In the best interest - part one

There have been a number of important best interests decisions on personal welfare applications in the Court of Protection and High Court over the last twelve months. In a three-part series, Victoria Butler-Cole and Alex Ruck Keene analyse the judgements and identify – and suggest ways to avoid – common pitfalls for local authorities in bringing proceedings.

Recent case-law: The court’s powers

In Re F [2009] EWHC B30 (Fam) the court clarified that its powers under s.48 MCA 2005 to make interim orders and directions can be exercised even where there is insufficient evidence to rebut the presumption of capacity.

The proper test in the first instance is whether there is evidence giving good cause for concern that the individual may lack capacity in some relevant regard. Once that has been raised as a serious possibility, the court can move to the second stage of deciding what action, if any, it is in the individual’s best interests to take, before a final decision about capacity can be made.

Thus, where there is evidence that an individual may lack capacity but further investigation is required, it may be appropriate to bring proceedings – for example, where the individual lives with his or her family and access to carry out a formal capacity assessment has been denied, where different conclusions about capacity have been reached by different assessors, or where evidence about capacity is of insufficient quality.

In the matter of LD (2009) considered the scope of the court’s powers to determine a case summarily. While there was jurisdiction to determine a case summarily, this was a power that should be used with restraint, as an alternative to a hearing, or in an emergency where there was little or no apparent dispute likely.

It was not appropriate where the result would be to sanction a deprivation of liberty, or where one of the parties was not present and had not been warned of the proposed course of action. The court also noted that the judge had wrongly appointed a local authority as personal welfare deputy without proper consideration of the statutory and procedural requirements for making such an order. Further consideration of the welfare deputy application is expected by the High Court before the summer.

In The London Borough of Enfield v SA & Ors [2010] EWHC 196 (Admin), Macfarlane J had to answer the following four questions:

• Is hearsay evidence admissible in the Court of Protection?
• If hearsay evidence is admissible, is hearsay evidence emanating from a witness who is, by reason of mental disability, not competent as a witness admissible in the Court of Protection?
• Where the subject of Court of Protection proceedings has been interviewed by police in an ‘Achieving Best Evidence’ interview, are the fact of that interview and a copy of the DVD recording of it matters to be disclosed to the parties and to the Court?
• Where police propose to interview a person who is the subject of pending incapacity/best interest proceedings in the Court of Protection, are the police and/or the applicant local authority under a duty to disclose the proposal to the court and parties in the Court of Protection and how is the issue of P’s capacity to consent to the interview to be addressed?

The judgment is lengthy and repays careful consideration. In short terms, however, the answers that Macfarlane gave were as follows:

1. Yes, on a proper – and purposive – interpretation of the various statutory provisions governing the Court of Protection;
2. Yes, again on a similar interpretation. The judge made it clear, however, that admissibility was one thing and that the weight to be attached to any particular hearsay evidence from P would be a matter for specific evaluation in each individual case. Within that evaluation, he continued (at paragraph 36) the fact that the individual from whom the evidence originated is not a competent witness will no doubt be an important factor, just as it is, in a different context, when the family court has to evaluate what has been said by a very young child;
3. Yes. Macfarlane J was highly critical of the fact that this interview and the DVD of it had not been disclosed to the parties and the Court. He emphasised that, for the future, in such cases it would be justified for the Court to make an order for specific disclosure under Rule 133(3) of the Court of Protection Rules 2007 requiring all parties to give full and frank disclosure of all relevant material; in other words, to ensure that was effective equivalence in procedures between Court of Protection proceedings and family proceedings;
4. Yes. Macfarlane J held (at paragraph 46) that, in the absence of an ‘absolutely pressing emergency’ (in an extreme sense given the availability of a High Court judge every day of the year), where there are extant Court of Protection proceedings relating to an individual’s capacity and best interests, any question of whether or not there should be an ABE interview must be raised with the court and be subject to direction from a judge. Where the substance of the interview may relate to allegations that another party to the proceedings (or someone closely connected to a party) has harmed the interviewee, then there will be good grounds for the matter being raised, at least initially, without notice to that party, but in every case notice should be given to the Official Solicitor or any other person acting as P’s litigation friend. Macfarlane J commented (strictly obiter) that for his part, where there are pending proceedings, even if the local authority and litigation friend take the view that P has capacity to consent to such an interview, if the proposal is for the interview to take place without the knowledge of another party to the proceedings, it would nevertheless ‘be wise if not necessary’ for the court to be informed of the situation.

Finally, Macfarlane J made it clear that once findings of fact have been made following a hearing before a specific judge, the case becomes part heard and that the trial (including any subsequent best interest hearing) should not resume before a different judge.

It is also worth noting that the High Court is shortly to give directions in a case which raises the following issues:

• the principles to be applied in the “fact finding” process in the Court of Protection and to what extent the principles and jurisprudence on procedure and substance in the Family Division under the Children Act 1989 and the Adoption and Children Act 2002 are relevant and applicable to the Court of Protection under the Mental Capacity Act 2005;
• the principles and procedures to be adopted in the Court of Protection (including any interrelation with principles and procedures in the Family Division) when considering questions of contact between P and (1) a minor sibling and (2) an incapacitated adult family member.

In A v Independent News and Media Limited [2010] EWCA Civ 343, the Court of Appeal considered the Court of Protection Rules as to whether hearings should be held in private or in public. The case concerned a severely disabled adult, A, who was, in spite of his disabilities, a musical prodigy.

The Official Solicitor contended that the proceedings, which involved applications for the appointment of welfare and financial deputies, should be heard in private, in accordance with the general rule. The Defendants sought access to the proceedings in order that they could then apply for such information as they thought appropriate to be made public, arguing that much of A’s personal life was already in the public domain.

The High Court made an order the effect of which was to enable designated representatives of the media to attend the hearing in the Court of Protection, and thereafter to apply to the judge for his authorisation to enable them to publish information disclosed in the proceedings.

The Court of Appeal upheld the decision of the High Court, noting that it would not be appropriate to accede to the Official Solicitor’s suggestion that instead of allowing access by the media, parts of the Court of Protection’s judgment could be published, since it would be wrong for a judge to tailor his judgment to the needs or concerns of the media. Further, the Court of Appeal considered that it was valuable for the public to know about what happens in the Court of Protection, where most hearings will be held in private, and that it was difficult to think of a more appropriate case to fulfil that function, in view of the public’s existing familiarity with A’s story.

The role of the individual’s own wishes

In Re P [2009] EWHC 163 (Ch), the court noted that deciding what was in a person’s best interests was not the same as enquiring what the person would have decided if he had had capacity (the ‘substituted judgment’ test). The person’s wishes were to be given weight, but they were only one part of the equation. The requirement under s.1(6) of the MCA 2005 that before an act was done, consideration must be given to whether the same outcome could be as effectively achieved in a less restrictive way, was not determinative.

In DCC v EH (2009), a case in which the local authority sought the court’s authorisation to move an elderly woman with dementia into a care home against her wishes, the court concluded that the move should take place, notwithstanding expert evidence that she should continue to be cared for at home. In this case, the woman’s wishes could not be given considerable weight because of her failure to understand the seriousness of her illness and the risks she faced in living alone in her own home.

The need to consult

In Re Allen (2009, COP 21/7/09), the Senior Judge of the Court of Protection considered the scope of the duty to consult under s.4(7)(b) of the MCA 2005 in relation to attorneys. The judge concluded that where “any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P’s best interests, and it would be neither practicable nor appropriate to embark on that process in the first place.”

Deprivation of liberty

The new Schedule 1A to the MCA 2005 which came into force in April 2009 introduced a system of authorisations for deprivations of liberty (DOLS) which should prevent local authorities from breaching the Article 5 rights of individuals without capacity. In DCC v KH (2009), the Court of Protection confirmed that a standard authorisation would be sufficient to return an individual from contact sessions to his place of residence, where doing so entailed a deprivation of liberty.  No anticipatory declaration about the use of force was appropriate because restraint was permitted under s.5 and s.6 MCA 2005.

In In the matter of BJ [2009] EWHC 3310 (Fam) the court held that where long-term reviews by the court of deprivations of liberty are required, they may take the form of a review on the papers without an oral hearing, although a party could request an oral hearing where appropriate.

Victoria Butler-Cole (This email address is being protected from spambots. You need JavaScript enabled to view it.) and Alex Ruck Keene (This email address is being protected from spambots. You need JavaScript enabled to view it.) are barristers at 39 Essex Street.

Part two of this series – covering the Mental Capacity Act 2005 and the Mental Health Act 1983, consent to sexual relations, use of the inherent jurisdiction for vulnerable adults, the interplay between the Court of Protection and judicial review, and jurisdiction – can be viewed here.