England and Wales Court of Protection Decisions

IN THE HIGH COURT OF JUSTICE

		Cardiff Civil Justice Centre
		10th October 2013

MR JUSTICE MOOR:-

1. This is an application by RGB dated 19th March 2013. It is made in the Court of Protection. There are Particulars of Claim that seek:-

(a) a declaration that the First Respondent, Cwm Taf Health Board (hereafter "the Health Board") has acted unlawfully in depriving RGB and/or his wife, CAB of a right to family life;

(b) a declaration that the Health Board has acted unlawfully in depriving him and his wife of the right to freedom of assembly and association;

(c) an order directing the Health Board to afford him access to his wife and provide him with information about his wife's well-being; and

(d) damages.

The relevant history

2. Mrs. B was born on 3rd March 1943. She is therefore aged 70. She is a patient at X Hospital, where she has been since January 2013. Unfortunately, she suffers from Alzheimer's disease which appears to be in a very advanced state. Mr. B was born on 8th September 1947, so he is aged 66.
3. Both Mr and Mrs B were married before. Mrs B has two children of her first marriage, N and S. Mr. and Mrs. B commenced cohabitation in 1989 and married on 6th August 1994.
4. In November 2007, Mrs B was diagnosed with Alzheimer's disease. Initially, she was cared for by her husband. I note, however, that she was still driving in September 2010. On 15th June 2010, Mr B was appointed as her property and affairs deputy although this was opposed by S and it is clear that the litigation was unpleasant.
5. On 16th November 2010, Mrs B left the family home. The Police were involved. Mr B alleged that she had been kidnapped by her children. On 17th November 2010, Mrs B was interviewed by two Social Workers, CW and JE. They concluded that Mrs B had capacity to take a decision as to where she wanted to live. She therefore went to London with her son, N in accordance with her expressed wishes. Mr B applied to HHJ Seys Llewellyn QC without notice on 19th November 2010 for an order for the immediate return of his wife to the family home. I do not understand why the application was made without notice. It appears that an order was made that N make Mrs B available for collection and return. Having heard the case in full, I am quite satisfied that the order made was not the order that should have been made. It shows the dangers of without notice applications.
6. I am not clear exactly what happened thereafter but on the return date on 25th November, Judge Seys Llewellyn made no further order other than to stay the proceedings and refer them urgently to the Court of Protection. In any event, Mrs B did not return to the matrimonial home. She remained in London with her son until 16th February 2011 when she returned to Wales to live with her daughter, S.
7. Dr Jeffreys, a consultant in the psychiatry of old age reported to the Court of Protection on 23rd January 2011. He was told by Mrs B that her husband had been horrible to her family. She said she wanted to come out of the marriage as she could not cope with it anymore. She added that she wanted to live with her daughter. Dr Jeffreys concluded that she had the early onset of dementia but she had capacity in respect of residence, as to who she wished to see, and, on the balance of probabilities, to decide whether or not she wished to divorce but she was unlikely to have capacity to litigate.
8. The matter came on before Dawson DJ on 11th February 2011. He made a declaration that the parties accepted the medical opinion of Dr Jeffreys that Mrs B had capacity to decide where she might live, with whom she had contact and whether she wished to institute divorce proceedings and that the court was therefore without jurisdiction to make determinations in regard to such matters. I have come to the clear conclusion that the declarations given on 11th February are res judicata. In other words, they are binding on me. It follows that, as Mr B was a party to that litigation, he cannot go behind those declarations.
9. On 23rd March 2011, Mrs B issued divorce proceedings relying on section 1(2)(b) of the Matrimonial Causes Act 1973. Mr B filed an answer on 19th April 2011, in which he denied that the marriage had irretrievably broken down and denied the specific behaviour allegations raised against him.
10. On 20th May 2011, Mr B instituted proceedings for "conspiracy to end a marriage" against N, S and her husband and a friend of Mrs B's M. On 3rd December 2011, Dawson DJ stayed all actions that remained in place.
11. On 21st December 2011, an Advance Statement of Mrs B's wishes was prepared by CW and witnessed by S. It starts by saying that it is a statement made when well about the support Mrs B would like when unwell. Amongst a number of other detailed provisions, it says that Mrs B does not want her husband contacted at all if she becomes unwell. She says that, if she is discharged from hospital, she wants to return to her daughter and does not want to go back to Mr B or the home they shared together.
12. On 14th June 2012, Mrs B was admitted to the Y Hospital. She has been in hospital ever since. On 15th August 2012, Mr B visited her at the hospital. He says that she was content to see him and suffered no adverse reaction as a result. On 16th August 2012, her treating psychiatrist, Dr Z confirmed in writing that, as it was Mrs B's wish when she had capacity that she did not wish to see Mr B, Mr B should be forbidden from seeing her. Mr B was therefore turned away from the hospital twice thereafter, once when he attended with a solicitor. On 10th September 2012, Dr Z added, in a letter to Mr B's solicitor, that he considered he was bound by Mrs B's instructions when she had capacity.
13. On 19th September 2012, Dawson DJ stayed the divorce petition on the basis that Mrs B did not have capacity to litigate the divorce. He dismissed the conspiracy case and stayed Mr B's application to become her Health and Welfare deputy. The matter next came before him on 18th December 2012, when the parties acknowledged an abiding distrust of each other such that a panel deputy was appointed to deal with Mrs B's property and affairs from 18th February 2013 in place of Mr B. I believe it was hoped that this was the end of the litigation in this case.
14. On 19th March 2013, Mr B instituted the application which I have been hearing. He argues that he had a successful and enjoyable telephone conversation with his wife on 31st December 2010 which she instigated as well as the meeting with her on 15th August 2012. He claims that thereafter he was wrongly refused access to her and permission to visit her. He says that the Health Board has wrongly failed to provide him with information as to his wife.
15. The Defence of the Health Board is dated 18th June 2013. In essence, it says that the actions complained of were taken on the express wishes and instructions of Mrs B at a time when she had capacity. Alternatively, they were taken in accordance with her best interests given her consistent and cogent expression of her wishes.
16. On 22nd December 2012, Dr Z had assessed Mrs B as lacking capacity as to any aspect of her care or circumstances. On 12th June 2013, Hickinbottom J made an interim declaration as to lack of capacity and to make decisions as to contact/release of information and defined a number of issues for this hearing.
17. On 9th July 2013, Dawson DJ lifted the stay on Mr B's application to be appointed as Mrs B's welfare deputy so that I could deal with that application at this hearing. On 19th August 2013, he joined Rhondda Cyon Taff (hereafter "the Local Authority") as second Respondents and Mrs B as 3rd Respondent with Mr Peter Wakeford, Independent Mental Capacity Advocate, to act as her litigation friend.

My findings of fact

18. There are numerous matters that are in issue between the parties. Mr Gatenby, who appears on behalf of the Health Board, submits that I do not have to concern myself with many of them. As a matter of law, he is almost certainly correct but this case has gone on for many years. I have taken the clear view that it will assist in ending this litigation once and for all if I do make a number of findings of fact as to Mrs B's wishes and whether she had capacity at the time she indicated those wishes and feelings.
19. Mr B is clear. He says that his wife has always really wanted to live with him. He is convinced that she never truly wanted to divorce him and that her real wishes and feelings now are to see him and have him fully involved in her welfare and care. In so far as she has said the contrary to others, she has done so solely on the basis of the undue influence of her children. I heard Mr B give evidence briefly. I have no doubt that he does hold these views genuinely and unreservedly. Regrettably, however, he is completely wrong.
20. I have written evidence from numerous witnesses who say the contrary. They say that his wife, over a long and sustained period, indicated clearly and consistently that she wanted to end the marriage and have nothing more to do with her husband. They say that these views were not, in their view, as a result of the undue influence of her children. They were her genuinely held views. The professional witnesses add that they consider she did have capacity at the time to express these views. It is difficult to see what possible motive the professional witnesses would have to cover up a conspiracy to take a vulnerable woman away from her husband. I reject any such suggestion out of hand.
21. These witnesses are significant in number and entirely consistent in their evidence. I read statements from:-

(a) CW, the Social Worker, dated 2nd July 2013 who said that, on 16th November 2010, Mrs B said over the telephone that she was scared of her husband's behaviour particularly towards her family. The following day she expressed her wishes consistently throughout a face to face interview. CW was satisfied that Mrs B had capacity that day, noting that she could retain information for long enough. In relation to the Advance Statement she said that it documented Mrs B's wishes and feelings. She was quite headstrong. She knew what she wanted. She did suffer anxiety and distress when meeting her husband. She was consistent in her wish not to see him over some 18 months and her strength of views did not lessen over time.

(b) Another Social Worker, GH whose statement is dated 8th July 2013 said that Mrs B did not want to return to her "pig of a husband" after a Disneyland holiday with her children. She was satisfied that this was a reasoned decision to leave and that she had understood the implications. Mrs B told her in March 2011 that she wanted to divorce Mr B.

(c) Dr Z, the consultant psychiatrist, in a statement dated 19th July 2013, said that when he saw Mrs B in March 2011, she was more relaxed when accompanied by her daughter than she had been with her husband. She told him she was divorcing Mr B. She did not want to see him, nor have any information about him. She had said this consistently to different people in different settings over a prolonged period of time which pointed to her desire to divorce him being what she genuinely wanted.

(d) AO, the Ward Manager at Y Hospital, in a statement dated 22nd July 2013, said that Mrs B was a very strong lady who was able to indicate when she first arrived when she did not want to do something. Her strength of feeling could make her aggressive at times. She said that Mrs B brought the signed Advanced Statement with her when she arrived to indicate her wishes.

(e) In a statement dated 23rd July 2013, TW a Nurse said that Mrs B never mentioned her husband but had a lovely relationship with her daughter.

(f) N, Mrs B's son, said in a statement dated 24th July 2013 that his mother began to say she wanted to leave her husband and that she did not want to go home after the Disneyland trip. She was upset that Mr B had stopped her seeing her daughter, S.

(g) A friend, M, said in a statement dated 26th July 2013 that Mr B had stopped Mrs B seeing S and that she found this very distressing. Mrs B was afraid to leave at first. She made her own mind up to leave. Later, she said she never wanted to see him again. She was happier and more relaxed. She got herself into a real state when Mr B turned up whilst they were having coffee in a Department Store and made a disparaging remark about her hair.

22. I heard oral evidence from Dr Z and CW. I make it clear that I accept their evidence in its entirety. They were both impressive witnesses doing their best to assist me.
23. Both witnesses were steadfast in confirming their written evidence. Dr Z told me that Mrs B gave reasons as to why she did not want to see her husband saying that he was over-controlling and that she did not have freedom to come and go as she wished. Mr B's antagonism/antipathy to her children weighed strongly with her. She said she was not free to go where she wished or be with whom she wished. He accepted her word. He was confident that S was not influencing Mrs B to express opinions contrary to what she really felt. Mrs B was much more relaxed and open when accompanied by her daughter than when with her husband. He got the impression that she trusted her daughter more than Mr B. He discounted any suggestion of undue influence, particularly given Mrs B's short term memory problem. He was really saying that she would not have been able to keep it up if it had not been her genuinely held views. I accept that. He said that Mrs B was able to give an informed decision in December 2011 as to whether she wanted to see her husband ever again. He asked her if she would go back to her husband if she could not live with her children. Her answer was no. She would set up on her own or try to find another nice man. He was clear in his evidence that she had capacity at that time. She knew her own thoughts and feelings and he was of the clear view that her children had not been influencing her to prevent her from being reconciled to her husband.
24. Turning to the evidence of CW, she told me that she did not see any evidence of undue influence. N did not intervene during the interview on 17th November 2010. He even left the room at one point when he got upset by what his mother was saying. CW felt that the answers were coming from Mrs B herself and were not as a result of pressure. Mrs B was finding the situation at home increasingly stressful. She wanted to go with her son. She had a close and loving relationship with him as well as a loving relationship with her daughter. Mrs B never changed her mind that she did not want to renew contact with her husband.
25. I accept, of course, that there is some evidence pointing the other way. In some respects, it would be odd if there was not. I reject the suggestion that the Police Officer who attended on 16th November 2010 has anything useful to add. He had concerns about the situation. He asked for the Local Authority to look into the situation. It did so and was quite satisfied.
26. I do accept that Mrs B's sister, P has said in a statement dated 28th July 2013 that her sister told her that she did not wish to divorce Mr B and that she still loved him. She added that Mrs B never told her that she did not want to see him or have him visit her although she did say that Mr B would monitor his wife's movements and that, at times, their marriage was filled with tension.
27. I have no reason to doubt P's evidence but it runs completely contrary to the rest of the evidence that is, frankly, overwhelming. I reject completely the suggestion that I should accept P's evidence and reject all the other witnesses, including the professional witnesses. It is accepted that there have, in the past, been some tensions between the sisters. Perhaps Mrs B did not want to confide in her sister as to her marital difficulties. I know not. It would be speculation but I am quite sure that this evidence does not nullify the overwhelming body of evidence that goes the other way.
28. I don't know why Mrs B telephoned Mr B in December 2010. Perhaps she wanted to see if the disagreements between them could be bridged in some way. This telephone call does not, however, get even close to disproving the wealth of other evidence to the contrary both before and after this telephone call.
29. My conclusions are absolutely clear and they are as follows. I accept the evidence put before me by the Health Board. I am satisfied:-

(a) For whatever reason, Mrs B had a clear wish to separate from and subsequently divorce her husband. She had no wish to see him. She did not want him to be involved in her care.

(b) These wishes were her own wishes reached of her own accord. They were not as a result of improper pressure by her children let alone by undue influence. Indeed, I go further. There is absolutely no evidence of undue influence at all. Whilst her children may well have agreed with her position and even welcomed it, they were not responsible for these views which she herself formulated.

(c) She held these views consistently over a very long period of time. Indeed, as Dr Z said to me, even when she was paranoid about her daughter, she still did not want to return to her husband. This completely disproves the undue influence allegation.

(d) At all relevant times, Mrs B had capacity to make these decisions and to convey these views. I have already referred to the report of Dr Jeffreys in early 2011 which was accepted by Mr B in March 2011 in court. Dr Jeffreys was clear that she had capacity as to everything other than litigation. By this time, she had set out her views as to her husband clearly and on a sustained basis. Equally, I am satisfied that she retained capacity in December 2011 when she made the Advance Statement. I accept the evidence of both Dr Z and CW in that regard. The fact that she did not have litigation capacity at that time is irrelevant. She did not have litigation capacity in March either.

30. If it had not been for her lack of litigation capacity, I consider, on the balance of probabilities, that her divorce petition would have been concluded with a decree absolute dissolving her marriage to Mr B. I accept that Mr B filed an Answer but it has been said that there is not so much as one marriage in which at some point both spouses have not behaved unreasonably. Defended divorces are themselves extremely unusual. Successfully defended divorces are almost unheard of. If there had been a Decree Absolute, there would be no question of Mr B now having contact to his former wife.

The welfare issues

31. On 22nd December 2012, Dr Z assessed Mrs B as lacking capacity as to any aspect of her care and or circumstances. It follows that the Court of Protection does now have jurisdiction to deal with her welfare.
32. Mr B says that I should permit him contact now to his wife on welfare grounds. He accepts that such visits should initially be supervised but says they should then move to unsupervised provided all is well. He says that his visit in August 2012 did not cause any obvious distress to Mrs B and that it is only right that her husband of so long should have contact to her and be involved in her care.
33. All the other parties, including her Independent Mental Capacity Advocate, Mr Peter Wakeford, oppose any such order. Mr Wakeford reported to the court on 16th September 2013. He says that her dementia is now at a very advanced stage. She was quite agitated and clearly uncomfortable and confused by his visit. She did say "ooh I love him"; and "oh look at his little face", but quickly reverted to talking incomprehensibly.
34. He had read nothing to indicate that her wishes expressed in her Advance Statement were other than her own. They were clearly stated when she had capacity. She should therefore have no contact with her husband. She would derive no benefit from it and it would possibly be upsetting for her.
35. Dr Z accepted that Mrs B had no recollection of Mr B's visit on 15th August 2012. He added, however, that she does not have the capacity to decide if she has changed her mind. He told me that all the Health Board's staff agreed they should continue to respect her previously stated wishes. He told me that he did not believe she would benefit from seeing Mr B and he thought that there was a risk that seeing him would trigger unpleasant memories, lead to distress and a deterioration of her mental health. He was asked about her comment to Mr Wakeford when she said "ooh I love him". Dr Z did not consider that was significant. He told me that she had twice told him that she loved him when he last saw her.

My conclusions

36. I have come to very clear conclusions in this case. First, Mrs B did not want to see her husband or want him to be involved in her care. In short, she wanted to end her relationship with him. These were her wishes. There was no undue influence. She had capacity at the time.
37. It follows that I have come to the clear conclusion that the Health Board was entirely right to act on those wishes after she lost capacity. Indeed, I take the view that the Health Board had no alternative other than to so act. I remind myself of the words of Munby J in Burke v The GMC [2004] EWHC 1879 (Admin) where he said at Paragraph [43]:-

"Cutting across the dichotomy between the competent and incompetent is the principle that a competent adult's anticipatory decision in relation to treatment (a so called "advance decision" or "living will") remains binding and effective notwithstanding that he has subsequently become and remains incompetent."

38. In HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam) he adds at Paragraphs [37] – [38]:-

"An advance directive is after all nothing more or less than embodiment of the patient's autonomy and right to self-determination…it is of course clear that when a previously competent adult patient loses both his capacity to decide whether or not to accept medical treatment and any ability to express his wishes and feelings, then a previously valid advance directive that has not been revoked in the meantime will in effect become and at least as long as the patient continues in that condition, will in effect remain irrevocable. But this is not because the advance directive as such either is or has become irrevocable – it has not. It is simply because there is no-one who is able to revoke it. Only the patient himself can revoke his own advance directive."

39. I do however accept that I now have jurisdiction in relation to Mrs B pursuant to my role as a Judge of the Court of Protection. I could, in theory, make a different determination based on Mrs B's best interests. In deciding what is in her best interests, however, I take the clear view that her wishes and feelings as clearly articulated in her Advance Statement are absolutely central to the matter. There would have to be some extremely compelling reason to go against such clearly expressed wishes. Moreover, in this particular case, I am absolutely satisfied that there is no such reason at all.
40. I can swiftly dismiss the reasons advanced on behalf of Mr B. I accept the submissions of the Health Board that there is no right to family life in a case where one of the spouses has indicated clearly that she does not wish to have such a family life. The ability to apply for the restitution of conjugal rights was rightly abolished many years ago.
41. Equally, in terms of best interests, I am not at all persuaded that any such visit, even supervised would be entirely benign and no threat to Mrs B's peace of mind. I am very mindful of her reaction to Mr Wakeford. Her health has deteriorated considerably since August 2012. She has said she does not wish to see Mr B. If she became agitated at meeting Mr Wakeford, who is to say what her reaction would be to meeting Mr B. It could distress her significantly. But, in any event, why should she be put through that just because she has lost capacity when she made it very clear that she did not want to see her husband when she had capacity? The answer is clear. She should not.

My orders

42. It follows that Mr B is not entitled to a declaration that the Health Board has acted unlawfully in depriving him and/or his wife of a right to family life. They have acted lawfully and I am satisfied there was no other way in which they could have acted.
43. Equally, he is not entitled to a declaration that the Health Board has acted unlawfully in depriving him and his wife of the right of freedom of assembly and association. Again, the Health Board has acted entirely lawfully.
44. His claim pursuant to the Court of Protection for access to his wife and information as to her wellbeing also fails.
45. He is not entitled to damages.
46. There is one final matter. He also applies to be Mrs B's health and welfare deputy. He accepts that this cannot succeed if he is not having contact to his wife. I find that Mrs B does not need a health and welfare deputy. Although I am grateful to the Local Authority for offering its services, I do not consider it necessary. If it had been necessary, I consider it would have been quite inappropriate for Mr B to take on the role. This would have been entirely contrary to Mrs B's wishes when she had capacity. It would have been a recipe for conflict with her family. It would not have been in her interests.