With thanks to James Batey of HMCTS, we link here to a letter sent out today providing an update on the Re X process being developed for streamlined authorisations of deprivation of liberty outside hospitals and care homes.
In some of his most trenchant comments to date, Sir James Munby P has raised the stakes yet further in the battle (we entirely support) to secure proper funding for representation in proceedings concerning the most vulnerable. In Re D (A Child)  EWFC 39, the President was concerned with care proceedings in which:
- The father lacked capacity to litigate and therefore required a litigation friend. That litigation friend was the Official Solicitor, who was only prepared to act because the father’s solicitor and counsel had agreed to act, thus far, pro bono and, indeed, further, the solicitor had agreed to indemnify him against any adverse costs orders; 
- The mother, although she had learning disabilities, was not a protected party. Because of her ‘personal characteristics, intellectual functioning and limitations which affect [her],’ she was in the view of her counsel (endorsed by the President) ‘wholly unable to represent herself in relation to any aspect of [the] proceedings’;
- Neither qualified for legal aid but both lacked the financial resources to pay for legal representation where, as the President put it ‘unthinkable that they should have to face the local authority’s application without proper representation’.
Sir James Munby set out a number of propositions of equal application – we suggest – to ‘adult care’ proceedings before the Court of Protection where a local authority wishes to remove an adult P from the care of their parents.
He noted, in particular, the decision of the European Court of Human Rights in RP v United Kingdom  ECHR 1796, drawing attention, especially, to the underlined words in paragraph 67:
67. In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the Court considers that it was not only appropriate but also necessary for the United Kingdom to take measures to ensure that RP’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to protect RP’s interests might in itself have amounted to a violation of Article 6(1) of the Convention (emphasis added).
The President described the parents’ predicament as ‘shocking’:
31. Stripping all this down to essentials, what do the circumstances reveal?
i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?
ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.
iii) The parents lack the financial resources to pay for legal representation.
iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.
v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.
vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.
The President then threw down the gauntlet in no uncertain fashion, in a fashion presaged in his earlier decision in Q v Q  EWFC 7, and directed a further hearing:
36 … at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.
37. Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.
 It should also be noted that the solicitor, Rebecca Stevens of Withy King had spent in excess of 100 hours, all unremunerated, working to resolve the issue of the father’s entitlement to legal aid. As the President noted, ‘This is devotion to the client far above and far beyond the call of duty’.
Re DM  EWHC 3119 (Fam) is an important case about the limits of the inherent jurisdiction.
Sunderland City Council sought declaratory relief sanctioning a birth plan in respect of a vulnerable adult which contemplated: (i) interference with the mother/baby relationship following the birth which involved some unspecified level of forced separation and, potentially, removal of the child; and (ii) that the mother should not be informed of key aspects of the plan.
The above orders were sought under the Human Rights Act 1998 and the inherent jurisdiction of the High Court.
The application was made on a Friday. Hayden J adjourned it over the weekend because he did not consider that the evidence had been fully marshalled. On Monday, the local authority sought permission to withdraw its application. Hayden J granted permission to withdraw ‘without hesitation’ because he was far from persuaded of the necessity for or proportionality of the relief sought.
The expert evidence was that the mother had capacity to make decisions about (i) the contact she had with professionals (ii) the safe management of the birth of her baby and particularly in deciding whether and when to undergo an induction and (iii) to make decisions about the treatment she should receive following the birth of the baby.
The young woman had given birth on eight previous occasions and each of those children had been removed from her care and placed for adoption. The mother had also gone into hiding late in her last pregnancy. Relevant clinicians had come to the conclusion in this pregnancy that labour should be induced for the mother’s own health. The local authority was understandably concerned that the mother might go into hiding again jeopardising her own health, that of the unborn child and that of the child following birth. The local authority sought to protect the mother and to put in place such protective measures as they could on the birth of the child. Hayden J described the instincts of the local authority as ‘laudable’ but with a ‘paternalistic complexion’. He emphasised that the law was vigorous in protecting the fundamental principle of personal autonomy. He noted that individuals are entitled to take their own decisions, both good and bad and are at liberty to make their own mistakes.
The starting point was that the local authority had an obligation to consult parents in the care planning for their children and/or unborn child.
Hayden J reiterated that in UK law a foetus has no rights of its own until it is born and has a separate existence from its mother. It was a principle that infused the whole of the criminal and civil law in the UK. Balcombe LJ in Re F (in Utero) (Wardship)  2 FLR 307 had confirmed that the inherent jurisdiction did not extend to the unborn child.
The issue in this case was therefore the future rights of a child, crystallising on birth and the present and existing rights of a pregnant, capacitous woman. In St George’s Healthcare NHS Trust v S; R v Collins and others ex p S  2 FLR 728 Judge LJ in the Court of Appeal concluded that a capacitous adult should be entitled to decline medical treatment even if her life or that of the unborn child depended on it. The ‘powerful elucidation of the law’ by Buter-Sloss LJ in Re MB (An Adult: Medical treatment)  2 FLR 426 remained the starting point in all applications:
… a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though … the consequence may be the death or serious handicap of the child she bears or her own death. She may refuse to consent to the anaesthesia injection in the full knowledge that her decision may significantly reduce the chance of her unborn child being born alive. The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarean section operation. The [law] does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth.
The application in this case was based on the landmark decision of Munby J (as he then was) in Re D (Unborn Baby)  2 FLR 313. In Re D, Munby J was not exercising the inherent jurisdiction in relation to an incapacitated adult; he was concerned with the best interests of the baby when born. Munby J emphasised the ‘wholly exceptional’ circumstances in which anticipatory relief would be granted. It was necessary to ensure that it was not only ‘appropriate and justified’, but ‘imperatively demanded’ in the interest of safety in the period immediately following the birth of a child. It was always to be regarded as ‘highly unusual’ and a ‘very exceptional step’.
Hayden J went on the revisit in summary the exceptional circumstances of the Re D case which included: the fact that the mother was serving a custodial sentence due to a serious assault on her daughter during a supervised contact session; the mother’s continuing extreme distress and challenging behaviour including an attempt to take her own life in highly alarming circumstances in her cell; the fact that the mother had expressed the view that her children would be better off dead than in the care of the local authority. He emphasised that Re D was ‘a wholly exceptional case’ and reiterated that the courts and local authorities must be vigilant to ensure that the wholly exceptional nature of the relief was never lost sight of.
Hayden J did not consider that any more recent cases had weakened the test set out by Munby J in Re D. He did not consider that it would be helpful to set out prescriptive conditions but stated that to invoke the declaratory relief initially sought in this case the facts would require a level of ‘exceptionality’ and would be characterised by the ‘imperative demands’ and the ‘interests of safety’ of the newborn baby in the period immediately following its birth.
Hayden J held that the professional instincts in this case were sincere but they were ultimately misconceived. It was possible to keep the mother and baby together in a manner that respected the mutual need each for the other in the period immediately following birth which would have the effect of maintaining the respective rights of both mother and baby until the Family Proceedings Court could hear the inevitable applications.
Although the judgment had described the application as misconceived, the judge observed that professionals involved in these difficult decisions provided a huge service to the woman and babies they dealt with and society more widely. This case, Hayden J considered, had illustrated the challenges they faced and the debt we all owed to them.
This case is a useful reminder of the limits of the inherent jurisdiction (albeit as it applies in a rather different context to that jurisdiction as it applies in relation to vulnerable adults) and the wholly exceptional nature of the Re D case with its use of an anticipatory declaration in the interests of a child who has just been born.
It is also a useful reminder for local authorities and those who act for local authorities that good intentions and legitimate professional concerns can stray into the realm of paternalism.
[A version of this note appeared in the November 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]
In the fifth substantive judgment in LBX v K and others  EWHC 3230 (Fam), Mrs Justice Theis considers the ‘relevant information’ that needs to be understood to make a decision about supported living and care arrangements. Readers will be familiar with the important decision of the Court of Appeal which upheld one of the earlier judgments. The Court of Appeal’s decision ( EWCA Civ 79) can be read here. Here, Theis J was asked to consider whether L, a young man with mild learning disabilities had the potential to achieve mental capacity to make decisions about residence, contact and some specific care decisions. Theis J agreed that the relevant information in making a decision between accommodation options was:
1. what the two options are, including information about what they are, what sort of property they are and what sort of facilities they have;
2. in broad terms, what sort of area the properties are in (and any specific known risks beyond the usual risks faced by people living in an area if any such specific risks exist);
3. the difference between living somewhere and visiting it;
4. what activities L would be able to do if he lived in each place;
5. whether and how he would be able to see his family and friends if he lived in each place;
6. in relation to the proposed placement, that he would need to pay money to live there, which would be dealt with by his appointee, that he would need to pay bills, which would be dealt with by his appointee, and that there is an agreement that he has to comply with the relevant lists of ‘do’s and ‘don’t’s, otherwise he will not be able to remain living at the placement;
7. who he would be living with at each placement;
8. what sort of care he would receive in each placement in broad terms, in other words, that he would receive similar support in the proposed placement to the support he currently receives, and any differences if he were to live at home; and
9. the risk that his father might not want to see him if L chooses to live in the new placement.
She considered it would ‘set the bar too high’ to add matters such as the cost of the placement and the value of money; the legal nature of the tenancy agreement or licence; and the relationship that L might have with his father in 10 or 20 years time if he lived independently now – this was outside the ‘reasonably foreseeable consequences’ of the decision. (para 44)
45. I agree also with the analysis of the Official Solicitor as to contact in para13 save for one matter. So I agree with the first one, who they are and in broad terms the nature of his relationship with them; secondly, what sort of contact he could have with each of them, including different locations, differing durations and differing arrangements regarding the presence of a support worker; and, thirdly, the positive and negative aspects of having contact with each person. This will necessarily and inevitably be influenced by L’s evaluations. His evaluations will only be irrelevant if they are based on demonstrably false beliefs. For example, if he believed that a person had assaulted him when they had not. But L’s present evaluation of the positive and negative aspects of contact will not be the only relevant information. His past pleasant experience of contact with his father will also be relevant and he may need to be reminded of them as part of the assessment of capacity.
46. In relation to the last aspect under contact, which is what might be the impact of deciding to have or not to have contact of a particular sort with a particular person, I think there needs to be some reference in there to family in that family are in a different category, and I will hear submissions in relation to adjustments to that aspect.
47. I agree also that in relation to contact the matters set out in para 14 are not relevant: abstract notions, like the nature of friendship and the importance of family ties, subject to the point that I have just made relating to recognising the family in the last of the agreed aspects; the long-term possible effects of contact decisions, for the reasons I have already given in relation to s3(4); and risks which are not in issue, for example, those mentioned by Dr Hall, such as the risk of financial abuse.
48. Turning to care, again, I agree with the matters itemised in para 15 as being the relevant information, namely, what areas he needs support with, what sort of support he needs, who will be providing him with support, what would happen if he did not have any support or he refused it and, lastly, that carers might not always treat him properly and that he can complain if he is not happy about his care, I agree in relation to the information in para 16 that it is not relevant, that is how his care will be funded, and how the overarching arrangements for monitoring and appointing care staff work.
She endorsed the approach of one of the experts Ms Whittaker, an independent social worker instructed to carry out a best interests assessment but whose approach allowed her to provide valuable views as to L’s potential to achieve capacity. Ms Whittaker had used tangible aids such as drawings, which, as Theis J noted, could assist L in making a decision himself. This approach resonated with MCA 2005 s1(3) and the UN Convention on the Rights of Persons with Disabilities (CRPD) Article 12(3) which states:
States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
LAG has just announced details of its annual community care conference on 5 December 2014:
EARLY BIRD OFFER EXTENDED TO 24 NOVEMBER: click here
Lady Hale will be delivering the keynote speech and the closing remarks are from Richard Gordon QC on Cheshire West.
Panel discussions on:
- The Care Act 2014 – good, bad or indifferent?
- Mental capacity and deprivation of liberty
- The new care landscape for adults who fail the eligibility hurdle and for carers
master classes in the following areas:
- Public law challenges for disabled children and families
- The future of paying for care
- Community care and people from abroad
- Human rights after McDonald v UK
- Accountability and access to public law remedies
- Best practice in health and welfare applications in the COP
Lady Hale gave a highly interesting speech to the Mental Health Tribunal Members’ Association on 17 October 2014 covering in great detail the history of Deprivation of Liberty Safeguards and the Mental Capacity Act. Click here to read.
HT to Lucy Series (@TheSmallPlaces) for drawing our attention to this.
Alex has spent a significant part of this year working on guidance commissioned by the Department of Health for IMCAs, RPRs and other advocates (as well as family members and friends of putative ‘P’s) considering acting as litigation friends in the Court of Protection.
The guidance has now been published, and is hosted by the University of Manchester, available here. As it says in its introduction:
Th[e] Guidance aims to demystify the Court of Protection generally and the role of litigation friend specifically so as to enable more people to consider taking up the role – thereby ensuring the better promotion and protection of the rights of those said to be lacking capacity to take their own decisions.
Because of its scope, it guidance may also serve as a useful (free) overview for others wishing to learn more about the Court of Protection.
The guidance is primarily aimed at proceedings relating to health and welfare, and its chapter headings are as follows:
B: An overview of the Court of Protection
C: Who can be a litigation friend for P in proceedings before the Court of Protection?
D: Becoming a litigation friend and instructing lawyers
E: What does a litigation friend do?
F: When is it appropriate to bring a case to the Court of Protection as litigation friend for P?
G: How do cases before the Court of Protection proceed?
H: When would an appointment of a litigation friend come to an end?
J: Frequently asked questions
K: Useful sources of information
There are also appendices containing checklists, a template position statement and details of the ‘balance sheet’ approach.
Alex is very grateful indeed to the very many people who took the time to attend workshops and comment upon drafts, and generally – he hopes – to assist in producing a document that will be of actual use!
On 16th October 2014 Sir James Munby P handed down his second judgment in Re X and others (Deprivation of Liberty)  EWCOP 37. In this he expanded on the preliminary judgment handed down on 7th August 2014 (Re X and others: Deprivation of Liberty  EWCOP 25).
This new judgment does not answer all the questions which were before the President when he heard this case in June 2014, particularly some relating to the possible extension of urgent authorisations by the court (a further judgment addressing these points is still awaited) It does however expand upon three questions:
“(7) Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both?
(9) If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)?
(16) If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?”
The president answered the first question in the negative, using the analogy of wardship proceedings, where wards do not always have to be a party. Drawing on his conclusions in RC v CC (By Her Litigation Friend the Official Solicitor) and X Local Authority  EWCOP 131,  COPLR 351, namely that the principles of disclosure in the family division also applied in the COP, and the essentially welfare-based nature of COP proceedings, he concluded that there is no distinction to be drawn between the need to join P in a COP case and the need to join a child who is a ward.
Turning to the Convention jurisprudence, the President noted P’s entitlement to the safeguards of Article 5(4) and the UNCRPD, and concluded:
Article 6 requires that P be able to participate in the proceedings in such a way as to enable P to present his case “properly and satisfactorily”: see Airey v Ireland (1979) 2 EHRR 305, para 24. More specifically, referring to Article 5, “it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded ‘the fundamental guarantees of procedure applied in matters of deprivation of liberty’.”: Winterwerp v Netherlands (1979) 2 EHRR 387, para 60. This may require the provision of legal assistance: Megyeri v Germany (1992) 15 EHRR 584, para 23. There is a margin of appreciation (see, for example, Shtukaturov v Russia (2012) 54 EHRR 962, para 68), but this cannot affect the very essence of the rights guaranteed by the Convention. The Strasbourg court has made clear that deprivation of liberty requires thorough scrutiny and that any interference with the rights of persons suffering from mental illness must, because they constitute a particularly vulnerable group, be subject to strict scrutiny. So the process must meet that demanding standard.
14. More generally, P should always be given the opportunity to be joined if he wishes and, whether joined as a party or not, must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. Typically P will also need some form of representation, professional though not necessarily always legal.
15. So long as these demanding standards are met, and in my judgment they can in principle be met without P being joined as a party, there is, as a matter of general principle, no requirement, whether in domestic law or under the Convention, for P to be a party.”
The suggestion that P will “need some form of representation, professional though not necessarily always legal” does not appear in the first Re X judgment.
The President then turned to the question of whether P could be participate and be represented in proceedings in the COP without being a party. He concluded there is no such objection. If P is participating other than as a party there is no need for a litigation friend: so P could be represented without one.
If P is a party, then there is no reason in principle why the rules cannot be amended to allow P to act without a litigation friend:
“19. The next question is whether, assuming that P is a party, he is required to act by a litigation friend. The general principle is long-established, and hardly requires citation of authority, that in welfare proceedings, as in any other kind of litigation, a child or incapacitated adult can participate as a party only if represented by a litigation friend. But there are exceptions to this general rule. I mention two, though the first is now only of historical, indeed almost antiquarian, interest. In the days of the Lunacy Act 1890, although a person of unsound mind not so found by inquisition sued, like an infant, by a next friend or guardian ad litem, a lunatic so found by inquisition sued by the committee of his estate: see Daniell’s Chancery Practice pp 118-119, 121. Of more contemporary significance is rule 16.6 of the Family Procedure Rules 2010, replacing rule 9.2A of the Family Proceedings Rules 1991, which permits a child in certain circumstances to conduct proceedings without a children’s guardian or litigation friend.
23. In his submissions, Mr Jonathan Butler helpfully drew attention to the practice in the First-tier Tribunal (Health Education and Social Care Chamber), and previously in the Mental Health Review Tribunal, where the relevant rule provides for the appointment of a legal representative – not a litigation friend – where the patient, a party to the proceedings before the Tribunal, lacks capacity: see AA v Cheshire and Wirral Partnership HNS Foundation Trust and ZZ  UKUT 195 (AAC),  1 MHLR 308. Mr Butler suggests that the sole question to be asked is whether the requirement for a litigation friend is necessary for P to have a voice within proceedings? The answer, he suggests, and I agree, can in part be found in the decision in that case.
24. These examples demonstrate, in my judgment, that there is no fundamental principle in our domestic law which dictates that P, if a party, must have a litigation friend. The question is ultimately one going to the practice of the particular court or tribunal. Generally speaking, the practice – the rule – has long been that those who lack capacity must have a litigation friend. But that is all.
25. At present Rule 141(1) requires P, if a party, to have a litigation friend.
26. The requirement to have a litigation friend is compliant with, but not mandated by, the Convention: RP v United Kingdom  1 FLR 744. The Convention requirement is to ensure that P’s interests are properly represented and that does not, of itself, require the appointment of a litigation friend.
27. Again, this is a matter which requires consideration by the Committee.”
The President repeated his view that a litigation friend could act without legal representatives but required permission of the court to act as advocate for P.
“36. It is not for me in this judgment to advise the Committee how to proceed. There is, however, one aspect of the matter to which the Committee will, I suggest, need to give careful consideration. It is essential that where the issue concerns P’s deprivation of liberty the Court of Protection’s processes are rigorous, so that the circumstances of the individual case are subjected, as they must be, to the strict scrutiny demanded by the Convention. Both our domestic law and the Convention impose demanding standards. But the need to meet this challenge must not be allowed to lead to a system of technical requirements which may, in the real world, operate to deny P the speedy access to a judicial determination which is the very essence of what is required. To speak plainly, the Committee will have to consider how best to craft a process which, while it meets the demanding requirement of the law, also has regard to the realities consequent upon (a) the legal aid regime and (b) the exposure of a litigation friend to a costs risk. There is no point in a system which requires there to be a litigation friend, let alone which requires the litigation friend to instruct lawyers, if the reality is that there is, because of an absence of legal aid and possible exposure to an adverse costs order, no-one willing and able to accept appointment as litigation friend. Indeed, such a system would be self-defeating. And in this connection it needs to be remembered that the Official Solicitor can never be compelled to accept appointment. Moreover, as I understand it, he is not funded to act as a litigation friend in deprivation of liberty cases, so he is dependent on external funding which in many cases will not be available in the absence of legal aid.
Baker J has handed down judgment in a highly unusual case, A Local Authority v M and others. The facts of the case are startling and underline some of the findings in the House of Lords Select Committee on the Mental Capacity Act about the lack of awareness of the MCA amongst some clinicians. The judge made important comments about, amongst other matters, the vital importance of proper decision-making when prescribing treatment, including “alternative” treatments, the correct use of welfare deputyships, and the disclosure obligations on litigants in person. M was the son of E and A, and had childhood autism. Both parents, but particularly his mother E, became convinced that this was as a result of the MMR vaccine, and, as the court found, made numerous false statements about this and other aspects of her son’s health. A claim had been made on behalf of M in the litigation seeking compensation over the vaccine, but ended when legal aid funding was withdrawn. Baker J summarised the facts succinctly at the end of his judgment:
- The critical facts established in this case can be summarised as follows. M has autistic spectrum disorder. There is no evidence that his autism was caused by the MMR vaccination. His parents’ account of an adverse reaction to that vaccination is fabricated. The mother has also given many other false accounts about M’s health. He has never had meningitis, autistic enterocolitis, leaky gut syndrome, sensitivity to gluten or casein, disorder of the blood brain barrier, heavy metal poisoning, autonomic dysautonomia (which, in any event, is not recognised in any classification of medical conditions), rheumatoid arthritis or Lyme disease. As a result of E maintaining that he had these and other conditions, she has subjected M to numerous unnecessary tests and interventions. He did have a dental abscess for which E failed to obtain proper treatment and caused him 14 months of unnecessary pain and suffering. E has also insisted that M be subjected to a wholly unnecessary diet and regime of supplements. Through her abuse of her responsibility entrusted to her as M’s deputy, she has controlled all aspects of his life, restricted access to him by a number of professionals and proved herself incapable of working with the local authority social workers and many members of the care staff at the various residential homes where M has lived. This behaviour amounts to factitious disorder imposed on another. In addition, E has a combination of personality disorders – a narcissistic personality disorder, histrionic personality disorder and elements of an emotional unstable personality disorder.
The judgement repays reading in full. For the purpose of this post, we focus on three areas: the proper use of welfare deputyship, fact-finding and the disclosure obligations on litigants in person. Deputyship: In 2010 E applied to be M’s welfare deputy, and asked in her application that this:
” … include life-long custodian to him. In addition, for the court to decide that life-long advocacy is also included in this role unless otherwise delegated by me.”
In the box on the application form asking how the order would benefit M, E stated, inter alia:
“My son would benefit from all decisions being made in his very best interests and without the influence of external pressures or distractions.”
On 18th June 2010, District Judge Rogers made an order appointing E as M’s deputy for property and affairs and personal welfare decisions. This order was made without notice to the local authority, Y House or any other agency involved in M’s care. [para 27]. Baker J found that E had grossly abused her power as deputy and that she had used the power to control M’s life and restrict the roles of the professionals, describing her as having a “fanatical desire to maintain control over her son’s life”. He considered E’s decision-making in imposing a regime of supplements and alternative treatments on M, often on the advice of practitioners who did not meet M and were content to take instructions wholly from M. The judge noted the views of the expert witness Dr Peter Carpenter: 178 Dr Carpenter observed that most of the dietary and nutritional therapies given to M are ones that he has experienced with other patients over the years. He has not objected to them being used in most cases. He also observes that E appears to have normally sought professional help when using therapies; that she has not devised treatment protocols without advice. He adds, however, that he found little evidence that E carried out what he would expect a best interests decision-maker to do when using non-conventional therapies for an adult who does not have capacity to choose for himself: namely, (a) draw in as wide a range of advisors as possible, and (b) ensure that the therapists are fully aware of the medical history. Dr Carpenter is very concerned that the therapists in this case were not given copies of any diagnostic reports but were, rather, given accounts of how the MMR vaccine had induced a vegetative state and a diagnosis of enterocolitis, which was not supported by any contemporaneous medical records. 179. Dr Carpenter also criticises E for failing to question the reason and purpose of any of the therapies or interventions used or seek unbiased evidence about their effectiveness. He is concerned at the lack of evidence that E looked at the arguments against therapies, as well as the arguments for. He is concerned at the apparent inadequacy of some of the assessments prior to starting therapy. He is also concerned at the apparent lack of monitoring of the effects of therapies. He notes that, despite the lack of evidence that any of the supplements work, the number and manner of taking them has been allowed to grow so that they now seemingly dominate M’s life and care regime. It is the quantity and intensity of the supplements given to M that causes concern for Dr Carpenter rather than any single supplement. 180. For a number of years, until his placement at N House, M was on a gluten and casein free diet. The efficacy of this diet for people with autism is a matter of controversy. Dr Carpenter quoted the guidelines issued by NICE in 2013, which he helped to draft, which recommended against the use of exclusion diets such as gluten or casein free diets for the management of core features of autism in children and young people. He cites research published by “Research Autism”, which he described as a generally respected organisation that attempts to review the evidence of main treatments and interventions in an unbiased manner and which concluded:
“The theory behind the gluten free/casein free diet [“GFCF”] is weak and unproven and there is limited evidence as to whether GFCF diets are actually effective for individuals with autism. Reviewers have found the research evidence to be inconclusive. Despite this lack of evidence, many people embark on a GFCF diet with high expectations that there will be beneficial effects. However, these diets can involve significant inconvenience and costs, as well as a significant limitation on what the individual can eat. Because of this we cannot recommend the use of such diets.
181.A different opinion was expressed by several witnesses called by E and A. Mr Shattock said that excluding gluten and casein from the diet had been reported as leading to measurable improvements in a high proportion of subjects, though in some instances the improvements were minor and not worth the effort, cost or possible disruption to life. Those reports are, however, based on the impression of parents and carers rather than any scientific analysis. Mr Shattock conceded that the benefits of the diet are clinically unproven and frankly acknowledged in his report that, had he been on the NICE committee himself, he would not have been able to disagree with the negative conclusion as to the use of such diets for people with autism. Dr Aitkin said that in general there are several reasons why such a diet might be considered as part of a management approach in an individual with an autism diagnosis and not merely used as a placebo. He cited research that suggested that such a diet is safe if properly adhered to and that there is some limited evidence of benefit. Some individuals with autism showed improvements on such a diet, for reasons other than a casein or gluten free intolerance. Again, however, the evidence of such improvements is the subject observations of parents and carers rather than any clinical or scientific analysis. Ms Haywood, however, was clear that there is now overwhelming evidence about how much autistic people benefit from a gluten free diet
182.In M’s case, there is no clear evidence that being on a GFCF diet is beneficial. The notes of the Royal Free Hospital recorded on 18th March 2001 that E had tried M on such a diet, but by January 2002 the hospital was recording that “he remains on a normal diet as there were no improvements in his behaviour or bowel habits on a gluten and dairy free diet” and there is no evidence that the Royal Free made any subsequent recommendation that he be put back on that diet. The diet was subsequently reintroduced unilaterally by E without positive medical approval. Professor Williamson regards it as a “telling fact” that, since M became resident at N House, he has remained in good physical health despite eating a normal diet, free of any restrictions and devoid of any of the numerous supplements that he had previously been obliged to take. On the contrary, he is eating well and gaining weight. When Professor Williamson saw him, he thought that he looked in excellent physical shape. Professor Williamson advised that, if M can stay well after a restricted diet, vitamins and minerals, it provides “strong evidence to suggest that they are unnecessary.”
183 For Dr Carpenter the key feature was that the reason given for M being on a diet – that he had a diagnosis of enterocolitis – was fallacious. In those circumstances there was no good reason for his diet being restricted in this way. It seems plain that those who advised E about the diet, in particular Ms Haywood, assumed that the diagnosis of enterocolitis given by E was correct. The concern about the insistence of the diet in this case was, therefore, not so much about the use of the diet per se, (which is plainly not uncommon amongst people with autism, notwithstanding the clear view expressed in the NICE guidelines), but, rather, the fabricated diagnosis which led to the diet being imposed.
184If the only alternative treatment therapy provided to M had been the GFCF diet, there would be relatively little concern. But it was not. Rather, it was one of a multitude of treatments given. In her final statement, E described M as an:
” … ever-changing minefield of biochemical hormone surges that require constant awareness of and treatment in terms of biomedical natural supplementation and dietary intake.”
In terms of nutrition, he was supplied with a large number of supplements to be taken daily. Here, it was Ms Haywood’s advice on which E acted. In contrast to the approach recommended by Mr Shattock in the Sunderland Protocol, there was no incremental approach (testing the efficacy of each individual supplement) but rather the prescription of a cocktail of supplements every day.
- Dr Carpenter quotes the NICE guidelines again as not recommending the use of such supplements for the treatment of the core symptoms of autism in adults. He notes that: “Research Autism” observed the evidence of nutritional supplements being untested or incapable of being proved and, therefore, it was not a treatment that they could recommend. Dr Carpenter notes, however, that most of the supplements appeared to have no known toxic overdose limit. He acknowledged that he is not an expert, although he expresses concern in general about how over the years the number of supplements delivered to M has increased dramatically and how the rigidity of instructions given for the supply of the supplements produces what he describes as unnecessary behaviour and choice restrictions of M.
- I accept Dr Carpenter’s opinion on this point. There is no evidence that the supplements caused physical harm, but I am not persuaded that there is any reliable evidence that they cause any benefit. The important issue is the manner and the quantity in which they were prescribed, without proper objective analysis, to a young man who lacked capacity to make decisions about whether or not to take them.
The judge found that E was the last person who should be entrusted with the role of M’s deputy, but found that it was highly likely that a welfare deputy would be needed because of the fundamental disagreements between the local authority and the family. Fact-finding: The judge set out the following principles to be applied in fact-finding hearings in the Court of Protection. 83. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. Therefore, the burden of proving the allegations rests with them. 84. Secondly, the standard of proof is the balance of probabilities: Re B (Children)  UKHR 35. If the local authority proves a fact on the balance of probabilities, this court will treat that fact as established and all future decisions concerning M’s future will be based on that finding. Equally, if the local authority fails to prove any allegation, the court will disregard that allegation completely. In her written submissions on behalf of the local authority, Miss Bretherton contended that the court should apply the principle that
“the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”
This principle, originally stated by Ungoed-Thomas J in Re Dellows Will Trust 1 WLR 451, was at one time applied by the courts considering allegations of child abuse in family proceedings under the Children Act 1989. In Re B, however, the House of Lords emphatically rejected that approach. Baroness Hale of Richmond, with whose judgment the other four Law Lords agreed, having analyzed the case law, stated at paragraphs 70 to 72:
“70 I would announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s.31(2) or the welfare considerations of the 1989 Act is the simple balance of probabilities – neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant in deciding where the truth lies.71. As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted or he may find himself still at liberty to maltreat this or other children in the future. 72. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability.”
In my judgment, the same approach must surely apply in the Court of Protection where the court is carrying out a similar exercise in determining the facts upon which to base decisions as to the best interests of an incapacitated adult. 85.Thirdly, findings of fact in these cases must be based on evidence. As Munby J (as he then was) observed in Re A (A Child : Fact-finding hearing: speculation)  EWCA Civ 12:
“It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation.”
86. Fourth, the court must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, President, observed in Re T  EWCA Civ 458,  2 FLR 838, at paragraph 33:
“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.”
- Fifth, whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the experts are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence: A County Council v. K, D and L  EWHC 144 Fam,  1 FLR 851 per Charles J.
- Sixth, in assessing the expert evidence, which involves a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem, one important consideration – and of particular relevance in this case – is that the court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others – see the observations of Eleanor King J in Re S  EWHC 2115 Fam.
- Seventh, the evidence of the parents is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and impressions it forms of them – see Re W and another (Non-accidental injury)  FCR 346.
- Eighth, it is not uncommon for witnesses in these cases to tell lies, both before and during the hearing. The court must be careful to bear in mind that a witness may lie for many reasons – such as shame, misplaced loyalty, panic, fear and distress – and the fact that a witness has lied about some matters does not mean that he or she has lied about everything – see R v. Lucas  QB 720. The assessment of the truthfulness is an important part of my function in this case.
The role of litigants in person. E and A were originally represented but conducted the latter part of the case, including a hearing that lasted 20 days. At para 73, Baker J summed up the procedural steps that the court took in order to assist E and A, and commented ”
- Overall, I cannot recall a case in which litigants in person have been assisted by the court and the other lawyers to the extent provided in this case. I am satisfied that as a result E and A, and indeed M, have received a fair hearing, but this was only achieved at the cost of a significant lengthening of the proceedings. One lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases is, thus, a false economy.
Baker J drew attention to the need for all parties to provide disclosure, including of those documents which do not support their case: 76. In total, the court papers filled some 33 lever arch files (court documents and file records) plus two further lever arch files of documents produced by E and A during the hearing. No doubt if the parents had been represented, it might have been possible to reduce this material into a core bundle, as I did myself at the conclusion of the hearing. Even those 35 files may not represent the totality of the disclosable documents that might have been produced. For example, no health visitor records were produced for the period of M’s early years. At a very late stage E alluded to the possibility that she may have copies of these records somewhere in the loft at her home. Furthermore, and despite my explaining the rules about disclosure on more than one occasion, I am not entirely satisfied that E and A have complied with their obligation to disclose all relevant documents, including those that do not support their case. At one point E’s medical records were produced and, when E objected to their disclosure on grounds of confidentiality, I conducted a public interest immunity examination to determine which pages of the records were relevant. In the event, I concluded that only 16 pages fell into that category, but E insisted on challenging the disclosure of some of those pages on the grounds that they would assist the other parties. This illustrates another consequence of parties appearing without representation in these cases, namely that the courts may have to devise new rules as to disclosure.
The consequences of a failure properly to comply with the provisions of the MCA in the safeguarding context have been highlighted in Milton Keynes Council v RR & Ors (Costs Judgment), the sequel to a singularly unfortunate case described in the Thirty Nine Essex Street’s Mental Capacity Law Newsletter here, involving the unlawful removal of an elderly lady from her home and a failure timeously to investigate and (ultimately) to withdraw allegations against her son and her son’s partner.
In departing from the general rules applicable to costs in personal welfare proceedings and awarding the son the entirety of his costs, District Judge Mort did not mince his words. He considered initial failures to investigate safeguarding alerts to be “deplorable,” the process of removal and the absence of any lawful basis for the same to be “[as] lamentable and inexcusable set of circumstances [as can be imagined],” and was critical of the failure of the Council subsequently to investigate the safeguarding allegations underpinning their tardy application to the CoP before the Council “surprisingly” abandoned them. In conclusion, he held:
“36. MKC had set a juggernaut in motion by their initial failure to investigate the safeguarding alerts and their decision to remove P from her home in circumstances which were unlawful. This case concerned the very sad and tragic consequences for P which flowed from that decision.
37. I have no difficulty in concluding that MKC’s practice in this case was substandard. It is P’s misfortune to have been the victim of that substandard practice. MKC’s acts and omissions have detrimentally affected both P and her family and changed the course of their lives.
38. In my judgment an award of costs is manifestly justified. I have considered whether a partial costs order is appropriate but have come to the conclusion that this is an exceptional case in which a full costs order is justified.”
The difficulties of responding to safeguarding alerts in the context of adults who lack capacity to take their own decisions are grave; it is, though, of cardinal importance to remember (a) that ‘safeguarding’ provides no additional legal basis upon which actions can be taken by public authorities to intervene in their lives; and (b) the Court of Protection is a court, and ‘safeguarding’ applications to the CoP must be brought after as full and rigorous investigation of whether the allegations underpinning such applications can be made out as is possible in the time available. It is not surprising that a combination of a failure to bring matters to the CoP in advance of removal and then a failure to analyse timeously and rigorously the basis upon which that removal was said to be justified warranted the costs award made in this case.