Judge: Cobb J
Citation:  EWHC 959 (COP)
Summary: This is a sequel to a case that we reported in the February Mental Capacity Law newsletter.
In February 2014, Russell J had to consider applications made by the London Borough of Redbridge (‘Redbridge’) in relation to an elderly lady, G, considered to be a vulnerable adult, arising out of concerns regarding the behaviour of her live-in carer, C, and another carer, F, and their influence over G, her home and her financial affairs and with respect to her personal safety. Russell J held that G lacked the capacity to take the material decisions, such that proceedings relating to her welfare (and, in particular, as to the continued residence of G with her) were to continue in the Court of Protection.
Subsequent to that decision, on or about 13 March G and C took part in a demonstration or protest outside Ilford Town Hall; the protest appeared to be about the local authority’s involvement with G. It appears from that the incident provoked not inconsiderable interest among the public. A passer-by, an off-duty police officer, who observed the protest, made the observation that C: “appeared to be engaged in a rant rather than clear, logical speech. I got the gist of her announcement and believed she was asking the crowd to support her in preventing a relative being taken away and put into a mental home.” The officer in question managed to speak with G at the location of the protest. G indicated to him that “she wanted to go back to her home with the masked woman” [both G and C had masked their faces with scarves]. “I asked her if she was warm enough and commented on the fact that she was shaking. She said she was well and didn’t need any help … [G] said she wanted to go … While they were waiting I noticed that [G] was still shaking.” An ambulance was called to attend to G. On 18 and 19 March 2014, it appears that G was taken to the Houses of Parliament where (on 18 March) the Select Committee was receiving evidence on the function of the Court of Protection. While at Parliament it appears that G (on that or the subsequent day) signed a petition (on the encouragement of an MP) asking the Government to intervene in her dispute with the local authority.
It appears that reporters may have subsequently been in contact with G – the day before the hearing before Cobb J, she told the solicitor instructed by the Official Solicitor as her litigation friend the day that “reporters are always at her home or phoning her,” and “she wants people to know what is happening to her and that it has gone all around the world already.” She did not remember the name of anyone she had spoken to.
G’s legal representatives experienced difficulties obtaining access to meet her. Her social worker also tried to visit her on the day after the protest. When she reached the home she saw two police officers at the front door and was advised that “she [that is, C] had been aggressive towards them … It was clear to see that G was visibly upset over my arrival and in order to prevent her from experiencing further distress I advised the police that nothing further could be done that day.”
Redbridge sought by an application issued in the Court of Protection on 18 March an order “forbidding C and F, whether by themselves or instructing or encouraging others, from making any decision on behalf of or in relation to G, other than those in relation to day to day care without first discussing the same with G’s litigation friend or litigation friend’s representative.” That general form of relief was distilled down and adapted into more specific provisions, of which the most material was the order sought that: “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings…” And further: “requiring C and F to facilitate visits by an employee of the applicant authority to G twice weekly on Tuesdays and Fridays. For those purposes C and F would be required to provide full and unfettered access to G and ensure they do not remain in the property during the visits.”
The matter came on for a hearing before Cobb J which was attended (with his permission) by authorised accredited members of the press, subject to a Reporting Restriction Order. Much of the hearing was dedicated to consideration of what, if any, orders he should make in relation to G’s (or C’s) contact with the press concerning these proceedings. As noted by Cobb J at paragraph 18, the issue was of very considerable significance, given that:
“a. G has already, on occasions, met with representatives of the press and discussed her situation;
b. the press has an obvious interest in these proceedings;
c. the press is limited by order as to what it can report on these proceedings; it must, of course, take no steps to report the proceedings in any way which would contravene section 12 Administration of Justice Act 1960, albeit (as I have been advised) Associated Newspapers may in the future apply to vary or discharge the Reporting Restriction Order (there is a reasonable probability that such an application will be made);
d. that G herself has expressed views both positive and negative about the involvement of the press in her life in the recent past – sometimes indicating a wish to engage with the press and sometimes indicating she does not trust it;
e. there is a concern that C is influencing G to involve herself in publicity in order to further what was described in today’s hearing as ‘an agenda’”
Cobb J emphasised that he recognised that:
“19… access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.
20. Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J’s judgment or the evidence heard by the court. That is highly regrettable.”
We return to this below.
Cobb J concluded that he had, as a first step, to determine whether G had capacity to communicate directly with the press, and ordered a capacity assessment upon the point “specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing” (paragraph 26). Cobb J required that “Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form” (paragraph 27).
In the interim, Cobb J held that he had power under s.48 MCA 2005 to make an order relating to G’s contact with the press – noting, in passing – that “in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.” In terms of the balancing exercise, he noted that, on the one hand, there was evidence before the court that G indeed wishes to communicate with the press. That evidence was provided not only by G herself, but also by Ms Reid, a journalist who had now met with G on one occasion at her home. There was, Cobb J considered, “a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G’s private and family life” (paragraph 35). On the other hand, there was evidence that at other times G has expressed less than positive views about the involvement of the press in her life, and Cobb J noted that that “[t]here is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore [the solicitor instructed by the Official Solicitor], graphically described herself as the fly ‘in the spider’s web … the fly cannot get out of the spider’s web’. She has confirmed elsewhere and to others that C is ‘the spider’” (paragraph 37).
Cobb J held, at paragraph 40, that:
“… weighing these matters one against the other, it is not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G’s best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2nd May.”
Cobb J also held that it was necessary – on an interim basis – for an order to be made requiring C and F to facilitate visits by the London Borough of Redbridge social workers, going forward. In so doing, he found himself “satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G’s needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital” (paragraph 47).
Comment: This is a profoundly troubling case. In our comment upon the decision of Russell J, we expressed some doubts about the method by which the judge reached her conclusions that G lacked the capacity to take the material decisions, because she had not referred to PC and NC v City of York, but it seemed to us entirely clear on the facts as set out in the detailed judgment that either (a) G lacked capacity or; (b) was a vulnerable adult requiring the protection of the inherent jurisdiction. Nothing in this second judgment suggests anything to the contrary, and it is very difficult to escape the feeling that G is, indeed, caught in a spider web, and – troublingly – that the spiders are not just C and (potentially) F, but also members of the press who wish to use her story to forward their own agenda.
We note in this regard that the subsequent hearing in this matter was before the President, Sir James Munby, whose judgment we await with great interest.