PB v RB (by Her Litigation Friend, the Official Solicitor) (First Respondent) A London Borough (Second Respondent) CL (Third Respondent) DB (Fourth Respondent) LA (Fifth Respondent)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Altman |
| Judgment Date | 12 November 2013 |
| Court | Court of Protection |
| Date | 12 November 2013 |
| Docket Number | Case no. 1196 0903 |
[2013] EWCOP B41
Court of Protection
On Appeal
His Honour Judge Altman
Case no. 1196 0903
Appellant Stephen Simblet (instructed by Campbell-Taylor Solicitors)
First Respondent Chris Buttler (instructed by Irwin Mitchell Solicitors)
Second Respondent Kuljit Bhogal (instructed by A London Borough's Legal Services Department)
Hearing Date: 9 August 2014
Note; in view of the passage of time this judgment is being handed down without a draft having been first circulated to counsel. If counsel wish to refer to any corrections, omissions or errors they should do so if at all possible within 7 days. Paragraphs 20–22 were prepared after judgment had been reserved and if counsel wish to make any submissions up them they should be submitted within 7 days.
This appeal concerns the meaning of 'prohibiting' contact in Section 17 of the Mental Capacity Act 2005 which I understand has not be considered in a reported decision.
This is an appeal from the Order of District Judge Eldergill that followed a judgment handed down on 29 January 2013 after a hearing over three days in October 2012. The appeal was entered following an extension of time granted by the learned Judge by way of application for permission to appeal. The central ground was expressed in the skeleton argument supporting the grounds of appeal as being;
"Whether the court can use its own power to prohibit contact with unnamed people to provide a Local Authority deputy with power to suspend contact for up to one week and whether such arrangements are ultra vires section 20 (5) of the Mental Capacity Act."
There is no challenge to the findings of fact of the Judge.
On the 3 May 2003 His Honour Judge Horowitz QC gave permission to appeal confined to the delegation to a deputy of the power to 'suspend' contact.
I have considered the judgment of the learned Judge. I refer, briefly, to the background facts against which he set his decision and the scheme of the relevant part of the Mental Capacity Act 2005, before identifying and analysing the issues that fall for consideration in this appeal. In this context the appeal raises the question as to:
(I) whether the arrangements made as to contact within the order of the Judge were outside the statutory powers capable of being delegated to the deputy,
(II) whether, if they were within such powers, the exercise of the power in the circumstances of this case was in the words of the skeleton supporting the appeal "perverse" or "plainly wrong" and
(III) In the event that the order was either outside the power of the court or else plainly wrong, whether there may be some other mechanism to achieve an equivalent outcome that was appropriate.
This involves the interpretation and reconciling of the adjoining provisions of Sections 17(1)(b) and (c) of the Mental Capacity Act 2005, both of which, differently worded, make reference to a power to arrange a period of no contact but where in accordance with section 20 only one such provision permits actions that may have this effect from being carried out by a deputy.
BACKGROUND
In 2011 a psychiatrist reported that RB lacked capacity and in due course the parties agreed that she lacked capacity, inter-alia, to make decisions about her residence, contact and care. This appeal is concerned with contact. RB was 71 years of age at the time of the hearing. Her son PB, the applicant and appellant, is her youngest child and there are three older daughters. He has a history of conflict with them and there have been other conflicts within the family. RB has been diagnosed as suffering from Alzheimer's disease. I have not referred to earlier medical history. She was living in her own home and the plan was for her to remain with the assistance of a care package arranged by the Local Authority.
In February 2011 PB applied to the Court of Protection. The application expressed dissatisfaction with the contribution of the Local Authority to RB's care. Thereafter PB had disagreements with the care agency which involved, on the findings of the Judge, angry, aggressive, threatening and abusive conduct by PB towards the agency and carers.
From May 2011 until January 2012 RB was housed in "B Lodge". The Local Authority considered that PB disrupted the paid care at home. The Judge catalogued in his judgment a number of incidents of difficult behaviour by PB in relation to the local authority, the carers and those at "B Lodge". The local authority, notwithstanding evidence of incapacity and the commencement of proceedings, arranged with her daughters for RB to move into a sheltered housing scheme. In due course in January 2012 RB returned to her home, PB giving a number of undertakings as to his conduct. RB has remained at home and the Judge confirmed that she appeared happy to remain there. In February 2012 an independent social work report noted RB's wish for her daughters to visit two or three times a week and that she did not wish PB to visit every other day as he had tended to do. The independent social worker recommended mediation to elevate the situation above family conflicts. Following the return home it was reported in March 2012 that PB had not interfered with RB's care and that his behaviour had improved greatly. In May 2012 the contact schedule was noted to be working. In June 2012 a special visitor reported that RB wished to remain in contact with all her children but that she did not have capacity to make decisions about contact where the children may cause problems for her or others.
In August 2011 there was a medical assessment of PB identifying the assistance of psychological services and pointing to the very close relationship between him and RB. In September 2012 there was a fact finding hearing in which the Judge found the consistent theme of PB's confrontational approach when challenged or frustrated relating to his tone, volume, demeanor, volatility and offensive language. The Judge found that his behaviour often upsets the mother, his sisters and the professional carers and alienates them so as to reduce the chance of achieving the changes he was seeking. Nonetheless the Judge found that PB had made genuine attempts to modify his behaviour and that he was a devoted son and had taken very good care of the mother over the years. He also found that not all of the current problems within the family were to be laid at PB's feet. In his judgment the Judge made further specified findings of fact. He found that apart perhaps from DB, all of RB's children bear significant responsibility for the family conflicts that have brought the case to court and that the difficulties had not been generated by RB or by her care needs, but by the sensitive volatile and powerful family dynamics around her. He found that the factor of "magnetic importance" was to ensure that RB lived in her home. He found that RB's wishes as to how much contact she wanted varied depending on the levels of conflict and interference and how upset she is at a particular time. For example she had dealt with conflicts involving PB by asking him not to visit for a while where his visits had led to conflict with people she was living among. On other occasions, he found, RB enjoyed seeing him more than two or three times a week and she likes his meals.
The judge noted that there were times when PB behaved well and had made genuine attempts to modify his behaviour. However the Judge also instanced a number of examples prefaced by the words
"Some of his conduct in the proceedings, in and out of court, has (to put it mildly) not helped to progress matters to improve relationships with his family, professionals and his mother's carers."
In considering that it was not in her best interests to receive care from her son the Judge found:
"My overriding reason for reaching this finding is that at present PB's behaviour – his anger and problems with self-control, the number of disagreements and disputes he is embroiled in, his approach to his sisters and some carers, his problems observing agreed rules and plans – makes this impractical. Although he has demonstrated a good understanding of his mother's wishes and feelings, he has also demonstrated that he has a poor capacity to control his frustration and anger, to work with others and to accept the realities of the quality of care that can be provided by care agencies."
The Judge described the view of the Local Authority in relation to contact as being that whilst it may be appropriate for PB to have more parental contact than his sisters "there were "fearsome family dynamics" to deal with". The Judge held that the overriding objective of the care plan was to ensure that RB lived at home. He held that the aim of the court was
"Where appropriate, to manage or contain conflicts that have adversely affected the incapacitated person's best interests in a situation where their management requires imposing a framework that interferes with the usual legal rights of family members, so as to require authorisation by a court… To ensure that incapacitated people are not disadvantaged, compared to those with capacity, by their inability to make decisions about… contact with others."
The Judge held that the main risks to the care plan which may require the intervention of the court related to the behaviour of the children. If RB had capacity she would be entitled to regulate this intrusive conduct by actions which included saying to one or more children she did not wish to have contact with them, or significantly less contact unless they cease interfering with and upset her.
Against this background the Judge turned in Section 15 to 'Remaining...
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