Judge: Hedley J.
Citation:  COPLR Con Vol 956
Summary: Although this case was, in fact, decided some time ago (21.12.09), the judgment of Hedley J has only recently been made public. In this case (which was, in fact, one of the very first ever issued in the newly constituted COP, and the subject of one of the first directions hearings), Hedley J had to determine two central issues:
(a) a “fairly routine” (paragraph 1) issue relating to P’s capacity in relation to his medical treatment, his best interest, residence, what kind of contact he has and the ability to conduct litigation; and
(b) a determination of his best interests and, in particular, in relation to where he should live, which posed “an essential conflict between representatives of the State who owe statutory duties to P on the one hand, and the view of his carer of 18-plus years standing on the other. Furthermore, it raises issues of significance in relation both to Articles 8 and 5 of the European Convention of Human Rights.”
P, aged 24, lived for the majority of his life with a lady called AH. He suffers from a severe form of uncontrolled epilepsy. Hedley J accepted that there was evidence in relation to him of a mild learning disability, although he noted that AH did not necessarily accept that. Having been born into a severely dysfunctional family, and having had a substantial number of foster placements, he was ultimately placed with AH, who adopted him in October 1993. Although it was unclear precisely when his epilepsy started to manifest itself, by March 1996 Hedley J noted that there was there the first clearly recorded disputes over the medical treatment that he ought to be receiving in relation to his epilepsy. These disputes escalated, to encapsulate a dispute as to whether P suffered from ME and on 7.7.07, P was admitted as an emergency to hospital with what was accepted to be life-threatening and prolonged epileptic seizures in circumstances where AH had without medical advice withdrawn all his anti-epileptic medication some few days before. Proceedings were issued in the Court of Protection on the 15th November 2007. The matter came on before the President on the 4th and 5th of June 2008 ( EWHC 1403 (Fam)) when amongst other things, the President made an Order that P should be admitted to Dr Chaudhuri’s clinic in Romford for the purposes of a full assessment as to whether or not he suffered from ME and what was required by way of his treatment.
By the time the matter came before Hedley J, the position had boiled down to two conflicting proposals (paragraph 23 of the judgment). On the one hand, the Primary Care Trust supported by the Local Authority and the Official Solicitor, wished to provide P with independent living accommodation with limited contact with his mother. On the other hand, AH wanted to resume the care of P on a full time basis although accepting in theory at least, a need for a gradual move to independence at a pace which he can accommodate. A further complicating factor was that AH was, as is not infrequently the case in proceedings such as this, a complex character who, whilst single-mindedly devoted and committed to the care of P, had become enmeshed into a vicious spiral of mutual interdependence which has resulted in each of them fulfilling the fantasies of the other, and, further, held bizarre beliefs about the motives of the professionals involved in P’s care.
In addressing the question of capacity, Hedley noted (paragraph 31) that he had tried wherever possible, to confine himself to a consideration of the MCA 2005 without importing into it glosses from earlier decided cases under the inherent jurisdiction. At paragraphs 34-5, he cited s.3(1) of MCA 2005 before noting that “[g]enerally, it can be observed that cases where a) [P is unable to understand the information relevant to the decision], b) [P is unable to retain that information] and d) [P is unable to communicate his decision whether by talking using sign language or any other means] are clearly made out, are usually cases that are beyond argument. The really difficult cases, and this is an example of one, is where the attention is principally on sub-section c), that is to say the capacity actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate the one to another.”
Having reviewed the evidence, Hedley J concluded (at paragraphs 36-8) that P does indeed lack capacity in relation to the litigation, in relation to making decisions about his assessment of his health and current social care needs, about the ability to make decisions about the care and treatment, to make decisions as to where and in what sort of accommodation he should reside, to make decisions as to the social, education or other activities he should undertake, and to make decisions about the nature, extent and frequency and location of his contact with AH. He found this on the basis of a cumulative series of factors, including (a) P’s epilepsy and its impact on his functioning, (b) P’s learning disability which is at the lower end of mild, (c) the enmeshed relationship that he has with AH which severely restricts his perspective in terms of being able to think about his future, (d) P’s inability, frequently articulated by him to those who have interviewed him, to visualise any prospect of having a different view to his mother on any subject that matters and his inability to understand what the other aspects of the argument may be in relation to his expressed wishes simply to return and live undisturbed with his mother. He further noted a certain disparity that had emerged between his words and his actions and attitudes in dealings with staff.
Hedley J therefore found that he was required to make a decision as to P’s best interests on his behalf. In so doing, he expressed (at paragraph 44) his “respectful and fulsome agreement” with the approach outlined by Munby J (as he then was) to the weight to be placed upon P’s wishes in ITW v Z & M  EWHC 2525 (Fam), and used that approach when considering P?s wishes. Importantly, he found (at paragraph 58) that:
“It is very important in this case that the Court should be alert to the danger of using P’s wishes to return to AH as itself continuing evidence of incapacity. That is of course, wholly impermissible. It is of the essence of a free society that people who have capacity, can choose lifestyles of which those with health or care responsibilities for them do not approve without on that basis alone being at risk of forfeiting capacity, that is the essence of the Article 8 protection.”
He then continued:
“It is right to observe that the Article 8 rights of AH and P are fully engaged in this case, and it is right also to observe that the Order sought by the PCT is a manifest breach of Article 8(1) of the Convention. However, Article 8(1) is a qualified right and its breach can always be justified under Article 8(2) and in particular, it can be justified where the interference with that right is in accordance with the law, that is to say the Mental Capacity Act, 2005 and is a proportionate response to the problem presented.
In my view, that can only arise where as here, P lacks capacity and will only be proportionate where the best interests of P compellingly require a placement away from AH. Thus, I consider the best interests.”
Having reviewed the evidence, Hedley J noted that the decisive factors for him in preferring the position of the PCT (supported by the Official Solicitor) were twofold: “[f]irst, given that P may have to live many years in this world without AH, that the need to experience so much more than has ever been on offer in the past is crucial and secondly, I feel that a return to AH will on the balance lead to the return of the pre-July 2007 position, with P being required to become a sick, weak and wholly dependent human being, to be protected at all costs from an intrusive and misguided state, in the shape of medical and care professionals, and to his being treated as AH and she alone thinks best.”
In the circumstances, he considered (at paragraphs 68-9) that the combination provided the compelling requirement that is required in order to justify under Article 8(2) what is undoubtedly a major incursion under the Article 8(1) rights of the parties, and also an action which appeared contrary to the expressed wishes of P (noting in this regard that those expressed wishes did not, in fact, necessarily square with the action and attitude he manifested towards staff at the accommodation at which he had been placed).
Finally, Hedley J noted (at paragraph 71) that:
“[his] conclusions on the one hand that his best interests lie in an alternative independent living arrangement and on the other hand, that his expressed view is of a desire to return to his mother, give rise for the need to consider whether a deprivation of liberty is involved as contemplated by Section 4(A) of the Mental Capacity Act, 2005.”
Hedley J considered (at paragraph 73) that five factors were present such that the case should be treated as a deprivation of liberty: (a) the degree of control to be exercised by staff; (b) the constraint on P leaving if it is his intention to go back to AH; (c) the power of the staff to refuse a request of AH for the discharge of P to her care; (d) necessary restraints on contact between P and AH; and (e) it involved a fairly high degree of supervision and control within the placement. Whilst he accepted (at paragraph 74) that “independent living in a flat is not a usual expression of deprivation of liberty, yet the presence of the facts as set out above does in my view have just that effect. That is the more so since that proposal which the Court has it in mind to approve, is indefinite in its duration and thus the consequences are indefinite too. I think that approach is confirmed by a consideration of some of the questions raised in paragraph 2(6) of the relevant code of practice.”
Although he considered (at paragraph 75) that, whilst the conclusion might initially appear odd, the conclusion that the PCT’s proposed placement was in P’s best interests in effect compelled the conclusion that the deprivation of liberty inherent therein was in his best interests. He noted, though, that the real deprivation of liberty was in respect of P’s dealings with AH (paragraph 76), the restrictions on P’s general freedom being modest. He continued at paragraph 77:
“That raises questions of review. This is likely to be a long-term placement and that is certainly its intention. It raises rather different problems to the medical or social crises type of case which is rather more common. It must take into account the significance of a deprivation of liberty, the rather specific nature of it in this case and the practicalities of Court capacity and litigation generally. In particular, it must ensure that in effect, the same ground is not argued over and over again.”
In the circumstances, Hedley J concluded (at paragraph 78) that there the Court should review the case nine months after actual placement in independent living, or 12 months from the date of his judgment, whichever is the earlier. He did not anticipate that oral evidence would be required, and proposed a two hour time-marking. Thereafter, he proposed an annual review that should initially be on paper with evidence of continuing incapacity and prognosis as to capacity with proposals for future care and contact, and with a statement from AH and on behalf of P from the Official Solicitor. He provided (at paragraph 79) that any application made under the general liberty to apply provisions made otherwise than in an emergency or by agreement should initially be made without notice to other parties so that the Court can satisfy itself that there exists a matter with which it ought to be concerned; he further provided that all hearings should initially go to a local nominated District Judge who may of course, transfer the case if he or she thinks it appropriate, save that the first review and any interim application pending the first review should be reserved to himself.
In concluding his judgment Hedley J indicated a number of provisional views as to contact, on the basis that he was prepared to deal with it by way of a separate order once AH had had an opportunity to indicate whether, and if so which, of requested undertakings she was willing to give, since she could not be ordered to give them. These provisional views are entirely fact specific and do not need to be set out here.
Comment: This case of some considerable interest for three reasons: (a) Hedley J’s comments about the assessment of capacity and the particular difficulty in the case of those falling under s.3(1)(c); (b) his clear statement that it is only where the best interests of P compellingly require placement away from the family environment that such placement can be justified as a proportionate interference with the rights of both P and the relevant family members under Article 8(1) ECHR; and (c) his comments upon the deprivation of liberty in this case, and, in particular, his willingness to identify restrictions upon contact as giving rise to a situation of a deprivation of liberty. As to (b), it would appear that, whilst couched in terms of a reference to the particular facts of this case, Hedley J’s statement should in fact be read as a wider statement of principle: it is certainly one that is in line with the consistent statements of Munby LJ as to the circumstances under which it is appropriate for the state to interfere in the private and family lives of incapacitated persons: see, for instance, Re MM; Local Authority X v MM and KM  EWHC 2003 (Fam),  1 FLR 443.