Re AG [2015] EWCOP 78

​This case concerns an appeal against a decision of His Honour Judge Rogers regarding the welfare arrangements of the patient (‘P’).

The Facts
P was born on October 1985 and is now 30 years old. At about 5 years old she was diagnosed with a moderate learning disability and autistic spectrum. In 2007 she was diagnosed as suffering from depression. Also in 2007, although living with her mother (‘DG’), P took out a tenancy on a property; P resided between both properties.

In March 2011 P made an allegation that DG had hit her. In June 2011 DG reported that P had attacked her. A safeguarding investigation ended inconclusive, but with a plan for P to return to her own property with a 24 hour live in care package.

During September and October 2011 allegations and counter allegations were made that DG was physically and emotionally abusing P, and in turn DG stated that the care staff were providing inadequate care. The care provider served notice terminating the care contract. On 16th November 2011 P moved into a residential placement and an urgent DOLS authorisation was granted, and thereafter a standard authorisation was granted.

On 24th November 2011 the local authority (‘LA’) applied to the court. A final hearing took place over five days and the judge’s order on 2nd November 2012 was not appealed. At that hearing the court sanctioned in broad terms the LA’s care plans, but accelerated the timescales which provided for P to move into semi-independent living. The matter was due to conclude in the middle of 2013 but there was a slippage in the timetabling, and the matter was re-timetabled on 27th June 2013; DG did not attend the this hearing. The court was however asked to make a decision as to P’s residence on that day. The court was persuaded without any real opposition to the LA’s application that the transition to semi-independent living was to be progressed by 15th July 2013.  

The court listed the matter on 3rd September 2013 for outstanding final matters to be concluded. By this hearing P had moved into semi-independent living.

On 3rd September 2013 the court heard evidence from P’s social worker and from an Independent Social Worker (‘ISW’), and from DG. The court made orders for the gradual increase of contact between P and DG, and to decrease the level of supervision. The court declared that P lacked capacity to litigate, make decisions regarding her care and finances, and lacked the capacity to terminate her tenancy.

Appeal
DG’s grounds of appeal were:-

1. The court did not conduct an adequate assessment of P’s capacity. DG complained that the judge had made a declaration as to P’s lack of capacity on 2nd November 2012 and should have revisited the matter. The Judge stated in September 2013 that he had fully dealt with capacity in November 2012 and it was not appropriate to re-open the matter when there was no obvious new material which draws the lack of capacity into doubt;
2. The court failed to make findings regarding the events of 2011 which triggered the proceedings. DG complained that the proceedings were flawed throughout as without the allegations the proceedings would never have started and that the orders were based on unsubstantiated and tenuous allegations;
3. The court made the decision as to where P was going to live, therefore the proceedings in September 2013 were a forgone conclusion. DG complained that she did not receive a fair hearing; and
4. The court acted in breach of Article 8 by providing that contact should be ‘heavily’ supervised.

The Law
The court considered Re MN (Adult) [2015] EWCA Civ 411 and that the task of the judge is to concentrate on the issues that need to be resolved rather than addressing every conceivable argument (see paragraph 17).

DG relied on A County Council v DP, RS, BS (By the Children’s Guardian) [2005] EWHC 1593 (Fam) and Re W (Care Proceedings) [2008] EWHC 1118 (Fam); and LBX v TT (By the Official Solicitor as her Litigation Friend), MJ, WT, LT [2014] EWCOP 24 to show that there should have been a fact finding hearing. 

In turn the OS relied upon Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam) that unlike proceedings involving children, there is no need to establish the ‘threshold’ test in Court of Protection proceedings. Wall J (as he then was), and agreed by the President, stated that what was important was that, assuming P lacks capacity and what is in P’s best interests, some cases which are very fact specific and some which are principally concerned with the future may need a fact finding hearing (paragraph 30). The court set out paragraph 21 of Wall J’s judgment:

"21 Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court's paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?"

DG relied on McMichael v United Kingdom (1995) (Admin) [2007] 1 WLR 1524 in relation to the breach of P’s and DG’s Article 8 rights, and Olsson v Sweden (1988) 11 EHRR 259.

The court considered K v LBX and Others [2012] EWCA Civ 79 in relation to the suggestions that there was no breach of Article 8.

Decision
The court dismissed the appeal.

Ground 1 - There was no evidence provided to the court in September 2013 to call into doubt the opinions of the expert who provided evidence as to P’s capacity in 2012; their reports were unchallenged and there was no proposition in those reports to suggest that P might develop capacity.

Ground 2 – the authorities replied upon by DG need to be read in the context of the ‘overarching principles’ as stated by Wall J. 

Ground 3 – the Judge carefully scrutinised and analysed the evidence and care plan. The judge gave cogent reasons for concluding there needed to be decisions in June 2013 and his decision for not changing that arrangement in September 2013 was clearly articulated and based on professional and other evidence.

Ground 4 – it was clear from the language of the judgment that the judge did not have the allegations in mind when considering contact between DG and P. The judge sensitively balanced P’s wishes and feelings against DG’s ‘understandable and legitimate aspirations.’

DG sought permission to appeal but as this was the second appeal the court had no jurisdiction to consider the application as it can only be made to the Court of Appeal (rule 182(2) (now rule 171B(3)) of the Court of Protection Rules 2007).
 
Discussion
In the event that capacity is challenged there must be evidence provided to support that the P has regained, or likely to regain capacity; if there is no new material then the Judge is entitled not to revisit an earlier finding.

The court made it clear in November 2012 that the allegations were strongly denied by DG and that it did not take account of them. The judge was looking at the present position and the future. DG never appealed the decision in November 2012, which dealt with the fact finding, and it was too late now. It is therefore very important to deal with issues as they arise instead of waiting until a later date.

The court has to balance the P’s wishes and feelings to that of other family members in order to make an order that is in P’s best interests. 

The appeal was dated 22nd September 2013 but was not considered on paper until 19th December 2014. It was decided that there needed to be a hearing for permission which was heard on 14th January 2015 where permission was granted. The appeal was heard on 19th May 2015 with judgment being on 25th November 2015. This highlights the length of time and the pressure on the courts to hear matters.  

Although the court was unable to deal with the application for appeal it reminded DG of limited grounds that the Court of Appeal may give permission as set out in rule 52.13(2) of the Civil Procedure Rules 1998. 

The court agreed with the OS that the initial removal of P from her tenancy to a residential home was unlawful without obtaining a judicial sanction. It is a warning to local authorities to seek judicial authority before removing an adult from their home into other accommodation, as they do not have the power to do this.

The court also fired a warning shot to local authorities to minimise the distress of bringing proceedings based on allegations that they do not pursue.

Read the full text of the judgment on Bailii