Mental Capacity Case

HN v FL & Hampshire County Council

(DJ Ralton)
[2011] EWHC 2894

Summary: HN was the sister of FL, who suffered from multiple sclerosis and lacked capacity to make decisions about her care, residence and contact with others. There was, as the judge observed, an intractable dispute between HN and the local authority as to whether the current care home, where FL had lived for some eight years, was capable of looking after FL properly, and tensions between the care home and HN had led to restrictions being imposed on her visits and interaction with FL. There had been two previous sets of proceedings in the Court of Protection - cancelling HN's power of attorney for financial affairs, and welfare proceedings concerned with care, residence and contact which had culminated in 2009 a consent order. The disagreements between HN, the care home and the local authority had continued, despite the consent order, and when the matter was eventually returned to court by HN, DJ Ralton agreed that a fact-finding hearing was necessary. After a four-day hearing, the local authority was successful, and District Judge Ralton found that HN had undermined FL's placement at the care home and breached the 2009 Order. She had been 'so determined to ensure that her opinion prevails that she [had conducted] herself vexatiously in her sister's affairs' including by waging a campaign of 'groundless complaints'. An Order was made which provided that it was in FL's best interests to remain in the care home and for there to be restrictions on HN's contact with her, supported by penal notices. The judge noted that while the ethos of the MCA was a collaborative approach to best interests decision-making, the Court would step in to resolve disputes if necessary, ideally with as little intervention as possible.

Comment: This case is not unusual, but is a reminder that where there has been a total breakdown in the relationship between a care home or local authority and a family member, 'agreed' orders may not be effective long-term solutions, and a fact-finding hearing may be essential. The case was also of interest because the Independent was granted permission to attend and report on the proceedings, which they duly did in a very balanced and accurate manner. This was the first welfare case in which the media was permitted to attend and report on private proceedings where P's identity was not to be disclosed.