BS
| Jurisdiction | Northern Ireland |
| Judgment Date | 18 February 2009 |
| Date | 18 February 2009 |
| Court | High Court (Northern Ireland) |
Court and Reference: High Court (NI), Fam Div, STE7418
Stephens J
Whether an order should be made requiring submission to a medical examination to assess capacity to manage affairs.
BS, who was aged 88, lived in a nursing home because of a damaged arm. She believed that she was capable of looking after her affairs, as did her son KS; her daughter, took a contrary view, believing that BS was confused, had short-term memory loss, appeared not to appreciate the value of money and was swayed by transitory events. In June 2007, Dr U, a consultant psychiatrist, found that BS had capacity to execute a will and an Enduring Power of Attorney and to manage her affairs; he maintained this view when he assessed her again in November 2007. In October 2007, Dr B, BS's general practitioner, wrote to her solicitors that there was no evidence of dementia. However, also in November 2007, Prof A (who had seen BS in September 2007 to assess whether she should receive medication for dementia, at the request of Dr T) expressed concern about BS's ability to manage her affairs and suggested a referral to the Office of Care and Protection in Northern Ireland; he also completed a certificate expressing the view that she was incapable of managing her affairs. In March 2008, SR sought the appointment of a Controller (Art 101 Mental Health (NI) Order 1986). In April 2008, Dr U again assessed BS and found her to have capacity. In August 2008, AB, who was BS's financial adviser, indicated that she appeared able to manage her affairs, having a general understanding of her finances. SR sought an order that BS be subject to a medical examination in relation to the application to appoint a Controller, which BS opposed.
Introduction
[1] The lady who is the subject of these proceedings, BS, is now aged 88. She resides in a nursing home and has done so for a period of approximately 3 years. Her arm was badly fractured in a fall and it has never healed sufficiently to enable her to have full use of it again. She is no longer able to live alone due to that physical restriction and the assistance that she requires as a result. She is still able to enjoy foreign holidays going for instance to the Mediterranean in July 2008. Her husband, a successful businessman, died over a decade ago. BS has a son and a daughter who for the purposes of this judgment I shall refer to as KS and SR (the daughter having married TR). Unfortunate differences have arisen between KS and SR as to whether their mother BS is capable of managing her own affairs. KS believes that she is but SR believes that she is not. SR would however accept the outcome, whatever it may be, of an independent medical examination. BS for her own part believes that she is capable of looking after her own affairs.
[2] SR has applied to the court under ArticleArt 101 of the Mental Health (NI) Order 1986 and pursuant to Order 109, Rule r4(1) of the Rules of the Supreme Court (Northern Ireland) 1980 for a Controller to be appointed in respect of her mother's affairs. BS is the respondent to that application. KS is a notice party. In the course of that application SR has sought an Order pursuant to OrderOrd 109, Rule r45, of the Rules of the Supreme Court (Northern Ireland) 1980 that her mother attends for a medical examination. It is the application for a medical examination which I have to determine. BS opposes that application contending that the court in the exercise of its discretion should not order a medical examination and that such an examination would amount to an interference with respect for her private life under ArticleArt 8 of the European Convention on Human Rights.
[3] Ms Grattan appeared for SR and Mr Horner QC and Mr Colmer appeared for BS. I am grateful to counsel for their careful preparation of the case and their well-marshalled written and oral submissions. KS though represented in relation to the substantive proceedings and on notice of this application before me, was not represented in relation to it and played no part in it except to file an affidavit on the morning of the hearing.
Factual Background
[4] I should say at the outset that there is great deal of resentment and bitterness involved as between KS and SR. This has spread to involve SR's husband, TR and their daughter EF together with other members of BS's extended family. The factual evidence has been by way of affidavits with the most recent affidavit being filed on the morning of the hearing before me. It is not necessary for the purposes of the present application to come to any final conclusion in relation to the factual disputes as between KS and SR. The factual summary which I set out is a summary for the purposes of this application only and not otherwise.
[5] BS is a wealthy woman with assets of approximately 3 million. She has a financial adviser AB and solicitors C & D.
[6] In July 2005 BS executed a Will and an Enduring Power of Attorney. Both of her children KS and SR were to be her attorneys.
[7] SR has been concerned for some time as to confusion and loss of short term memory on the part of her mother, BS. SR has deposed to various illustrations of her mother's deteriorating condition including an inability to appreciate the present day value of money and forgetting to write cheques and forgetting appointments.
[8] On 10 January 2007 BS had a meeting with her financial adviser AB. He noted that during that meeting BS could not recall receiving a sum of 48,000 being the proceeds of a recent sale of property. She also did not recall a previous discussion she had had with AB, her financial adviser, as to gifts that should have been made to KS and SR at Christmas as part of inheritance tax planning. Finally she could not recall signing papers in relation to another investment. Included in AB's note of that meeting was a reminder to contact BS's son, KS, to get a copy of the Power of Attorney from BS's solicitors. AB also suggested to BS that her son and daughter KS and SR should attend client meetings from then on. BS was content that they did so.
[9] At this stage KS and SR had similar views as to the steps to be taken in relation to their mother BS. They would both be her attorneys in the event of her incapacity under the Enduring Power of Attorney. They were both aware of and involved in the decision taken by BS at the start of 2007 to sell her bungalow. It may be that SR's decision to allow the sale of the bungalow to continue despite her...
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