Rosa Monckton v Simon Mottram
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 25 June 2019 |
| Neutral Citation | [2019] EWCOP 22 |
| Court | Court of Protection |
| Docket Number | Case No: 13272740, 1327671 AND 1327262T |
| Date | 25 June 2019 |
[2019] EWCOP 22
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
VICE PRESIDENT OF THE COURT OF PROTECTION
Case No: 13272740, 1327671 AND 1327262T
In the matter of Domenica Lawson
In the matter of Oscar Mottram
In the matter of Oliver Hopton
Ms Victoria Butler-Cole QC (instructed by Irwin Mitchell Solicitors) for the Applicants
Mr David Rees QC (instructed by the Advocate to the Court)
Hearing date: 25 th March 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
I am concerned with three applications for permission to apply for the appointment of personal welfare deputies (PWD), pursuant to Sec. 16 Mental Capacity Act 2005 (‘MCA 2005’). Following a Directions hearing on 19 th November 2018 my order made provision for the following:
1. There shall be a hearing to determine (a) whether permission should be granted in each application and (b) the preliminary issue raised by the applications, the two matters being intrinsically related.
2. The Official Solicitor shall be appointed as advocate to the court.
3. The Public Guardian is invited to file written submissions, or to participate as a respondent if so advised.
4. The applicants have permission to provide documents filed in the applications to the Official Solicitor and the Public Guardian.
5. The Official Solicitor has permission to file witness evidence, if so advised, by 14 January 2019.
6. The applicants, the Official Solicitor, and if so advised the Public Guardian shall exchange skeleton arguments by 4pm on 4 February 2019.
The ‘preliminary issue’ was framed as: “What is the correct approach to determining whether a welfare deputy should be appointed?”
In particular focus was the question as to whether such appointments should only be made “ in the most difficult cases” and if so, to consider “what the implications for that are in practice?” I directed that these matters should be listed for determination at a single hearing. I am grateful to the Official Solicitor for accepting appointment as Advocate to the Court and to Mr David Rees QC, who has acted on his behalf.
As Mr Rees pointed out in the prefacing remarks to his submissions, the role of the Advocate to the Court is a circumscribed one. It is helpful to remind the profession and inform the wider readership of this judgment of its limitations and its obligations. The Attorney-General's memorandum, 19th December 2001, [2002] Fam Law 229 notes:
“It is important to bear in mind that an advocate to the court represents no one. His or her function is to give the court such assistance as he or she is able on the relevant law and its application to the facts of the case.”
The function of the Official Solicitor here is entirely different to his role as litigation friend. It is necessary to identify, unambiguously, that at this hearing he does not act for any of the three young people subject to the applications.
The Court of Protection is enabled to arrange for preliminary issues of this kind to be determined pursuant to the Court of Protection Rules 2017:
3.1 (2) The court may—
…. (h) direct a separate hearing of any issue; …
(n) take any step or give any direction for the purpose of managing the case and furthering the overriding objective.
Though I am considering the scope and breadth of the applicable provisions, it is right that I highlight something of the circumstances of the three young people on whose behalf the applications are brought. The mothers of each applicant were present in Court. It is manifest that they are highly motivated to achieve all that is possible for their children. However, the point they raise is identified by them as having much wider application for vulnerable young adults generally. Their case has been crowdfunded.
In addition to what I have read about these young adults, I have also been provided with video recordings of each. Oscar Hopton is now aged 24 years old. He is non-verbal and has been diagnosed with autism, severe learning disabilities, epilepsy, anaphylaxis and gut problems. He is fortunate to be able to live in a self-contained flat in his parents' house. He requires 24-hour care, and is in receipt of a significant package of care funded by London Borough of Brent and Brent Clinical Commissioning Group, though the two statutory bodies are engaged in a long-running dispute over what his care needs are and which of them should be providing funding. In common with the other two young adults, I was struck by how impressively well cared for Oscar is. Also, if I may say so, I had at least a glimpse of how physically and emotionally exhausting it must be for the parents to meet his needs. It is obvious that each of the parents in this case, though sensitive to the challenges they must confront, nonetheless properly regard their responsibilities as a privilege.
Domenica Lawson is now 24 year old young woman who has Down's Syndrome and a learning disability. The video of her is a delight to watch. She is full of life and a very engaging personality. She communicates her love and affection for others, both spontaneously and fulsomely. Though this is beguiling, I suspect it also adds to her essential vulnerability. I am told that she requires individual support to keep her safe, and some assistance with everyday activities. That said, she has obvious ability and enthusiasm for life which is not even remotely eclipsed by her disabilities. During term time she lives in a flat, supported by carers, funded by East Sussex County Council. Domenica attends college four days a week. She also spends a great deal of time with her parents.
Oliver Hopton is a 20 year old young man. He has a diagnosis of severe autism. I found his situation particularly affecting. He requires constant supervision and support with everyday activities. I am told that Oliver has previously suffered assault and mistreatment in two residential placements. I have little doubt that it is because of this truly disturbing history that he now lives at home with his mother and brother. His mother provides the bulk of Oliver's care. Again, if she will permit me to say so, it is clear that she is heroic in her love for and commitment to her son. In case she does not realise it, it requires to be said, she is doing an absolutely brilliant job.
Whilst I am highlighting the individual circumstances of each young adult, I nonetheless bear in mind that interpretation of the relevant provisions requires me to recognise the potential for wider resonance. These individual cases have some similarities (i.e. they concern young adults; congenitally impaired, with supportive families; in each case parents or other close family members are proposed Deputies, one of the proposed Deputies for Domenica is her sister). There is a wider variety of cases to contemplate. These will include, for example, complex medical conditions; acquired catastrophic brain injury; issues relating to undue influence; deputies who are non-family members and/or professional deputies.
Appointment of a Deputy: MCA 2005
The provision in focus here is Section 16 MCA 2005. It provides for the appointment of deputies. No distinction is made between financial and welfare deputies. It is necessary to set the section out in full:
“16 Powers to make decisions and appoint deputies: general
(1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning–
(a) P's personal welfare, or
(b) P's property and affairs.
(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.
(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).
(4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that–
(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and
(b) the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.”
Ms Butler-Cole QC, who appears on behalf of the Applicants, properly emphasises the guidance in the explanatory notes to s.16 which read as follows:
“68. Subsection (4) requires the court to consider two additional principles, further emphasising the ‘least restrictive intervention’ principle mentioned in section 1(6). The first additional principle is that a decision of the court is preferable to the appointment of a deputy and the second is that, if a deputy is appointed, the appointment should be as limited in scope and duration as is reasonably practicable in the circumstances. In welfare (including health care) matters a deputy is never required in order for care or treatment to be given to a person because section 5 provides sufficient scope for carers and professionals to act. Nevertheless, a deputy may be particularly helpful in cases of dispute. For matters concerning property and affairs, a deputy may be needed in order to provide the authority to deal with contractual matters and where there is an...
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