Status of declarations in the Court of Protection.

In MASM v MMAM, MM and London Borough of Hackney, Mr Justice Hayden considered what sanctions could be imposed for actions made by a party to Court of Protection proceedings who had deliberately acted in defiance of declarations.  Could these be regarded as contempt of court and could committal to prison result?

You can read the judgment here.  In brief MM, MASM’s grandson, had not opposed declarations that it was in MASM’s best interests to reside in a care home, and authorising any resultant deprivation of liberty.  No injunctions were made at the time and therefore the order contained no penal notice.  Subsequently Hayden J found that MM (acting with the assistance of his father Mr MASM) had arranged the removal of MASM to Saudi Arabia and had provided an account to the court which the judge found to be “a complete fabrication”.  He was critical of the what he described as the “supine” response of the local authority commenting that “vulnerable adults have to be protected as sedulously as vulnerable children” whilst making it plain that it is the obligation that is similar and not those entitled to such protection.

It was urged upon the judge that – in analogy to the wardship or parens patriae jurisdiction- an action hampering the court’s objectives could itself be an interference with the administration of justice.  The judge did not accept this, drawing an important distinction between the paternalistic quality of wardship “which does not easily equate to and is perhaps even inconsistent with the protection of the incapacitous adult”.

Ultimately the judge concluded that a best interests declaration does not always mean that any alternative course of action is contrary to the individual’s welfare and although MM had acted cynically and frustrated the objectives of the litigation, he was not acting in defiance of an order and was not exposed to contempt proceedings. The current case was unusual and there are many cases where partners or relatives struggle to accept the outcome of proceedings and “it would to my mind be disproportionate and indeed corrosive of the co-operation ultimately required for the shadow of potential contempt proceedings to fall too darkly over cases such as this.”

The judge concluded with the following guidance:

“i)Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section provides for the ‘making of orders’ as well as ‘taking decisions’ in relation to P’s personal welfare, property or affairs. Where the issues are highly specific or indeed capable of being drafted succinctly as an order they should be so, rather than as more nebulous declarations. Where a determination of the court is capable of being expressed with clarity there are many and obvious reasons why it should be so;

ii) In cases which require that P, for whatever reason, reside at a particular place the parties and the court should always consider whether to reinforce that order, under Section 16, by a declaration, pursuant to Section 15, clarifying that it will be unlawful to remove P or to permit or facilitate removal other than by order of the court;

iii) In cases where the evidence suggests there may be potential for a party to disobey the order or frustrate the plans for P approved by the court as in his best interest, the Official Solicitor or Local Authority should consider inviting the court to seek undertakings from the relevant party. If there is a refusal to give undertakings then orders may be appropriate;

iv) Where a potential breach is identified the Local Authority and/or the Official Solicitor should regard it as professional duty to bring the matter to the immediate attention to the court. This obligation is a facet of the requirement to act sedulously in the protection of the vulnerable;

v) Thought must always be given to the objectives and proportionality of any committal proceedings see Re Whiting (supra).”

He directed that MM pay personally the entire costs of the proceedings.

“A sensible decision, not the pursuit of perfection”

Mr Justice Peter Jackson has expressed concern about the costs and delay – and associated “human misery” and drain on manpower- in two Court of Protection cases, which in his conservative estimate cost around £9,000 per month, largely paid for by the State.

 

You can read his strong judgment here. It echoes some of the comments made in the family sphere (V v V, [2011] EWHC 1190 (FAM); J v J [2014] EWHC (Fam)).

 

The following comments should be noted by practitioners:

 

  • The inconsistency of “extravagance” in CoP proceedings with the parties’ duty to assist the court in furthering the over-riding objective;
  • The importance of restraining excessive costs where P’s money is being spent on deciding his future, whether he likes it or not
  • The judge’s criticism of the “search for the ideal solution, leading to decent but imperfect solutions being rejected”- s1(5) “calls for a sensible decision, not the pursuit of perfection;
  • It is not necessary to take up “every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved”.
  • The need for professional co-operation. Here the judge noted the role of the litigation friend in one of the cases: “This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.“

 

 

 

The judge concluded:

 

  1. “The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings. The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?
  2. I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.”

 

 

The Re X process goes live

The much-anticipated new procedure for the judicial authorisation of deprivation of liberty in settings outside hospitals and care homes comes into force on 17 November.  The procedure implements the judgments of Sir James Munby P in Re X (1) and Re X (2).  It is set out in the new Part 2 of Practice Direction 10A (Deprivation of Liberty), and is accompanied by a new application form (with annexes), designed exclusively for applying for court-authorised deprivations of liberty.   All the materials are available here.

The Court of Protection has set up a dedicated team to deal with applications made under the Re X procedure.  The contact details are:

Court of Protection

P.O. Box 70185

London

WC1A 9JA

 

DX 160013 Kingsway 7

Telephone: 0207 421 8665

Email: COPDOLS/S16@hmcts.gsi.gov.uk

Re X (2): further amplification of judicial deprivation of liberty process

 On 16th October 2014 Sir James Munby P handed down his second judgment in Re X and others (Deprivation of Liberty) [2014] EWCOP 37.  In this he expanded on the preliminary judgment handed down on 7th August 2014 (Re X and others: Deprivation of Liberty [2014] 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 [2014] EWCOP 131, [2014] 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 [2009] UKUT 195 (AAC), [2009] 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 [2013] 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.

He concluded:

“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.

A fanatical desire to maintain control

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:

  1. 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.

  1. 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.
  2. 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) [2008] 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[1964] 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) [2011] 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 [2004] EWCA Civ 458, [2005] 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.”

  1. 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 [2005] EWHC 144 Fam[2005] 1 FLR 851 per Charles J.
  2. 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 [2009] EWHC 2115 Fam.
  3. 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) [2003] FCR 346.
  4. 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 [1981] 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 ”

  1. 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 costs of non-compliance

 

The case of LB of Bexley v V, W and D [2014] EWHC 2187 (Fam) contains a stark reminder of the need to comply with court directions concerning the filing of evidence. The local authority in this case failed to file its evidence in accordance with deadlines which had already been extended, and despite the court stating that if any party was going to be unable to comply with the extended deadlines, it should apply to the judge’s clerk for an extension. It was said on the local authority’s behalf that no application was made as the local authority did not know when it would be able to produce its evidence. Unsurprisingly, the court was not impressed, but fortunately it was possible for amended directions to be given which enabled all parties to file their evidence without jeopardising the final hearing in the proceedings. The local authority was criticised and required to pay the costs of the hearing:

“I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make submissions as to when they could comply with their obligations to file documents. Accordingly, I am in no doubt that it is right that the local authority should be ordered to pay the costs of this hearing.” 

Similar approaches may well be taken by judges in the Court of Protection, particularly where failures to meet court deadlines delay the substantive determination of an application. And we would note the case of Re W (Children) [2014] EWFC 22 as a further example of the very robust approach that is being taken in family cases – in the context of much tighter rules in the FPR; we anticipate that it is only a matter of time before the COPR includes similar provisions and a similar approach is taken in CoP cases.

[A version of this note appeared in the August 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]

.

To fact-find or not to fact-find?

In LBX v TT and others [2014] EWCOP 24, Cobb J has given important guidance on when to hold a fact-finding hearing, and when to hear oral evidence.

Summary

TT was a 19 year old woman with moderate learning disabilities and global developmental delay. In November 2012, she alleged that her stepfather had sexually assaulted her and forced her to watch pornographic videos. She was placed in adult foster care and her stepfather was awaiting trial in the Crown Court. As a result of significant concessions by the parents, rather than a three-day hearing to conduct a full enquiry into the allegations, Cobb J was able to proceed to a more limited factual enquiry, principally directed to the issue of contact between TT and her mother (‘MJ’).

One issue was whether, in light of the concessions, the court could make orders upon an agreed basis of facts without having to make factual findings. Or, given that TT’s mother’s stance on contact would be likely to change following her husband’s trial, whether a fact-finding hearing should proceed. Cobb J reiterated the principle that he who asserts must prove on the balance of probabilities, as described by Lord Hoffman in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at §2:

“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened”.

In determining what factors should influence the exercise of the court’s discretion in deciding whether these should be a finding of fact hearing at the interim or final hearing, his Lordship drew upon some analogous jurisprudence from the family courts:

“46. I have had the relative luxury of three days of court time set aside to determine these issues; the court will however often be constrained by sheer practicalities of time and opportunity for an oral hearing. In each situation, the Judge surely has to make a determination – often under pressure of time – as to how far he or she can go to test the material.   By analogy with the position in family law, the judge would in my judgment be well-served to consider the guidance of Butler-Sloss LJ in the family appeal of Re B (Minors)(Contact) [1994] 2 FLR 1 in which she said as follows:

There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.’

It is acknowledged that the ‘spectrum’ may now be narrower than that described in 1994 following the revisions to rule 22.7 of the Family Procedure Rules 2010, but the principle nonetheless remains, in my judgment, good.

47. Butler–Sloss LJ went on to define the questions which may have a bearing on how the court should proceed with such an application (adapted for relevance to the Court of Protection):

i. Whether there is sufficient evidence upon which to make the relevant decision;

ii. Whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;

iii; Whether the opportunity to cross-examine the witnesses for the professional care or other agency, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;

iv. The welfare of P and the effect of further litigation – whether the delay in itself will be so detrimental to P’s well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to reach a decision in relation to P;

v. The prospects of success of the applicant for a full trial;

vi. Does the justice of the case require a full investigation with oral evidence?

48.  In deciding whether to conduct a fact-finding hearing at all, I consider it useful to consider the check-list of considerations discussed by McFarlane J in the case of A County Council v DP, RS, BS (By their Children’s Guardian) [2005] EWHC 1593 (Fam) 2005 2 FLR 1031 at [24]. Following a review of case-law relevant to the issue he stated that:

“… amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a. the interests of the child (which are relevant but not paramount

b. the time that the investigation will take;

c. the likely cost to public funds;

d. the evidential result;

e. the necessity or otherwise of the investigation;

f. the relevance of the potential result of the investigation to the future care plans for the child;

g. the impact of any fact finding process upon the other parties;

h. the prospects of a fair trial on the issue;

i. the justice of the case.”

49.  There is some (but not universal) acknowledgement at the Bar in this case that this list (with modifications as to (a) to refer to the best interests of ‘P’ rather than ‘the child’) provides a useful framework of issues to consider in relation to the necessity of fact finding in the jurisdiction of the Court of Protection.”

According, Cobb J decided to conduct a limited fact-finding exercise and made resulting declarations and decisions. This included an authorisation to deprive TT of her liberty in the foster home.

Comment

When to hold fact-finding hearings in the Court of Protection is an issue in respect of which – unlike in relation to children – there is no guidance and a paucity of reported cases. The topic is discussed in some detail in the chapter 15 of the Court of Protection Handbook  in which Alex expressed the view that a useful analogy could be drawn with the pre-MCA case of Re S (adult’s lack of capacity: carer and residence) [2003] EWHC 1909 (Fam), [2003] 2 FLR 1235. However, this decision of Cobb J is by far the most comprehensive to date in terms of its analysis.   Until and unless a Practice Direction or Practice Guidance is produced setting out a framework, it is suggested that the model set out by Cobb J is one that will be of considerable assistance to practitioners and judges in determining whether a fact-finding hearing is required and the need for oral evidence. It should, though, be recalled, that the tenor of recent judgments from the Family Division/Court of Appeal is that very considerable caution should be exercised before a separate fact-finding hearing is listed (see, for instance, Re S, Cambridgeshire County Council v PS and others [2014] EWCA Civ 25).

[A version of this note appeared in the August 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]

Varying and revoking substantive orders

On an application to revoke an order made under the 1980 Hague Child Abduction Convention, Mostyn J has held in TF v PJ [2014] EWHC 1780 (Fam)  that the reference in the Family Procedure Rules 2010 r.4.1(6) to the court having a power to vary or revoke an order made under the rules was not confined to procedural or case management orders.  Rather, it could apply equally to final orders such that (for instance) a High Court judge may vary or revoke a substantive final order made by another High Court judge.  Applying dicta from the Court of Appeal in civil cases (Tibbles v SIG Plc [2012] EWCA Civ 518, [2012] 1 WLR 2591 and Mitchell v News Group Newspapers [2013] EWCA Civ 1537, [2014] 1 WLR 795, Mostyn J held that the only circumstances where the rule could be invoked were where there had been non-disclosure or a significant change of circumstances.

It is suggested that this approach holds equally true to the provisions of rule 25(6) of COPR 2007 which provides – in identical terms to FPR 2010 r 4.1(6) – that “A power of the court under these Rules to make an order includes a power to vary or revoke the order.”

[A version of this note appeared in the July 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]