The Public Guardian v VT [2014] EWCOP 52

IMPORTANT NOTICE

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.

Case No 12295645

[2014] EWCOP 52

COURT OF PROTECTION

Date 10 December 2014

MENTAL CAPACITY ACT 2005

IN THE MATTER OF PST

First Avenue House

42-49 High Holborn

London WC1V 6NP

Before

SENIOR JUDGE LUSH

Between

THE PUBLIC GUARDIANApplicant

VTRespondent

Nadia Dhillon for Public Guardian

VT in person for in person

Hearing Hearing date: 3 December 2014

JUDGMENT

Senior Judge Lush:

[1]This is an application by the Public Guardian for the court to revoke a Lasting Power of Attorney (‘LPA’) for property and financial affairs on the ground that the donee of the power has behaved in a way that contravenes her authority or is not in the donor’s best interests.

The background

[2]The donor, PST, was born in 1934 in what is now Sri Lanka but was then Ceylon. She used to teach English.

[3]She has chronic paranoid schizophrenia and for the last six years has been compulsorily detained in various hospitals in the Home Counties under the Mental Health Act 1983. She is currently in a secure unit in Hertfordshire.

[4]Her daughter, VT, was born in 1958, and lives in Maidenhead. She has BSc and MSc degrees in biochemistry and immunology, but has been unemployed on a long-term basis.

[5]On 21 February 2010 PST executed an LPA for property and financial affairs and an LPA for health and welfare, in which she appointed her daughter to be her sole attorney and a male cousin, who was born in 1932 and lives in Sri Lanka, to be the replacement attorney.

[6]The LPAs were drafted by her daughter and PST’s capacity to create them was assessed and certified by a former work colleague who had known her for over thirty years.

[7]When I say that the LPAs were drafted by her daughter, I mean that VT inserted a number of restrictions and conditions and guidance notes into the standard prescribed forms. For example, in the LPA for health and welfare, one of the wishes that PST purported to express in the guidance section was that “I want to live within 10 miles of my daughter’s home if ever I need hospital treatment.”

[8]The LPA for property and financial affairs contained the following condition:

“I do not want any public authority or body or their employees or contractors to handle my money, financial affairs or property at any time and I do not want them to obtain any information about these at any time.”

[9]On reflection, this provision should have been severed from the LPA before it was registered, because it is ineffective as part of an LPA. I shall return to this later at paragraphs 34 to 37.

[10]An application was made to the Office of the Public Guardian (‘OPG’) to register the LPAs and they were registered on 24 August 2011.

The OPG’s investigation

[11]On 22 October 2012 Windsor & Maidenhead Community Mental Health Team contacted the OPG to express their concerns about the attorney’s behaviour. She had failed to provide her mother with toiletries and new clothing, despite repeated requests to do so, and had been evasive about her mother’s finances.

[12]On 31 October 2012 the OPG wrote a letter to the attorney containing a list of nine questions. She replied on 16 November 2012 demanding to know who the whistleblower was who had raised these concerns. She said her mother did not want anyone knowing about her finances and suspected that the enquiry was being made by ‘crooks.’ She complained at length about the poor quality of care provision in the hospital, but at no point did she answer any of the nine questions the OPG had asked about her mother’s finances.

[13]The OPG commissioned a visit by one of the Court of Protection General Visitors, Barbara Joyce, who saw PST on 19 November 2012. In her report dated 20 November 2012 the Visitor said:

“I spoke to Dr Vermeulen, consultant psychiatrist, who told me that PST had been deemed as not having capacity to give consent to treatment for drug administration under the Mental Health Act. This is under annual review. She remains detained under section 3 to protect her from her daughter. He considers that it is unlikely that she had the capacity to understand the LPAs at the time when she signed them.”

[14]In response to a printed question on the visit form - “Is the attorney acting in the best interests of the client?” - the Visitor said:

“I do not consider that she is. Her constant allegations into the care provision at [the hospital] have taken staff away from their primary caring role and affected morale at the service. It has also put her mother’s placement in jeopardy. The allegations that the attorney has made have ranged from informing her mother that [staff] are trying to poison her, encouraging her mother to refuse medication, encouraging her mother to sign cheques and urging her to do so until she cried, taking in and feeding food to her mother with visible signs of mould on, speaking in Tamil and excluding staff from what she has said to her mother, allegations of physical assault on her mother by staff, calling staff racist, they have tried to kill her mother, staff are evil and that they have beaten her mother black and blue.”

[15]The Visitor concluded her report by saying, “I consider that the Public Guardian should seek to remove the attorney as soon as possible.”

The Public Guardian’s initial application to court

[16]On 12 March 2013, the Public Guardian applied to the court for the following orders: 1. An order under section 23(3)(a) of the Mental Capacity Act 2005 directing VT to account to the Public Guardian for her dealings under the registered LPA for property and financial affairs for PST from 24th August 2011 to the date of the order. 2. An order under paragraph 22(4) of the Mental Capacity Act 2005 for the revocation and cancellation of registration of the aforesaid LPA made by PST if the attorney fails to submit satisfactory accounts and full supporting documentation within 28 days of the order. 3. An order directing that a panel deputy be invited to make an application for appointment as deputy to manage PST’s property and affairs.

[17]On 18 March 2013 I made an order requiring:(a) the OPG to serve the application on the attorney within 7 days;

(b) the attorney to respond within 28 days of being served; and

[18]On 16 April 2013 the attorney filed an acknowledgment of service, in which she objected to the application. She said:

“I oppose the application as there are no real grounds to make an enquiry and the application is malicious. [PST’s] LPA says specifically that she does not want the local authority knowing her private affairs.”

[19]On 24 June 2013 District Judge Mainwaring-Taylor made an order listing the matter for an attended hearing before him on 26 July 2013, and at that hearing, which was attended by a representative from the OPG and the respondent in person, he made the following

[20]On 23 August 2013 VT sent five emails to the OPG with various attachments including letters from PST, photographs of her, bank statements and a spreadsheet.

[21]The Public Guardian did not apply to restore the case before the deadline and the proceedings were automatically dismissed.

The revived application

[22]Almost twelve months later, on 21 October 2014, the Public Guardian filed a new application for the following orders: 1. An order under section 22(4) of the Mental Capacity Act 2005 for the revocation and cancellation of registration of the registered LPA for property and financial affairs appointing VT as sole attorney. 2. An order directing that a member of the panel of deputies be invited to make an application to make decisions on behalf of PST in relation to her property and financial affairs.

[23]The application was accompanied by a witness statement made by Rachel Bloore, a member of the investigations team at the OPG, who said:

“I have analysed the statements for the HSBC account for the period 24th August 2011 to 31st July 203. The statements show a total income of £11,546.90 and a total expenditure of £13,188.11. This expenditure includes a sum of £5,887.87 paid to various credit card companies, £2,150 paid to the attorney, and £900.46 paid to ‘European Patent’. The explanations provided by the attorney explain only utility bills and list all other expenditure as ‘miscellaneous’. It is the Public Guardian’s position that the attorney has not fully accounted for her management of PST’s financial affairs. From a total expenditure of £13,188.11 the attorney has described £8,947.33 as ‘miscellaneous’ and has not provided any evidence in support of the funds having been used in PST’s best interests. The Public Guardian requests that the court consider the revocation and cancellation of PST’s registered LPA for property and affairs. The Public Guardian also requests that the court consider inviting a member of the panel of deputies to make an application to be able to make decisions on behalf of PST in relation to her property and financial affairs.”

[24]On 30 October 2014 I made an order listing the matter for hearing on 3 December 2014 and setting out a timetable for:(a) the OPG to serve the application;

(b) VT to respond;

(d) the panel deputy to confirm that he or she was willing to act.

[25]On 7 November 2014 Jacqueline Almond of IBB Solicitors, Chesham, Buckinghamshire, filed a COP4 deputy’s declaration saying that she was willing to be appointed as deputy in this matter.

[26]On 28 November VT filed an acknowledgment of service stating that she opposed the application because: 1. It was made without notification to me and without prior discussion. It is not necessary to go to the court for the sake of privacy. 2. It is a malicious application. 3. There is danger of information falling into the wrong hands.

[27]VT also filed a thirty-three page witness statement, most of which had no bearing on these proceedings. On page 31 she claimed payment in the sum of £1,500,000 for having been her mother’s full-time live-in carer for an estimated twenty-eight years, and said, “This should be paid for by the state as my mother cannot pay this amount.”

[28]The hearing took place on 3 December 2014 and was attended by Nadia Dhillon and Fatima Chandoo of the OPG and VT in person.

The duty of an attorney to account and to produce information

[29]The contents of an LPA are prescribed by a statutory instrument; in this case, the Schedule to The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian (Amendment) Regulations 2009 (SI 2009 No. 1884).

[30]Page 11 of the prescribed form of LPA for property and financial affairs contains “Part C: Declaration by each attorney or replacement attorney,” which states:

“I understand my role and responsibilities under this lasting power of attorney, in particular: • … • I have a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or to the Court of Protection on request.”

[31]Section 58(1) of the Mental Capacity Act 2005 sets out a list of the functions of the Public Guardian. These include: (f) receiving reports from donees of lasting powers of attorney and deputies appointed by the court; and (h) dealing with representations (including complaints) about the way in which a donee of a lasting power of attorney or a deputy appointed by the court is exercising his powers.

[32]The power of the Public Guardian to require information from donees of LPAs is contained in regulation 46 of The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (SI 2007 No. 1253): Power to require information from donees of lasting power of attorney 46. -(1) This regulation applies where it appears to the Public Guardian that there are circumstances suggesting that the donee of a lasting power of attorney may - (a) have behaved, or may be behaving, in a way that contravenes his authority or is not in the best interests of the donor of the power, (b) be proposing to behave in a way that would contravene that authority or would not be in the donor’s best interests, or (c) have failed to comply with the requirements of an order made, or directions given, by the court.

(2) The Public Guardian may require the donee - (a) to provide specified information or information of a specified description; or (b) to produce specified documents or documents of a specified description.

(3) The information or documents must be provided or produced - (a) before the end of such reasonable period as may be specified; and (b) at such place as may be specified.

(4) The Public Guardian may require - (a) any information provided to be verified in such manner, or (b) any document produced to be authenticated in such manner, as he may reasonably require.

(5) “Specified” means specified in a notice in writing given to the donee by the Public Guardian.

[33]The Court of Protection’s powers to require the donee of an LPA to produce accounts, records and documents are set out in section 23(3) of the Mental Capacity Act 2005 as follows:

“(3) The court may, if P lacks capacity to do so – (a) give directions to the donee with respect to the rendering by him of reports or accounts and the production of records kept by him for that purposes; (b) require the donee to supply information or produce documents or things in his possession as donee;” (a) give directions to the donee with respect to the rendering by him of reports or accounts and the production of records kept by him for that purposes; (b) require the donee to supply information or produce documents or things in his possession as donee;”

The provision regarding privacy

[34]I mentioned in paragraph 8 above that in this case the LPA for property and financial affairs contains the following condition:

“I do not want any public authority or body or their employees or contractors to handle my money, financial affairs or property at any time and I do not want them to obtain any information about these at any time.”

[35]The Court of Protection and the OPG are both public authorities and, as we have seen, the Mental Capacity Act 2005 confers on them various functions that are designed to protect the donors of LPAs and to prevent crime.

[36]Article 8.1 of the European Convention on Human Rights states that “Everyone has the right to respect for his private and family life, his home and his correspondence.” However, this right is qualified and, in certain circumstances, public authorities can interfere with the private and family life of an individual. These circumstances are set out in Article 8.2:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

[37]In my judgment, the provision in this LPA for property and financial affairs, which excludes any public authority from obtaining any information about the donor’s property and financial affairs at any time, is contrary to public policy because it seeks to stifle any investigation into the donee’s misconduct, prejudice the administration of justice and oust the jurisdiction of the court. This provision should have been severed from the LPA, pursuant to paragraph 11 of Schedule 1 to the Mental Capacity Act 2005 before the LPA was registered.

The law relating to the revocation of an LPA

[38]Section 22 of the Mental Capacity Act 2005 describes the circumstances in which the Court of Protection may revoke an LPA. This section refers to the donor of an LPA as ‘P’ and the attorney appointed by the donor as ‘the donee’.

[39]Section 22(3)(b) states that:

“Subsection (4) applies if the court is satisfied - (a) …. (b) that the donee (or, if more than one, any of them) of a lasting power of attorney – (i) has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests, or (ii) proposes to behave in a way that would contravene his authority or would not be in P’s best interests.” (a) …. (b) that the donee (or, if more than one, any of them) of a lasting power of attorney – (i) has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests, or (ii) proposes to behave in a way that would contravene his authority or would not be in P’s best interests.”

[40]Section 22(4) provides that:

“The court may – (a) direct that an instrument purporting to create the lasting power of attorney is not to be registered, or (b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.” (a) direct that an instrument purporting to create the lasting power of attorney is not to be registered, or (b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.”

Discussion

[41]On 2 July 2014 a Court of Protection General Visitor, Christine Gaukroger, visited PST in the secure unit in which she resides. The Visitor described her meeting with PST and the conclusions she drew from it in the following manner:

“The donor was unable to express an opinion to me because my presence (a stranger to her) had caused her to become agitated. She flailed her arms and screamed and was not calm long enough for me to introduce myself. I was told it took a significant amount of time for her to feel more settled with the carers so I do not believe there is much point in me making a further attempt. On the day I saw the donor, in the light of the presumption of capacity, and that capacity is decision specific, my opinion, on the balance of probabilities is that the donor did not have the capacity to suspend or revoke her LPAs. On the day of my visit she either was unable to or did not wish to engage with me so I was unable to ascertain which it might be.”

[42]There was an earlier visit, on 19 November 2012, by another General Visitor, Barbara Joyce, who concluded that “PST does not have the capacity to make decisions regarding the matters specified in this report,” and referred to her conversation with Dr Vermeulen, a consultant psychiatrist, who thought it unlikely that PST had the capacity to create the LPAs in the first place.

[43]Court of Protection General Visitors need not have a medical qualification: Mental Capacity Act 2005, section 61(3). However, they usually have considerable knowledge and experience of assessing mental capacity, and the two Visitors who saw PST are both members of a small cadre of full-time professional Visitors, whose function is to visit individuals who have an impairment of, or a disturbance in the functioning of, the mind or brain.

[44]In the circumstances, I am satisfied on the balance of probabilities that PST lacks capacity to revoke her LPA herself.

[45]There is some suggestion that VT may have mental health problems of her own. In the report of her visit to PST on 2 July 2014, the Court of Protection General Visitor, Christine Gaukroger, referred to a conversation she had with two of PST’s carers. “[They] gave a slightly less positive account of the attorney. Yes, it was the case that she brought things in for her mother, but they were sometimes unsuitable. For example, the chair – the donor could not sit in this because of her physical problems - trainers which were not suitable for the donor’s needs. A radio had been brought in but the television was supplied by the unit. They also said the attorney brought food in but it was not healthy – lots of sugar. The donor has a vegetarian diet and they would expect the attorney to bring such things in. Both the carers agreed that they felt something was amiss with the attorney’s mental health. I asked if she was paranoid and they thought this could be a possibility.”

[46]VT’s response was:

“I was rather annoyed that they thought I am mentally ill. I know that [carer] insinuates a lot because he’s a crook who is taking people’s money but I have never had any mental health problems. I have a clear record and have never even suffered from depression. One of the psychiatrists did talk to me because the social workers have made up a lot of false reports, but he said there is nothing wrong with me in black and white.”

[47]Regardless of whether VT, like her mother, also suffers from paranoia, I am satisfied that she has behaved in a way that contravenes her authority or is not in PST’s best interests.

[48]Among other things, VT:(a) failed to provide her mother with toiletries and new clothing, despite repeated requests to do so;

(b) failed to provide her mother with an adequate personal allowance;

(d) was evasive about her own finances when I asked her at the hearing whether she was in receipt of means-tested benefits;

(e) sought to shield herself behind a provision, which she had inserted in her mother’s LPA, that was intended to suppress any investigation into her conduct of her mother’s financial affairs;

(f) made repeated and unwarranted allegations against care staff, which put her mother’s placement in jeopardy;

(g) failed to account satisfactorily for expenditure amounting to £8,947.33; and

(h) has generally made such a nuisance of herself that PST has been compulsorily detained in hospital for the last six years in order to protect her from VT.

[49]In addition, there is an obvious conflict between VT’s interests and her mother’s interests, in so far as she is living rent-free in her mother’s house and paying all the outgoings from her mother’s funds, whilst deriving an income from a buy-to-let property of her own.

[50]Accordingly, I:(a) revoke the LPA for property and financial affairs;

(b) direct the Public Guardian to cancel its registration; and

order

1. The respondent to notify the Public Guardian with such details of the financial affairs of PST as he shall require by 4pm on 24th August 2013. 2. The Public Guardian is not to disclose the said details to any third party without further order of the court. 3. Leave to the Public Guardian to restore the case for further direction until 4pm on 31st October 2013 after which the proceedings shall be automatically dismissed without further order.