England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
IN THE ROYAL COURTS OF JUSTICE

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

		13th December 2013

1. MR. JUSTICE HAYDEN: This is an application brought by the director of Adult Services in Peterborough to commit Leslie Whiting to prison for breach of an injunction made by a district judge in the Court of Protection. The injunction was made to protect WAJ, a vulnerable adult with learning disability who lacks capacity in certain key respects relating to her general functioning and interaction with the world. I preface my assessment of the issues in this case with two observations which guide my approach throughout.
2. Firstly, Judges and other professionals in this sphere have to be constantly vigilant to avoid a paternalistic approach and to recognise that proper respect for an individual's autonomy means allowing them, in those areas where they have capacity, to take decisions which may be foolish or which may even place them at risk.
3. Secondly, one of the most important principles of the Mental Capacity Act 2005, building on the common law that foreshadowed it, is that capacity is issue specific. That can frequently require careful and subtle analysis, as here, for example, where WAJ has been assessed as having the capacity to consent to sexual intercourse but lacking the capacity to identify those with whom it is safe for her to form wider social contacts.
4. WAJ had initially found herself before the Court of Protection because issues had arisen as to what kind of accommodation she required, what kind of support was likely to be needed for her and the kind of care package that would best promote her overall welfare. It has not been necessary for me to look at any of these issues other than as a general background to this application. Throughout those proceedings, WAJ was represented by the official solicitor as she was deemed to lack the capacity to litigate.
5. It is also clear that the district judges with conduct of this case gave anxious consideration to the scope and reach of the care plan. One of the most challenging aspects for the care plan to address was how best to protect WAJ from men who might be dangerous to her, as well as to equip her to protect herself as best she could. In this last respect, the gradual establishment of trusting working relationships with social workers and other professionals was plainly key. It is abundantly clear to me, having listened to the evidence in this application, that a great deal of work has been put in and to constructive effect. It will have required efforts from both sides, of course, but I am pleased to have the opportunity to pay tribute to what seems to me to have been a striking example of good social work practice.
6. Too often, bad practice is rebuked and good practice is unacknowledged. I am happy to have this opportunity to redress the balance at least a little. However, I emphasise this for another reason – as later in this judgment I have found myself driven to make criticisms of the way this application has been pursued. I intend those criticisms to be constructive and to restate guidance. I do not want them to eclipse my positive acknowledgment of the social work practice here and the way that, in my view, it has afforded WAJ much better protection against the many vicissitudes of life. Most importantly, I do not want anything I say to weaken that relationship.
7. Leslie Whiting formed a relationship with WAJ. During the course of the proceedings he was made a respondent. Social Services were concerned about the dynamic of this relationship. They were worried, too, about a conviction recorded against him in 2009. The details of that conviction are not in my papers but I have been told that it is a sexual offence relating to exploitation of a vulnerable adult. Mr Whiting made it clear to the court that he did not want to play any part in the proceedings when the Court of Protection was looking at the issues that I have outlined as in its focus. He declined to attend. Nonetheless, in his absence, his role in WAJ's life fell under scrutiny and was the subject of detailed professional evaluation. The conclusion that was reached was that his influence was essentially malign.
8. On 21^st August 2012 an injunction was made by District Judge Rogers, which was designed to protect WAJ and to extricate Leslie Whiting from her life. The terms of that order were as follows:

"(1) Leslie Whiting should be forbidden by himself or acting jointly with any other person from: (a) allowing or threatening any unlawful violence against the first respondent (WAJ); (b) coming within 100 metres of a property in which it was thought she was living at the time, or any other property that he became aware that she might be visiting; (c) communicating with the first respondent, whether by letter, telephone, text message or other means of communication; (d) threatening the first respondent; (e) instructing or encouraging any other person to do anything which is forbidden by the terms of the order."

9. In the autumn of 2012, and certainly by December, the Adult Services in Peterborough believed that they had grounds upon which to establish that Leslie Whiting had breached the terms of the district judge's injunction. Accordingly, an application to commit was launched. The application notice is dated 11^th January 2013. It is an application which has, to say the least, a very dispiriting litigation history. That I am hearing the case in November, and now December 2013, relating to alleged breaches in the autumn of 2012 tells its own story.
10. District Judge Eldergill heard the case on 18^th September 2013. His order records the following:

"(2) The application was due to be heard on 15^th January 2013 then on 29^th July 2013 and then on 19^th September 2013. On each occasion procedural irregularities have caused the hearing of the application to be postponed."

The district judge went on in paragraph (3) of that order to identify the relevant guidance for practitioners in order that those procedural irregularities might not dog the case further. It is, I think, helpful to set that out in this judgment. It reads:

"(3) The applicant is referred to the Court of Protection Rules 2007, and in particular to Part 21 and Rule 9, Court of Protection Practice Direction PD21A; committal for contempt of court (practice guidance) [2013] 1 WLR 1316, 2013 EWHC B4 (COP); committal for contempt of court (supplemental practice guidance) [2013] EWCH B7 (COP); Part 81 of the CPR and the relevant case law."

The district judge also signalled, by way of completeness, at (4):

"It is unlikely that any further adjournments of the application will be granted."

11. I do not propose to revisit the irregularities that the district judge referred to, but, as I say, I would endorse his referral to the relevant guidance. On 28^th November, the case was transferred to the High Court because, as I understand it, it was thought that the offices of the Tipstaff might be required. That is, of course, concerned with the apparatus of enforcement but it is perhaps important to note that section 47(1) of the Mental Capacity Act 2005, which relates to the general powers and effect of orders et cetera made in the Court of Protection provides:

"(1) The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court."

12. It seems to me to be important to note some crucial features of the committal process: (1). the procedure has an essentially criminal law complexion. That is to say, contempt of court must be proved to the criminal standard, i.e. so that the judge is sure. The burden of proof rests throughout on the applicant (see: Mubarak v Mubarak [2001] 1 FLR 698);

(2). contempt of court involves a deliberate contumelious disobedience to the court (see: Re: A (A Child) [2008] EWCA Civ 1138);

(3). it is not enough to suspect recalcitrance; it must be proved (see: London Borough of Southwark v B [1993] 2 FLR 559);

(4). committal is not the automatic consequence of a contempt, though the options before the court are limited – for example: (a) do nothing; (b) adjourn where appropriate; (c) levy a fine; (d) sequester assets; (e) where relevant, make orders under the Mental Health Act (see: Jamie Malcolm Hale v Rachel Tanner [2000] 2 FLR 879);

(5). the objectives of the application are usually dual, i.e. to punish for the breach and to ensure future compliance;

(6). bearing in mind the dual purpose of many committal proceedings, they should be brought expeditiously, whilst primary evidence is available and the incidents are fresh in the mind of the relevant witness. This is particularly important in the Court of Protection where there may be reliance on a vulnerable witness and where capacity might have to be assessed.

13. It follows, therefore, that where injunctive orders are made, they should be clear, un-ambivalent and drafted with care. In my judgment, simplicity should be the guide. Similarly, where breaches are alleged, they should be particularised with care, both so that the alleged contemnor knows exactly what, where, when and how it is contended that he is in breach, so as to be able to marshal his defence, but also to help the applicant focus on what evidence is likely to be required to establish the breach to the requisite standard of proof.
14. In this case, the breaches were pleaded as follows:

"(1) Leslie Whiting is alleged to have contacted WAJ eight times by telephone at the end of August 2012 in breach of paragraph (2)(c) of the enclosed order.

(2) Leslie Whiting is alleged to have contacted WAJ once by telephone during September 2012 – WAJ recorded the telephone call and played it back to her social worker, and the social worker has confirmed that the voice she heard on the recording was that of Leslie Whiting and that, in her opinion, the tone of his voice was aggressive. This is in breach of paragraph (2)(c) of the enclosed order above.

(3) Leslie Whiting is alleged to have contacted WAJ by telephone on or around 23^rd October 2012. He is alleged to have been heard by Rachel Curl, the manager at a respite unit, making verbal threats to WAJ and also against WAJ's mother. This is in breach of paragraphs (2)(b), (c) and (d) of the enclosed order.

(4) WAJ was found on 15^th December 2012 by Cambridgeshire Constabulary at Leslie Whiting's residence, 19 Myrtle Avenue, Peterborough. Leslie Whiting is reported to have been heavily intoxicated and aggressive towards the police officers. WAJ's friend, Tony Armstrong: they had visited Leslie Whiting to exchange Christmas presents but when they had gone to leave his property, he became upset. Leslie Whiting is believed to have encouraged WAJ to visit him, in breach of paragraph (2)(e) of the enclosed order."

15. The applicant sought to prove the breaches by the affidavit and oral evidence of a social worker. The affidavit the social worker spoke to, at the hearing of November 2013, was dated January 2013. Exhibited to it was a short chronology of similar date. There were fundamental difficulties with the affidavit, with the chronology and indeed the oral evidence. Timescales and dates were vague. There was heavy reliance on hearsay evidence from a variety of sources. There was a dearth of primary material – for example, mobile phone records – even though it appears they may have been capable of being obtained. The passage of time also meant that the social worker's evidence was characterised by a lack of detail, but so too, it must be said, the affidavit and the chronology were decidedly sparse. I must also add that it was particularly frustrating that the photocopies of the chronology were barely legible and the original appeared to have been lost.
16. The injunction from which the alleged breach arises is, as I have said, that of 21^st August 2012. The fundamental problem with the first breach, dealing with each in turn, is that it relates to "the end of August". Did that include the period before the injunction was made? At this stage that is simply not known. Were some of the alleged eight telephone calls made before 21^st and some after? Again, the answer to that is not known. The allegation is simply not drafted tightly enough and, to my mind, fails on that basis alone.
17. The second alleged breach fails for a similar reason. The social worker was able to tell me that she listened to a recording made by WAJ on her phone, for evidential purposes. The social worker said that she had listened to that during September. It could therefore have been any date between 1^st and 30^th September. Moreover, that was the date the social worker listened to the recording, not the date the call was received. When was it received? Again, that could not be ascertained. Given that the order itself was only made ten days prior to 1^st September, it lets in the real possibility that the call might have been made sometime before that. The burden here is on the applicant and the standard is the criminal standard. This drafting simply lacks the degree of specificity that is required in an application of this kind, and that, too, fails.
18. The third allegation relies entirely on second hand hearsay. The primary witness, whose evidence must be taken to be challenged, was not available, This did not begin to meet the requisite standard of proof. The fourth allegation, however, is, in my view, established. I am satisfied that the police attended Leslie Whiting's home on 1^st December 2012; I am satisfied that the social worker giving evidence was directly informed of this and; I am satisfied that Leslie Whiting was drunk and aggressive, and I am also satisfied, on the basis of WAJ's actions throughout the previous months, that she was determined to steer clear of Leslie Whiting if at all possible. That she had attended at his home that day was, in my view, as a consequence of being lured or coerced, probably, as the social worker told me, induced by the prospect of Christmas presents.
19. The commitment and sincerity of all the professionals working in this area is beyond any doubt. It has been on display in this case. What is required, however, is an intellectually rigorous relationship between the lawyers and the social workers in every aspect of the Court of Protection, of course, but particularly on an application of this kind. The lawyers preparing the case must realise that establishing breaches to the criminal standard of proof requires forensic precision and the careful identification of evidence to support each of the particulars of the breach. It seems to me that nobody has hitherto engaged directly in that exercise. It is striking that the best attempts to marshal the evidence were in fact made by WAJ herself. The process requires the lawyer and the social worker to work closely together to look at the order, to identify the breach and to marshal the material as if proving the constituent parts on a count on an indictment. Nothing less will do where the liberty of the individual is at stake.
20. The Court of Protection is, as the title makes clear, here to protect the vulnerable. The breadth of its work is very wide; its injunctive powers may well not yet have been fully utilised, but it is important, as they develop, that they are deployed with forensic rigour and, where possible, as here, subject to public scrutiny. Collating evidence when working with those who, in certain areas of their lives, may lack capacity is inevitably challenging. Having here found the fourth breach to be proved, I propose to take no action in respect of it. A year has passed since it occurred and there are no subsequent allegations. To that extent, the injunction appears ultimately to have been successful. I do, however, intend to continue the injunction in the terms made by District Judge Rogers for a further twelve months, with liberty to Mr Whiting to apply to discharge.

(End of judgment)

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