Westminster City Council v Manuela Sykes (by her RPR and litigation friend, RS)
| Jurisdiction | England & Wales |
| Judgment Date | 24 February 2014 |
| Docket Number | COP1238388T |
| Court | Court of Protection |
| Date | 24 February 2014 |
[2014] EWCOP B9
IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF MANUELA SYKES
COP1238388T
District Judge Eldergill
Court of Protection, First Avenue House, 42–49 High Holborn, London WC1A 9JA
Heard on 10 and 11 February 2014
Judgment handed down on Monday 24 February 2014 at 4pm
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of RS (MS's litigation friend), MS's nieces and MS's professional carers must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. MS may now be identified as Manuela Sykes and the relevant local authority as Westminster City Council.
§1 — INTRODUCTION
This case involves MS's liberty, residence and care.
MS ('Ms S'), who is 89 years old and has dementia, is deprived of her liberty at QX Nursing Home by virtue of a standard authorisation granted by her local authority under the Mental Capacity Act 2005.
On numerous occasions, Ms S has expressed the wish to return to her own home, which is a flat in central London where she has lived for 60 years.
Ms S is assisted and supported by Mr RS ('RS'), her attorney for property and affairs under a Lasting Power of Attorney signed by her on 12 July 2011 and registered on 17 November 2011.
RS is also her litigation friend in these proceedings. He is not related to Ms S but, as with his late wife, has been a close and good friend.
At present RS supports Ms S's objection to her continued residence at QX Nursing Home. He believes that she is not ready for residential care and at the very least should have a trial at home.
The Applicant is the local authority. It has brought the case before a court because of the opposition to the placement and care regime.
The local authority has set out the many problems experienced by Ms S at home during the period leading up to her admission to hospital and then a nursing home: lack of acceptance of care, altercations with neighbours and others, self-neglect, unhygienic living conditions, weight loss, wandering, a lack of awareness of her own personal safety.
According to the local authority, Ms S settles quickly when she returns to QX Nursing Home from outings and has never 'actually attempted' to discharge herself.
Three other matters may be highlighted by way of introduction:
Firstly, if 24-hour care and supervision at home is a practicable alternative, which the local authority formally disputes, Ms S's means are limited. She may well be unable to finance it herself for more than a few months. She is also single and has no children. Therefore, the options available to some older persons in terms of a partner and/or children forming a rota of free care are not available to her.
Secondly, the local authority cannot afford or will not fund such a package of care.
Thirdly, provided they do not act so irrationally that it constitutes acting unlawfully, etc, it is for local and other public authorities — not judges — to decide how to allocate their limited resources. Furthermore, the funds available to public authorities, and levels of taxation and public expenditure, are political decisions, that is matters for all of us, i.e. for voters not judges.
§2 — STRUCTURE OF THE JUDGMENT
This decision is structured under the following headings:
| §1 — | Introduction | Page 1 |
| §2 — | Structure of the Judgment | Page 2 |
| §3 — | Parties and Interested Persons | Page 3 |
| §4 — | Procedure and Hearings | Page 4 |
| §5 — | Ms S and her Situation | Page 5 |
| §6 — | Legal Framework | Page 12 |
| §7 — | Mental Capacity | Page 13 |
| §8 — | Deprivation of Liberty Provisions | Page 15 |
| §9 — | Determining Best Interests and the Law | Page 20 |
| §10 — | MS's Best Interests | Page 23 |
| §11 — | Remaining Legal Formalities | Page33 |
| §12 — | Order and Directions | Page 33 |
| §13 — | Applications re Press attendance and Reporting | Page 33 |
§3 — PARTIES AND INTERESTED PERSONS
As can be seen from the above, the parties to these proceedings are as follows:
| Party | Status | Relationship/representation |
| A London Council | Applicant | The relevant local authority. May now be identified as Westminster City Council. Represented by Mr Mungo Wenban-Smith of counsel, instructed on the local authority's behalf by Creighton & Partners (Ms Bilkiss Bashir having conduct of the case). |
| MS ('Ms S') | Respondent | The person concerned ('P' in the legislation), by her litigation friend, RS. May now be identified as Ms Manuela Sykes. Represented by Mr Parishil Patel of counsel, instructed by Irwin Mitchell (Ms Anne-Marie Irwin having conduct of the case). |
Interested persons
A number of other interested persons attended hearings without formally having the status of parties. They included Ms S's nieces, HW and MS, and Mr Brian Farmer of the Press Association.
Professional carers
Many professionals have been involved with Ms S's welfare and care. They include Ms P (Care Manager, Older Adults CMHT) and Ms BS (Senior Care Manager, CMHT).
§4 — PROCEDURE AND HEARINGS
On 19 September 2013, the court issued a 'section 21A application' filed by the local authority. This asked the court to review the standard authorisation under which Ms S was being deprived of her liberty under the Mental Capacity Act 2005. The accompanying Form DLC stated that, 'It is not possible to achieve resolution between the parties, consequently, the court is required to undertake a review of the standard authorisation …' [A/10].
The 'paper directions' given by me on 19 September 2013 included holding an attended preliminary hearing on 25 September. The further directions given at this hearing included a telephone hearing on 9 October (by which time it was hoped that legal representation for RS would be in place) and a one-day final hearing on 10 January 2014.
I did not agree that RS was unsuitable to be MS's litigation friend on the ground that in some way he was too partisan or insufficiently objective. A key part of his role as RPR is to represent 'P's' wishes and feelings.
An independent psychiatric report (followed by an addendum) was commissioned from Dr Andrew Barker, a well-known and highly-respected expert in older age psychiatry.
I met with MS at QX Nursing Home on 7 January 2014, in the company of her solicitor.
The Press Association at the Royal Courts of Justice was informed of the hearing by the court. The association's Legal Editor, Mr Dodd, provided me with very helpful written representations concerning press reporting, which is dealt with below, at §33.
In the event, the hearing could not proceed on 10 January because a key witness was unable to attend; a two-day hearing took place instead on 10 and 11 February 2014.
Documentary Evidence (The Court Bundle)
The Court had the benefit of a 600-page bundle of documents, including expert reports, a detailed chronology, and witness statements and exhibits from professional carers, family members and friends of Ms S. Excellent position statements were filed by counsel.
Oral Evidence
Oral evidence was given by the care manager, Ms P; the expert witness, Dr Barker; and by MS's RPR and litigation friend, RS. MS's nieces relied on their written statements and were not required by the parties to give oral evidence. Counsel made oral submissions.
The oral evidence and commitment of all three witnesses was highly impressive and their evidence carries significant weight. Ms P has been Ms S's care manager for three years, knows her well and has been very thorough in her assessments. Dr Barker is a nationally recognised expert in this field, his report was detailed and considered and of a very high quality. Mr RS was an 'expert by experience', intelligent, considered, compassionate, very knowledgeable about MS's personality, wishes and behaviour, moderate and measured in his judgements.
Mr Farmer of the Press Association, one of MS's nieces and one of her good friends attended both days of the final hearing.
Ms S attended the first day, as did her other niece and the Reverend from her church.
Acknowledgments and thanks
I would like to thank all involved for the ways in which they have assisted the court.
The skill and hard work of the solicitors, counsel, parties and professionals involved in the case demonstrate that a deprivation of liberty case with fairly numerous and complex strands can be prepared thoroughly but proportionately and determined in reasonable time.
Everyone involved praised the staff at QX Nursing Home for their thoughtfulness and kindness.
The press's involvement has been thoughtful and sensitive. Their balanced advice about the potential advantages and disadvantages of different ways of reporting the relevant issues and facts has been appreciated.
§5 — MS S AND HER SITUATION
Ms S has had a dramatic life, and the drama is not yet over.
She has played a part in many of the moral, political and ideological battles of the twentieth century. A vegetarian from an early age; a lifelong feminist and campaigner for women's rights; a Wren in the Fleet Air Arm; a committed Christian; a political activist who stood for Parliament; a councillor on the social services committee of the local authority that now authorises her deprivation of liberty; the editor for 40 years of a trade union newspaper; a helper of...
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