MASAM v MMAM , MM LB of Hackney and Homerton University NHS Foundation Trust [2015] EWCOP 3

This case considers the issue of the legal status of declaratory orders made in the Ct of Protection  and  also can a party who acts in  deliberate defiance of such declarations be in contempt of court.

It is a paradigm judgement by Hayden J for anyone who finds themselves in a case where there are breaches of COP orders/ declarations. It analyses all the relevant law on contempt, the  civil contempts such  as may arise through the publication if material in the press the powers of the court, the contempt emanating through  wardship,  the impact of ECHR jurisprudence  and the new rules in the Court of Protection – R 192 ( i) and ( 2) and PD 21A( Contempt of Court) together with the substantive legislation afforded by the MCA 2005.

Note paragraph 52 of the judgement where Hayden J recognises that the Court of Protection  is “ still a fledgling court” in as the case law shows and the   importance of family being heard  “ in decision of this magnitude matters almost as much as the outcome itself”.

The judgement cautions the use of penal notices in this jurisdiction – para 53  “Frequently, these issues resolve themselves but it would to my mind be disproportionate and indeed corrosive of the cooperation ultimately required, for the shadow of potential contempt proceedings to fall too darkly over cases such as this”.

He gives guidance at para 54 on the need for clear drafting of orders, rather than making “ nebulous “ declarations. He says that the court should always consider whether to reinforce and clarifying that it will be unlawful to remove P or to permit or facilitate removal other than by order of the court order for residence under section 16 with a declaration under section 15. 

If the Local Authority or Official Solicitor have evidence to suggest that a party my disobey or frustrate the plans for P approved by the court then they should consider inviting the court to seek undertakings from the relevant party- if refused then an order may be appropriate

Where a potential breach is identified then the Local Authority and/or Official Solicitor should regard it as their professional  duty to bring the matter to the immediate attention of the court.  “This obligation is a facet of the requirement to act sedulously in the protection of the vulnerable”( para 54 (iv))
Thought  must always be given as to the objectives and  proportionality  of committal proceedings must be given and apply the guidance in Re Whiting COPLR 107 para 12  1-6 ( as set out by Hayden J in MASM at para 31

Background
A 76 year old woman believed to have originated from Saudi Arabia but who had lived in  the UK since 1963. She owned a mortgage free  property  in Stoke Newington, London  which had become over the years in a state of complete disrepair. She was considered to be severely self neglecting . The plan was that she would live temporarily in a residential  home whilst she underwent a certain level of physical rehabilitation and also that her house be put back in an appropriately habitable state. On arrival at the residential home she was assessed by a Consultant Geriatric Nutritionist and assessed to be lacking capacity” for all significant decisions around her healthcare to date”. It was noted that MMAM had been admitted to hospital  under MHA 1983 in 2007 wit a mental health diagnosis and personality disorder. She had also been assessed for admission  on a number of occasions prior to this admission in 2007.

The Consultant found that she was unable to  consider and weigh  her personal needs and how they may be met in the future. She was considered to lack litigation capacity. The Consultant noted that she seemed to understand the cultural impact of moving to Saudi Arabia away from the UK where she had lived for the last 40 years and she actively wanted to be near her or with her family provided her welfare is managed for her. The consultant believed that MMAM dismissed information about her future plans “ through abnormal belief”.

The son wished to take MMAM across countries between family members who would provide care for her. The court noted the expert advice that MMAM  required 24/7 skilled care without which she would be likely to self neglect. The expert did not rule out a move to Saudi Arabia provided her needs could be met and it was clear that MMAM ‘as wishes were to be near or with her family

A consent order was made on 20.2.14  whereby a declaration was made by the court pursuant to section 48 MCA 2005 that it was lawful for MMAM – the 1st Respondent - to reside and receive care at X residential home and that any deprivation of liberty was lawful – pursuant to section 4 A16  MCA 2005

On 1.4.14 MMAM left the jurisdiction- having been removed by the 2nd Respondent – MM ( grandson who had lived intermittently with his grandmother but not since 2010 when he relocated to New York )from X home and taken to the Saudi Arabian Embassy. The care home manager believed that he had no legal basis to prevent this happening. She was left at the Embassy in circumstances described by MM  that the judge  found to be “ self serving and disingenuous” and a “ complete fabrication “.The court found that MM and MASM ( the 1st Respondent’s son) “ plainly colluded to defeat the declaration made by this court. Mr MASM has done so notwithstanding that he acquiesced to the declaration made by this court”. The court found that “ he has acted with cynical disregard to the objectives of this process, and in the light of the declarations drawn, it must follow that his actions are entirely inconsistent with the best interests of this vulnerable and incapacitous woman, who is of course  his own mother”

Issues of enforcement 
The court considered the powers of enforcement – the High Court ( COPR 2007, R 89)- fine , commit to prison for contempt of court, grant injunctions summons witnesses when needed and order the production of evidence.

COPR 2007 Pt 21 and practice direction PD21A also deals with contempt of court. The MCA jurisdiction limited to promotion of “ the purposes of the Act” and other proceedings may be taken in other jurisdictions where the objectives fall outside the MCA. Penal notices can be attached to any order- that is to warn a person of the consequences of disobedience to the order ( contempt of court punishable  by imprisonment or fine or where relevant sequestration of assets.

In MCA proceedings an application of a person for contempt can be made to any judge of the Court of Protection by issuing an Application Notice stating the grounds of the application supported by affidavit in accordance with practice directions ( COPR 2007 has additional provisions). The court can also of its own motion make a committal order against a contempt of court which may include “ misbehaviour in the face of the court”

Practice Points

1. It appears plain that the managing authority – the care home manager was either not aware of the court “declaration” under section 16 MCA and the DOLS authorisation by the court under section  164 A and schedule A1- had they been so aware then no doubt MMAM would not have been taken to the Saudi Arabian Embassy and left there to be repatriated. Just as family members need to be consulted and informed of decisions of the court affecting their loved ones, so do those who have been entrusted with P’s care. After all, the Court of Protection came into being specifically to protect and assist the vulnerable who are unable to do so themselves.
2. Documents need to be drafted with care and complete precision. It must be remembered that it is likely that in due course a number of people . both professional  and non including family members need to understand clearly what they say and the consequences for disobedience.

Finally for those contemplating contempt proceedings bear in mind that the procedure is essentially a criminal law application. The standard is that on the criminal standard of proof – the judge has to be sure. The burden of proving the allegation is on the person bringing the contempt proceedings, the act alleged must have been undertaken deliberately, it is not just too suspect recalcitrance. Committal applications  must clearly specify what it is alleged X has breached – it must be precise. Contempt is just one of the available resources – which can also include, sequestration of assets, levy a fine, adjourn if appropriate for compliance, or do nothing  .Orders are also available under the Mental Health Act .Most cases are seeking X to do something or not do something and so contempt proceedings can be a very blunt instrument.

READ THE FULL JUDGEMENT ON BAILII