“The court may, pending the determination of an application in relation to a person (“P”), make an order or give directions in respect of any matter if- (a) there is reason to believe that P lacks capacity in relation to the matter, (b) the matter is one to which its powers under this Act extend, and (c) it is in P’s best interests to make the order, or give the directions, without delay.” (a) there is reason to believe that P lacks capacity in relation to the matter, (b) the matter is one to which its powers under this Act extend, and (c) it is in P’s best interests to make the order, or give the directions, without delay.”
“The evidence in the attached witness statement shows unequivocally that CT had the capacity to make complex decisions in relation to his finances and property in September 2013. He underwent a further capacity assessment in November 2013 prior to discharge from hospital after nearly six months treatment and he was again assessed as having the capacity to make the very difficult and important decision as to his destination and future place of residence following his discharge. There has been no stroke activity since the incident in May 2013, nor any other event which might cause or signal a material change in his capacity since the last test was carried out some nine months ago. There is therefore no valid reason why he should not be presumed to have capacity at this time.”
“Because I do not know CT’s full medical history and have not seen his notes, I cannot be firm in giving a diagnosis, but in my opinion he probably does have cerebrovascular dementia. I also consider that he is subject to recurrent episodes of delirium which are probably due to a combination of cerebrovascular disease, prescribed medication and UTI’s. Fortunately for the purpose of my examination, I do not think that he was delirious at the time. For the assistance of the court and non-medical readers of this report, delirium is, like dementia, a global impairment of multiple higher cortical functions but differs from dementia in certain crucial ways. Its hallmark is a disturbance of conscious awareness and the sleep-wake cycle. Delirium also differs from dementia in other ways: it is of more rapid onset, i.e. days or hours, compared with years for dementia; and resolution either by remission or death occurs within hours, days or weeks, although it may recur frequently in vulnerable individuals. The causes of delirium are legion and can be summarised as any underlying physical illness or toxicity, especially drug toxicity. If the underlying cause remits, delirium too resolves itself. Older people are at particular risk of delirium because they lack cerebral reserve. Dementia sufferers are at high risk of delirium, often as a result of an underlying infection, such as of the urinary tract. Delirium is sometimes termed ‘an acute confusional state’ by physicians and surgeons.”
“I shall deal with the separate capacities as set out in my instructions which were taken from the directions order of20 August 2014 . Before doing so I wish to stress that I am relying on CT’s mental state as I observed it on2 October 2014 . However, I believe his mental state fluctuates both as regards his dementia and his episodes of delirium. I should make the following preliminary remarks: (a) When he is delirious, in my opinion, he does not have any of the capacities listed below. (b) When he is not delirious, but his dementia is more prominent, his capacities are weaker than when he is at his best. (c) When he is at his best he does retain some capacities as described below. (d) When he is at his best he is able to communicate his decisions, and I shall not comment further on this fourth limb ofsection 3(1) of the Mental Capacity Act 2005 . (e) When at his best I believe that his capacities can be enhanced by assistance in line with the judgment of Gibson LJ in Hoff et al v Atherton[2003] EWCA Civ 1554 , in which he stated “it is a general requirement of the law that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as may have been given [my italics]) to understand the nature and effect of the particular act (see, for example, Re K (Enduring Powers of Attorney)[1988] Ch 310 at p. 313 per Hoffmann J.).”
“In my opinion, when CT is at his current best and not in an episode of delirium, he retains the capacity to manage his affairs and to revoke or make an LPA, but that his capacities would be enhanced by disinterested advice. His capacity to litigate is not totally lacking but is, in my opinion, below a sufficient threshold, and he would, therefore, require a litigation friend.”
“The Public Guardian understands that it can be difficult for an attorney to carry out their duties. However, it is of course important that the Public Guardian is not prevented from safeguarding potentially vulnerable adults as required by the Mental Capacity Act. It is the Public Guardian’s position that if EY had complied with the OPG’s requests then a medical report would have been completed sooner and at no expense to CT. The results of the report would have resulted in the closure of our investigation. The Public Guardian accepts the opinion of Professor Jacoby and awaits further directions from the court.”
“[38] The work carried out by the local authorities and other public bodies such as NHS Trusts in this important field cannot be underestimated. … [39] That does not mean, however, that local authorities, or any other public bodies, can be excluded from liability to pay costs in appropriate cases. The rules about costs must be applied fairly to all litigants, regardless of who they are. … [40] Of course, it is right that the court should follow the general rule where appropriate. Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made. The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong. [41] In this case, however, I am entirely satisfied that the local authority’s blatant disregard of the processes of the MCA and their obligation to respect E’s rights under the European Convention amount to misconduct which justifies departing from the general rule. …”
“I have asked EY to assist me in writing this letter to you because I remain unable to write clearly and I do want to be sure you fully understand what I wish to say to you as it is very important to both of us. … I remained in the car for a long time because at first it seems you refused to even come out to the car to speak to me, apparently the reason you gave was that you were too frightened by the presence of EY and (her partner) who were accompanying me back to the hospital. Anyway, it seems you created quite a stir with the result that the police were called.”
“As explained above, EY is acting on my behalf whilst I am confined to hospital.”
“Thank you for your letter dated5th February 2014 which my daughter has read to me and discussed at length. I am grateful that you have had the courtesy of writing to me directly with a degree of openness not previously evident in your correspondence.”
“Over the course of these conversations EY referred everything to her partner. Quite politely they told me that CT did not want to see me but would not permit me to speak directly with him. They would not provide me with the name or address of CT’s current general practitioner. As I understood it, they were of the view that although CT had made an LPA he was still capable of managing his own affairs and they were not using the LPA and therefore the OPG should not be involved with his affairs. They told me that they were in correspondence with the Office of the Public Guardian about the matter and that until this had been resolved they did not want me to visit their home.”
“Again, I consider that he would benefit from disinterested advice before making this decision.”
“Where more complex decisions are required he would, in my opinion, benefit from disinterested advice.”
“I consider that at his best CT does retain the capacity to give instructions to his attorney in relation to his property and affairs, and that he would benefit from disinterested advice for more complex decisions.”
“… his capacities would be enhanced by disinterested advice.”
“I am not making any comment here about the quality of the advice he now gets from EY because this is beyond my remit and I have no information on it anyway. However, because he is now dependent on her for his day to day care he might be more likely to accept her advice without more careful consideration.”
“An application is made undersection 48 of the Mental Capacity Act 2005 for directions relating to CT’s mental capacity to make decisions in relation to his finances and property.” order: (a) declaring that CT had capacity on13 June 2013 to execute the LPAs and to sever the joint tenancy of the two properties he owned with his wife; (b) directing the OPG to serve the application papers on CT; (c) requiring the parties to identify by 5 September, a single joint expert to report on CT’s capacity by10 October 2014 and, in default of agreement, Professor Robin Jacoby would prepare the report; and (d) specifically requiring the expert to assess CT’s capacity in nine areas, which will become apparent in paragraph 22 below; and (e) listing the matter for a final hearing on18 November 2014 . Professor Jacoby’s report