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THE LOCAL AUTHORITY
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Joseph O'Brien (instructed by Langleys Solicitors acting for the Official Solicitor) for the First Respondent
Aswini Weereratne (instructed by Bindmans LLP) for the Second Respondent
H Harrop-Griffiths (instructed by LA Legal Department) for the Third Respondent
Crown Copyright ©
MR JUSTICE HEDLEY:
'1) P's increased need for rest was disrupting his schooling; 2) P showed a marked lack of independence possibly because his mother was over protective, it was noted that he tended to go to his mother's bed for reassurance, 3) behavioural problems, particularly verbal abuse directed at his mother, 4) level of cognitive functioning; 5) "An exceptionally caring and supporting mother" who has been an enormous benefit to P but whose constant search for alternative solutions for P's problem, led her to neglect her own needs.
There was furthermore an observation that P would need some support in separating from his mother.
'1) P's increasing isolation as his mother withdrew him from all other activities, 2) AH's threats of self-harm and her level of distress, 3) AH's refusal to engage with professional support, 4) P's increased role as an invalid with a wheelchair, 5) P's inability to have appropriate privacy in developing independence, 6) P being inappropriately drawn into conflict between AH and the professionals.'
'Social Services' records for 2000 contain a solicitor's letter dated 29th February with respect to the Crossroads care service. The letter states that AH and P hold their individual carer in high esteem but are concerned about the gaps of provision when that carer is absent. This appears to be the last of a series of complaints as the response from Crossroads states, "It is obvious from recent conversations and correspondence with the Selby District, Crossroads office, that the support service we are offering you is still not meeting your requirements. As it has been an ongoing concern of yours from last summer and the situation is not expected to change and you continue to make allegations about our staff, it is therefore with regret that we have no other option than to withdraw our services. "'
Dr Land continues:
'There is also, a letter from AH which talks about social services atrocities and the need to protect her son from "ignorant misguided and dishonest professionals". She is clearly angry at the lack of support she feels she is receiving, "I am suffering from chronic ongoing extreme exhaustion".
'AH is changing P's anticonvulsants very frequently and would like him to come off medication. I am unhappy over this and obviously the risk of chronic seizures and sudden epileptic death. He will be seen in January but I feel his mother is very difficult to help.'
And then if one passes on to 2007, one finds Professor Crawford writing this:
'AH complains that P is allergic to everything, is intolerant of all foods and medication. She feels he has got multiple drug resistance.
Dr Land continues;
'Although P was clearly underweight, AH declined the offer of dieticianary advice as P was allergic to all food supplements. AH had also told Dr Crawford that they had telephoned Holland and Barrett and had been told that one should not take food supplements with the relevant drug. Professor Crawford dismisses this, she also records that AH declines specialist nurse input, admission to Oak Rise, and any of the offered anticonvulsants. She expresses her concern that AH is planning to stop all anti-epileptic medication and feels that there is little more that she can contribute.'
'Throughout the interview, AH has been keen to stress how ill P was and the way in which fatigue prevented him carrying out many activities. She also noted that P had difficulty in relating to new individuals.'
'That a person must assumed to have capacity unless it is established that he lacks capacity'. That is the clear law and the law that has to be applied in this case'.
Sub-section 4 says;
'A person is not to be treated as unable to make a decision merely because he makes an unwise decision.'
That is an important provision in the consideration of this case to which I shall come back in more detail in due course.
'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.'
It is to be noted that capacity is an issue specific concept and from the fact that a person lacks capacity in relation to one area of their life, it does not follow that they lack capacity in all areas; just as it is possible for a person to have capacity in respect of most parts of his or her life, but to lack capacity in the part under immediate consideration.
'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.
End of Judgment.