Richard James Bagguley v E (by his litigation friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 25 October 2019 |
| Neutral Citation | [2019] EWCOP 49 |
| Date | 25 October 2019 |
| Court | Court of Protection |
| Docket Number | Case No: 12060222 |
[2019] EWCOP 49
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
THE VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 12060222
Ms Lucie Wood (instructed by Baines Bagguley Penhale Solicitors) for the Applicant
Mr David Rees QC (instructed by the Official Solicitor) for E
Hearing date: 18th October 2019
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
On 14 th October 2019 I heard an application on behalf of Richard Bagguley, the Property and Affairs Deputy (The Deputy) for E, seeking authority for buccal cell samples to be taken from E for the purposes of DNA testing. The objective is to establish whether or not E is the father of each or any of three individuals D, P and A who are all adults. E is seventy-six years of age suffering from end stage severe dementia.
The application, presented by Ms Wood of counsel, was founded largely on the judgment of Sir Nicolas Wall (P) in LG v DK [2011] EWHC 2453 (COP). It is clear from the judgment that the submissions in that case were advanced within very limited parameters and focused, somewhat counter intuitively, on the reach and applicability of the Family Law Act 1969 in the Court of Protection and more generally. Baker LJ also considered a similar application in DCC v NLH [2019] EWCOP 9. There the Court authorised the taking of bodily samples from an incapacitous adult to undertake DNA paternity testing. The question of jurisdiction was assumed but not addressed.
On 14 th October 2019, I was concerned that the facts of the case had not been identified with the basic degree of precision required to take informed decisions. In particular, I was not satisfied that the situation was so urgent that representation of E by the Official Solicitor (OS) could be dispensed with. Nor was I confident that the case law, as it stood, had addressed the question of jurisdiction with sufficient breadth.
I gave a short ex tempore judgment on 14 th October 2019, one of the objectives of which was to identify the issues and to summarise the available information. I invited Ms Sarah Castle, the Official Solicitor, to consider the transcript of my ex tempore judgment, with a view to enlisting her assistance on both the welfare issues and the jurisdictional framework. Both she and I were unclear as to how urgent the need for the decision was and accordingly, both of us have acted on the basis that time was pressing. Hence, the case returned to me four days later, on my direction. In fact, as more material has become available it is clear that E's life expectancy is greater than first understood. The OS instructed leading counsel, Mr David Rees QC, who has very quickly been able to produce a helpful and erudite summary of the applicable law. Mr Rees's submissions reveal my hesitation in respect of the reach of the Family Law Act 1969 to have been well founded. Ms Wood, who again appears on behalf of the Applicant, accepts and adopts Mr Rees's analysis of the law. She is, in my judgement, correct to do so.
The Jurisdictional Basis to the Application
E is suffering from end stage dementia. He is presently on an ‘end of life pathway’. He is receiving permanent staff assistance and has significant impairment of multiple cognitive function. The medical evidence is not disputed. E's property and affairs have been protected by a Deputy since the 18 th July 2014. I am satisfied, on compelling evidence, that E lacks either the capacity to respond to this application or, more broadly, to participate in litigation. The Court therefore has jurisdiction pursuant to Sec 16 (2) Mental Capacity Act 2005 (MCA) to make a decision on E's behalf as to whether it is in his best interest for the samples to be taken and subjected to DNA analysis. Sec 16 provides as follows:
‘(2) The court may (a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or (b) appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters.’
Mr Rees recognises that declarations as to P's best interests and orders facilitating the taking of bodily samples for non-therapeutic purposes fall within the scope of SS15 and 16 MCA 2005. For completeness, S15 provides:
Power to make declarations:
‘(1) The court may make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration; (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
(2) “Act” includes an omission and a course of conduct.’
In exercising these powers, the Court will have regard to Sec 4 MCA which identifies the relevant criteria as P's ‘best interests.’ I emphasise the following subsections as particularly significant in the circumstances of this case:
(2) The person making the determination must consider all the relevant circumstances… (my emphasis);
(6) He must consider, so far as is reasonably ascertainable (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (again, my emphasis);
(11) “Relevant circumstances” are those (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.
This approach was taken by Williams J in: Secretary of State for Home Department v Skripal [2018] EWCOP 6 and with which I agree. Mr Rees respectfully submits that, to the extent that LG v DK [2011] EWHC 245 (COP) might appear to suggest that SS 20 and 21 FLRA 1969 provide the only jurisdictional route to direct scientific testing in respect of a non capacitous individual, ‘that may not be correct’. Again, I agree. Indeed, I would go further to suggest that the FLRA 1969 will rarely, if ever, provide the appropriate route for such testing of a non capacitous adult.
It perhaps requires to be mentioned that the MCA had only been in force for four years by 2011. The caselaw and the underpinning philosophy of the Act had both to evolve and to be better understood. Argument before Sir Nicholas Wall did not anticipate the flexibility and scope of the MCA. In the cases that followed, the Courts have re-emphasised, with greater clarity, the importance and ambit of the Court's declaratory jurisdiction under Sec 15 MCA 2005 but also its more extensive decision-making powers, conferred by Sec 16 MCA. Sir James Munby (P) made the following, to my mind, highly pertinent observations in Re: N (An Adult) (Court of Protection: Jurisdiction) [2016] Fam 87:
‘The use of declaratory orders
87. There was a certain amount of debate before us as to the use of declaratory orders in the Court of Protection. This is not the occasion for any definitive pronouncement but three observations are, I think, in order.
88. First, the still inveterate use of orders in the form of declaratory relief might be thought to be in significant part both anachronistic and inappropriate. It originated at a time when, following the decision of the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, it was believed that the inherent jurisdiction of the Family Division in relation to incapacitated adults was confined to a jurisdiction to declare something either lawful or unlawful. Even before the Mental Capacity Act 2005 was brought into force, that view of the inherent jurisdiction had been shown to be unduly narrow: see St Helens Borough Council v PE [2007] 2 FLR 1115. Moreover, the Court of Protection has, in addition to the declaratory jurisdiction referred to in section 15 of the 2005 Act, the more extensive powers conferred by section 16.
89. Secondly, the Court of Protection is a creature of statute, having the powers conferred on it by the 2005 Act. Section 15 is very precise as to the power of the Court of Protection to grant declarations. Section 15(1)(a)(b) empowers the Court of Protection to make declarations that “a person has or lacks capacity” to make certain decisions. Section 15(1)(c) empowers the Court of Protection to make declarations as to “the lawfulness or otherwise of any act done, or yet to be done”. Given the very precise terms in which section 15 is drafted, it is not at all clear that the general powers conferred on the Court of Protection by section 47(1) of the 2005 Act extend to the granting of declarations in a form not provided for by section 15. Indeed, the better view is that probably they do not: consider XCC v AA [2013] 2 All ER 988, para 48. Moreover, it is to be noted that section 15(1)(c) does not confer any general power to make bare declarations as to best interests; it is very precise in defining the power in terms of declarations as to “lawfulness”. The distinction is important: see the analysis in St Helens Borough Council v PE [2007] 2 FLR 1115, paras 11–18.
90. Thirdly, a declaration has no coercive effect and cannot be enforced by committal: see A v A Health Authority [2002] Fam 213, paras 118–128 and most recently In re M (Incapacitated Adult) (Best Interests Declaration: Potential Contempt) [2015] Fam 239.
Sir James Munby concluded by identifying the desirability of using Sec 16 where issues of non-compliance or interference may arise. This...
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