K D (A protected party by her litigation friend the Official Solicitor) v First [2009] EW Misc 7 (EWCOP)

IN THE COURT OF PROTECTION

On Appeal from District Judge Jackson

at the Clerkenwell and Shoreditch County Court

[2009] EW Misc 7 (EWCOP)

Case No Case No: 1144 8388 /03

Between

K D (A protected party by her litigation friend the Official Solicitor)

FirstAppellant

L D (A protected party by his litigation friend the Official Solicitor)

SecondAppellant

The London Borough of HaveringRespondent

Before

His Honour Judge Horowitz

Andrew Bagchi (instructed by Fisher Meredith) for the Official Solicitor on behalf of K D

Victoria Butler-Cole (instructed by Irwin Mitchell) for the Official Solicitor on behalf of L D

Dermot Casey (instructed by the London Borough of Havering) for the Respondent local authority

Hearing date: 14th of August 2009

Date 19 October 2009

[1]His Honour Judge Horowitz QC: On 9 April 2009 in the course of a short hearing in proceedings brought under the Mental Capacity Act 2005 and expected to be interlocutory by the parties who appeared, District Judge Jackson made orders intended to dispose of all welfare issues in the case. There was no formal judgement delivered but a full transcript of the dialogue between the Court and the advocates makes clear the analysis applied by the District Judge in reaching her decision.

[2]The appeal brought on behalf of the mother KD, who is herself a protected party, supported by LD himself who is 'P', both effectively represented by the Official Solicitor, which came before me on 14 to August 2009 was not opposed by counsel for the local authority, all parties recognising that the hearing under appeal was unsustainable both in procedure and result. In those circumstances the appeal was allowed effectively by consent in a short hearing.

[3]The 2005 Act introduces new concepts, definitions and procedures which will require to be worked out in its application. I was invited to consider and reflect upon the careful skeleton arguments presented by Counsel and offer guidelines of my own. I do so in this somewhat delayed judgement in the clear expectation that mine may be a first exploration along a path which others, I have no doubt, will mark out and improve. The Background

[4]LD is now 21 years old. He suffers from spastic quadriplegia and cerebral palsy, Microcephaly and has a moderate to severe learning disability and epilepsy. He lacks capacity for intelligible word communication and can express only limited wants, for example, regarding drinks and food items through facial expression. He is doubly incontinent and additionally has a severe swallowing difficulty which necessitates a special diet of thickened fluids to avoid the risks of aspiration and choking either of which might prove fatal. He is wheelchair-bound.

[5]Until 2009, he was in the effective overall care of his mother KD. I have come across no reference to his father from which it appears that his mother has borne the burden of caring for him as a single parent for many years. She has her own difficulties such that she is now herself represented by the Official Solicitor. She was assessed but not sectioned under the Mental Health Act 1983 in 2000 and detained under a further assessment in May 2005 as an informal patient for some eight months.

[6]LD was not formally taken into care but has been on the Local Authority Child Protection register receiving a high degree of support for himself and his mother, including provision of special bungalow accommodation. She is recorded as resistant to interventions and support considered necessary by professionals responsible for providing care and support.

[7]On 16 January 2009, LD was placed in the local authority facility for respite care with his mother's consent. Following admission, the local authority were so concerned at what is recorded as the mother's inability to cooperate, keep hospital and other medical appointments and his observed unhappiness in the home environment. The mother's own presentation and perceived refusal to cooperate with social services provided, so it was considered, a further reason to take proceedings in the Court of Protection.

[8]By application made on 28 January 2009, the local authority sought orders and declarations confirming, that is, retaining LD's placement in the respite accommodation and to enable an assessment at another unit, Alder House. The local authority also applied to replace the mother both as LD's deputy and to become his personal welfare deputy.

[9]The mother felt that she had been let down by the statutory agencies who, she strongly considered, had failed to provide her sufficient support. She was, nevertheless, represented at the first hearing on 10 February 2009, before District Judge Jackson sitting in the Court of Protection at Clerkenwell & Shoreditch. A holding order was made declaring in the interim based on information then available, LD lacked capacity to make decisions in regards to his residence contact or care and that it was lawful and in his best interests for him to remain in the interim at current residential placement such placement being justified whether or not it amounted to a deprivation of liberty under Article 5. The Official Solicitor was appointed his litigation friend and it was directed that LD be not moved until further order of the court set for review on 9 April before the District Judge. Further directions were made for a best interests expert report from James O'Meara an experienced independent social worker, to be filed by 1 May 2009.

[10]At the hearing of 9 April 2009, again before District Judge Jackson, the court took a summary course of which complaint is made by both mother and the Official Solicitor on behalf of LD. The Transcript is a full record of the short proceedings.

[11]The approach adopted by the District judge may be described as brisk. She had available in case summary, a report from the treating doctor of KD, Dr Jaffar and what is referred to as a position statement from the mother. At the outset and as soon as the case had been formally opened, the District judge said:

" I have read this last night and I have to say it strikes me that I cannot see any point in dragging these proceedings out and having them hanging over L. I just cannot see the point at all -- what I had in mind really was the kind of order today that might first of all deal with capacity, because the report … is absolutely explicit, there is no other evidence to contradict that and I have no reason to doubt it. I have seen that mother has not visited him … the … order I had in mind today was reciting that and saying that L should remain a resident at [the home] or such other establishment as shall be recommended by the local quality in conjunction with medical advice and to have contact with his mother on dates and times to be arranged between them. I would give [mother] permission to apply on 48 hours' notice to challenge but I really cannot see the point in these proceedings carrying on hanging over. People in this position have very difficult lives and the intervention of court proceedings does not help them."

[12]Mr Bagchi, who appeared below and in the appeal, pointed out that being without instructions or a client in court, the mother had no warning of the possibility that the proceedings might be brought to an end and, further and pertinently, mentioned that the opinion offered by the psychiatrist was expressed to be provisional. The District Judge's robust response was that the mother would be entitled to make a second and parallel application if so minded. The District Judge did not resile from that suggestion when it was further pointed out by KD's counsel that there was a strong provisional professional indication that KD lacked capacity to litigate which, he said, should set off alarm bells.

[13]Ms Butler-Cole instructed by the Official Solicitor registered equal surprise at the change of direction and asked for time to take instructions but did not, in fact, make any further application before the end of the hearing.

[14]The Court then made the following orders: -- i) Declared itself satisfied that LD lacked any capacity to make relevant decisions and that the court was satisfied that deprivation of his liberty was necessary proportionate and in his best interests; ii) Ordered him to remain resident at his present nursing home or such other establishment as recommended by the applicant local authority in conjunction with medical evidence and consultation (if possible) with his mother; iii) Contact between LD and his mother as arranged between local authority and mother iv) Directions made on 10 February discharged but with permission to the mother to apply on 48 hours notice to vary.

[15]The mother's appeal filed dated 16 April 2009 was reduced to a revised perfected form on 3 8 2009. She is supported by the parallel appeal of the Official Solicitor on behalf of LD.

[16]Mr Bagchi's arguments can be distilled and summarised as follows: -- i) The District Judge lacked jurisdiction to determine the case summarily, alternatively; ii) If such power existed, it was unfairly exercised in the instant case.

[17]The Official Solicitor for LD by his skeleton argument supports both grounds of appeal. By that stage further investigation had indeed made it clear that the mother lacked litigation capacity although she remained represented by separate counsel.

[18]The skeleton argument filed on behalf of local authority on 5 August 2009 conceded at paragraph 8 that : -- it is difficult to argue that there was not a serious procedural irregularity in the proceedings … the local authority does not oppose the appeal on procedural grounds .

[19]I agree that the manner in which the hearing was conducted was quite unsatisfactory not least but not only for want of notice that the Court was minded to take a different direction and bring the proceedings effectively to an end. However, since the issues raised are of some importance in a new jurisdiction in which all courts and practitioners are feeling their way I was invited to set out reasons more fully. I invited Mr. Dermot Casey, who appeared before me for the local authority, to consider whether there were submissions to be made contrary to those of the appellant and the official Solicitor. He kindly supplied those further reasons on 28 August 2009. In that document, Mr Casey develops and affirms his submission that the court did in fact have the power to bring the proceedings effectively to a summary conclusion provided that it did so fairly.

[20]Proceedings in the Court of Protection are directly governed by the Court of Protection Rules 2007.

[21]Rule 3 sets out the overriding objective in a formula that parallels the CPR. The overriding objective is to enable courts to deal with a case justly, having regard to the principles contained in the Act. By sub-rule (3) dealing with the case justly includes, so far as is practicable -- ensuring that it is dealt with expeditiously and fairly, that the patient's interests and position are properly considered, the cases dealt with proportionate to its nature importance and complexity and ensuring that all parties are on an equal footing together with saving expense and allotting appropriate court time.

[22]Mr. Bagchi submits at 1.2 of his revised Skeleton that neither the Act nor the Rules make provision for determining the proceedings in summary in a way not suggested by any party. In particular, he cites rule 27 (3) (4) which provides, he says, procedure for allowing parties to make representations before making an order on its own initiative.

[23]I do not accept Mr. Bagchi's analysis of the Rules. I have referred to the overriding objective which tends, in my judgement, to suggest that the court should be astute in a proper case not to overextend proceedings.

[24]Rule 27 construed as a whole seems to me within that principle. It is preceded by Rule 25 which sets out the Court's general power of case management which provides a battery of summary jurisdiction powers to manage hearings including provisions for telephone or other methods of communication and, also, at (j) and (k) exclude an issue from consideration as well as dismiss or give judgement on an application after a decision is made on a preliminary basis.

[25]Rule 27 specifically empowers the court to exercise its powers on its own initiative; (27 (1) sub-rule (2) goes on to further provide that it may make such an order of its own initiative without hearing the parties or giving them the opportunity to make representations. Rule 27 (3) further provides that where the Court proposes so to make an order on its own initiative it may -- not must -- give the parties and any person it thinks fit an opportunity to make representations laying down a timetable when it does so.

[26]The combined effect of sub-rules (3) and (4) operates when the court does not make but proposes to make an order of its own initiative and, further, chooses to allow representations: it is in such a case only that the court must provide three days notice so that the proposal is not sprung on the parties with inadequate time to prepare.

[27]That seems to me on broad principles consistent with the likely policy of the 2005 amending Act. It is a statute whose provisions are set out in refreshingly clear understandable English aptly so in a jurisdiction in which persons with disabilities and their often stressed carers so often find themselves caught up in potentially complex and distressing proceedings. It is not, it seems to me, the intended policy of the Act that every case should proceed to an extended hearing with the assistance of instructed experts or examination of experts.

[28]But such summary power is, in my judgement, to be exercised appropriately and with a modicum of restraint. The power to make an order of the court's own initiative without hearing the parties or giving them an opportunity to make representations does not extend as was done here to engagement in that procedure at the outset of a hearing in which the parties were in attendance all the more so in expectation of procedural and no other steps. It is plainly a power to be exercised as an alternative to a hearing and in the proper case such as an emergency or where there is little or no apparent contest anticipated to the exercise of the court's powers. It is not likely to be an appropriate power to be exercised where the outcome is a deprivation of liberty in circumstances where there is a serious issue or potential issue whether that is appropriate and so where Articles 5 and 6 are potentially both engaged.

[29]Ms Butler-Cole submits that a summary determination of best interests must be made by reference to evidence and on considering the relevant circumstances as provided by section 4 (2) of the Act and, of course, the checklist provided by the remainder of the section. There is, she says, nothing to indicate that this exercise was fully performed. I agree. I would suggest that serves to emphasise that the summary determination route is appropriate for a plain case and not where real questions are likely to be raised as to the appropriate mode of management and disposal.

[30]District Judge Jackson achieved an impermissible hybrid, in the course of a hearing exercising powers potentially available to the Court instead of a hearing. Mr. Casey suggests at paragraph 11 of his supplemental Skeleton that the District Judge had a legal and factual basis bringing the proceedings to amend as at April 2009. I agree that there is machinery available to have reached a summary determination, I doubt whether in fact it was sufficient at that stage on the facts specific to this case and I am certain that it could not do it in the way that was done in the face of the parties.

[31]I accept Mr. Bagchi's submission that there was a breach of procedural fairness and of

Article 6 of the Convention

. The fact that the mother had not visited and was not in attendance and unable to deal with the course proposed put her through her advocate's difficulties at a disadvantage in that he was deprived of an opportunity to advance a case or explain her position. That unfairness was aggravated when Mr. Bagchi on her behalf told the Court that there was a distinct possibility that she lacked litigation capacity - an accurate forecast. That was a clear amber if not red light to the Court. Ms Butler-Cole submits, further, that Article 8 was engaged and breached in making final declarations while her litigation capacity was in question. It is a persuasive point.

[32]It was simply no answer to that actual and potential difficulty to allow the mother in due course to bring parallel proceedings by way of the application to vary. Mr. Bagchi lists the procedural difficulties which would have followed some of which he was able briefly to put before the Court. They include delay and other difficulty where there was a question as to capacity, delay and a real question as to the availability of funding quite apart from his more esoteric point on estoppel which I do not think it necessary to investigate.

[33]Although the Official Solicitor does not directly take the point nor did Ms Butler-Cole below, it was similarly procedurally unfair for the Court to proceed without awaiting the outcome of the instructions she wished to be taken.

[34]It was also inappropriate and wrongful exercise of any discretion to deprive the parties of the opportunity to consider and put before the court Mr O' Meara's report which was due within three weeks. Ms Butler-Cole pertinently and correctly submits that where the court had previously ordered expert social work evidence to inform its position as to best interests which was not available yet and there had been no relevant change in circumstances suggesting that it was no longer required, a summary determination was inappropriate. As at October 2009, there is a professional divergence of opinion between Mr O'Meara and Mr Watkins who advises the Local Authority as the best placement for LD.

[35]I would refine that proposition. The court was, of course, minded to consider that the outstanding report was no longer appropriate. Even where that is the case in my judgement it would be a wrongful exercise of discretion and procedurally unfair not to allow the parties to urge on the court reasons why nonetheless it was appropriate to wait for evidence already commissioned.

[36]Ms Butler-Cole further submits that it was unlawful to order an effectively unspecific residential setting by authorising placement at the named nursing home or such other establishment as shall be recommended. She describes a declaration of such width as alarming particularly in the absence of specific evidence available. Mr. Bagchi approaches the same point from a slightly different angle at paragraph 6.2 of his is Skeleton where he complains of a breach of Article 8 because the future management of her son and a decision as to his residence was consigned to the local authority without further reference to his mother. He describes this as disproportionate. These are, it seems to me, two different ways equally valid of describing the defective nature of the wide order made. Complaint has also been made of the lack of review built into the order contrary to case law, in particular the guidance given by Munby J in Salford City Council v GJ and others

[2008] EWHC 1097 (Fam)

and the provisions of the Act, namely Schedule A1 and section 4..

[37]Mr. Casey in his helpful supplementary skeleton at paragraph 16, concedes and submits that a generic declaration of this nature is inconsistent with case law or the new regime introduced in April 2009. That concession is rightly made and such a sweeping unfettered delegation of future management power should not have been made. It was particularly wrong to do so without proper warning or examination any of the parties might have wished to bring to bear to what was proposed. It is not, it seems to me, a retrospective answer to suggest that it was justified when the report did eventually come to be provided. By way of update, I note that there has now emerged a divergence of view between Mr O'Meara who thinks LD ought to stay at Havering Court and the Local Authority who seek a move to Alder Court in his best interests. Appointment of local authority as personal welfare Deputy

[38]A personal welfare Deputy may be appointed under powers granted by section 16 of the Act. Sub-section 16 (4) provides that the powers conferred should be as limited in scope and duration as is reasonably practicable in the circumstances. Further, the Guidance in the Code of Practice provides at paragraphs 8.38 and 8.39 that deputies for personal welfare decisions will only be required in the most difficult cases. Mr. Bagchi points out that there was no developed consideration of the necessary factors. Ms Butler-Cole supports the submissions for the reasons she develops in her skeleton. Particularly, she points to the lack of consideration of whether this was an exception and thus justified within the regulations.

[39]The application to be appointed Deputy was specifically made by the Local Authority now aware of the course of the hearing was taking and perhaps in the circumstances understandably so made. In my judgement, the appointment was made without proper examination of the statutory and procedural requirement, in breach of the procedural rights of the mother as they then appeared. It was further unsatisfactory that the District Judge as appears on page 5 of the Transcript sought to elicit from Counsel for LD that the Official Solicitor had instructions to concur and pressed ahead regardless when Counsel asked for time to take those instructions.

[40]I apologise for my delay in producing the judgement which is, I hope, of some assistance in what is still the developing case law and procedure under the Act. While I have been critical of the approach and in the detail of the procedure at the hearing before the District Judge, I do not underestimate the difficulties of a busy court in seeking to give practical effect expeditiously and where appropriate without technicality in a jurisdiction where the protection of vulnerable and the rights and obligations of their carers requires to be decided.

[41]Rule 180 of the Court of Protection Rules allocates Appeals. By Rule 180 (b), an Appeal from the District Judge lies to a Circuit Judge – ie a Circuit Judge nominated under s46(1) of the Act. As a nominated Circuit Judge, I sit in that capacity to hear appeals such as the present case and not as a s9 Judge of the Family Division. The transfer to the High Court which by consent forms part of my Order should therefore be deemed to take effect following on from the Appeal being allowed. Michael Horowitz QC