KJP, Re [2016] EWCOP 6

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.[2016] EWCOP 6Case No 12489343
COURT OF PROTECTION
Date 14 January 2016
MENTAL CAPACITY ACT 2005
First Avenue House
42-49 High Holborn
London WC1V 6NP
Before
SENIOR JUDGE LUSH
Between
TB and SPApplicantsKJPRespondent
Ulele Burnham, instructed by Richard Nelson LLP Solicitors for applicantsNorman Hunter-Goulder of BBW Solicitors for respondentHearing Hearing date: 24 November 2015
JUDGMENTSenior Judge Lush:
[1]This is an application for permission to appeal a decision made by District Judge Mort.

The background

[2]These proceedings relate to Ken, who was born on 31 December 1928 and lives in Norfolk. He is a retired town and country planner.[3]He married his first wife, Margaret, in 1952 and they had two children:(a) Jacqueline, who is 58, lives in Nottinghamshire, and is a physiotherapist; and(b) Nigel, who is 53, lives in Essex, and is an independent financial adviser.[4]Margaret died on 25 May 2007.[5]On 17 July 2007 Ken signed an Enduring Power of Attorney (‘EPA’), in which he appointed Jacqueline and Nigel jointly and severally to be his attorneys, with general authority to act on his behalf in relation to all his property and affairs.[6]In 2009 he began dating a lady called Jeanne, who had been married before and has a son named Felix. On 1 January 2010 Ken gave Felix £100,000. The intention was that Ken would buy out Felix’s share of Jeanne’s former matrimonial home, but no steps have been taken yet to reflect the change in the legal and beneficial ownership of that property at the Land Registry.[7]Ken and Jeanne were married on 24 March 2010.[8]On 31 December 2012 Ken mentioned to his attorneys that he had made a further payment of £5,000 to his stepson, Felix, but he wasn’t entirely sure why he had done so. The attorneys looked into his finances more closely and became concerned about the installation of an alarm system, which they thought was overpriced and surplus to requirements. They arranged a meeting with the local manager of the HSBC Bank, which was attended by the attorneys and Ken and Jeanne, and it was agreed that the bank would notify the attorneys of any expenditure over £1,000.[9]On 2 May 2013 the attorneys applied to the Office of the Public Guardian to register the EPA, having given notice to Ken and Jeanne of their intention to apply for registration. There were no objections and the EPA was registered on 18 June 2013.[10]In late August 2013 the attorneys decided to restrict Ken’s access to his income to a carer’s allowance of £212 per month and to limit his access to capital to an account held in his and Jeanne’s joint names, on which there was a balance of approximately £6,000.

The revocation of the EPA

[11]The relationship between Ken and his children progressively deteriorated and on 4 March 2014 Ken executed a deed in which he revoked the EPA. His signature was witnessed by Dr Nicholas John Viale, of St Andrew’s Lodge, Julian Hospital, Bowthorpe Road, Norwich.[12]On 17 March 2014 Ken applied to the Court of Protection to confirm the revocation of the EPA pursuant to paragraph 16(3) of Schedule 4 to the Mental Capacity Act 2005.[13]In response to the question in the application form, “How would the order benefit the person to whom the application relates?”, Ken said:
“The applicant has been denied access by the attorneys under the Enduring Power of Attorney deed to his income (state pension and civil service pension) and capital in his bank accounts, as a result of which he has no money to live on. The applicant would then have access to much needed income to live on and would be able to manage his own financial affairs. The applicant would no longer be subject to financial abuse from his attorneys.”
[14]Michael Young, a chartered legal executive with Broadland Probate Services Limited, Brundall, Norwich, acted for Ken in connection with his application to the court.

Dr Viale’s assessment of Ken’s capacity to revoke the EPA

[15]Accompanying Ken’s application to confirm the revocation of the registered EPA was an assessment of capacity completed on 4 March 2014 by Dr Viale, who gave the following background information about his professional qualifications and experience:
“I am a consultant old age psychiatrist. I saw Ken, at the request of his general practitioner, on 29/10/13 and again on 4/3/14. MB BS 1994 University of London. MRCPsych 2005 Royal College of Psychiatrists I regularly assess the cognitive functioning of patients, including assessments of capacity. I have over 15 years’ experience in this area.”

MB BS 1994 University of London. MRCPsych 2005 Royal College of Psychiatrists

[16]The assessment of capacity form (COP3) that Dr Viale completed is the form usually used to accompany an application for the appointment of a deputy, and it is worded in such a way that it assumes that the person being assessed lacks capacity to make a decision for himself in relation to a matter, because of an impairment of, or a disturbance in the functioning of, the mind or brain. For this reason, Dr Viale carefully underlined certain words to emphasise the fact that Ken did not lack capacity. He said: “I am completing this form to state, in my opinion, that Ken does have the necessary capacity to revoke an Enduring Power of Attorney which he signed on 17th July 2007. I support the application to cancel the said Enduring Power of Attorney and enable Ken to manage his own property and affairs. Ken has mild vascular dementia – but this does not, in my opinion, affect his ability to manage his financial affairs at this point in time. My examination of Ken does not indicate when his vascular dementia was first present. It was present when I assessed him on 29/10/13. In my opinion, and following discussions with his solicitor, Mr M. Young, I believe Ken has the capacity to sign a revocation of the Enduring Power of Attorney he signed in 2007. He is able to understand:• who the attorneys are• what authority they have• why it is necessary or expedient to revoke the power. He is able to retain information relating to issues regarding revocation of the Enduring Power of Attorney. He is able to weigh relevant information such as the benefits and risks of revoking the Enduring Power of Attorney. I believe Ken does have capacity relating to the revoking of the Enduring Power of Attorney as he is able to:• comprehend information relevant to the decision• retain information• weigh in the balance to arrive at a choice• communicate that decision. I assessed the person to whom the application relates on 4 March 2013 following a referral from Mr M Young, Broadland Probate Services, 19 St Michaels Way, Brundall NR13 5PF. Ken currently has capacity in relation to management of his property and financial affairs. In view of his diagnosis of vascular dementia this may change in the future. He is in the process of arranging a Lasting Power of Attorney for future potential use.”• who the attorneys are• what authority they have• why it is necessary or expedient to revoke the power.• comprehend information relevant to the decision• retain information• weigh in the balance to arrive at a choice• communicate that decision.[17]In response to question 7.7 on the prescribed form, “Are you aware of anyone who holds a different view regarding the capacity of the person to whom the application relates?” Dr Viale ticked the ‘Yes’ box and said:
“I believe his son, Nigel, and daughter, Jacqueline, may believe their father not to have capacity relating to this issue – they activated the Enduring Power of Attorney in early 2013.”

Dr Liam Hughes’ letter

[18]Ken subsequently filed further evidence of his capacity in the form of a letter written on 13 June 2014 by his consultant cardiologist, Dr Liam Hughes MD, FRCP, of Spire Hospital, Norwich, to Mr Young of Broadland Probate Services.[19]Dr Hughes said:
“I am writing to you at the request of Ken who has been a patient of mine since 2007. Ken informed me some time ago that there was a dispute involving his financial situation, and in particular asked me whether, in my opinion, he has capacity to run his own affairs. Since I first met Ken in 2007 to the present day I have never had the slightest doubt with regard to his capacity to understand his medical condition. He has not only fully understood the nature of his condition, but has been able to give an accurate history and description caused by his various cardiac problems.”
[20]Dr Hughes described various cardiac operations that Ken had undergone in 2008, 2012 and 2013, which need not concern us in these proceedings, and then went on to comment that:
“As well as being a Consultant Cardiologist with more than 20 years’ experience, I am a permanent member of the hospital Ethical Committee. This requires me to consider a number of ethical issues, but perhaps most commonly whether patients have sufficient capacity to consent for various procedures. Based on my experience with the committee, I have absolutely no doubt that Ken has full capacity to not only determine broad decisions, but also to take into consideration even minor bits of information that might have a subtle influence on his decision. I am, of course, not a financial expert, but I think it would be impossible for Ken to have full capacity to make the sort of decisions he has made with regard to his health, and not be in a position to manage his own finances. I would therefore be prepared to support his application to regain control of his finances and, if required, would be more than happy to provide a report for the court, should it be necessary. Finally, although I have no doubt about this man’s mental capacity, he is elderly and somewhat frail. Travelling long distances would put him under some physical duress, and I am certain it would be preferable for any court hearings to be held locally, should this matter not be resolved out of court.”

The objections

[21]On 6 May 2014 Jacqueline filed an acknowledgment of service (COP 5) in which she opposed the application. She said:
“As registered EPA attorney for Ken (my father) (‘the applicant’) and in conjunction with my brother Nigel, we have sought to act at all times in our father’s best financial interests. He appointed us to this task and we have tried to fulfil this to the best of our ability. Although it is now suggested by the applicant’s doctor that the applicant has regained capacity (or had never lost it) we remain to be convinced of this. There was no opposition to the registration of the EPA when this occurred and we followed a solicitor’s advice when taking this important decision. We have doubts about the manner in which the applicant’s doctor was asked to undertake assessment and the accuracy of the information provided to him. We are satisfied that, given adequate background information, a properly instructed expert would share our views about capacity. We categorically deny the suggestion of the applicant that we have engaged in financial abuse. There ought to be no change in the registration of the existing EPA power of attorney. The attorneys are very keen to explore with the applicant how he has come to misunderstand and misrepresent their actions as attorneys.”
[22]On 22 May 2014 Nigel filed an acknowledgment of service (COP 5) in which he, too, opposed the application for the same reasons as his sister.

District Judge Mort’s first order

[23]On 18 July 2014 District Judge Paul Mort made an order, to which there were eight recitals. Unfortunately, the penultimate recital was erroneous. It said, “Jacqueline has not responded to the application.”[24]Referring to Nigel alone as ‘the objector’, District Judge Mort then proceeded to order as follows: 1. The attorneys’ powers vested in them by the Enduring Power of Attorney dated 17th June 2007 are suspended pending further order. 2. The objector shall by 4pm 14th August 2014 file with the court:(a) any medical evidence on which he seeks to rely as to Ken’s capacity; and(b) his COP24 in response to the application. 3. The application will be referred to a judge on the first available date after the 14th August 2014 who will decide without a hearing: (a) whether to make a final order; or (b) whether to list the matter for hearing with further directions.[25]The attorneys instructed Ian Cranefield, a consultant with Richard Nelson LLP, Solicitors, Priory Court, 1 Derby Road, Nottingham NG9 2TA to act for them and on 14 August 2014 he applied for an extension of the time limit from 14 August to 29 August in which Nigel could serve his evidence.

District Judge Mort’s second order

[26]On 11 September 2014 District

Judge Mort made a second order, which stated as follows:

“Further to the order dated 18th July 2014 the court has received from the attorneys: • a COP9 from Nigel seeking “a stay of execution to allow us to collate our evidence.” • a COP9 from Jacqueline in similar terms seeking “clarification on the status of my COP5 objection.”
The court has received no COP5 from Jacqueline. The COP3 assessment of capacity dated 4th March 2014 was completed by Dr Viale, consultant old age psychiatrist following meetings with Ken on 29th October 2013 and 4th March 2014. The attorneys are reminded that a person must be assumed to have capacity unless it is established that he lacks capacity. The parties are reminded that whilst the usual order for costs in property and affairs cases is that the parties’ costs shall be paid from Ken’s funds the court can depart from that position where for example a party has unreasonably pursued or contested a particular issue (for further examples see rule 159 Court of Protection Rules 2007). The court will consider the issue of costs at the conclusion of the proceedings. IT IS ORDERED: 1. The attorneys shall serve their COP9s dated 7th August 2014 and 4th August 2014 respectively on the donor. 2. So that they are aware of their potential costs liabilities the parties shall by 4pm 1st October 2014 exchange schedules of the costs they have incurred to date and will incur if this matter proceeds to a final hearing. 3. Unless the attorneys have complied with paragraph 2 of the order dated 18th July 2014 by 4pm 1st October 2014 their objections shall stand automatically struck out and the Public Guardian shall be directed to cancel registration of the Enduring Power of Attorney dated 17th July 2007. 4. Any person who is affected by this order may apply to the court for reconsideration of the order within 21 days of the order being served by filing an application notice (form COP9) in accordance with Part 10 of the Court of Protection Rules 2007.” • a COP9 from Nigel seeking “a stay of execution to allow us to collate our evidence.” • a COP9 from Jacqueline in similar terms seeking “clarification on the status of my COP5 objection.” IT IS ORDERED:

District Judge Mort’s third order

[27]On 20 February 2015 District

Judge Mort made a third order, which stated as follows:

“UPON the attorneys having failed to file any medical evidence as to Ken’s capacity to revoke the Enduring Power of Attorney dated 17th July 2007 AND UPON Ken having filed medical evidence which establishes that he did have capacity to revoke the Enduring Power of Attorney AND UPON there being a presumption in favour of capacity AND UPON the attorneys’ objections having been automatically struck out by operation of paragraph 3 of the order dated 11th September 2014 IT IS ORDERED: 1. The Public Guardian to cancel registration of the Enduring Power of Attorney. 2. This order was made of the court’s own initiative without a hearing and without notice. Pursuant to rule 89 of the Court of Protection Rules 2007 any person affected by the order may apply within 21 days of the date on which this order was served for reconsideration of this decision.”
AND UPON there being a presumption in favour of capacity IT IS ORDERED:

District Judge Mort’s fourth and final order

[28]On 4 March 2015 the attorneys applied for reconsideration of the order of 20 February 2015, and on 25 March 2015 District Judge Mort made a rather terse order – his fourth and final order in these proceedings - in which he stated:
“UPON the attorney having filed COP9 seeking reconsideration of the order dated 20th February 2015 IT IS ORDERED the order dated 20th February 2015 has been reconsidered and is affirmed.”
IT IS ORDERED the order dated 20th February 2015 has been reconsidered and is affirmed.”[29]On 9 March 2015, the attorneys’ solicitor, Mr Cranefield, contacted the Office of the Public Guardian (‘OPG’) and said that his clients intended to appeal District

Judge Mort’s order of 20 February, and on 16 March a member of staff at the OPG replied saying:

“Just to make you aware that I have asked my staff to put the recall and cancellation of this EPA on hold and OPG will take no further action until I am advised by Sally Jones as to the final outcome of the court proceedings in this case.”

The application for permission to appeal District Judge Mort’s final order

[30]On 14 April 2015 the attorneys filed an appellant’s notice (COP35) stating:
“We are asking the Appeal Judge to grant permission to appeal the order of DJ Mort of 25.3.15 which was itself a reconsideration/affirmation of his earlier order of 20.2.15. DJ Mort has stated that, by reference to earlier orders, the objectors’ objections have been struck out, when this is not the case. There has been no breach of a previous order and the summary dismissal of the objections without any hearing is both procedurally wrong and unfair. There has been no provision for costs.”
[31]On 16 October 2015 I made an order listing the application for a permission hearing on Tuesday 24 November 2015.[32]A few days before the hearing, BBW Solicitors, Stevenage, replaced Broadland Probate Services as Ken’s legal representatives.

The hearing

[33]The hearing took place on Tuesday 24 November 2015 and was attended by:(a) Ulele Burnham, counsel, Doughty Street Chambers; Ian Cranefield of Richard Nelson LLP Solicitors, and Jacqueline and Nigel; and(b) Norman Hunter-Goulder of BBW Solicitors.

Ulele Burnham’s skeleton argument

[34]In her skeleton argument dated 23 November 2015, Miss Burnham said as follows:
“The appellants contend that permission ought to be granted pursuant to rule 173 of the Court of Protection Rules 2007 to appeal the orders of 20th February and 25th March 2015 for the following reasons in summary: (1) … (2) … (3) The appellants believed in 2007 that their father had the capacity to create an EPA notwithstanding that he was having difficulty managing his paperwork. (4) Upon becoming concerned about unusual and significant transactions on Ken’s account, their father’s expression of concern about payments he was having to make to Felix, his stepson, and his vulnerability to exploitation, they agreed on measures that they would undertake in collaboration with their father’s bank to alert them to transactions of concern. They attempted to inform both their father and stepmother of the steps they were taking and invited them to meet to try to resolve the issues of concern. (5) By the time of the registration of the EPA the appellants were increasingly concerned about their father’s capacity to manage his financial affairs. Having taken advice, they believed that the circumstances of which they were aware indicated that he “was or was becoming mentally incapable” within the meaning of Schedule 4 to the Mental Capacity Act 2005 (‘MCA’). They therefore considered themselves bound to register the EPA in accordance with the provisions of paragraphs 4(1)-(2) of Schedule 4. (6) The evidence of Dr Viale provided by way of COP3 did not appear to accord with their assessment (which of course they accept was not expert) of their father’s apparent cognitive decline since 2007 and they considered that, at the very least, Dr Viale’s instructions and the evidence upon which his conclusions were reached ought to be interrogated by the court. It is accepted that a COP3 assessment is not required to be a full report setting out the evidence on which conclusions are based. However, where there is contrary evidence, even narrative evidence, it is submitted that the appropriate approach should be for the court to “facilitate any necessary determination about P’s capacity if there is doubt”: Re F [2009] MHLR 96, at para. 44. The court must consider all of the evidence and not merely the views of experts or professionals: A Local Authority v TZ [2014] EWHC (COP) at para. 27. (7) It is clear that at the time of the court’s order of 18th July, the court had not had sight of the COP5 filed on behalf of the appellant Jacqueline through no fault of her own or her representatives. This order directed only Nigel (since it had not had sight of Jacqueline’s COP5) to file with the court by 14th August 2014 “Any medical evidence on which he seeks to rely as to Ken’s capacity … His COP24 statement in response to the application.”
The appellants then applied for an extension of time for service of their evidence by way of COP9s dated 4th and 7th August 2014. (8) At the time of the court’s order of 11th September 2014, again through no fault of the appellant Jacqueline, the court recorded that it had not received a COP5 from her. This was despite Jacqueline having issued a COP9 dated 4th August 2014 which was before the court on 11th September 2014 and which referred to the COP5 that had already been filed. In addition, by that date COP24 statements setting out the reasons for the actions taken by the appellants and their concerns about their father’s capacity and the management of his financial affairs had already been filed. These documents, which were properly filed by the appellants, were not before the court when it directed at paragraph 3 that “Unless the attorneys have complied with paragraph 2 of the order dated 18th July 2014 by 4pm 1st October 2014, their objections shall stand automatically struck out and the Public Guardian shall be directed to cancel registration of the Enduring Power of Attorney dated 17th July 2007.” (9) It is submitted that paragraph 3 of the order of 11th September 2014 was oppressive having regard to the circumstances at paragraphs (5) and (6) above. The appellants made no application for reconsideration of that paragraph of the order of 11th September 2014 since as at that date they considered that they had already complied with its terms by filing narrative evidence on 27th and 28th August 2014. Paragraph 2 of the order of 17th July 2014 required Nigel to file a statement and “any medical evidence on which he sought to rely”. First, Nigel and Jacqueline would not have been able to obtain any capacity evidence in relation to their father without order of the court in the context of their father’s opposition to their actions as attorneys. It can properly be assumed that he would not have consented to an assessment in the absence of court intervention, Secondly, paragraph 2 of the order of 17th July 2014 did not indicate, nor can it be implied, that a failure to file “any medical evidence on which he seeks to rely” would attract the draconian penalty of an automatic strike-out. If the court were to impose the unless order justly, it would have had to inform the appellants that it had considered the COP24 statements field on 27th and 28th August 2014 and concluded that the objections should be struck out in the absence of the provision of medical evidence. This the court did not do. (10) It is submitted that the court was not entitled to treat the appellants’ objections as automatically struck out on 20th February 2015 in any event. Paragraph 3 of the order of 11th September 2014 purports to be an “Unless” order. It is accepted as a matter of general principle in relation to such species of order, that a sanction conditional on a party not complying with a particular requirement becomes effective upon such non-compliance without the need for further order of the court. The fact that default in such cases could result in the dismissal or striking out of an action places an onerous obligation on the court to ensure that “the order was precise in its terms to ensure that the party to whom it was directed should be in no doubt about what he needed to do to avoid the action being dismissed” (See Marcan Shipping (London) Ltd v Kefalas and another [2007] 1WLR 1864 at para. 11). Paragraph 3 of the order of the 11th September 2014 was not by any means sufficiently precise: There was no express indication on the face of either the order of 17th July 2014 or 11th September 2014 that a failure to comply with a term which was conditional (“any medical evidence on which he seeks to rely”) would be treated as material non-compliance with the whole of paragraph 2 of the order of the 17th July 2014 in that they did both provide a COP24 statement in response to the application. (11) By the time of the reconsideration on 25th March 2015, the court ought to have had sight of the COP9 application made in respect of medical evidence. The court ought therefore to have been aware that it would have been practically impossible, and arguably an unjustified interference with their father’s rights pursuant to Article 8 of the ECHR, for the appellant ts to attempt to obtain evidence as to Ken’s capacity in the absence of a court order authorising that course. It is submitted that the history of this matter very strongly indicates that the directions in relation to evidence and the imposition of severe penalties for non-compliance ought not to have been dealt with without noticed and without the benefit of a hearing. (12) The appellants do not take the step of seeking permission to appeal lightly. They have demonstrated their willingness to accept the conclusions of Dr Viale but would like to be satisfied as to the basis on which that conclusion was reached, having regard to their own recent experiences of their father’s behaviour and their concerns about provisions for the costs of any future care he may require. The appellants appreciate entirely that his decision to revoke the EPA may be capacitous and, if he also has the capacity to manage his property and affairs, that he is entitled to make gifts to anyone, including his wife and his new family, whatever their views on the prudence of his expenditure given his advancing years. However, the appellants consider that they have at all times acted in what they consider to be their father’s best interests and are extremely saddened that their attempts to be cautious have resulted in a breakdown in their relationship with him and their stepmother. Nevertheless they consider that the court has neither, by reason of the matters referred to above, considered their objections fairly and/or caused the capacity evidence to have been considered with the care required having regard to their objections. (13) The appellants submit that this appeal undoubtedly has a real prospect of success and that permission therefore ought to be granted. The appellants consider that they have at all times acted upon advice and/or reasonably having regard to their duties as attorneys before the suspension of their powers. Their actions in this litigation fall squarely within those parameters.”

The law relating to permission to appeal

[35]The law relating to appeals is set out in Part 20 (rules 169 to 182) of the Court of Protection Rules 2007 (as amended).[36]Rule 173(1) provides that:
“Permission to appeal shall be granted only where – (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard.” (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard.”
[37]If I give permission to appeal, rule 179 applies. Rule 179(3) provides that:
“The appeal judge will allow an appeal; where the decision of the first instance judge was – (a) wrong; or (b) unjust, because of a serious procedural or other irregularity in the proceedings before the first instance judge.” (a) wrong; or (b) unjust, because of a serious procedural or other irregularity in the proceedings before the first instance judge.”

Decision

[38]I refuse permission to appeal because I consider that the appeal has no real prospect of success and I can see no other compelling reason why it should be heard. I also believe that District Judge Mort’s decision was neither wrong nor unjust.[39]In focussing on examples of irregularities or perceived procedural unfairness towards her clients, Miss Burnham has lost sight of the bigger picture, which is the duty to respect Ken’s right to revoke his EPA at any time when he had the capacity to do so.[40]Even if permission to appeal were granted and the appeal succeeded, the court would be obliged to revoke the EPA instantaneously on the ground that, having regard to all the circumstances, Ken’s children are no longer suitable to act as his attorneys because the relationship between him and them has broken down irreparably and their continued involvement in the management of his affairs is causing him embarrassment and distress.[41]Ken’s application to the court was for an order under paragraph 16(3) of Schedule 4 to the Mental Capacity Act 2015. That paragraph provides that:
“On application made for the purpose by or on behalf of the donor, the court must confirm the revocation of the power if satisfied that the donor – (a) has done whatever is necessary in law to effect an express revocation of the power; and (b) was mentally capable of revoking a power of attorney when he did so (whether or not he is so when the court considers the application).” (a) has done whatever is necessary in law to effect an express revocation of the power; and (b) was mentally capable of revoking a power of attorney when he did so (whether or not he is so when the court considers the application).”
[42]Incidentally, although the court must confirm the revocation of a registered EPA, there is no need for it to confirm the revocation of a registered Lasting Power of Attorney, in respect of which section 13(2) of the Act expressly provides that “P may at any time when he has capacity to do so, revoke the power.” This procedural difference between EPAs and LPAs came into force on 1 October 2007, eleven weeks after Ken executed his EPA, and the policy considerations underlying the change in procedure are discussed in paragraphs 7.42 and 7.43 of the Law Commission’s report number 231, Mental Capacity, published in 1995. Paragraph 7.43 concluded with the following statement:
“We therefore think it necessary to stress, by way of an explicit provision, that a donor should always retain the power to revoke his or her [LPA].”
[43]The appellants do not deny that Ken did whatever was necessary in law to effect an express revocation of the power. They do not, however, accept that he was mentally capable of revoking the power of attorney when he did so. They filed no medical evidence to support their assertion and relied, instead, upon their own observations on his uncharacteristic behaviour over the last few years.[44]By contrast, Ken’s evidence of his capacity to revoke the EPA is exemplary. I would go so far as to say that it is incontrovertible. Dr Nicholas Viale is an experienced consultant in old age psychiatry, who had previously examined Ken four months earlier. There is no question of bias, or a lack of independence, or a conflict of interests, or any other vitiating factor that would undermine his opinion on Ken’s capacity.[45]Despite Jacqueline’s barbed comments that, “given adequate background information, a properly instructed expert would share our views about capacity”, there is nothing to suggest that Dr Viale was given inadequate or incorrect information or that he didn’t receive proper instructions, or that he didn’t apply the appropriate test.[46]Dr Viale’s assessment was both time-specific and decision-specific. It is the only evidence relating to the transaction that took place on 4 March 2014 that will ever be time-specific and decision-specific. Any subsequent assessment of Ken’s capacity would be retrospective and, inevitably, inferior.[47]As one would expect of a consultant psycho-geriatrician, Dr Viale correctly applied the checklist in section 3(1) of the Mental Capacity Act 2005.[48]With regard to “the information relevant to the decision” that Ken needed to be able to understand, retain, and use or weigh, Dr Viale applied the criteria for establishing whether someone has capacity to revoke an EPA that I suggested in Re S (Unreported, 13 March 1997).[49]Dr Viale was required to assess what is, actually, a very narrow compass of capacity, namely whether Ken understood:(a) who the attorneys are;(b) what authority they have;(c) why it is necessary or expedient to revoke the power; and(d) the foreseeable consequences of revoking the power.[50]Dr Viale’s evidence is that Ken did understand who the attorneys were, and what authority they had, and why it was necessary or expedient for him to revoke the EPA and, according to Dr Viale, Ken was already addressing one of the foreseeable consequences of revoking the EPA. He was “in the process of arranging a Lasting Power of Attorney for future potential use.”[51]As Ken had the capacity to make the decision, whether it was wise of him to revoke the EPA and to make an LPA in its place is irrelevant, as is the extent to which he may have been vulnerable to exploitation.[52]In her skeleton argument, Miss Burnham referred to the judgment of Her Honour Judge Hazel Marshall QC in Re F [2009] MHLR 96; Re F (Interim Declarations) [2009] COPLR Con Vol 390, at paragraph 44. Re F involved a difference of opinion on F’s capacity between a consultant psychiatrist and Alex Rook, who is a specialist mental health solicitor in Irwin Mitchell’s public law department. Re F was a clash between experts. This case isn’t. It is a clash between an undoubted expert, on the one hand, and two people with a vested interest in the outcome, on the other hand. In Re F there was sufficient evidence to justify a reasonable belief that F lacked capacity, which warranted obtaining a further medical report. In this case, there was insufficient evidence to entertain a reasonable belief that Ken lacked capacity to revoke the EPA.[53]There is a second opinion in support of Ken’s capacity; that of his cardiologist, Dr Liam Hughes. Although it is less impressive than Dr Viale’s assessment, because it is neither time-specific nor decision-specific with regard to the revocation of the EPA on 4 March 2014, nonetheless, Dr Hughes “never had the slightest doubt with regard to his capacity” and had “absolutely no doubt that Ken has full capacity.”[54]Miss Burnham also referred to the decision of Mr Justice Jonathan Baker in A Local Authority v TZ (by his litigation friend the Official Solicitor) (No 2) [2014] EWHC 973 (COP); [2014] COPLR 159, at paragraph 44, that “the court must consider all relevant evidence.” District Judge Mort did consider the information presented by both sides. Despite the furore about him not having seen Jacqueline’s acknowledgment of service, there is little difference between her evidence and Nigel’s.[55]District Judge Mort was satisfied that Ken had done whatever was necessary in law to effect an express revocation of the power and was mentally capable of revoking a power of attorney when he did so and, as the legislation compels him to do in such circumstances, he confirmed the revocation.[56]The District Judge felt the need repeatedly to remind the appellants of the overriding objective in Court of Protection proceedings and, in my opinion, he was right to do so.[57]In A and B (Court of Protection: Delay and Costs) [2014] EWCOP 48, [2015] COPLR 1, Mr Justice Peter Jackson found that the overriding objective in the Court of Protection Rules 2007 had not been remotely achieved, and at paragraphs 10 to 15 he made the following observations:(a) Few if any of the rule 5 case management strategies were exhibited in these proceedings. There were too many hearings before too many judges, too much documentation, and too many lengthy adjournments with excessive time estimates for hearings.(b) In these cases, the consequence of delay has been protracted stress – described by one parent as “the human misery” – for the young men and their families, with years being lost while solutions were sought….(c) Court of Protection cases like these … are almost all capable of being decided quickly and efficiently, as the Rules require.(d) In short, whether we are spending public or private money, the court and the parties have a duty to ensure that the costs are reasonable.(e) Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected.(f) Likewise, there is a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved.[58]Here, the attorneys and their legal advisers were demanding an in-depth inquiry into how Dr Viale could have reached the conclusion that Ken had capacity to revoke the EPA and were attempting to spin out the proceedings in circumstances in which there was, essentially, no contest.[59]Unfortunately, the human misery for Ken has been compounded by the Public Guardian, who failed to act on the court’s order of 20 February 2015 directing him to cancel the registration of the EPA, and decided instead to follow the instructions of the attorneys’ solicitor who wished the registration to remain in force.

Costs

[60]In his order of 15 September 2014 District Judge Mort stated that the court would consider the issue of costs at the conclusion of the proceedings, but he made no reference to costs in his orders of 20 February 2015 and 25 March 2015.[61]The general rule for costs in property and affairs cases (rule 156 of the Court of Protection Rules 2007) is that they shall be paid by the person to whom the proceedings relate (‘P’) or charged to his estate.[62]Rule 159 allows the court to depart from the general rule “if the circumstances so justify”, including:(a) the conduct of the parties (before, as well as during, the proceedings); and(b) whether it was reasonable for a party to raise, pursue or contest a particular issue.[63]There is concern amongst property and affairs lawyers that rule 156 encourages unnecessary litigation at P’s expense, and they have been lobbying for a rule change that distinguishes between costs in non-contentious cases, which account for 93% of the court’s workload, and those in contentious proceedings.[64]I shall make no order for costs in respect of the proceedings up to 25 March 2015, when District Judge Mort made his final order, and I shall order that thereafter the costs of the applicants and the respondent are to be assessed on the standard basis and paid by the attorneys.[65]It was unreasonable for the attorneys to pursue the question of Ken’s capacity to revoke the EPA in light of Dr Viale’s compelling evidence, as supplemented by the opinion of Dr Hughes. In addition, their solicitor acted improperly when he inveigled the Public Guardian into disregarding District Judge Mort’s order directing him to cancel the registration of the instrument.