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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> P, Re (Mental Capacity Act 2005 : best interest test) [2017] EWCOP B26 (31 May 2017) URL: https://www.bailii.org/ew/cases/EWCOP/2017/B26.html Cite as: [2017] EWCOP B26 |
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This judgment was
delivered in private.
The judge has given leave for this version of the
judgment to be
published
on condition that (irrespective of what is contained
in the judgment) in any
published
version of the judgment the anonymity of the incapacitated
person
and members of their family must be strictly
preserved.
All
persons,
including
representatives
of the media, must ensure that this condition is
strictly complied with. Failure to do so will be a contempt of court.
Neutral Citation Number: [2017] EWCOP B26
Case No: 1292720T
IN THE MATTER
OF S21A OF THE MENTAL CAPACITY ACT 2005 AND IN THE MATTER OF P
31st MAY 2017
Before:
His Honour Judge Nicholas R. Marston
B E T W E E N:-
(by her litigation friend GU
Applicant
-and-
G
First Respondent
-and-
A LOCAL AUTHORITY
Second Respondent
J
Third Respondent
E
Fourth Respondent
Mark Mullins (instructed by Foot Anstey LLP) for the Applicant
Samantha
Presland
(instructed by Irwin Mitchell) for the First
Respondent
Emily
Brazenall (instructed by A Local Authority) for the Second Respondent
Lee
Parkhill
(instructed by Duncan Lewis Solicitors) for the Fourth
Respondent
JUDGMENT
1.
I heard this case for 5 days from the 24th to the 28th April 2017 and
adjourned to draft this written judgment, which was sent to the parties
and
subsequently handed down by me at a further hearing in Bristol on the 31st
May 2017. I will, in this judgment, set out the history of the case and its
background, then deal with the law and the evidence and finally make findings
on the central issues in the case. The case concerns the issues of where the
much loved and
respected
matriarch of the family involved in this case should
live and who she should see. The
parties
are:
The lady herself,
who I shall refer
to as
P
throughout this judgment,
represented
by
her paid
RPR and
litigation friend from a local advocacy service, GU;
G, a son of P;
A local authority from the South West of England;
J, the daughter of
P;
E, another son of P.
2.
All parties
save for J have been
represented
in this case. I have also
heard evidence from S who is
P's
third child and a number of other members of
P's
family circle,
plus
the local authority social worker and 2 expert
witnesses. I am grateful to all those witnesses both lay and
professional,
and
to counsel for the assistance they have given during the course of this very
difficult family dispute over
P
which has caused family members much distress,
conflict and heart searching. I do not intend to go through each witness's
evidence in detail. Many issues,
particularly
about the care
plan
and the
transfer, fell away during the 5 days of hearing. I intend therefore to
concentrate on the very difficult live issues that I have to deal with.
3.
In October 2015, shortly after her 77th birthday, P
suffered a severe,
life changing stroke.
Prior
to the stroke
P
had been the central
point
of the
family. Her history is that she is from the Caribbean where she was, I
understand, a school teacher. She had 3 children while living in the Caribbean
and then decided that she should come to the United Kingdom to better the
family's life and then she had her fourth child. She moved to London in the
early 1970s and then
relocated
to the South West where, over a
period
of time,
she was joined by her children. While in London,
P
and her husband separated.
There is a short chronology that charts the comings and goings of family life
at [I38/39] in the independent social worker’s
report.
Suffice it to say that
it is very clear that
P
had a very strong family life with the children living
with her then visiting her and her visiting them on a
regular
basis. She also
had very strong friendships and was also a committed and active member of her
church. Family, friends and her faith were the core of her life. I also have a
very clear
picture
of the love and
respect
her extended family had for her and
the central role she
played
in all their lives, not just by her being there but
by the example she gave of caring for others. It is noticeable for instance
that a number of family members are in the caring
professions,
care workers,
teachers, nurses and so on and they all
put
her influence as one of the
reasons
for that.
4.
By the end of 2003 P
was living in
rented
accommodation in the South
West. She was by this time aged 65 and her family was scattered to several
areas. S and E lived a short distance away, G lived in the South East but had 2
ex-wives and a number of children who lived in the Midlands and who were on
very good terms with
P.
J had married and had a family. She also lived in the
South East. The evidence suggests that
P
saw a lot of all her family with them
visiting her or her visiting them,
particularly
in the Midlands.
5.
From late 2012 P
began to suffer ill health, a stroke, cataracts, falls
and a number of hospital admissions until her very serious stroke on 9th
October 2015. She was in hospital for 5 months as a
result
of this stroke and
further strokes in hospital and she experienced number of life changing medical
consequences. She now has right-sided weakness, loss of speech and impaired
cognitive functions. There is a lot of evidence about
P's
condition in the
papers,
about her
posture
about the sort of adapted wheelchair she needs, about
her skin difficulties, her eating and swallowing
problems
and so on as it
dictates the sort of care
package
she needs for the future. I am very conscious
of the devastating effect of this stroke on
P
and how this has changed her life.
She was first admitted to her local general and later transferred to a
community hospital. On 8th March 2016 she was again transferred to the Nursing
Home, close to her former home, where she has
remained
since save for one short
admission to hospital in April 2016 with a
possible
seizure. It was clear that
being at the Nursing Home amounted to a deprivation of
P's
liberty and a
standard authorisation was first made on 27th May 2016 which has thereafter
been subject to successive extensions.
6.
On 15th August 2016 G, supported by J, issued an application for a
decision pursuant
to section 21A of the Mental Capacity Act 2005 that:
a) The "best interests" qualifying criteria is not met;
b)
The standard authorisation dated 27th May 2016 should be revoked;
c)
It is in P's
best interests to live with her extended family in the
Midlands, within the home of her former daughter in law, C.
This is the application which the
court has been dealing with since then. There have been various directions
hearings, experts have been instructed to assist the court on various issues
and, as is inevitable, there has been some delay in the case. This has not
assisted anyone, least of all P,
and in
particular
it was anticipated that the
court would be able to consider the issue of an interim
residence
order for the
proposed
care
plan
at C's home to be tested out. Issues of further expert
evidence being obtained made it impossible to hear that application.
7.
It is accepted by all parties
that
P
does not have the capacity to
decide for herself what is in her best interest and therefore the court has to
do so. I am indebted to all the
parties
for their careful analysis of how the
court should approach this task and in
particular
to counsel who
represents
P
for the contents of the first 8
pages
of his closing submissions. Section 4 of
the MCA 2005 sets out some guidance. I must consider all the
relevant
circumstances. Here
P
is not going to
regain
capacity, she has been given the
opportunity to
participate
in the
process
but because of the devastating
consequences of her strokes she cannot (see for example the accounts of the
visits of the nursing expert, the independent social worker and her litigation
friend). Then at (6) I have to consider, so far as is
reasonably
ascertainable:-
d)
The person's
past
and
present
wishes and feelings and in
particular
any
relevant
written statement made when
P
had capacity;
e) The beliefs and values that would be likely to influence her decision if she had capacity;
f)
The beliefs and values that would be likely to influence P's
decision if
P
capacity; and
g)
The other factors that P
would be likely to consider if
P
was able to do
so.
I am also required
to consult the
views of those who are engaged in caring for
P
and are interested in the
welfare of
P
and all the
relevant
circumstances that I am aware of and that it
would be
reasonable
for me to have
regard
to. Lady Hale says at
paragraph
45 of
Aintree University Hospital NHS Trust v James [2013] UKSC 67:
28.
"The purpose
of the best interest test is to consider matters from
the
patient's
point
of view, that is not to say that his wishes must
prevail
any more than those of a fully capable
patient
must
prevail.
We cannot always
have what we want. Nor will it always be
possible
to ascertain what an
incapable
patient’s
wishes are. Even if it is
possible
to determine what his
views were in the
past
they might well have changed in the light of the
stresses and strains of his current
predicament...
but insofar as it is
possible
to ascertain the
patient’s
wishes and feelings and his beliefs and
values all the things which were important to him it is those which should be
taken into account because they are components in making the choice which is
right for him as an individual human being."
This is an approach which I will do
my best to adopt in the difficult circumstances of this case. In other words I
will try to put
myself in the
place
of
P
here and ask myself the question what
would be her attitude to where she should live and who should care for her and
who she should be able to see. This is of course not determinative of the
application of itself, it is not what would
P
have done, it is a best interest
test that
requires
the decision maker to
perform
a weighing or balancing
exercise between a range of divergent and compelling factors.
8.
Some issues were raised during the lead up to trial and at the trial
itself which might have been so compelling that they would have been decisive
in and of themselves. The first of these is transporting P
from the South West
to the Midlands.
P’s
GP seemed at one stage to be suggesting that a journey by
ambulance to the Midlands, which would of course be necessary if there was a
transfer of
P
to C's house, might
possibly
kill
P.
However when
P's
GP was
asked to clarify this it was made clear that there was a risk of a further
stroke at any time and this was what the doctor was
referring
to
previously.
Ms
Gough, the nursing expert,
put
this in
proportion
by
reminding
us that
ambulances transfer very sick elderly
people
all over the country
regularly.
I
find that if it is in
P's
best interests to go to C’s home, the transportation
issue,
properly
planned
and facilitated, is not a matter which would stand in
the way.
9.
A more problematic
area is raised by the care
plan.
C and the
rest
of
the family have
put
together a care
plan
to look after
P
which involves a
number of family carers
plus
one of
P's
oldest friends, with whom she has
shared her accommodation in the
past.
All the carers have expressed their clear
intention and commitment to the
plan.
C has had her house altered to
provide
the adapted living area
P
needs. All the
prospective
carers were, in my
assessment of them, completely clear about their intentions and motivations and
my assessment is that they also have the capacity to do it. They also said that
they would do training in any areas that specialist skills were necessary. In
addition to this there would be the use of
professional
carers at times. If
local authority funding was not available or there was a shortfall they would
meet it (in fact my understanding that is not likely to be the case). Mr
McKinstrie, the independent social work expert, did say that he would be
happier if all the care was funded as it was in his view more
reliable.
I found
that a very unusual
position
to express given the use the care system makes of
family carers. Mr McKinstrie also made it clear that with some fine tuning he
thought the care
plan
would work, as did Ms Gough, the nursing expert. I think
what Mr McKinstrie was
really
concerned about when
preferring
paid
professionals
was the sustainability of the
plan
long term, because it
relies
on the goodwill
of volunteers. This is something that concerned the LA
P's
local authority
social worker and at first sight it concerned me too. However, as I heard from
the family in the Midlands, I became more and more convinced that this concern
was not well grounded. They were an impressive group of
people.
First of all
there were the two ex-wives of G. Consider that bold statement for a moment, C
is giving over her house and much of her time to look after her ex-mother-inlaw
and CB, the second of G's ex-wives is volunteering to make a considerable
commitment to do the same. They and a number of other carers and several of
P's
grandchildren are from the caring
professions.
I is doing it to help her friend
who helped her in the
past.
They are all making this commitment, first on the
basis of who
P
is and what she means to them and second, that
inter-generational care is what Afro Caribbean families do, it is a cultural
norm. This was not challenged by any other
party
in the case and certainly
falls in with my experience as a judge at the other end of one’s care needs in
child care cases. So it seems to me that first the care
plan,
with some
tightening and tweaking, is a viable
plan
and second that, for cultural and
personal
reasons,
I can
rely
on the Midlands based family's commitment.
10.
It seems to me that at the heart of this case is the issue of what P
would have wanted if she was able to communicate with us given the
circumstances now. Central to that is the current fractured
relationship
between her children in this case. E and S, with E very much in the vanguard
are totally against the move to the Midlands which E in
particular
found a
preposterous
proposal.
They
point
to the current care arrangements as meeting
P's
needs; she is safe, well looked after in terms of her health and other
needs. She sees both of them, I find on the evidence, at least once every two
days,
probably
more and she also has contact with her church group who come in
to sing to her and have services with her on a
regular
basis. The
rest
of the
family can visit when they like (now there has to be a system where certain
family members do not come into contact with each other), and the brothers
point
to the
patchy
record
of visits
recently.
Finally they both made it clear
to me that they would not, indeed could not, go to the Midlands to visit their
mother. This last
point
was expressed by E in anger at J and G and he was also
very derogatory about C in
particular;
the way she kept her house, her
untidiness and lack of organisation and so on. S was different, he was I
suspect very dependent on his mother when she was well and that dependency has
since transferred to E. In addition I think he genuinely views travel to the
Midlands, either by car or train, as impossible. He became very upset during
his evidence, crying out to his sister how much he loved her and becoming very
distressed.
11.
Is there any evidence about what P
wants to happen to her now?
P's
litigation friend has tried to ascertain
P's
views but despite his best efforts
he has not been able to obtain her
present
wishes and feelings. It was however
very clear on the evidence that she would,
prior
to her stroke, have wanted,
should anything happen to her, to be looked after by her family and not in a
care home. This can be deduced from her cultural norms, from her
reaction
to
her elder sister going into a care home and so on and even from the
reaction
of
all the children, including E, at the time when she was coming out of hospital.
They only agreed a care home after being told that there was a constant need
for qualified nursing care 24/7 (which has actually
proved
not to be the case).
I also accept that there had been talk of a move to the Midlands but not in the
context of
post
stroke care but rather of moving in with her friend or getting
a
place
of her own. She had never considered what would happen to S if she did
move. It is quite right to say that supporting S has been a consistent life
choice for her and this has been an integral
part
of her lifetime commitment to
her family. It is very important to bear in mind that this core belief in
family would have been a strong influence when
P
had capacity.
12.
Counsel for G in her closing submissions produces
a balance sheet of
bullet
points
for the Midlands and the South West and I
propose
to do the same
at this stage in this judgment:
• An arrangement that has worked for over a year
•
Good medical and physical
care, although some criticisms of the care
regime
have been madeGood contact with E and S
• Some contact with extended family
• Contact with church group but no friends in the home and when not being visited spends time alone and eats alone
•
It is the least restrictive
option
•
Care by family is consistent with both P's
culture and her views
pre-stroke
about institutional care
• Companionship through the day
•
Carers motivated by their love and respect
for her i.e. individual
focused motives not just a job
• Care would be more "like home" e.g. Caribbean food and Creole language sometimes
• Assured contact with G and J when they visit
• Willingness to facilitate contact with S if E will not and willingness for E to visit (I accept the family's evidence about this)
13.
At paragraphs
21 and 22 of his closing submissions on behalf of
P
Mr
Mullins says this:
29.
"21. Setting to one side the question of contact between P
and her
family the litigation friend’s conclusion would be that the best interest
balance would come down decisively in favour of C's home in the Midlands
(
provided
the outstanding issues are dealt with satisfactorily)
30.
22. There are many factors to consider, not all pointing
one way, but to
the litigation friend the key factor would be the concrete advantages a
regime
of individualised and
personal
care for
P
in a home rather than in an
institutional environment would bring, which the litigation friend considers
overall confer
practical
benefits to
P,
as well as being in accordance with her
general
preferences".
This is a conclusion I agree with.
The recent
authorities speak of bringing
P
into the court room, of the judge
forming an impression of
P
and then standing in her shoes and making the best
interests decision from that
point.
Everything that I have learned about
P
guides me to accept the analysis I have just quoted. She was a woman who was
central to the family, the rock around which they built their lives and I find
that she would then have expected the family to look after her when the time
came by
reason
of age and infirmity to
rest.
How is my analysis of her best
interests affected by the issue of contact with E and S, her sons in the South
West?
14.
The closing submissions on behalf of P
continue:
"23. It is necessary to make an assessment of what
will be likely to happen if a. P
remains
in the South West or b. she moves to
the Midlands.
24.
If P
remains
in the South West there will be no disruption or break in
her frequent visiting contact with E and S which is a
pattern
which has now
been established for some time. Other members of the family are not
prevented
from visiting (though there are
practical
difficulties, especially for G). The
current arrangements for contact can be
revised
locally between the nursing
home, the local authority and the family.
25.
If P
moves to the Midlands she will benefit from an increased amount and
a different nature of contact with C, her friend I and others including some of
her grandchildren as
part
of C’s household. This is an advantage to her. She
will also see more of G and J in a homely environment.
26.
However there would be a cost. An assessment has to be made as to the
likelihood of E and S maintaining contact in these circumstances. The view of
the litigation friend is that they would not maintain contact. It is
uncomfortable and troubling to consider this prospect
but the Court must
proceed
on the basis of things as they are and will be, not as it wished they
were.
31.
For the litigation friend two key questions arise. The first is what the
risks of an abrupt end to contact with E and S will be for P.
The litigation
friend is unable to exclude a
real
possibility
that
P
will feel abandoned and
deeply distressed. The change will be associated with the move to the Midlands.
The
reassurance
that
P
might be given by them being involved in and supportive
of a move will not be there. Neither will E and S visit to
provide
this
reassurance,
compounding the
potential
problem.
A serious
potential
risk to
P’s
wellbeing and acceptance of the move can be identified but there appears to be
no way in which it can be avoided or addressed. The litigation friend considers
this is a factor of great significance which may indicate a move is not in
P’s
best interests.
32.
If the above reaction
is not suffered by
P
a second question still
arises, which is to how to weigh the options giving due weight to
P’s
wishes,
feelings and values, given the
reality
of contact as it is likely to be. ”
15.
First, I must be realistic,
I find that it will be very difficult for E
to take up contact in the Midlands given the strength of his views. He would
have to
resile
from very strong opinions formed for
reasons
I cannot even
speculate about. I think S is different, if contact was facilitated for him all
other things being equal I find he would go, but given the influence E has on
his life I do not think it is likely to happen. If contact ceased the
litigation friend is concerned that there would be the risk that
P
would feel
abandoned and deeply distressed and that this would be associated with the
move. I agree with him, it is difficult to know how this would be addressed in
the sense that it would be difficult to explain to
P
why the two
people
she is
most used to seeing are no longer there and there is the difficulty that this
coincides with the move to the Midlands. The concern about loss of contact is
also a driver for the LA’s
position.
Their case about a move not being in
P's
best interests
revolved
originally around the journey, the sustainability of
the care
package
and the
relationship
with E and S. But as the evidence
emerged, the LA now
puts
the loss of the
relationship
as its
primary
argument.
16.
The argument is also put
by
P's
litigation friend that it is necessary
for me to consider how the likely loss of the 2 most
prominent
relationships
within the family that
P
has had, (simply because of all 3 living in the South
West), would affect her wishes, feelings and values. How would she have
reacted
if the move to the Midlands meant losing contact with 2 of her children
altogether, which it does given the stated intentions of E and S? The
litigation friend, for his
part,
finds it difficult to offer an opinion but
"tends towards
respecting
the
relationship
and value that
P
placed
throughout her life on supporting S, although accepting that
post
stroke things
in that
relationship
and all others are for
P
forever changed". This is a
powerful
point
which I must consider now.
17.
I remind
myself that this is a best interests test, not a substituted
judgment test, but I have to accept that I have to look at all the factors that
P
would have considered if able to do so. The situation would be that she was
confronted with the Midlands obviously being the best thing for her for all
those
reasons
identified in the balance sheet exercise, further she would have
her two sons, one saying you will lose your
relationship
with me because I will
not go to visit you if you move such is my current (and on his case
recently
acquired) antipathy to my siblings, for
reasons
which I as the judge do not
understand. The other son is saying I cannot go to the Midlands because I will
not be able to do it, not even if my sister and brother G make travel
arrangements for me. What would be the effect on her of that
position
in her
current condition, no longer the strong, loving matriarch but the frail and
vulnerable
person
she now is.
18. I find that given everything I know about her by this stage in the case she would have:
a)
Expected her family to look after her and not spend the rest
of her life
in a care home;
b)
Expected her family to put
together a
plan
to make her life as good as
possible,
even if this involved some sacrifice of
personal
comfort, just as she
sacrificed separating herself from home and family to make a better life for
the family in the UK in the early 70s.
The refusal
by her two children in
the South West would be bound to affect the
relationship
with them,
post
stroke
the
priorities
are different, it is her best interests that matter most. It is
perfectly
possible
for them both to continue a close and loving
relationship
with their mother. It is argued that moving their mother would be a breach of
their right to family life because they would not see her. I do not agree.
Their
refusal
to take up contact is the thing which causes contact to break
down not anything the court does. If moving
P
is in her best interests any
breach of their right to a family life is
proportionate
and the
remedy
for it
is in E and S own hands.
19.
I find in the new post
stroke circumstances that E and S'
refusal
to go
would not have stopped her going nor does it stop the court supporting the
move. There would be a strong
personal
and cultural belief that having looked
after her family for 50
plus
years it was now the time for them to look after
her. Family obligations in this family are a two way street, and
particularly
since S is now being assisted by E. I find that would be
reflected
in what
P
would want for herself. If it comes to a choice of being looked after in the
way that is in her best interests, the way she expected to be looked after or
staying in the home I am convinced her choice would be to be looked after by
her family.
20.
I come to the conclusion that it is in P's
best interests to be moved to
live at her exdaughter in-law's
property
with some conditions. First the care
plan
needs to be further
refined
to cover the areas where it is deficient.
Second, a transfer
plan
needs to be agreed which involves the Midlands based
carers spending time with
P
in the South West and then a familiar face
accompanying her in the ambulance. Third, and this was a source of
real
concern
for the LA, a
plan
must be agreed to cope with an adverse or negative
reaction
by
P
to the
process
of leaving the Nursing Home. If it
proves
impossible to
facilitate a move then the case will have to come back before me and I will
have to
reconsider
the
position.
Finally a
proposal
for contact by E and S
should be made to include transport by car door to door and
return
for an
initial
period
of 2 weekly visits. I am told the Midlands
relatives
will do
anything to facilitate the move and make
P
happy so I am asking them as a group
to do this. If E and S
refuse
to take this up it is a matter for them.
Post
Script 31/05/17 - E's Application for Additional
Reasons
and
Permission
to
Appeal
1.
I have read
the document filed by E's
representatives
and considered the
issues. I am not going to add to my
reasons
but will say that it seems to me
that the issues in this case can be boiled down to two strong
points;
the
benefits of
P
moving to live with family in the Midlands and the detrimental
aspects of the same, including the
potential
loss of
relationships
with family
in the South West.
2.
I came to the conclusion, after hearing all the evidence, that the potential
loss of contact with E and S is a complex issue and that there is at least some
chance that it would not happen in the event
P
moves to the Midlands. I also
took the view that, even if it meant a cessation in
P's
relationship
with E and
S, the benefits of a move to the Midlands outweighed the detriment. I feel well
positioned
to make this appraisal having heard all of the evidence.
3.
My view is that E is seeking to re-litigate
something that is in the
province
of fact. I do not think that there is any
prospect
of success in an
appeal and accordingly decline
permission
to appeal. However, it is a matter
for E's
representatives
as to whether the issue is
put
before another court. I
will grant a stay of this order until E has made an application for
permission
and this application has been determined. This does not stop contingency
plans
for a move to the Midlands being made in the meantime.
His Honour Judge Nicholas R. Marston
Dated: 31st May 2017