the information necessary to make that decision? iv) Is the person able to retain, use or weigh, that information and/or communicate that decision? v) Is there a lack of capacity and if so why?

[139]And if the experts do not agree, they must make it clear. If they have not made it clear, they must be asked to do so. If their disagreement does not affect the outcome that is one thing. If they disagree on the fundamental issue, they must say so. The experts are not a jury considering whether they can give a unanimous verdict. There is no duty to “harmonise” views if in reality the experts do not agree. It simply makes the task of the judge more difficult.

[140]Practitioners need to ask themselves: i) What do I really need to challenge? ii) What does the judge need to know? iii) What is actually arguable and what is not?

[141]Effective steps must be taken to reduce evidence to the essential. In Farooqi Lord Judge emphasised the requirement that cross-examination should proceed by short, focussed question rather than by comment, opinion and assertion. I also note that in The Law Commission lecture given last year Lord Judge stated (as I was taught) that in principle no question should be longer than one line of transcript. In any event, the judge is interested in the answer, not the question.

[142]Advocates need to be able to control the witness by the form and structure of their questions and not permit discursive replies or to allow the witness to ramble (particularly if the witness has the tendency to be prolix) . There is no necessity for a long introduction: apart from anything else it may distract and confuse the witness and the judge.

[143]Examination must not proceed by way of “exploration” of the evidence: i.e. a debate, or by putting theory or speculation, rather than by properly directed questions which require an answer.

[144]This is all the advocates’ responsibility. However hard a judge tries to speed the process, this takes up time and interrupts the flow, and often leads to a debate with the advocate. Also it can give the wrong impression to the lay client about the judge’s view of them or their case.

[145]Where two parties have the same case to put, the same points must not be repeated.

[146]Finally the advocate needs, if facts are challenged, to put the client’s case.

[147]I note and am glad to see that in IM v LM the Court of Appeal approved Peter Jackson J’s decision to determine the issues in a 2 hour hearing. The second opinion psychiatrist was not cross–examined. I am sure that in that case it helped that there had been judicial continuity throughout.

[148]I am certainly not suggesting that this case should not have been litigated. It may have been necessary to have two experts. I really cannot tell, because of the way their instruction progressed, which may have led to their lack of precision on paper. But more focus on case management and case progression is essential.

PB, Re [2014] EWCOP 14

The Mental Capacity Act 2005: some general principles

The background

The submissions on behalf of PB and TB

The hearing itself

Findings of Fact

Psychiatric opinion

The assessments

The law

Unwise decisions: risk and personal autonomy

the judge at first instance:

Influence/overbearing of the will

Inherent jurisdiction

Interim outcome

Case management and the Court of Protection

Cited in 5 later judgments