Mental Capacity Case

An ICB v G & Ors

Hayden J

This is the latest episode in the long running and highly contested proceedings concerning G, a 29-year-old woman, suffering from a profound, degenerative neurological condition.  The earlier judgments can be found at [2021] EWCOP 69) (judgment on 13 December 2021 when G was still living in a Childrens Hospital) and [2022] EWCOP 25 (Court of Appeal judgment regarding injunctive relief). 

This judgment is the culmination of a fact-finding hearing that took place over 19 days between July and November 2023. The evidence before the court was extensive, including a 17-page Scott Schedule produced by the ICB with a 9 page counter-Scott Schedule of countervailing allegations of negligence or malpractice, prepared by LF (G's father’s team). The judgment runs to 213 paragraphs. A summary of the highly detailed findings on the disputed factual allegations is beyond the scope of this report, but it is important to note that the allegations made against the family were extremely serious and included allegations that they had tampered with G’s equipment including her ventilatory support.

Hayden J observed that 

42. Scott Schedules have been prepared in this case because they were considered to be the appropriate framework by which to attempt to marshal a very large body of evidence, requiring scrutiny of human behaviour as well as extensive documentation. However, I consider that the reservations expressed about Scott Schedules, in the Court of Appeal, have clear resonance in this case. What I find myself evaluating is an alleged course of behaviour, manifested in different ways and contested to varying degrees. A great deal of the behaviour in focus relates to interactions between the staff and the family but some of it concerns specified allegations of covert tampering with G's ventilation equipment. Additionally, as I have mentioned, there is a schedule, prepared on behalf of LF, setting out allegations of general negligence against the care home (CH).
43. The Court of Appeal recognised that specific pleading of individual incidents in Scott Schedules, in family cases, might too easily divert the focus from the important broader picture and serve, paradoxically, to minimise the seriousness of the allegations by severing them from a course of conduct. The alternative options, however, are elusive. One of the suggestions made involved creating "narrative statements" which it was submitted, would allow there to be consideration of the overall nature of the relationships in focus. It was advanced that such an approach would allow the court to identify the real character of the allegations before then going on to look at the "granular detail". I recognise that the structure of the allegations here is steeped in 'granular detail' and also runs the risk of occluding the significance of the totality of the alleged behaviours and their impact, on both sides. Ms Roper KC, on behalf of the Official Solicitor, suggests that the Court should approach its judgement by "narrative" findings based on an adaptation of the model discussed above. I am not sure whether my judgment reflects Ms Roper's aspiration but I have endeavoured to address the overall picture emerging from the broad evidential canvas as well as its individual parts.

Hayden J (unsurprisingly perhaps) decided that it was not ‘necessary or proportionate’ to address each and every alleged "breach" in the Scott Schedule, going on to say [t]hat would serve merely to expand this already extensive judgment and further to feed into the high-octane 'lawfare' that this case has become and which I am resolved to stop” (paragraph 195)  What he did do was identify and then consider the ‘key incidents’. This approach allowed the court “properly to evaluate the nature and extent of any future risk and provide a foundation for a forensically objective evaluation of G's ‘best interests,’ predicated on a substratum of determined facts as opposed to allegations” (paragraph 195). 

Ultimately the ICB proved their case in relation to the key incidents.  Hayden J found (amongst other findings) that LF had engaged in a “pattern of sustained, controlling and bullying behaviour’ which had caused ‘a wounding psychological impact’ on the staff at G’s nursing home” (paragraph 207).  The Court dismissed the countervailing allegations made regarding the key incidents as being entirely without substance.

The last paragraph of the judgment raises an issue that will be familiar to many of us who practice in this area:

The court itself has become a theatre of conflict. The family's enthusiasm for litigation, as I find it to be, is a different facet of their behaviour within the care home and earlier in the hospital. It is disruptive, calculated to cause distress. It has, at times, degenerated into 'lawfare' and rather than promoting G's welfare, the court process risks becoming inimical to it.

Quite what that this judgment means for the contact arrangements for G in the future is difficult to know. 
Of wider interest are the paragraphs relating to the approach to Scott Schedules noted above, and paragraph 22, which addresses the matters that the  court should consider when deciding whether or not to undertake a fact-finding in the Court of Protection. 

For my part, I do not think that in this sphere of law, they have quite the same practical utility that they can have in the Family Court. In the Court of Protection, the range of welfare options for P is frequently very limited and unlikely to vary very much in response to a shifting factual matrix. In determining whether a fact-finding hearing should be convened, Judges must consider, rigorously, what real purpose it is likely to serve i.e., from the perspective of informing decisions relating to P's welfare. Such hearings are inevitably adversarial and invariably generate further hostility. This is inherently undesirable. Delay in reaching conclusions is inimical to P's best interests. In a very pressing and literal way, time is often not on P's side. Delay can only be justified if it is identifiably purposeful. 

The factors in this case that persuaded Hayden J that a fact-finding was required were the gravity of the allegations, the nature of the family's responses and the ‘clear resonance for the central welfare issues i.e., as to where G will live and whether or to what extent it will be in her best interests further to promote her relationship with her family” paragraph 22).  This was because this was a family who (at paragraph 209) Hayden J considered could ‘soothe and comfort’ G in a way that only a parent could, and who when alone with G in the community, provided exemplary care to her. It was therefore their conduct in and around G’s placement that gave rise to the very serious risk of harm to G (both physical and psychological), and risked the breakdown of her highly specialised placement. It is inevitable in such circumstances that the court must have a firm factual foundation on which to assess best interests.