RT v LT and Another
| Jurisdiction | England & Wales |
| Judgment Date | 27 July 2010 |
| Neutral Citation | [2010] EWHC 1910 (Fam) |
| Docket Number | Case No: COP11811122 |
| Court | Family Division |
| Date | 27 July 2010 |
[2010] EWHC 1910 (Fam)
IN THE HIGH COURT OF JUSTICE
COURT OF PROTECTION
Before: Sir Nicholas Wall
The President of the Family Division
Case No: COP11811122
Kate Markus (instructed by Switalskis Solicitors LLP) for the Applicant
Joseph O'Brien (instructed by her Litigation Friend the Official Solicitor) for the First Respondent
Roger McCarthy QC (instructed by LA Legal Department) for the Second Respondent
Hearing dates: 20 July 2010
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.
SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION
This judgment is being handed down in private on 27 July 2010. It consists of 12 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Sir Nicholas Wall P:
Introduction
In these proceedings under the Mental Capacity Act 2005 (the Act) the preliminary question which I have to resolve is whether or nor LT, a young woman now aged 23, lacks the capacity to make decisions; (1) about where she should live; and (2) what contact she should have with members of her family. At the conclusion of the hearing on 20 July 2010, I announced my decision, namely that in my judgment LT did indeed lack capacity in the respects identified. However, due to the time, the nature of the arguments addressed to me, and the importance of my decision for LT and her family, I reserved my reasons. These I now give.
The consequence of my decision is that, in default of agreement, there will need to be a “best interests” decision about where LT should live and what contact she should have with her family. The Official Solicitor, who represents LT, advocates a declaration that it is in LT's best interests to be provided with care by the local authority in the case at a residential establishment, with a “planned, supported and gradual” move back to the home of her parents.
Nothing in this judgment should be taken as preventing the parties from negotiating towards that end, and it is plain to me that the resolution of this case is as much a human as it is a legal dilemma. To that end I released the parties from attending court on the second day of the hearing. If necessary I will, of course, resolve any outstanding issues. My hope, however, is that it will be possible to reach an agreement, and I gave the parties permission to apply to me at short notice whether with an agreed order or for further directions.
By order of Moylan J dated 5 March 2010 the parties were granted anonymity. That anonymity will continue. Nothing, accordingly, must be published which will identify LT, or any member of her family or the local authority.
Capacity under the Act
The sections of the Act dealing with capacity are 1 to 3, which I propose to set out in extenso:—
Part 1 Persons who lack capacity
The principles
1 The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
Preliminary
2 People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to—
(a) a person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
(5) No power which a person (“D”) may exercise under this Act—
(a) in relation to a person who lacks capacity, or
(b) where D reasonably thinks that a person lacks capacity,
is exercisable in relation to a person under 16…….
3 Inability to make decisions
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—
(a) deciding one way or another, or
(b) failing to make the decision.
For the local authority, Mr. Roger McCarthy QC submits robustly that the language of the Act is crystal clear, and that reference to previous authority on the common law meaning of incapacity is unnecessary. For LT, Mr Joseph O'Brien agrees that an application of the facts to the language of the Act is all that is required in the instant case, although he submits that there may be cases in which a previous analysis of what constitutes incapacity at common law will be helpful. For LT's father, RT, Miss Kate Markus seeks to persuade me that LT has capacity under the Act and refers me to a number of the cases. I shall return to these points at the end of this judgment.
The facts
The background to the case is helpfully set out by the Official Solicitor in the position statement which he filed on behalf of LT, and which I am content to adopt. LT was initially raised by her natural parents. At the age of six months, however, she was removed from her mother's care and had several short term foster placements, before returning to her natural mother and then being fostered again.
At the age of approximately two and a half, LT was taken in and then adopted by RT and his wife. It appears that the family did not receive any post adoption support. LT developed epilepsy from approximately the age of 3. This has been well controlled with medication. LT received education through mainstream services, with additional support. She entered mainstream schooling aged four to five, but early problems were noted in her progress, social interactions and behaviour. She received support from the specialist Learning and Behaviour Difficulties Support Team for approximately one year in 1995. She was also under the care of paediatricians, and saw a child psychologist.
From an early age LT's parents have expressed dissatisfaction about the care and support LT (and they) have received including a dispute with the Local Education Authority as to whether LT should receive a statement of special educational needs. These disputes have extended from her infant school, through high school, to a children's home and to later placements.
LT saw a clinical psychologist in 1996 when she was nine. This was for a complete assessment of her educational needs, and as well as undertaking psychometric tests. The psychologist observed that LT was “unusual and “atypical”.
At about the age of ten or eleven she was seen by another psychologist, who diagnosed Reactive Attachment Disorder (RAD) to account for her socially bizarre and immature behaviour, her need to be in control, and the fact that she showed and accepted little affection, giving little eye contact, lying about her behaviour, accepting little responsibility, showing no remorse and little impulse control. The psychologist did not, however, believe she had either ADHD (though she was inattentive and impulsive) or autism spectrum disorder (though autistic tendencies were acknowledged).
When she was about fourteen, LT saw another psychologist whose review of LT's clinical symptoms led her to a diagnosis of Pathological Demand Avoidance Syndrome (PDAS). Behaviours noted by the psychologist included resistance to demands, poor attachment, attention seeking, bizarre ego-centricism, and verbal and physical aggression provoked by changes in routine. Although the...
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