“It does not appear that any party is challenging the conclusions of Dr. Poz in relation to MB’s mental capacity.”
“I believe that MB is a very intelligent man who knows his own mind and expresses his wishes and feelings very clearly. However I will respect the Court’s decision as to his capacity.”
“…for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist (ss2(1)).” “The core determinative provision within the statutory scheme is MCA 2005, s2(1)…. The remaining provisions of s2 and s3, including the specific elements within the decision making process set out in s3(1), are statutory descriptions and explanations which support the core provision in s2(1)…. Section 2(1) is the single test, albeit that it falls to be interpreted by applying the more detailed description given around it in ss 2 and 3.”
“The key question is not whether the person’s ability to take the decision is impaired by the impairment or, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof (see Re SB (A Patient: Capacity to Consent to Termination)[2013] EWHC 1417 9COP) at [38].”
“Clearly the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important. In assessing that evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians treating, and the key professionals working with, P……in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.”
“[MB] has available to him an iPad with a head switch. This was provided at the first assessment but the iPad had not been charged and the head switch was broken. [MB] appeared keen to use the switch and the iPad, for example communicating to his mother where the plug should be attached. Unfortunately by the end of my final visit the iPad and switch still did not function.”
“there are occasions when [MB] feels he should not express his opinion if it differs from the opinion of those he cares about, in particular his mother.”
“..I am of the opinion that [MB] lacks the ability to decide whether meetings with therapists and other professionals should be undertaken in the absence of family members, if any such professional requests this for any particular appointment. I am of the opinion that the inability identified above arises not so much because of an impairment of, or a disturbance in the functioning of, MB’s mind or brain…but because of the consequence of the impairments. His impairments, from birth, have required a different level of care from his mother than he would have required had he been born without impairments. One of the consequences of which has been the evolution of an enmeshed relationship between [MB] and his mother, this is best summarised by his mother’s comment “we are one opinion.”
“ I have to accept that her conclusions are more detailed [but] when reading them together, and taking the evidence as a whole, the enmeshment theory is the more persuasive.”
“most activities suggested that are beyond the top of the street are rejected for one reason or another”
“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”
“…there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due. This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important…. For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront than it would be to others who are more fortunate.”
“In my judgment it is unnecessary to enter any investigation of social care policy or whether have been philosophical and practical shifts. …. The safe approach of the trial judge in Mental Capacity Act cases is to ascertain the best interests of the incapacitated adult on the application of the s 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of art 8 rights and whether that violation is nevertheless necessary and proportionate.”
“Over almost 2 years, we haven’t moved on. We are still in the same position.”
“better to go without having been upset by his mother, as difficult as that is.”
“I’d consider it important for NB and MB to have enough preparation about how they’re feeling emotionally – if NB can do that, I would advocate slower. If not, I’d advocate swift move to rehabilitation.”
“it was just like nothing had happened – lovely.”
“I ... am more than happy to try and reassure [MB] and try to help settle [MB] into residential…care for the period of 12 weeks only. I would like reassurance before [MB] goes that at the end of his 12 weeks the final decision will be {MB]’s. I would like [MB] to have his wish on what he may want as his own choice, and if he is not happy to stay at residential care then I feel he should be given the right to decide and make future improvement in his home and look for a more appropriate care assistance in and around his…home. So is it possible I could have something in writing to reassure myself and [MB] that what I have stated in this letter will be taken into account and acknowledged before I make my decision.”
“I say MB should stay at home and his mum should take care of him.”
“he’ll be safe with her. Nothing at all.”
“actually this place looks pretty great.”
“he very specifically chose this word and got quite agitated and vociferous. We asked who he hated and he replied that he hated [DY], .…and the judge ‘a little bit’ and his own solicitor ‘a little bit’, because [DY] and the court were making him do what he did not want to do ie go to the rehabilitation centre.”
“[NB] added ‘I’m not stopping him. Not stopping him doing anything. He is a grown man.’ I said there was a difference between not stopping someone doing something and encouraging them. I asked if she encouraged [MB] to visit the rehabilitation centre. [NB] did not answer for a while and then repeated that she was not stopping him.”
“She explained that [MB] was very stressed earlier on and had flung his arms out to prevent them getting him through the door and to prevent them getting him into the car that had come to collect him.”
“… neither [MB] nor any of his family members, think [MB] should go to a rehabilitation centre, even temporarily….It is difficult to be certain whether it was originally MB’s view or whether he is being influenced by his family, and it seems pretty clear that none of his family members are encouraging him to give it a try….he is now so completely and implacably opposed to the idea that he would be totally unco-operative and consequently unable to benefit from the stay.”
“one of the problems, I think, is that culturally non-European families often expect to do all the caring within the family, and it has been repeatedly noted that this means they are often reluctant to access service (see for example Bhardwaj, Murphy & Forrester-Jones, 2016). Their relative isolation from other families and from services often means that they may have very different views about the lives of people with disabilities and they may, for example, not understand the European view that we should strive for self-determination, even with the most disabled individuals….I am not certain yet to what extent this is reflected in [MB]’s family’s views of his care….”
“It is very unwise for MB to be left too dependent on his mother, as she will not be available for ever and may have periods of illness in the future,. Without discovering that others can also provide good overnight care, MB would be left very vulnerable to major anxiety in such circumstances as his mother being suddenly unavailable. Frustrating and difficult as it may be, professionals need to seek a collaborative relationship with family members.”