MASM v MMAM (by her litigation friend, the Official Solicitor) (1st Respondent) MM (2ndRespondent) London Borough of Hackney (3rd Respondent) Homerton University Hospital NHS Foundation Trust (4th Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 29 January 2015 |
| Neutral Citation | [2015] EWCOP 3 |
| Docket Number | Case No: 11680949 |
| Court | Court of Protection |
| Date | 29 January 2015 |
[2015] EWCOP 3
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: 11680949
Mr Nicholas Elcombe (instructed by Rudlings & Wakeham Solicitors) for the Applicant
Mr John McKendrick (instructed by Bindman Solicitors instructed by the Official Solicitor) for the 1 st Respondent
2nd Respondent (Unrepresented)
Mr Rhys Hadden (instructed by London borough of Hackney) for the 3rd Respondent
Mr Peter Mant (instructed by Bevan Brittan LLP) for the 4th Respondent
Hearing dates: 21 st July 2014 & 30th October 2014
This judgment was delivered in private. 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 anonymity of the children and members of their family must be strictly preserved. 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.
It is not necessary for me to burden this judgment with anything greater than an outline summary of the background history. The point the case raises is a short but important one: namely the legal status of declaratory orders in the Court of Protection and the consequences, if any, for deliberate defiance of them.
The Background
These proceedings were brought pursuant to the Mental Capacity Act 2005 and concern Mrs MMAM who is now 76 years of age. Although it is not possible to be entirely precise, it seems likely that she has lived here in the United Kingdom since approximately 1963, she comes originally from Saudi Arabia.
The Second Respondent in these proceedings is MM who is Mrs MMAM's grandson. It appears that MM moved to live with his grandmother in 2010 but has now relocated to New York which has been his stated objective for some time.
Mrs MMAM lived for very many years in Stoke Newington. It is her own property, mortgage free and of significant value. Some of that time she lived with her sister and then for a period on her own, joined later, as I have said, by her grandson in 2010. It is clear by September 2013 Mrs MMAM was living in parlous conditions. A statement prepared by a social worker records her as having been 'severely self neglecting'. On the 29 th October 2013 District Judge Batten declared that Mrs MMAM should live at a residential care home and she was admitted to such a home on the 2 nd November 2013. It was intended that such admission should be temporary, rehabilitative in its objectives and permit Mrs MMAM's dilapidated home to be cleaned and repaired. Shortly after her arrival there she was assessed by a Dr Natasha Arnold who found her to be suffering from 'significant malnutrition' and 'chronic self neglect'. It also emerged that she had been known to the Older People Community Mental Health Team since 2007 and had been assessed on five separate occasions concerning presumptive mental health diagnosis and personality disorder which had led to a period of detention under the Mental Health Act 1983 in April 2007. Ultimately in her report of the 14 th February 2014 Dr Natasha Arnold, Consultant Geriatric Nutritionist with a special interest in intermediate care, concluded as follows:
"[MMAM] has been shown in my view to lack capacity for all significant decisions around her healthcare to date. She dismisses her personal welfare needs and hence is unable to consider and weigh them in her considerations how and who would look after her. She does however seem to understand the cultural impact of taking a decision to move to Saudi Arabia away from the U.K. where she has lived for 40 years and actively wishes to be with or near her family, provided her welfare is managed for her. [MMAM] also lacks capacity to engage meaningfully with the litigation process. Although [MMAM] is increasingly able to express her wishes coherently and may well be supported to take decisions of increasing gravity with adequate support. At the moment that is not the case in my view and she dismisses information through abnormal belief".
It was also noted that:
"Her psychological parameters are near normal enough to expect her to regain capacity were in not for her abnormal beliefs. She has become more engaged and more willing to talk and express her wishes whilst failing to acknowledge the importance of feeling dignified as part of this change by feeling clean and looked after, that in my view has enabled her to engage with people and her environment more."
Mrs MMAM has been passive at times and equally has been verbally abusive and resistant to care.
"She has responded favourably to clear supportive instruction set out in her care plan in a structured environment. She is eating, washing, dressing in clean clothes and engaging with other residents, although not consistently without escalated prompts. She is likely to self neglect without skilled care that can be delivered 24/7 flexibly to her needs. Her family believe that she is more likely to conform to her care in Saudi Arabia but the evidence of her progress in X road suggests that she is likely to need skilled carers at times to ensure her basic welfare is managed when she is feeling particularly resistant. Provided her needs can be met in Saudi Arabia and her wishes are very much to be near or with her family. Her son and grandson show love and respect when observed with [MMAM] and she responds with an emotion to their attention."
Her son has expressed a wish to take her across countries between family members.
"I had advised her son a stable environment will be essential for a minimum of 3 to 6 months, given her progress at X Road, to ensure her welfare is managed adequately. A changing environment will risk destabilising [MMAM]'s relationship with her carers, her care plan and her welfare."
No doubt with that report in mind by the time the case came before me on the 20 th February 2014 all the parties were able to agree and I was ultimately satisfied that it was in MMAM's best interests to reside at the identified residential home. The relevant terms of the declaration were as follows:
"It is hereby declared pursuant to S.48 of the Mental Capacity Act 2005 that: it is lawful and in the First Respondents best interest to continue to reside and receive care at X residential home and any deprivation of her liberty occasioned by residing there is approved by the Court pursuant to S.4 A16 of the Mental Capacity Act 2005."
Section 16 is addressed below, Section 4A relates to restriction on deprivation of liberty and provides:
(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.
(2) But that is subject to—
(a) the following provisions of this section, and
(b) section 4B.
(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.
(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.
(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).
On the 1 st April 2014 Mrs MMAM left the jurisdiction. I have been told she is currently residing in Saudi Arabia. On the morning 1 st April the Second Respondent (Grandson) took Mrs MMAM from the X road residential home. He did so with the compliance of the manager who believed that he had no legal basis to prevent such a course. He was apparently told that Mrs MMAM was going with her grandson to the Saudi Arabian Embassy. She was taken there and her travel documents were provided which appeared to have enabled her to be booked on the very next available flight from London to Jeddah which left that evening. The grandson purports to outline the events of that day in his statement dated the 13 th May. I say without hesitation that I found his account to be self serving and disingenuous. The description of what is said to be Mrs MMAM's behaviour on that day bears absolutely no relationship to anything I have read about her in any other document. At paragraph 8 the grandson states
"We took a taxi to the Embassy arriving just before 10am, my grandmother, without entering security, had found the way to the meeting ahead of me. Once I had introduced her, I left her to discuss her affairs as I had understood from my father I should not participate in discussing the case with officials and her in any detail. A few hours went by, I was summoned and asked to accompany my grandmother to a place where food was given to her and then we were taken to a rest facility. Little later someone from the embassy came to take her and I was told to return home and that they would contact me as required."
If that was indeed in any way accurate and Mrs MMAM had been left on her own at the Embassy, in my view, she would have been, on the basis of everything I have read, confused and probably rather frightened. The statement is entirely unconvincing. In the paragraphs that follow any aspiration to credibility is lost, if not abandoned.
"That night the manager from X road called me regarding my grandmother, I said she must still be with the embassy staff if she wasn't back at X road. Someone from the Local Authority also contacted me, he asked me whether I felt she was safe or not? I told them I believe she was and would contact them if I heard anything. I then received a call to let me know that my grandmother was safe, 'not to worry' and I relayed the...
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