Mental Capacity Case

Re Clarke

Peter Jackson J

Summary: These three cases are reported together. They bear note not so much for any principles to be derived from them, but as a (relatively rare) insight into the management by the Court of a contested property and affairs application, an insight granted by virtue (if such is the word) because whilst the proceedings took place in private, "the manner in which [the applicant] Mr Michael Clarke has breached his mother's entitlement to privacy has been so comprehensive and long-standing that nothing is now to be gained by delivering the judgments in private for Mrs Clarke's benefit. On the contrary, in the light of Mr Michael Clarke's conduct, it is better that the court's reasons are made known" (judgment of 9.10.12 at paragraph 4).

Mr Clarke sought to discharge the property and affairs deputy appointed on behalf of his mother, who had received some time previously a substantial sum of damages in compensation for injuries sustained in road traffic accident (including brain injuries). By the time the matter came before the Court, she had one substantial asset, a property in Blackpool, and her remaining free capital had in effect run out; her income consisted of a state pension and DLA, together with payment of a household allowance and living expenses from her capital fund. Her son, with whom she lived for most of the time in Spain in rented accommodation, was receiving c. £60,000 p.a. for care he was providing to her, although this sum was reduced in late 2011 because the current level of expenditure was deemed to be unsustainable by the Deputy. This led (Peter Jackson J drily noted) to an 'escalation' in the internet campaign that Mr Clarke had started to wage against the Deputy, the Office of the Public Guardian and the Court of Protection, and (it appears). Subsequent to the issue of proceedings, Mr Clarke's activities had escalated to the point where the Deputy had obtained an injunction restraining him from further harassment of the Deputy or his firm. The application to discharge the Deputy was resisted by Mr Clarke's other children on the basis that if she were not protected, he would spend her money on himself. He filed counter allegations against his siblings and the Deputy.

Expert evidence was directed by way of a s.49 MCA 2005 report as to Mrs Clarke's capacity (inter alia) to (1) manage her benefits; (2) make a will; and (3) decide whether to retain or sell the property in Blackpool. That evidence tallied with earlier evidence obtained (it is not clear by whom) by a consultant clinical psychologist to the effect that Mrs Clarke had the ability to make a will; there was apparent divergence on other matters.

At the hearing in July 2012, Peter Jackson J declined to embark upon a wide-ranging investigation of the issues between the family members or between Mr Clarke and the Deputy as being inconsistent with the overriding objective in Rule 3 COPR 2007. He also declined to embark an attempt to narrow the issues in dispute between the doctors by way of requiring a meeting between them and/or putting further questions to them; rather, he moved straight to a consideration of whether Mrs Clarke had the capacity to take the three decisions which arose at that stage.

At paragraph 35 of his July judgment, Peter Jackson J declined to find whether or not Mrs Clarke had capacity to manage her benefits, because he considered that it was in any event clear that it was in her best interests that they be managed on her behalf by her carer, who happened to be Mr Clarke. He found that she did have capacity to make a will, albeit that (as with the s.49 expert) he could "not exclude the possibility that Michael Clarke exerts influence on Mrs Clarke, but I do not find that this currently invalidates her general testamentary capacity. Whether any particular will that she may make could subsequently be challenged is not a matter for this court at this time" (paragraph 36). He found, by contrast, that she lacked the ability to weigh up the financial and welfare risks involved in each of the courses of action implicit in the decision whether or not to sell the property in Blackpool (paragraph 38). He found that he could not decide at that point whether to order a sale of the property in Blackpool because he did not have sufficient information before him. He therefore directed further evidence to be filed upon Mrs Clarke's best interests as regards the sale of the property and how her future income and housing needs were to be met.

Peter Jackson J considered the matter further in early October 2012. In the interim, a will had been prepared which (as he noted at paragraph 21) "[bore] the hallmarks of having been prepared by Mr Michael Clarke," contained provisions "designed to prevent the sale of the property during Mrs Clarke's lifetime and to ensure that it comes into the hands of Mr Michael Clarke upon her death" (paragraph 21). The Deputy and the other children wished the property to be sold (placing reliance upon observations made by Senior Judge Lush in Re JDS to the effect that it is not the function of the Court to "anticipate, ring fence or maximise any potential inheritance for the benefit of family members upon the death of the protected party." Mr Clarke firmly opposed the sale of the property.

Peter Jackson J noted that there was no satisfactory solution to the present situation, in which "the difficulty of identifying where Mrs Clarke's best interests lie is compounded by the family situation. For better or for worse, Mrs Clarke's future is inextricably bound up with Mr Michael Clarke, whose strident voice threatens to drown out all others" (paragraph 30). He noted that, if it were a purely financial question, the case for the sale of the property would be unanswerable. However, because the property was not merely an asset but was also (even if for only part of the time) a home for Mrs Clarke and Mr Clarke, as her carer, a sale would lead to the loss of their home. That outcome could not be justified from Mrs Clarke's perspective unless it was apparent that her daily needs were not in fact being met. Whilst Peter Jackson J found that the figures before him were not encouraging as regards the making up of a gap between her income and her outgoings, he did not consider that it was right at the present time to order her to sell her home to make up an income shortfall which could be made up in other ways. He noted that Mr Clarke would have the opportunity to manage her finances and to support her, but that if her way of life were to be deteriorating unacceptably as a result of inadequate income, a fresh application could be made for the sale of the property. He noted, though, that:

"38. Whatever the side-effects of my decision, it is no part of my purpose to 'anticipate, ring-fence or maximise any potential inheritance for the benefit of family members'. Not can my decision be influenced by the dismay of the other family members that Mr Michael Clarke's questionable sense of entitlement to his mother's property has, at least at this stage, prevailed. I have been guided only by my assessment of Mrs Clarke's best interests at the present time."

In light of his conclusion as to Mrs Clarke's best interests, Peter Jackson J directed that the Blackpool property not be sold or charged during her lifetime without an order of the Court; the deputyship being redundant in the circumstances, he therefore discharged it.

The family members other than Mr Clarke and the Deputy then made an application that their costs be charged to Mrs Clarke's estate. Mr Clarke asked the court to postpone a decision and in the interim to make orders for disclosure and for the production of further accounts by the Deputy and the Office of the Public Guardian. He opposed the other parties' applications.

Declining to depart from the general rule in property and affairs cases (Rule 156), Peter Jackson J noted that:

"5. In this case there is no basis for departure from the general rule. My overall conclusions in relation to Mrs Clarke's capacity did not favour any party. While a sale of the Blackpool property has not been ordered at this time, the manner in which Mr Michael Clarke has conducted the proceedings more than wipes out any weight that might be attached to that factor. I identify his use of his mother's case as a vehicle for his political views, his aggressive disrespect towards anyone with whom he disagrees, and his complete lack of regard for his mother and family's right to privacy.

6. In contrast, the conduct of the proceedings by the family members and the Deputy has been entirely reasonable in trying circumstances. Their costs shall be charged to Mrs Clarke's estate and become payable upon her death."

Comment: As noted above, this case is of interest not because of its outcome, but rather as an insight into the management of an application which (regrettably) is not entirely unusual in either the issues raised or in the attitude adopted by a litigant in person. Reading between the lines of the three judgments, it is clear that this was a case in which the patience of the Court was sorely tried, and that it was not without a very considerable degree of reluctance that Peter Jackson J came to the conclusion that he did as to where Mrs Clarke's best interests lay as regards the sale of the property in Blackpool.

One minor point to note in passing is that Peter Jackson J presumably did not approach questions of the management of Mrs Clarke's benefits on the basis that he had any jurisdiction to decide who should be her appointee to receive them on her behalf. Contrary to something of an urban myth, the Court of Protection has no jurisdiction to make such a decision, which lies solely in the gift of the DWP (whose guidance upon the question of appointeeship can be found at: