Judge: Hayden J
Citation:  EWCOP 50
In this case Hayden J was concerned with a 60-year-old woman, LW. She had been admitted to a specialist unit, initially detained under the MHA 1983, in a “truly parlous condition.” She had then stayed in the unit for nearly 3 years, although the professional consensus had been for many months that it was not the right place for her. The professionals involved were seeking to identify the right way forward, in circumstances where the central challenge was that she had
- […] formed a relationship with a man, known as MG, whom she described to me as her “long term partner.”It is important to say that even the most cursory analysis of the extensive evidence available points clearly to this relationship as being abusive, exploitative, coercive and wholly inimical to LW’s welfare. As I have read the papers and heard the evidence, I have wondered how this has been permitted to continue for as long as it has. On a rational and objective analysis, LW derives nothing from this relationship at all. She expresses a strong wish for it to continue, though her behaviour often indicates that the relationship is stressful and disturbing to her. For reasons that I will identify below this relationship is corrosive of her welfare and significantly impedes her capacity to enjoy life which has been identified, historically, as intrinsic to her personality. I consider that some of MG’s behaviour has a sadistic component to it.
It was clear from the facts before the court that only a cessation of contact with MG would assist in terms of progressing LW’s departure from the unit and her – slow – move towards independent living. As Hayden J noted:
- […] It is the influence that MG asserts over LW’s fragile personality that compromises her capacity to weigh and evaluate the questions relating to her care and where she should live. This is compounded by her inability to understand her own mental health needs. All this had led Dr N ultimately to come to the conclusion that LW lacks capacity to take key decisions. That is a conclusion with which everyone agrees. It is perhaps important to mention that in her earlier report Dr N had expressed herself more cautiously in relation to LW’s capacity. This is because on so many levels LW is able to communicate her views eloquently and articulately. She is a charming lady who inspires affection. This was obvious even in the glimpse that I had of her with those caring for her. To some degree this masks the more pervasive factors Dr N has identified. In any event, I am entirely satisfied that she lacks capacity to take the interrelated decisions relating to contact with MG, where she should live and the nature and extent of the care she requires.
Hayden J therefore set out the planning process thereafter, including as to how bring about MG’s eviction from LW’s property. He emphasised that this was a:
- […] sensitive situation. The pace of progress will very much depend on LW’s reaction to this judgment. The timescales that Dr N indicated must not be regarded as “set in stone,”progress must be at LW’s own pace. It is LW’s needs that should drive the timetable not the exigencies of the litigation.
- What is envisaged is an order permitting the parties to return to court to submit a finalised care plan. I have no doubt the plan is contrary to LW’s expressed “wishes.” Whether it is contrary to her “feelings” though, remains to be seen.
- Mr Hallin, acting for the NHS Social Care Partnership Trust, observes that neither the Official Solicitor nor the Court lightly goes against the clear and consistently expressed wishes and feelings of an incapacitated person, but here, were I to permit her to return to her flat with MG, I would be exposing her to a regime of insidious controlling and abusive behaviour which is both corrosive of her personal autonomy and entirely irreconcilable with her best interests.
Hayden J also took the opportunity to highlight both the insidious nature of controlling and coercive behaviour and the extreme vulnerability of those lacking mental capacity in facets of their decision making. He drew attention to the definition of domestic violence abuse first published in 2012, as well as the Statutory Guidance pursuant to s.77(1) Serious Crime Act 2015, emphasising those features seen with some frequency by those concerned with the welfare of vulnerable adults:
- Isolating a person from their friends and family
- Depriving them of their basic needs
- Monitoring their time
- Monitoring a person via online communication tools or using spyware
- Taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep
- Depriving them access to support services, such as specialist support or medical services
- Repeatedly putting them down such as telling them they are worthless
- Enforcing rules and activity which humiliate, degrade or dehumanise the victim
- Forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities
- Financial abuse including control of finances, such as only allowing a person a punitive allowance
- Control ability to go to school or place of study
- Taking wages, benefits or allowances
- Threats to hurt or kill
- Threats to harm a child
- Threats to reveal or publish private information (e.g. threatening to ‘out’ someone)
- Threats to hurt or physically harming a family pet
- Criminal damage (such as destruction of household goods)
- Preventing a person from having access to transport or from working
- Preventing a person from being able to attend school, college or University
- Family ‘dishonour’
- Reputational damage
- Disclosure of sexual orientation
- Disclosure of HIV status or other medical condition without consent
- Limiting access to family, friends and finances
At paragraph 22, Hayden J emphasised that the list was not exhaustive:
It does not, for example, include controlling intake of food and nutrition, which was such a striking facet of the evidence here. Abusive behaviour of this kind will often be tailored to the individual circumstances of those involved. The above is no more than a check list which should prompt questioning and enquiry, the responses to which should be carefully recorded so that the wider picture emerges. That which might, in isolation, appear innocuous or insignificant may in the context of a wider evidential picture be more accurately understood.