CJ, Re [2015] EWCOP 21

IMPORTANT NOTICEThis 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.[2015] EWCOP 21Case No 11789014
IN THE COURT OF PROTECTION
Date 25 March 2015
MENTAL CAPACITY ACT 2005
IN THE MATTER OF CJ
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before
SENIOR JUDGE LUSH
Between
THE PUBLIC GUARDIANApplicantMPRespondent
Gemma Hopper of the Office of the Public GuardianThe respondent in person and unrepresented for in personHearing Hearing date: 12 March 2015
JUDGMENTSenior Judge Lush:
[1]This is a reconsideration of a decision made on the papers on 4 November 2104 by District Judge S. E. Rogers, who made an[2]The practice guidance on Transparency in the Court of Protection: Publication of Judgments, [2014] COPLR 78, requires me to allow this judgment to be published, because it is a case “where the issues include whether a person should be restrained from acting as a deputy or that an appointment should be revoked.”

The facts

[3]CJ was born on 12 December 1950.[4]She lives with her partner, MP, in Kent. They have been together for twenty-five years. She was an only child; her parents are dead, and her nearest relatives are uncles, aunts and cousins, with whom she has no contact.[5]In 2002 CJ had a heart attack and, because of a delay in resuscitating her, she suffered anoxic brain damage. She sued the ambulance service for negligence and in October 2009 she was awarded damages of £300,000.[6]In 2007 she had a medium to severe stroke, as a result of which she suffered further brain damage and now has a paralysed left arm.[7]On 13 August 2010 I appointed MP to be her deputy for property and affairs and required him to obtain and maintain security in the sum of £150,000.[8]MP and CJ used to run a boarding kennels and cattery together, and he has continued to run the business single-handedly since she became incapacitated.[9]Normally, a deputy’s accounting year starts on the date of the order appointing the deputy and the account is due on each anniversary of the order, which in this case would have been 13 August. However, where there is a family business, the Office of the Public Guardian (‘OPG’) sometimes allows the deputy to use the same accounting year as the business, and in this case the OPG agreed that MP could account from 1 June to 31 May each year in order to make the process simpler for him.

The application

[10]On 3 June 2014 the Public Guardian submitted an application to the court for an order that:(a) MP provide full accounts for all his dealings as deputy for the accounting years 2011/2012, 2012/2103 and 2013/2014;(b) MP be formally directed to comply with his duties as deputy; and(c) if he fails to provide satisfactory accounts within 28 days, he should be discharged as deputy and a panel deputy invited to seek appointment in his place.[11]The application was accompanied by a witness statement dated 4 June 2014, made by Imran Rasool of the OPG. He said that:(a) on 11 March 2014 the OPG’s compliance team was alerted to concerns from the OPG’s supervision team;(b) three years’ annual reports were either due or overdue;(c) there were unpaid OPG supervision fees totalling £888;(d) MP insisted that the court order related only to CJ’s damages award and not to her other financial affairs, which are mostly accounts in his and her joint names;(e) on 16 February 2014, Dr David Thompson, a Court of Protection General Visitor had attempted to visit CJ, but MP would not let him see her; and(f) MP had sent the OPG a bill for costs he claimed he had incurred, which he expected the OPG to pay.[12]In his report of the abortive visit, Dr Thompson said:
“The agenda produced prior to the meeting included “the visitor would like to see the client at some point alone. This is standard procedure.”
The visitor asked to see the client but MP said this was not possible. He said this concerned the client’s sleep patterns. The visitor suggested saying ‘hello’ just briefly in the company of MP but he was not in agreement with this. The concern was that she would be anxious about seeing a stranger. At the start of the visit MP said that the client might come down during the meeting but this did not happen. Not possible to establish anything during the visit. MP said that he would ‘walk away’ if the OPG ‘keeps pushing.’ MP said he was willing to report on the settlement only. MP asked for a copy of the commissioning document to be provided to him by the OPG.”[13]As regards the bill that MP sent to the OPG, Imran Rasool said:
“MP also sent an invoice dated 24 March 2014 to the OPG for 10 days of labour at £150 per day, a camcorder to record any future visits from the OPG, a microphone to record telephone calls with the OPG and charges for postage. The invoice totalled £1,675.09.”

Court orders

[14]On 9 June 2014 I made an order in the terms sought by the OPG, and required:(a) MP to produce detailed accounts to the OPG by 4pm on Friday 18 July;(b) the OPG to confirm by Friday 1 August whether or not MP had complied with the order; and(c) the matter be referred back to a judge on or after 4 August 2014.[15]The OPG’s application had included an unprecedented request that MP be ordered to comply with his duties as deputy, and the order of 9 June 2014 also contained the following clause:
“The respondent shall forthwith comply with his statutory duties, fiduciary duties and the duties under the order appointing him as deputy, which include, but are not limited to, the following: (a) to provide specified information to the Public Guardian by means of an annual report or as and when the Public Guardian feels it necessary or expedient to request a report pursuant to regulation 41 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007; (b) to facilitate visits by a Court of Protection Visitor as and when required by the Public Guardian pursuant to regulation 44; and (c) to comply with requests made by the Public Guardian.” (a) to provide specified information to the Public Guardian by means of an annual report or as and when the Public Guardian feels it necessary or expedient to request a report pursuant to regulation 41 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007; (b) to facilitate visits by a Court of Protection Visitor as and when required by the Public Guardian pursuant to regulation 44; and (c) to comply with requests made by the Public Guardian.”
[16]Needless to say, MP failed to comply with the court’s order, and on 4 November 2014 District Judge Rogers ordered that: 1. Pursuant to section 16(8)(a) of the Mental Capacity Act 2005 MP is discharged as deputy and shall file with the Public Guardian a final account by 20th December 2014. 2. The security shall not be discharged until further order. 3. An officer of the court shall forthwith invite a panel deputy to apply to become deputy for property and affairs for CJ.[17]District Judge Rogers’ order was issued on 7 November 2014 and five days later MP applied for it to be reconsidered.[18]On 15 December 2014 District Judge Rogers made a further order on the papers stating:(a) “no order on application of 12th November 2014”; and(b) “the order of 4th November 2014 do stand.”[19]On 3 January 2015 MP filed an application in which he sought a further reconsideration together with a response to the following requisitions:(a) Define what is in the client’s best interests.(b) To freeze the client’s assets and common assets for future care costs or stem cell treatment.(c) Discharge the deputyship.(d) A hearing.(e) To show that I have acted against the client’s interests in any way.[20]The application was accompanied by a witness statement in which MP made a number of submissions and on 21 January 2015 I listed the application for an attended hearing.

The hearing

[21]The hearing took place on Thursday 12 March and was attended by(a) Gemma Hopper and Nadia Dhillon of the OPG; and(b) MP, who was accompanied by Patrick Pascall of the Personal Support Unit.[22]Gemma Hopper produced a position statement in which the Public Guardian (‘PG’) said as follows: “The PG submits that MP has failed to comply with his statutory and fiduciary duties, in particular, MP has not adhered to:(a) the deputyship order(b) the reporting order. The PG submits that MP’s appointment as property and financial affairs deputy should remain discharged pursuant to section 16(8)(a) of the MCA 2005 and the discharge order. The PG submits that MP was ordered and has failed to file with the OPG a final account covering the period of: (a) 1 June 2011 to 31 May 2012 (b) 1 June 2012 to 31 May 2013(c) 1 June 2013 to 31 May 2014. The PG further submits that the appointment of a panel deputy to make decisions on behalf of CJ in relation to her property and financial affairs would be in CJ’s best interests and further delay of this appointment caused by MP would not be in her best interest.” (a) the deputyship order (b) the reporting order. (a) 1 June 2011 to 31 May 2012 (b) 1 June 2012 to 31 May 2013 (c) 1 June 2013 to 31 May 2014.

MP’s response

[23]There was something faintly endearing about MP. To some extent, he was contrite and acknowledged that he had lost his temper from time to time and had said, or written, or done things that he subsequently regretted. Nevertheless, he was still defiant and felt that the OPG’s demands, and its subsequent investigation and its application to the court had been disproportionate. He described it as ‘overkill’.[24]MP has not touched CJ’s damages award, which has remained on special account in the Court Funds Office (‘CFO’) since October 2009 earning interest at a rate of 0.5%. He is aware that he could get a better return elsewhere but, following the collapse of a number of leading banks during the global financial crisis, he feels that her money is, at least, in safe hands at the CFO.[25]He is retaining CJ’s damages award in the hope that one day there will be a breakthrough in neuroscience and she will become eligible for stem cell therapy and her award could be used to fund private treatment.[26]He said he was ploughing any profits from the business back into the business to enhance its value so that, if he dies before her, it can be sold to provide additional funds for CJ’s care.[27]He produced a report from his accountants dated 11 March 2015, which said: 1. This firm, The Sinden Thackeray Partnership, has acted as accountants for the business known as [name] since prior to 1998, and prepared accounts for the business years from 31 May 1997 to 31 May 2014. The business is that of a boarding kennels and cattery. In March 2002, CJ suffered a heart attack and subsequent brain injury, meaning that she was unable to continue to play an active role in the business, although she remained a partner. Her business and life partner, MP, continued to run the business, with the help of one employee, as well as caring for CJ. 2. Our work as accountants involved checking the records supplied by the partners by preparing bank reconciliations between the client’s records and the bank statements, checking bank and cash summaries and reviewing invoices to check the analysis supplied by the partners was appropriate for tax purposes. 3. The nature of the business is such that amounts have to be spent on repairs and improvements to the accommodation provided for the dogs and cats, since this needs to be of a good standard to attract and retain customers. The reception area was also substantially improved and upgraded. As a result of this expenditure, which in some years was as much as one third of the takings, the business made low profits, and little was available for drawings by the partners. Personal expenditure was rarely paid for through the business and, where it was, reimbursement was generally made from personal funds. No entertaining costs were identified. 4. In the years to 31 May 2013 and 2014, expenditure was also incurred on upgrading staff accommodation as the one employee has to be available on site to deal with any emergency involving the boarding animals. Some funds for this were from CJ’s account and a cheque for £7,047.83 was repaid to her account in September 2013 in this respect. 5. The accounting records supplied to us were generally of a good standard and, where applicable, appeared to be supported by bank statements and invoices.[28]On 14 March 2015, two days after the hearing, MP sent the following email to the court:
“I apologise for this communication after the hearing. I was a bit out of my depth with it all and failed to take the opportunity to bring the attached to your attention during the discussion on the freezing of assets. The court has in the past frozen assets and discharged a deputyship where assets are not an issue. The attached is one of several examples I have looked at during researching what the possibilities for a solution might be. I would also like to apologise for the invoice sent to the OPG. It was a hot headed attempt born out of frustration to get their attention. I did not expect them to pay it, of course, but on the off chance that they might I did request that it be paid into the client’s Court Funds Office account. By way of courtesy, I am copying this to the Public Guardian and request his office to forward this to the two young ladies who represented the OPG in their role as trainee solicitors with the thought that it may help them with their future careers. Thank you for your time and understanding during the hearing. I will not trouble you again.”
[29]The attachment to which he referred was the judgment of Mr Justice Peter Jackson, dated 9 October 2012, in the matter of Mrs Ann Clarke [2012] EWCOP 2714. The judge had ordered that Mrs Clarke’s only remaining capital asset, a house in Blackpool, could not be sold or charged during her lifetime without an order of the court and, subject thereto, he discharged the deputyship as being redundant.

The law

[30]The statutory provisions that authorise the Court of Protection and the Public Guardian to require deputies to account and comply are as follows.[31]Section 19(9) of the MCA states that:
“The court may require a deputy – (a) to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions, and (b) to submit to the Public Guardian such reports at such tomes or at such intervals as the court may direct.” (a) to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions, and (b) to submit to the Public Guardian such reports at such tomes or at such intervals as the court may direct.”
[32]Section 16(3) of the MCA provides that:
“The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).”
[33]The court’s power to revoke a deputy’s appointment is in section 16(8): “The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy –(a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or(b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests. (a) has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P’s best interests, or (b) proposes to behave in a way that would contravene that authority or would not be in P’s best interests.[34]It should be noted that there are two grounds for revoking an appointment:(a) behaviour in a way that contravenes the deputy’s authority; and(b) behaviour that is not in P’s best interests.[35]Because these grounds are mutually exclusive, a deputy could have acted in P’s best interests at all times but, if he has contravened the authority conferred on him by the court, his appointment as deputy can be revoked.[36]Although the Act refers to the ‘authority’ conferred on the deputy by the court, which means primarily the right or power to make certain decisions, in my judgment, ‘authority’ should be construed in a wider sense to include the duties and responsibilities that accompany the rights and powers conferred on the deputy by the court.[37]Section 57 of the Mental Capacity Act 2005 states that there shall be an officer, known as the Public Guardian, who is to be appointed by the Lord Chancellor, and section 58(1) of the Act sets out his functions, which include:(a) supervising deputies appointed by the court;(b) directing a Court of Protection Visitor to visit the deputy or the person for whom the deputy is appointed;(c) receiving security which the court requires a person to give for the discharge of his functions;(d) receiving reports from deputies appointed by the court; and(e) dealing with representations (including complaints) about the way in which a deputy appointed by the court is exercising his powers.[38]Section 58(3) provides that “the Lord Chancellor may by regulations make provision in connection with the discharge by the Public Guardian of his functions.” The relevant regulations, as amended, are the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (SI 2007 No. 1253). Regulation 39 sets out the contents of any report which the court requires the deputy to submit to the OPG, and regulation 41 sets out the power of the OPG to require information from deputies.

Decision

[39]I am absolutely certain that there has been no dishonest misappropriation of CJ’s funds by MP, but that’s not the point.[40]When he applied to be appointed as CJ’s deputy, MP completed a deputy’s declaration (COP4), in which he gave various undertakings, such as: “I will comply with any directions of the court or reasonable requests made by the Public Guardian, including requests for reports to be submitted.” and “I will co-operate with any representative of the court or the Public Guardian who might wish to meet me or the person to whom the application relates to check that the deputyship arrangements are working.”

and

[41]Clause 3 of the order appointing him as deputy stated that:(a) The deputy is required to keep statements, vouchers, receipts and other financial records.(b) The deputy must submit a report to the Public Guardian as and when required.[42]To turn a blind eye to MP’s wilful refusal to comply with his duties would erode and undermine the safeguarding work carried out by the OPG’s supervision and compliance teams, which cannot possibly be in the public interest. It would also ride roughshod over the court’s obligations under international human rights law to ensure that the protective measures it makes contain appropriate and effective safeguards to prevent abuse: United Nations Convention on the Rights of Persons with Disabilities, Article 12.4.[43]The Public Guardian has discharged the burden of proof, and I am satisfied that, by failing to comply with his duties as a deputy, MP has behaved in a way that has contravened the authority conferred on him by the court. Accordingly, I confirm District Judge Rogers’ order revoking MP’s appointment as deputy and inviting a panel deputy to apply to be appointed in his place.[44]I would like the panel deputy to carry out an audit in a wider, more holistic sense than that envisaged by the OPG, and to investigate:(a) whether there is a less restrictive way of managing CJ’s property and financial affairs;(b) whether it is in CJ’s best interests for her funds to remain on special account at the CFO, or whether they could be deposited, say, in four separate bank or building society accounts so as to be covered by the £85,000 limit on deposits under the Financial Services Compensation Scheme;(c) whether a personal injury trust should be created to manage CJ’s damages award;(d) whether it is in CJ’s best interests that her damages award is retained to pay for future stem cell treatment (which may never become available during her lifetime), or whether it would be better to apply the award for the purposes for which it was intended when the settlement was agreed; and(e) whether it would be in CJ’s best interests to apply to the court for an order authorising the execution of a statutory will to provide for the possibility that MP could predecease her. CJ and MP are not married to one another. She is currently intestate and she has had no contact with her heirs on intestacy for decades. If she had testamentary capacity, she might decide to leave her estate to, say, charities specialising in animal welfare or the treatment of stroke patients.

order

(a) revoking the respondent’s appointment as his partner’s deputy for property and affairs; and(b) inviting a panel deputy to apply to be appointed as deputy in his place.