Citation:  EWHC 485 (COP)
Summary: This case (the subject of a rather alarmist article whilst ongoing, which we will deliberately not link to as we have now have the full facts) relates to the dividing line between the Court of Protection and the inherent jurisdiction of the High Court.
Russell J had to consider two applications made by the London Borough of Redbridge in relation to an elderly lady, G, considered to be a vulnerable adult. The first was an application for relief under the inherent jurisdiction. The second was a proposed application under the MCA 2005 in respect of the same woman following psychiatric evidence of a lack of capacity to take the material decisions.
The local authority and the Official Solicitor (who acted as litigation friend for G) submitted that G lacked capacity and fell within the MCA 2005. C (her current live-in carer) submitted that she did not lack capacity under the MCA nor had she been deprived of it by duress or the influence of C and F.
Russell J helpfully gave a summary of the case at the outset which suffices to identify the major points of significance:
“2. In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.
3. The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.
4. The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.
5. All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.”
There are a few nuances that require amplification and/or which stand as useful practice points for the future:
A final wrinkle is that G had executed two LPAs in favour of C, relating to property and affairs and health and welfare. There was a defect on the instrument for the property and affairs LPA which meant that it could not be registered (C not having submitted the relevant documentation to remedy the defect): Russell J did not therefore need to take any steps in relation to this LPA but could proceed immediately to appoint an independent panel deputy to administer G’s property and affairs. The LPA was, however, registered because no objections were received within the statutory time frame – an order was made by the Circuit Judge hearing the case some seven days outside that time frame requesting that the OPG did not register the LPA, but this was too late. Rather, Russell J acceded to the proposal set out in a position statement filed by the OPG to direct C not to exercise any of the powers under the LPA pending the determination of the applications before the Court of Protection.
Comment: This is a helpful decision both in relation to the powers of the High Court under the inherent jurisdiction and also in relation to the assessment of capacity of those who are said to be subject to duress. It comes at a particularly sensitive time given the imminence of the report stage of the Care Bill in the House of Commons and the proposed amendment being advanced by Paul Burstow MP to introduce a power of entry into the Bill (for more on this, and the briefing paper prepared by Alex with Action on Elder Abuse, see the recent story in Community Care).
Whilst the transcript presents a compelling case that G lacked the material capacity, we would, though, respectfully note the fact that no mention was made of the decision of the Court of Appeal in PC and NC v City of York in which the court flagged up the danger of approaching capacity assessment in the two stages suggested by the Code of Practice, that danger being that “that the strength of the causative nexus between mental impairment and inability to decide is watered down. That sequence – ‘mental impairment’ and then ‘inability to make a decision’ – is the reverse of that in s 2(1) – ‘unable to make a decision … because of an impairment of, or a disturbance in the functioning of, the mind or brain’ [emphasis added]. The danger in using s 2(1) simply to collect the mental health element is that the key words ‘because of’ in s 2(1) may lose their prominence and be replaced by words such as those deployed by Hedley J: ‘referable to’ or ‘significantly relates to’” (paragraph 58). Whilst there is a live debate as to the extent to which it is appropriate to consider the functional stage first where there could be no suggestion of any impairment/disturbance, the case before Russell J was one, we would suggest, in which it was particularly important to analyse the matter with the warning from McFarlane LJ clearly in mind because of the need to disentangle whether G’s inability to take the decisions in question was a function of an impairment or of the ‘spider’s web’ of relations in which the independent social worker identified her as being caught.
The evidence of the social worker – whom Russell J held to be “highly experienced and well qualified” and “well placed to give an opinion on the relationships and inter-personal functioning within G’s household” (paragraph 61) – was clearly to the effect that the lack of capacity arose from the undue influence of C and F. Although Russell J preferred the evidence of the psychiatrist in this regard, it does seem that Russell J was, in fact, influenced in part by the evidence of the social worker because she found that G’s capacity was “further compromised by the influence and control of C and F” (paragraph 81). Such influence and control is, not, however, relevant to the question of whether G was incapacitated for purposes of s2(1) MCA 2005 precisely because it falls outside the causative nexus identified by the Court of Appeal in City of York. Asking the questions in the reverse order: i.e. ‘is G unable to take the relevant decisions?’ and then ‘is that inability to take those decisions because of an impairment of the mind or brain’ would have made crystal clear that the influence and control of C and F was irrelevant. Russell J’s approach made no difference upon the facts of this case, but we suggest that it does, still, serve as a useful illustration of the dangers highlighted by the Court of Appeal in City of York.