Re Z (Local authority: Duty)

JurisdictionEngland & Wales
JudgeMr Justice Hedley
Judgment Date03 December 2004
Neutral Citation[2004] EWHC 2817 (Fam)
Date03 December 2004
CourtFamily Division

[2004] EWHC 2817 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Hedley

Re: Z

Between:
A Local Authority
Claimant
and
Mr Z
Defendant and
The Official Solicitor
Advocate to the Court

Hearing dates: 29 th & 30 th November 2004

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 Hon. Mr. Justice Hedley

Mr Justice Hedley

Mr Justice Hedley

1

The critical issue in this case is the extent of the duty owed by a local authority when the welfare of a vulnerable person in their area is threatened by the criminal (or other wrongful) act of another. The facts of this case highlight this issue as vividly as any that could be imagined.

2

Mr and Mrs Z reside in the area of the local authority. In 1998 Mrs Z was diagnosed as having cerebella ataxia, a condition which attacks that part of the brain that controls the body's motor functions. She has become increasingly disabled by this condition which is incurable and irreversible. She would in due course die as a result of it.

3

Although Mrs Z has continued to live at home, she has required extensive support from the local authority and these needs have grown as her condition has deteriorated. In late 2003 (around the time of her 65 th birthday) Mrs Z developed signs of Parkinsonism and it was thought that this pointed to a diagnosis of multi-system atrophy. Quite apart from serious restrictions of motor control, Mrs Z also has speech and hearing difficulties.

4

In April 2000 Mrs Z was admitted to hospital having taken an overdose of paracetemol tablets; she had left a suicide note. There is no doubt that this was precipitated by her deteriorating physical condition. However it was not until late 2003 that she began to express strong views about seeking assisted suicide. She knew that that could be arranged in Switzerland. Initially her husband and adult children were all strongly opposed to the idea. However, she persisted in that view and the family, although deeply unhappy at the prospect, gradually came to the view that her wishes should be supported. This was of practical as well as emotional significance since such an assisted suicide could not be effected without another making all the arrangements to get her to the clinic in Switzerland.

5

Although the evidence discloses that Mr Z could at times appear to be a difficult man, it has to be said that throughout this affair he has acted entirely honourably. He has kept the local authority informed and, most particularly informed them in early November that he had entirely changed his mind and now proposed to make all the necessary arrangements and accompany his wife to Switzerland for the assisted suicide.

6

The local authority convened a planning meeting (at which a specialist police officer attended) having concluded that Mrs Z was a vulnerable person living in their area. The impression of the social worker was that Mrs Z was legally competent to make the decision that she had made. However, it appeared that that decision could only be carried out if Mr Z provided all necessary assistance and, should he do so, it would appear that he would be committing a criminal offence.

7

The local authority therefore sought to invoke the inherent jurisdiction of the High Court. On 29 th November2004 Black J. sitting in Manchester granted an injunction restraining Mr Z from removing Mrs Z from England and Wales. The matter was listed for hearing before me, the Official Solicitor was invited to act on behalf of Mrs Z and arrangements were made for Professor Tom Sensky, a distinguished consultant psychiatrist, to examine Mrs Z and make an assessment of her legal capacity to elect for suicide.

8

The court is greatly indebted to Professor Sensky for having a full report available to the court at the adjourned hearing on the 29 th November which he also attended. His report, which was accepted on all sides, clearly established two matters. First, that Mrs Z had all the requisite attributes necessary to establish legal capacity to make her own decisions; it should be added that she had also made an 'advance directive' to the like effect. Secondly, that the decision was hers alone entirely uninfluenced by outside considerations; indeed she had long persisted in the view contrary to the expressed wishes of her family. Once it was apparent that Mrs Z had legal competence, the Official Solicitor could no longer act on her behalf. The court is therefore very grateful that he was willing to accept appointment as an Advocate to the Court and his submissions as advanced through counsel have been of the greatest assistance.

9

When the matter came before me, it was urged that I should deal with it at once and not further adjourn it. Indeed I was told that all the necessary arrangements had been made for Mrs Z to travel to Switzerland on Wednesday 1 st December 2004. I made it clear that in my view the matter should be heard in public and (subject to the necessary reporting restrictions in terms of identifying Mr and Mrs Z) no one opposed that. Accordingly the hearing took place in open court on Tuesday 30 th November.

10

I start then with the position of the local authority. I am satisfied that they owed to Mrs Z duties under both Section 29 of the National Assistance Act 1948, The National Health Service Act 1977 and the National Health & Community Care Act 1990. Moreover the Department of Health had issued a Circular "No Secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse" under Section 7 of the Local Authority Social Services Act 1970 (thus making the guidance obligatory). It follows from that that the local authority were obliged to treat Mrs Z as a vulnerable adult. However, care must be exercised in the use of the term 'vulnerable'. In some context or other every human being is vulnerable. The term only has meaningful content in a specific context. In this case that context is physical and mental deficit. What has caused difficulty here is not the fact of a duty but the extent of it. It was common ground that the common law duties owed by the local authority to Mrs Z did not extend the scope of the statutory duties. At the very least the local authority could not ignore the position once Mr Z had informed them of it.

11

It would be of little assistance in this case, nor indeed would the scope of the argument warrant it, to try to produce an exhaustive analysis of the actual duties owed in this case. It is however, to be observed that none of the duties are all-embracing in, for example, the ways provided in Section 33 and part III of the Children Act 1989. They are all limited in scope to addressing the particular needs of a person as assessed by the authority. I propose simply to focus on the actual obligations that in my judgment were placed on the local authority in these circumstances.

12

I then turn to the position of Mrs Z. The finding of competence in this case is fundamental to the court's approach in respect of her. I start with the broad legal perspective within which her position is to be seen. It is powerfully stated in the judgment of Hoffman LJ (as he then was) in the case of Airedale NHS Trust –v—Bland [1993] AC 789 where at page 826, he says this:

"I start with the concept of the sanctity of life … [W]e have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God's creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. But even those without any religious belief think in the same way. In a case like this we should not try to analyse the rationality of such feelings. What matters is that, in one form or another, they form part of almost everyone's intuitive values. No law which ignores them can possibly hope to be acceptable.

Our belief in the sanctity of life explains why we think it is almost always wrong to cause the death of another human being, even one who is terminally ill or so disabled that we think that if we were in his position we would rather be dead. Still less do we tolerate laws such as existed in Nazi Germany, by which handicapped people or inferior races could be put to death because someone else thought that their lives were useless.

But the sanctity of life is only one of a cluster of ethical principles which we apply to decisions about how we...

To continue reading

Request your trial
18 cases
  • R (Purdy) v DPP
    • United Kingdom
    • House of Lords
    • 30 July 2009
    ...[2008] UKHL 74; [2009] 1 AC 681; [2009] 2 WLR 115; [2009] PTSE 469; [2009] 1 All ER 1053, HL(E)Z (Local Authority: Duty), In re [2004] EWHC 2817 (Fam); [2005] 1 WLR 959; [2005] 3 All ER 280APPEAL from the Court of AppealThis was an appeal by the claimant, Debbie Purdy, by leave of the House......
  • The Mental Health Trust and Another v DD (by her litigation friend, the Official Solicitor) and Another
    • United Kingdom
    • Court of Protection
    • 4 February 2015
    ...and Representation) Act 1986, and importantly section 47 of the NHS and Community Care Act 1990; ii) The common law (see Re Z (Local Authority Duty) [2004] EWHC 2817 (Fam), [2005] 1 FLR 740 at [19]) (see [25] below); iii) The Human Rights Act 1998, and iv) The 2005 Act. 32 25. Munby LJ (as......
  • Re A (A Child)(Deprivation of Liberty); C (Vulnerable Adult)(Deprivation of Liberty)
    • United Kingdom
    • Court of Protection
    • 4 May 2010
    ...circumstances of a vulnerable adult whose welfare is seriously threatened by the act of another: see Re Z (Local Authority: Duty)UNK[2004] EWHC 2817 (Fam), [2005] 1 FLR 740 at para [19]2. (v) Fifthly, there may, in relation to an adult who lacks capacity, be circumstances in which a local a......
  • B Borough Council v S and another
    • United Kingdom
    • Family Division
    • 23 October 2006
    ...orders) [2004] EWHC 2015 (Fam), [2007] 1 FCR 512, [2005] 1 FLR 341. Z (local authority: duty), Re sub nom Z (an adult: capacity), Re[2004] EWHC 2817 (Fam), [2005] 2 FCR 256, [2005] 3 All ER 280, [2005] 1 WLR 959, [2005] 1 FLR ApplicationThe second respondent challenged the lawfulness of a w......
  • Request a trial to view additional results
3 books & journal articles
  • A statutory framework for safeguarding adults? The Law Commission's consultation paper on adult social care
    • United Kingdom
    • The Journal of Adult Protection No. 12-1, February 2010
    • 23 February 2010
    ...1998 (HM Government, 1998) will require local authorities to investigate in some cases. For example, in Re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), it was held that a local authority is under a duty to investigate the consultation on the review of the legal framework for safeguardi......
  • Complicity in Suicide
    • United Kingdom
    • Journal of Criminal Law, The No. 69-6, December 2005
    • 1 December 2005
    ...of Human Rights have held that no such immunityexists at common law or under human rights law.12 9 See Re Z (Local Authority: Duty) [2004] EWHC 2817, [2005] 1 WLR 959. 10 J. Horder, ‘Mercy Killings: Some Reflections on Beecham’s Case’ (1988) 52 JCL 309–14, J. A. Laing, ‘Assisting Suicide’ (......
  • Emergency powers for child protection
    • United Kingdom
    • Journal of Children's Services No. 1-2, October 2006
    • 1 October 2006
    ...havealso provoked criticism of the practice of granting EPOswithout notice to the parents (X. council v B(Emergency Protection Order) [2005] 1 FLR 740;Haringey LBC v C, E and another intervening [2005] 2FLR 47). Finally, the fact that emergency powers havebeen used may lead to assumptions a......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT