Judge: Moor J
Citation:  EWHC B23 (COP
Summary: Mr B applied for contact with his wife, Mrs B, who was 70 and suffered from very advanced Alzheimer’s disease. She had been in hospital since June 2012 but the relevant Health Board had not permitted her husband to visit her. Mr B sought declarations that the Health Board had acted unlawfully in depriving him and/or his wife of the right to a family life and the right to freedom of assembly and association and as well as an order directing the Health Board to afford him access to his wife, information about her care and damages. All aspects of Mr B’s application were dismissed.
Moor J found that Mrs B had expressed a clear wish to separate from and subsequently divorce Mr B (having moved out of their shared home in November 2010), and had no wish to see him or have him involved in her care. Moor J was satisfied that these were her own wishes reached of her own accord and there was absolutely no evidence to support Mr B’s claim that she had been subject to undue influence by her children from a previous marriage. Moor J also accepted expert evidence that, although Mrs B was assessed in December 2012 as lacking the capacity to make decisions concerning her care and circumstances, she retained the capacity to make an Advance Statement in December 2011, stating that she did not want Mr B contacted if she became unwell and, if she went to hospital and was discharged, she wanted to return to live with her daughter and did not want to live with Mr B.
Moor J took into account that Mrs B had issued divorce proceedings in May 2011, which were later stayed by DJ Dawson because she lacked the capacity to litigate the divorce. He found that, if it had not been for her lack of litigation capacity, on the balance of probabilities, her divorce petition would have been concluded with a decree absolute dissolving her marriage to Mr B.
Moor J concluded that the Health Board was entirely right to act in accordance with her previous wishes after she lost capacity and, indeed, took the view that the Health Board had no alternative in light of her Advance Statement, citing the judgments of Munby J in Burke v The GMC  EWHC 1879 (Admin) and HE v A Hospital NHS Trust  EWHC 1017 (Fam). Moor J went on to say (at para 39):
“I do however accept that I now have jurisdiction in relation to Mrs B pursuant to my role as a Judge of the Court of Protection. I could, in theory, make a different determination based on Mrs B’s best interests. In deciding what is in her best interests, however, I take the clear view that her wishes and feelings as clearly articulated in her Advance Statement are absolutely central to the matter. There would have to be some extremely compelling reason to go against such clearly expressed wishes. Moreover, in this particular case, I am absolutely satisfied that there is no such reason at all.”
Comment: It is likely, on the facts of this case, Moor J would have reached the same conclusion even without Mrs B having made an Advance Statement, as numerous witnesses gave evidence that she clearly and consistently indicated that she wished to end the marriage and did not wish to have anything more to do with Mr B. Despite this, the great weight that was given to the Advance Statement in the best interests analysis underscores the importance of individuals, especially those who are vulnerable or do not wish to have contact with members of their family, making such a statement while they still have the capacity to do so. Whilst such statements do not have the same formal statutory place as advance decisions to refuse medical treatment, they must be taken into account by virtue of s.4(6)(a) MCA 2005. Further, as this case indicates, they can – and should – serve as powerful tools by which individuals can seek to secure future respect for their capacitous decisions.
As a practice point, Moor J was critical of orders made earlier in the proceedings. Commenting on an application made by Mr B – on without notice basis – in November 2010 for an order for the immediate return of his wife to the family home, Moor J said “I do not understand why the application was made without notice. It appears that an order was made that [Mrs B’s daughter] make Mrs B available for collection and return. Having heard the case in full, I am quite satisfied that the order made was not the order that should have been made. It shows the dangers of without notice applications.”