Mrs P v Rochdale Borough Council & Others

Judge: DJ Matharu

Citation: [2016] EWCOP B1

Summary

Mrs P’s deprivation of liberty was authorised in a nursing home. By the time of the final hearing in the MCA section 21A proceedings, place of residence was not in dispute. The focus was upon whether the care arrangements amounting to a deprivation of her liberty were in her best interests. And these were “inextricably linked” with the appointment of a deputy that was managing her property and finances.

She had experienced two strokes and was a coeliac sufferer requiring gluten-free food. The only living being with whom she shared any love or devotion was her dog, Bobby. Her “face lights up” when she saw other dogs. But the deputy considered “it would seem irresponsible in the extreme to suggest that a dog visits a care home for elderly and frail people”. She owned her own home and had a number of pensions and investments in bonds. The court was particularly troubled about how Mrs P, and the things that she needed, were (not) being provided for by her deputy:

27 … What is known is that her wishes and feelings before her second stroke were very clear. She enjoyed a good quality of life, she loved her dog, likes to be made to feel glamourous. Now she is wearing ill-fitting clothes, and financially unable to pay to have her feminine needs attended to, such as having her hair and nails done.

The deputy failed to provide money for new clothes. Nor did he purchase the more varied food that was requested and refused a request by Mrs P’s legal representative to bring Bobby to see her. These were “all matters which are affecting the quality of her life. They are extremely important to and for her.”

District Judge Matharu decided to replace the deputy with a panel deputy because he was not acting in her best interests and appeared to be working against the litigation friend, not with them. Moreover:

27. It may seem to those not well rehearsed in the needs of a person who owns a pet, in this case a person who no longer has capacity to make decisions about various matters, what the importance of a pet is in their life. The deputy only has to read any single reference in reports, assessments or statements of Mrs P of how important Bobby is to her. Her Social Worker says in her witness statement to the court that:

I would recommend that of single most importance in her life is her dog and having some form of contact with her dog in the future if possible.

By comparison, the comments of Temperley Taylor solicitors in the e mail of 13th July are “brutal” and insensitive. When enquiries were made of them, they appeared to reject such questioning or consider themselves challenged in some inappropriate way. That is not the case. The questions being put to them were a line of reasonable enquiry by the Litigation Friend as to Mrs P’s best interests.

28. I have had regard to the financial information at C67-8. In around October 2015 the money in her NatWest account was around £7000. Now there is a nil balance. That is all the court is told. “Troubling” is the term that I would use and this is an understatement.
29. When I consider the Act and Code of Practice, the authorities show I should deal with as many matters as possible. I am making this order today because the deputy having been served with the application was aware of its content and implications. I have used every endeavour to resolve matters in the least restrictive way possible to Mrs P. However, this is the only way to deal with matters. I commend counsel for bringing it to court in this way. The Deputyship cannot continue to operate in “a prism” of its own.

Comment

We mention this decision for three reasons. The first concerns human well-being. The importance of animals to those with (or, for that matter, without) dementia or other conditions cannot be underestimated. Indeed, some go so far as to describe it as “dog therapy” or “animal-assisted therapy.” In this case, Bobby was given away when Mrs P moved into residential care. Experience suggests that, especially in a “gilded cage”, the comfort of a pet can make people happier and reduce so-called “behaviour that challenges.”

Secondly, it is worth noting that the deputy had failed to engage with the court on the basis that they were not a party to the welfare proceedings. District Judge Matharu corrected the error of the deputy’s ways:

24. Let me make this clear. Under Rule 74 of the Court of Protection Rules, any order made binds this firm because “any person who has been served with or notified of an application form” shall be bound as if they were a party. Temperley Taylor LLP knew there was a hearing date. They were served with the application and informed of it. The Deputy has a solicitor at court today so is represented and will be bound by the order I make.

The final reason is jurisdictional. The application to remove the financial deputy was made within MCA section 21A proceedings. It is axiomatic that access to money can affect someone’s liberty. And being able to consider financial deputyship within section 21A proceedings, avoiding a jurisdictional fixation, is – we suggest – eminently sensible.

Article 8 ECHR - Contact, Best interests - Contact, Best interests - P's wishes, Deputies - Financial and property affairs, Article 5 ECHR - DOLS authorisations 18th July 2016