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R (Chatting) v (1) Viridian Housing (2) Wandsworth LBC [2012] EHC 3595 (Admin)

Judge: Nicholas Paines QC, sitting as Deputy High Court Judge
Citation: [2012] EHC 3595

Summary

A claim for judicial review was brought by an incapacitated elderly woman who lived in accommodation arranged by the local authority for many years under section 21 National Assistance 1948. The housing association who also provided her with care had sought to transfer her care arrangements to a different provider.

Mrs Chatting alleged that the local authority acted unlawfully in failing to act in her best interests when allowing the arrangements to change to a different provider to go ahead. Her intentions were to rely upon the 2010 ‘Prioritising Need’ guidance, which requires councils to follow the principles in s1 Mental Capacity Act 2005. In dismissing the claim Nicholas Paines QC (sitting as Deputy High Court Judge) held that the fact that Mrs Chatting was mentally incapacitated did not mean that the test to be applied was in consideration of what is in her best interests.

Comment

The decision here indicates the importance of distinguishing between what is a question of best interests and what is a question of lawful or unlawfulness in respect of a public law decision. Best interest decision making is reserved for the purpose of making decisions that P, would make her her/himself is s/he did not lack capacity.

Wye Valley NHS Trust v Mr B [2015] EWCOP 60

Judge: Mr Justice Peter Jackson
Citation: [2015] EWCOP 60

The issue for consideration in this case was whether the doctors treating Mr B, a 72 year old with a severely infected leg, had the authority to amputate his foot against his wishes in order to save his life. Without operation it was possible Mr B would die within a few days. Though as Mr B also had long standing mental health that deprived him of the capacity to make the decision for himself, the operation could only be performed lawfully if it was shown to be in his best interests.

The principles by which Mr Justice Peter Jackson had based his decision were those found in the Mental Capacity act 2005 and those established in the authority of Aintree University Hospitals NHS Trust v James [2014] AC 591. In a judgement somewhat sympathetic to Mr B, Peter Jackson J held that it would not be in Mr B’s best interests to perform and operation he so strongly opposed. Peter Jackson J went further to find that it would not be in Mr B’s best interests to ‘take away his little remaining independence and dignity in order to replace it with a future for which he has no appetite.

Peter Jackson J observed that there is a difference between fighting on someone’s behalf and merely fighting them, enforcing treatment would in this case fall within the latter. These were essentially the grounds by which Mr Justice Peter Jackson dismissed the application.

Comment

Whilst it is clear that concern for P’s best interests continue to be the basis for judgments concerning mental capacity, the decision here failed to give direction for the difference as illustrated in Peter Jackson J observations.

Re H, on the application of F and M [2015] EWCOP 52

Judge: Senior Judge Lush
Citation: [2015] EWCOP 52

Summary

This case concerned an application to appoint successive deputies for a young woman aged 26. Senior Judge Lush acknowledged that provisions 16(4)(b) and 19(5) of the Mental Capacity Act 2005 were contradictory as s16(4)(b) envisages that a deputyship appointment will be exercised for a limited duration. Whereas s19(5) facilitates that an appointment could last for decades. SJ Lush found that s16(4)(b) outweighs s19(5) as it is a principle to which the court must have regard when deciding whether it is in P’s best interests to appoint a deputy while s19(5) is merely a discretion conferred upon the Court.

H was born premature and still born. At age 5 she was diagnosed with autism and it was noted that her cognitive functioning and adaptive skills were low. H is an only child that resides in Cambridgeshire with her parents who both act as her carers and handle her affairs and personal welfare. Both H’s mother and father were applying for A, B and C to be successive deputies in the event of their death or ill health. In January 2015, Lush made an order refusing the successive appointment of deputies as he was of the view that it would be in H’s best interests for the Court to defer any succession until after the death of her parents as it the provision would be made so far in advance.

Section1(5) of the Mental Capacity Act 2005 outlines the need for decisions to be made in P’s best interests, though the Act doesn’t define what is to be perceived as ‘best interests’. Both s16(4) and the authority of MK v JK and others [2013] EWHC 4334 (COP) confirm that the decision of the court is preferred to the appointment of a deputy. Despite this SJ Lush was satisfied that deputyship was both necessary and preferable to the court making several ongoing decisions about H’s affairs and personal welfare. Although in this case the balance sheet had disadvantages that much outweighed the advantages SJ Lush granted a successive deputyship to provide H’s parents with peace of mind.

Re NRA & Ors [2015] EWCOP 59

Welfare orders concerning deprivation of liberty.

Judge: Mr Justice Charles
Citation: [2015] EWCOP 59

Summary

In this case, Mr Justice Charles, the Vice President of the Family Division considered that the three things that needed to be done in any welfare case were to:

i. Elicit P’s wishes and feelings and make them known to the Court without causing P unnecessary distress;
ii. Critically examine, with P’s best interests in mind, and with a detailed knowledge of P, the pros and cons of the proposed care package and whether it was the least restrictive available option;
iii. Keep the implementation of the care package under review and raise points relating to it and to changes in P’s behaviour or health.

In doing so Charles J drew on his long standing experience in the Family Division to conclude that family members, particularly those who had cared for P and fought their corner for a substantial amount of time, would in general be the best placed to fulfil the three tasks above. With that being the case, he considered that the means exercised by the family member made no difference, thus they could advocate in their own right, do so as a litigation friend for P, or act as P’s Rule 3A representative.

In light of this conclusion, Charles J had the unenviable task of departing from the vigorous logic of a unanimous Court of Appeal in Re X that, for the reasons given in that case, Article 5 required the joinder of P as a party in all cases involving a deprivation of liberty. Charles J did so by holding that had been a failure by the Court of Appeal in Re X to properly appreciate that, first, joining P as a party in all cases was unworkable in practice and so did not provide the practical and effective procedural safeguard sought and, second, that welfare cases in the Court of Protection were to be distinguished from all other deprivation of liberty cases in that the determinative issue in such cases is not whether P should be deprived of their liberty, but whether a particular arrangement is the least restrictive option in their best interests.

The issue for the Court in Re NRA concerned the problem with which the Court of Protection continued to face following the judgment made in Re X. As such a system was still needed in which P had Article 5-compliant procedural safeguards in cases involving a deprivation of liberty; but those safeguards had not to be not so onerous that they diverted resources away from frontline services, caused unnecessary interventions in the lives of P and those who care for P, or resulted in so much delay that they no longer provided a practical and effective procedural guarantee after all.

Charles J considered that it would be an improvement to the forms if they required the key provisions of the care package to be summarised, and the questions currently asked in the form to be answered by reference to that summary. The summary should in particular include the level of supervision (1:1, 2:1 etc), the periods of the day when supervision is provides, the use or possible use of sedation or restraint, the use of assistive technology, and what would happen if P were to try to leave. In his opinion the form was also in include a further 14 sub criteria. He also extended the application of Re X in considering the outcome of situations where no family member was available. In recognising the need for some degree of independent scrutiny of the local authority’s arrangements, Charles J had considered that where there is a scarcity of such scrutiny the essential procedural safeguards for P would probably be absent.

His solution, ultimately, is that such scrutiny is to be provided by the Courts. Judges considering such applications should observe the absence of a family member, and seek instead to obtain further (independent) information by ordering s.49 reports and making witness summonses.

Comment

We appreciate the concerns expressed by Charles J and his attempt to provide a practical solution to the logistical difficulties that the judgment of Cheshire West and Chester Council v P and another (Same intervening) [2014] UKSC 19 [2014] AC 896 has caused. However his judgement is heavily policy driven and raises the question as to whether the Court is the best placed body to make policy decisions.

Whist Re NRA has led to a reintroduction of the Re X process, the extent of this modification remains unclear. Given the explicit differences of interpretation between the Court of Appeal in Re X and Charles J here, the question of whether P should be joined as a party remains wide open. It is therefore unlikely that Re NRA is to be the last discussion on a case of this nature.

Re Peter Jones [2014] EWCOP 59

The importance of ‘best interests’ in statutory wills.

Judge: District Judge Eldergill
Citation: [2014] EWCOP 59

Summary

This case concerned an application, under s18(1)(i) of the Mental Capacity Act 2005 for authority to execute a statutory will on behalf of P. District Judge Eldergill heard the application and brought to the attention of the court the need to ensure P is seen to 'do the right thing'.

DJ Eldergill noted that in Re M, ITW v Z & Ors [2009] EWHC 2525 (COP), the President did not on the basis that it was somehow the right thing to do, make provision in the statutory will for a legacy for J - who was the only person to have maintained a relationship with M and who continues to visit and telephone her. In so deciding, a 'particularly compelling feature' was that J: "would be gaining a benefit which M, while she had capacity, felt that he did not need and which, it would seem, she still thinks he does not need. How can it be in her best interests to go counter to such long-held views? The only proper answer, it seems to me, would be if it could be said that giving him a legacy was either an appropriate reward for what he is now doing for M or an inducement to him to do more for her; but neither, in my judgment, can be justified in the circumstances as they exist (at para. 57)."

DJ Eldergill ordered the execution of a statutory will that left 75% of P's estate to his wife and 25% to his daughter with a substantial advancement by way of a lifetime gift (broadly following suggestions made on P's behalf by the Official Solicitor.

Comment

Although a decision which strictly, has no precedent value, we anticipate that, as with many other decisions by District Judge Eldergill, both practitioners and members of the judiciary will refer in future to the clear summary of the law at paragraphs 62-68. We suspect the ringing statement at paragraph 65 is likely to feature in many a training session.

Paragraphs 72-75 will also, we suspect, be pored over as we grapple with what the Convention on the Rights of Persons Disabilities means when it demands that we ensure ‘respect for the rights, will and preferences’ in any legal procedures invoked in relation to persons said to be unable to take their own decisions (as to which see Re NRA case note).

The Commissioner of Police for the Metropolis v ZH (by his litigation friend, GH) and (1) Liberty, (2) Equality and Human Rights Commission (Interveners) [2013] EWCA Civ 69

The practical application of the Mental Capacity Act in emergency situations.

Judge:
Citation: [2013] EWCA Civ 69

Summary

ZH was a 16 year old boy with both autism and learning difficulties, who was standing near water at a public swimming pool fixated by it. The police failed to consult with his carer prior to proceeding to handle with the situation, which caused ZH to jump into the water. He was then subsequently detained in the back of a police van with handcuffs and leg restraints. The Court of Appeal upheld amongst other things that the police were liable for the failure to make reasonable adjustments under the Disability Discrimination Act 1995, thus had the police consulted the carer ZH would not have jumped. The Court did however acknowledge that in emergency situations it may not be practicable and appropriate to consult before acting.

Comment

This case highlights the importance of consulting and taking into account the views of the carer of a person lacking mental capacity before exercising action where it is both practicable and appropriate.