Avon and Wiltshire Mental Health Partnership v WA
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 16 July 2020 |
| Neutral Citation | [2020] EWCOP 37 |
| Date | 16 July 2020 |
| Docket Number | Case No: 13617268 |
| Court | Court of Protection |
[2020] EWCOP 37
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 13617268
and
Ms Fiona Paterson (instructed by Bevan Brittan) for the 1 st Applicant
Mr Neil Davy (instructed by DAC Beachcroft LLP) for the 2 nd Applicant
Ms Katie Scott (instructed by Miles and Partners) for the Respondent
Ms Emma Sutton (instructed by the Official Solicitor) as Advocate to the Court
Hearing dates: 6 th, 7 th, 8 th, 9 th July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
This judgment was delivered following a remote hearing conducted on a video conferencing platform and was attended by members of the public and the press. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the names and addresses of the parties and the protected person must not be published. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This application is brought by both the Avon and Wiltshire Mental Health Partnership (AWP) and the North Bristol NHS Trust (NBT). The first applicant is primarily concerned with questions relating to capacity, they provide a psychiatric liaison service to the relevant hospital, which is run by NBT. The second applicant presents for the court's scrutiny a Clinical Treatment Plan, which it contends is in the best interests of WA, the protected person at the centre of this litigation.
In 2009 WA claimed asylum in the United Kingdom. Notwithstanding a substantial and compelling body of evidence in support of his application, it was initially refused. However, an appeal to the First Tier Tribunal reversed the decision and WA was permitted to remain, initially as a refugee, for 5 years. Thereafter, he was granted indefinite leave to remain (23 rd July 2009). WA had escaped from his native Palestine where he reports having suffered sustained physical abuse by members of Hamas in consequence of his refusal to act as a suicide bomber. It is said that his Grandmother had been able to provide a bribe to a Hamas soldier to facilitate WA's escape. His Grandmother was also able to finance and arrange for WA to leave the country. He travelled to Italy, where he initially claimed asylum. In Italy, WA and one other boy were allocated a foster carer. That proved to be a disastrous placement, both boys were physically and sexually abused and the other boy was ultimately killed, having been kicked to death by the foster carer. There is a good deal of corroborative material to support these accounts, not least evidence of extensive injury, including stab wounds and a crudely amputated index finger. WA has suffered post-traumatic stress disorder and depression. It is important that I record that I find his account of his early life substantially reliable. To the extent that there may be any inconsistences I do not consider that is a consequence of any dishonesty. I find WA to be open, sensitive and honest.
In 2009 WA was placed with foster carers in the United Kingdom. The carers, Mr and Mrs DT are a West Indian couple in their mid-fifties. It seems to me that they bonded almost immediately with WA and welcomed him to their family as a member of their family. WA still lives with them, now eleven years later. He refers to them as “Mum” and “Dad.” Their own birth children he regards as his siblings and his two Grandmothers take obvious delight in him. They are a close and supportive family and the love, commitment and patience shown by Mr and Mrs DT is both impressive and humbling. During the course of evidence Mr DT described an incident which plainly remains vivid to him, though it occurred shortly after WA joined the family. He told me how WA had been a little slow to come to the dinner table when called. Mr DT used a stronger voice than his usual one to call WA again. He was not shouting or angry, but firm. Nonetheless, this was sufficient to cause WA to dive under a coffee table, curl into a foetal position and urinate. Though he had no real cause to, I sensed Mr DT still felt guilty about this incident. The couple told me that it was a turning point for them. They realised that they would have to treat WA with heightened sensitivity and care.
At some point after his arrival in the United Kingdom, WA was referred to the local Children and Adolescent Mental Health Services (CAMHS) who diagnosed Post-Traumatic Stress Disorder (PTSD) and depression. Those diagnoses have been modified and refined in the years that followed. The labels are probably irrelevant, what is clear though and was surely inevitable, is that WA continues to suffer significant psychological distress from the awful traumas that he has endured.
WA believed that he was 14 when he was placed with his carers. An initial age assessment undertaken by Gloucestershire County Council confirmed this. However, it was considered that the assessment had not been sufficiently rigorous and two further age assessments were commissioned. WA had been told by his Grandmother before he left Palestine that his date of birth was 29 th December 1994. The subsequent age assessments concluded that WA was five years older than he believed himself to be. The Home Office determined that WA's date of birth should be 19 th April 1989. It is this date that now appears on WA's biometric records.
From one perspective it might be thought that the impact of this bureaucratic decision might have diminished in WA's thoughts over the last decade and perhaps become little more than a frustrating and upsetting irritation. That has not happened. For WA the removal of his date of birth is perceived as a fundamental violation of his own rights and an assault on his identity. As a prisoner in Palestine and a victim of physical and sexual abuse in Italy, WA experienced the complete negation of his autonomy at a stage in his childhood and adolescence where he might otherwise have started to explore it. Having listened to him, his parents, the psychiatrists and psychologists, during the course of this hearing, it is clear that WA experienced the change of his date of birth as effectively abusive. It triggered, I have been told, the vivid memory of his powerlessness in the instances of childhood trauma that I have summarised above.
Professor Jennifer Wild, whose evidence I will consider below, was of the strong view that the child sexual abuse is the prevailing trauma for WA. She told me that in the context of his life in Gaza, WA knew and understood Hamas to be his enemy who might oppress and torture him. By contrast, the physical and sexual abuse in Italy was perpetrated by somebody who had been trusted to nurture and protect him. The violation in these circumstances was compounded by the breach of trust. WA was entirely powerless. Paradigmatically for victims of such abuse, WA coped by disassociating himself from his circumstances. The psychological trauma which though abated still continues, does not centre upon violent assault or the physical pain which WA undoubtedly suffered and which the scars on his body are ever present reminders, it is his sense of powerlessness and loss of autonomy in the face of forces which he could do nothing about and which continue to compromise his psychological wellbeing. All the psychologists agree with this analysis.
Mr and Mrs DT communicated what I consider to be an identical perspective, expressed in the simple and clear language of instinctively good parents. Each in their different ways emphasised WA's challenges when he confronts controlling individuals or bureaucratic institutions which are, perhaps necessarily, inflexible. When she began her evidence in chief Mrs DT asked if she might read a short statement she had prepared. She told me that she wanted me to understand WA “as a person.” I consider it appropriate to set this short statement out in full:
“[WA] is a kind and gentle man, who is considerate, thoughtful and endearing.
He puts other people before himself, sometimes I wonder who is looking after who.
He has helped many people in the community, helping where he can, small jobs etc.
He is someone that holds and stands by his beliefs and values.
He works hard at anything he sets out to do, doing well and putting great effort into it.
He is honest and does not like dishonesty, he is clear on what is right and what is wrong.
He does not cope well with overbearing controlling people, who come across as threatening or want to impose their will or dominance on him.
He does not like discrimination in any form.
We do not want [WA] to be stuck in a system when he has the ability to recover and move on in his life.
We do not want [WA] to be treated at any cost.
We believe that [WA] will be able to go on and lead a full and fulfilling life.
[WA] has great potential.
We also believe that a DOB is everyone's right of passage.”
The Court of Protection is a senior court of record, regulated by the Mental Capacity Act 2005 (MCA). Manifestly, it does not have the power to review the fairness or rationality of decisions taken by public bodies. During the course of this hearing, a significant number of members of the public have been sitting in, remotely. By this I mean they have...
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