England and Wales Court of Protection Decisions

Court of Protection
On Appeal

		12 November 2013

Note; in view of the passage of time this judgment is being handed down without a draft having been first circulated to counsel. If counsel wish to refer to any corrections, omissions or errors they should do so if at all possible within 7 days. Paragraphs 20-22 were prepared after judgment had been reserved and if counsel wish to make any submissions up them they should be submitted within 7 days.

1. This appeal concerns the meaning of 'prohibiting' contact in Section 17 of the Mental Capacity Act 2005 which I understand has not be considered in a reported decision.
2. This is an appeal from the Order of District Judge Eldergill that followed a judgment handed down on 29 January 2013 after a hearing over three days in October 2012. The appeal was entered following an extension of time granted by the learned Judge by way of application for permission to appeal. The central ground was expressed in the skeleton argument supporting the grounds of appeal as being;

"Whether the court can use its own power to prohibit contact with unnamed people to provide a Local Authority deputy with power to suspend contact for up to one week and whether such arrangements are ultra vires section 20 (5) of the Mental Capacity Act."

There is no challenge to the findings of fact of the Judge.

3. On the 3 May 2003 His Honour Judge Horowitz QC gave permission to appeal confined to the delegation to a deputy of the power to 'suspend' contact.
4. I have considered the judgment of the learned Judge. I refer, briefly, to the background facts against which he set his decision and the scheme of the relevant part of the Mental Capacity Act 2005, before identifying and analysing the issues that fall for consideration in this appeal. In this context the appeal raises the question as to:

(I) whether the arrangements made as to contact within the order of the Judge were outside the statutory powers capable of being delegated to the deputy,

(II) whether, if they were within such powers, the exercise of the power in the circumstances of this case was in the words of the skeleton supporting the appeal "perverse" or "plainly wrong" and

(III) In the event that the order was either outside the power of the court or else plainly wrong, whether there may be some other mechanism to achieve an equivalent outcome that was appropriate.

This involves the interpretation and reconciling of the adjoining provisions of Sections 17(1)(b) and (c) of the Mental Capacity Act 2005, both of which, differently worded, make reference to a power to arrange a period of no contact but where in accordance with section 20 only one such provision permits actions that may have this effect from being carried out by a deputy.

BACKGROUND

5. In 2011 a psychiatrist reported that RB lacked capacity and in due course the parties agreed that she lacked capacity, inter-alia, to make decisions about her residence, contact and care. This appeal is concerned with contact. RB was 71 years of age at the time of the hearing. Her son PB, the applicant and appellant, is her youngest child and there are three older daughters. He has a history of conflict with them and there have been other conflicts within the family. RB has been diagnosed as suffering from Alzheimer's disease. I have not referred to earlier medical history. She was living in her own home and the plan was for her to remain with the assistance of a care package arranged by the Local Authority.
6. In February 2011 PB applied to the Court of Protection. The application expressed dissatisfaction with the contribution of the Local Authority to RB's care. Thereafter PB had disagreements with the care agency which involved, on the findings of the Judge, angry, aggressive, threatening and abusive conduct by PB towards the agency and carers.
7. From May 2011 until January 2012 RB was housed in "B Lodge". The Local Authority considered that PB disrupted the paid care at home. The Judge catalogued in his judgment a number of incidents of difficult behaviour by PB in relation to the local authority, the carers and those at "B Lodge". The local authority, notwithstanding evidence of incapacity and the commencement of proceedings, arranged with her daughters for RB to move into a sheltered housing scheme. In due course in January 2012 RB returned to her home, PB giving a number of undertakings as to his conduct. RB has remained at home and the Judge confirmed that she appeared happy to remain there. In February 2012 an independent social work report noted RB's wish for her daughters to visit two or three times a week and that she did not wish PB to visit every other day as he had tended to do. The independent social worker recommended mediation to elevate the situation above family conflicts. Following the return home it was reported in March 2012 that PB had not interfered with RB's care and that his behaviour had improved greatly. In May 2012 the contact schedule was noted to be working. In June 2012 a special visitor reported that RB wished to remain in contact with all her children but that she did not have capacity to make decisions about contact where the children may cause problems for her or others.
8. In August 2011 there was a medical assessment of PB identifying the assistance of psychological services and pointing to the very close relationship between him and RB. In September 2012 there was a fact finding hearing in which the Judge found the consistent theme of PB's confrontational approach when challenged or frustrated relating to his tone, volume, demeanor, volatility and offensive language. The Judge found that his behaviour often upsets the mother, his sisters and the professional carers and alienates them so as to reduce the chance of achieving the changes he was seeking. Nonetheless the Judge found that PB had made genuine attempts to modify his behaviour and that he was a devoted son and had taken very good care of the mother over the years. He also found that not all of the current problems within the family were to be laid at PB's feet. In his judgment the Judge made further specified findings of fact. He found that apart perhaps from DB, all of RB's children bear significant responsibility for the family conflicts that have brought the case to court and that the difficulties had not been generated by RB or by her care needs, but by the sensitive volatile and powerful family dynamics around her. He found that the factor of "magnetic importance" was to ensure that RB lived in her home. He found that RB's wishes as to how much contact she wanted varied depending on the levels of conflict and interference and how upset she is at a particular time. For example she had dealt with conflicts involving PB by asking him not to visit for a while where his visits had led to conflict with people she was living among. On other occasions, he found, RB enjoyed seeing him more than two or three times a week and she likes his meals.
9. The judge noted that there were times when PB behaved well and had made genuine attempts to modify his behaviour. However the Judge also instanced a number of examples prefaced by the words

"Some of his conduct in the proceedings, in and out of court, has (to put it mildly) not helped to progress matters to improve relationships with his family, professionals and his mother's carers."

10. In considering that it was not in her best interests to receive care from her son the Judge found:

"My overriding reason for reaching this finding is that at present PB's behaviour – his anger and problems with self-control, the number of disagreements and disputes he is embroiled in, his approach to his sisters and some carers, his problems observing agreed rules and plans – makes this impractical. Although he has demonstrated a good understanding of his mother's wishes and feelings, he has also demonstrated that he has a poor capacity to control his frustration and anger, to work with others and to accept the realities of the quality of care that can be provided by care agencies."

11. The Judge described the view of the Local Authority in relation to contact as being that whilst it may be appropriate for PB to have more parental contact than his sisters "there were "fearsome family dynamics" to deal with". The Judge held that the overriding objective of the care plan was to ensure that RB lived at home. He held that the aim of the court was

"Where appropriate, to manage or contain conflicts that have adversely affected the incapacitated person's best interests in a situation where their management requires imposing a framework that interferes with the usual legal rights of family members, so as to require authorisation by a court… To ensure that incapacitated people are not disadvantaged, compared to those with capacity, by their inability to make decisions about… contact with others."

The Judge held that the main risks to the care plan which may require the intervention of the court related to the behaviour of the children. If RB had capacity she would be entitled to regulate this intrusive conduct by actions which included saying to one or more children she did not wish to have contact with them, or significantly less contact unless they cease interfering with and upset her.

12. Against this background the Judge turned in Section 15 to 'Remaining Issues and RB's Best Interests'. He considered contact under the heading "reducing conflict by reducing contact." He found that if contact were harming RB then the most appropriate step was to restrict it to a non-harmful level. He found that

"If he becomes embroiled in conflict with those he is in contact with, less contact for a cooling down period would be my first preference, rather than a return to court for committal proceedings… Any restriction of contact with PB or one of his sisters must be reasonable, necessary in order to manage an identified present risk that home care will be unviable unless contact is so restricted, and a more proportionate means of safeguarding RB and enabling her to remain at home than other options such as making a committal application. If contact is suspended for more than seven days then the matter should be listed before me for a telephone hearing… Moving up the scale, in my view, is the option of supervising contact…"

13. The judge there set a period of 7 days as the maximum period during which the deputy could arrange for there to be no contact. I notice the aim behind the order made to fulfill that decision was to create a power to "suspend" contact. As a means of supporting the care plan other provisions were made such as injunctive orders but they do not form part of this appeal. A review by the court was provided for. However, the Judge then considered the need for the Local Authority to become personal welfare deputy "to tweak the care plan and with it the contact arrangements." I note the aim of the power to "tweak" arrangements.

THE LEGAL FRAMEWORK

14. The Judge considered "the personal welfare deputy ship option". He referred to the application of the local authority to be appointed as deputy with the support of the Official Solicitor, provided the powers were narrowly drawn. In considering factors relevant to the appointment of a deputy the District Judge directed himself to relevant sections of the Act. I have considered the statutory provisions relating to contact. There is no issue taken on this appeal as to the relevant provisions. In particular reference was made to the following sections of the Act.

Powers to make decisions and appoint deputies: general

16(1)...

(4) When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that—

(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

(b)the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances….

Section 16 powers: personal welfare

17(1) The powers under section 16 as respects P's personal welfare extend in particular to—

...

(b) deciding what contact, if any, P is to have with any specified persons;

(c) making an order prohibiting a named person from having contact with P;...

...

(2) Subsection (1) is subject to section 20 (restrictions on deputies).

Restrictions on deputies

20 (1)

…

(2) Nothing in section 16(5) or 17 permits a deputy to be given power—

(a) to prohibit a named person from having contact with P;…

…

THE WORDS USED

15. I note that Parliament makes two adjacent provisions that lie together and I find that the intention to be inferred from that very fact appears to be to draw a distinction between the two processes. That distinction is emphasised, I find, by the decision of Parliament as set out in the statute to permit deputies to undertake actions under one provision but not under another. Accordingly it is necessary to determine the difference between a deputy's arranging for a period of no contact as part of 'determining what contact if any P is to have' which is permissible on the one hand, or as an act of 'prohibiting' contact on the other which is impermissible for a deputy. Such differences have been argued in terms of the intention of Parliament, in terms of the length of time implied in the two provisions, in the amount of contact that is implied, in the degree of on-going review and consideration of contact implied in the provisions, in the impact of the provision on the pre-existing level of contact affected by the application of one or other of the provisions.
16. I start, with the assistance of submissions from counsel, with an examination of the meaning of the word 'prohibit'. I adopt the submission of Mr Buttler that in construing the meaning of the word 'prohibit' Parliament is to be taken to have used the word correctly and exactly (Spillers Ltd v Cardiff Assessment Committee [1931] 2 KB 21 per Lord Hewart CJ 42043 ) and where the language of an Act is clear the ordinary sense of the words should be adhered to unless they would lead to some absurdity, or some repugnance or inconsistency with the rest of the Act (Caledonian Railway v North British Railway (1881) 6 App Cas 114 per Lord Blackburn). This leads to applying the dictionary definition which gives meanings such as 'to forbid, deny or preclude something'.
17. However, I find that this takes the analysis only so far. The Judge defined 'to prohibit' as referring to 'a total cessation of contact until further order'. In the context of controlling contact, the challenge is to find the difference between that and 'deciding what contact if any'. It seems to me that the word 'prohibit', if used in isolation, could apply to a number of situations; 'Parking prohibited for 7 days for building works' (a single fixed period of a number of days) 'parking prohibited for house removal on the 21st March'(a single day), 'Parking prohibited on Wednesdays', (a recurring day each week) 'Parking prohibited until further order' (a total cessation without fixed limit of time). I find that transposing 'contact' for 'parking' demonstrates the width of the definition in its practical application. It includes uncertain or unlimited periods, or fixed periods, it may be continuous or intermittent, it may relate to a single occasion or several such times. The common factor, of course, is that during the period of its operation there is no contact. But that can also be said of 'deciding what contact if any' which imports a decision that may result in no contact.
18. Accordingly it seems difficult to identify a 'prohibiting' of contact by looking at a proposed period without contact and applying to it the ordinary meaning of the word 'to prohibit' in order to find an absolute difference between prohibiting contact on the one hand and determining a period of 'contact if any'. A week without contact, for instance, could be referable to the application of either form of words if they are looked at disjunctively and based simply on the ordinary meaning of words.
19. In this case there are the two provisions that enable arrangements to be made for periods in which there is no contact. But Parliament must, it seems to me, have intended that there should be a difference. This is to be inferred from the fact that the provisions are placed side by side and providing in Section 20 that under only one of the provisions can one of the arrangements be made by the deputy. In finding the meaning of the provisions it seems to me, therefore, preferable not to look for a free-standing definition of 'to prohibit', but rather to identify the difference between the two provisions bearing in mind the words used in each sub-section of Section 17.
20. In reaching this conclusion I have referred to a further canon of statutory construction:

"the meaning of statutory words is determined not by reference to any subjective intentions of the legislators, but by reference to the sense which an informed legal interpreter would give to them in the context in which they are used. The context of statutory words is both internal and external. The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest of the Act…

(Sir Rupert Cross, 'Statutory Interpretation' 3^rd Edition),

"...to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed, detached from its context in the statute: it is to be viewed in connection with its whole context..."

Brett v Brett (1826) 3 Add 210 per Sir John Nicholl (referred to in the second edition of the said work).

In the third edition, the editors provide an example by reference to Re DML [1965] Ch 1133. That case considered adjacent provisions in Section 102 of the Mental Health Act 1959. This section empowered the judge to secure (the doing of all such things as appear necessary…)

(b) for the maintenance or other benefit of members of the patient's family; or (c) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not mentally disordered.

In considering the difference between 'family' in the first sub-section and other persons in the second Cross J said at page 1137:

"The contrasting language of sub-clauses (b) and (c) suggests to my mind that the legislature considered that the word "family" consisted of persons for all of whom the patient might prima facie be expected to make some provision. This, I think, indicates that the word does not include collateral relatives."

I find that in this case the very juxtaposition in the statute of the two provisions being considered makes their context an essential ingredient in interpreting their meaning, particularly in defining the limits of the word 'prohibit'. The context to be seen within Section 17 is that the word 'to prohibit' is in an adjoining sub-section to the phrase 'deciding what contact if any'. I find that the approach to statutory interpretation requires the court to seek a construction of 'to prohibit' as something different from 'deciding what contact if any' even though actions under either sub-section may result in a period without contact.

21. Accordingly I have considered the words in their context. I find that there is a difference in the manner of expression;

"deciding what contact, if any, P is to have with any specified person"

is juxtaposed with

"making an order prohibiting a named person from having contact with P"

The reference to 'prohibit' is a bald expression, the other is 'wrapped' in a sentence; the first part of a process, the second more of a free-standing activity. The actions are qualified by the surrounding words; 'deciding what contact if any' describes a process of determining contact presumably as part of managing it which will lead to a determination, one incident of which may be for an element of no contact; the other is described as a singular activity of 'making an order prohibiting'. The word 'deciding' permits of an on-going process where 'making an order prohibiting' seems more of a single act. The fact that it relates to the making of an order of course immediately places it within the court's own processes away from the day to day work of a deputy. It would appear, I find, that an examination of the words in their context identifies section 17(1)(b) as leading to the possibility of no contact as part and parcel of managing contact on an on-going and fairly flexible basis. Section 17(1)(c )will apply where a period is set up as more of a response to some identified cause and standing alone; 17(1)(b) will be part of monitoring in an on-going way; 17(1)(c will be the consequence of a situation, set up to stretch forwards, with the panoply of the formality and finality of a court order; the former seeming, as part of a process, to be more subject to review or monitoring during its course. I infer this particularly from the clear word 'prohibiting' unattached to any surrounding process. These differences do not appear to be absolute or to lead to totally different situations, but demonstrate, at the least, a difference of emphasis.

22. I am fortified in this approach by having considered the intention of Parliament "to be attributed to the words used" (Cross on Statutory Interpretation page 26). 'Deciding what contact if any' may be a process undertaken by a deputy whereas 'prohibiting' is reserved to the court. I refer to Section 16 (4) of the Act set out above.

It is not practicable for day to day management of contact to be dealt with by constant reference back to the court. In the words of the Judge in paragraph 47 on page 94 of the judgment, "the courts should be slow to create a situation where a deputy has no alternative but to apply to the court for an order each and every time a dispute involving contact occurs when the purpose of appointing a deputy is to deal with and manage periodic incidents and disagreements that hopefully can be resolved". I find that the attribution in the statute of 'deciding what contact if any' to deputies and 'prohibiting' to the court supports the construction that the first is concerned with the day to day management of contact, taking steps to avoid conflict and support the care plan, whereas the second refers to a more strategic and long term process, such as where an action is required to create a pattern or provision as to no contact, for instance where it may be found inappropriate for a certain person to have contact, or to do so to a limited extent as part of a pattern. Counsel for the Local Authority submits that prohibit refers to a permanent arrangement; whilst I find that this is not necessarily as clear cut as that, nonetheless it does lend itself to the sort of order that would have to be sought from the court; a more strategic and long term arrangement than would be appropriate for a deputy to take.

23. ln considering these differences in this particular case I refer to submissions on behalf of the parties as to various aspects of the arrangement for no contact.

(a) The length of time. If a period of no contact is arranged, the longer it goes on the more it will cease to be part and parcel of contact management and acquire a life of its own. In this case Mr Simblet says that a week is disproportionate and a prohibition, Mr Buttler says it is part of regulating contact over a comparatively short period and if introduced in the appropriate way, looking at the best interests of RB and acting proportionately with a reasonable belief in the necessity to make this arrangement, it is an arrangement of contact under section 17(1)(b) and permissible. I find that the length of time no contact goes on for is a relevant consideration in determining if the arrangement by a deputy is permissible. The judge, by setting the maximum of one week to which I later refer, would appear to have ruled that it is the Court that has decided in this case the maximum period for an arrangement for no contact to lie within section 17 (1)(b).

(b) Mr Simblet raises another context; what he called 'the life as lived'. In order to determine which sub-section applied the court should consider the impact of no contact as compared with what would normally happen without intervention in this family. Mr Simblet argues that for a family where children visit their elderly relative say every 2 weeks, a restriction for up to a week would appear proportionate, but where, as here, there is a pattern of daily visits by PB and twice weekly visits from the daughters, to stop contact for an entire week amounts to a 'prohibition' because of its inconsistency with the context, external to the words of the statute, of the pattern of life of this family and therefore disproportionate. However I find that the 'life as lived' in this case must also include the evidence both of the mother's having asked her son to visit less frequently and of her being less welcoming of his visits when he caused a disturbance. These are part of the range of facts found by the Judge.

24. Accordingly I find that in order to construe the adjacent provisions it would appear that the difference between the two provisions is determined by asking if the period without contact could be part and parcel and an incident of an on-gong management and monitoring of contact in a flexible way for a proportionate period of time and as a proportionate adjustment to the arrangements that would otherwise have taken effect in this particular family or would it be more of a specific response, standing alone, to a situation with the consequence of a set pattern of no contact probably for a more substantial period of time commensurate with an application to court.

THE APPEAL ISSUES

25. On behalf of the Appellant it is argued that the judge's decision to make an order that allowed the appointed deputy to prevent contact with any of RB's children for a period up to one week is outside the powers of the deputy under section 20 ( 2) (a) of the Mental Disability Act; as expressed by Mr Simblet "the only question is whether the power to suspend contact with someone for up to a week amounts to a prohibition."
26. On behalf of RB Mr Buttler, instructed by the Official Solicitor, stated in his skeleton "the only question of law concerns the meaning of the words 'to prohibit a named person from having contact with RB' and he submitted that if those words would allow the court to restrict contact between the named person and P, then the appeal must fail. I pause to note that this rather begs the question as to whether no contact for a week is a restriction or a prohibition. In this appeal and in the judgment of the Judge, the words 'restriction' and 'suspension' of contact are used, but it seems to me that in construing the statute it is preferable to consider the actual words used. I refer later to the case of Tool Metal Manufacturing Co. Ltd. V Tungsten Electric Co. Ltd..[1965] 1 WLR HL 761.

The analysis of the Judge

27. The concluding central order of the Judge that is subject of this appeal is to be found in Section 54;

"54. In order to provide clarity, the court also makes the decision (rather then deputising the local authority to make it) that it is in RB's best interests to authorise the local authority to suspend contact between RB and one or more of her children for up to 7 days without further court order provided it reasonably believes this is necessary and proportionate for the purpose of reducing conflict in her home and/or to avoid the breakdown of her care package."

The main analysis begins in paragraph 41.

"41. It seems to me that the powers which the court can confer on the deputy include deciding what contact P is to have with specified persons, provided no named person is prohibited from having contact with them. That must as a matter of simple practicalities include making decisions which in P's best interests apportion visiting times between relatives, so as to avoid conflict and the breakdown of the care package."

I find that this demonstrates that at the outset the Judge clearly had in mind the need to limit the power of the deputy to Section 17(1)(b) and to avoid purporting to delegate a power to prohibit.

28. I find that this is then further demonstrated in paragraph 42 where the judge states:

"42. I agree that 'prohibit' refers to a total cessation of contact until further order, which is why the power is so intrusive as to be reserved to a judge…"

I find that the Judge there directed himself to the need to distinguish the power to be given to the deputy from one of prohibition. I explored earlier in this judgment the possible different applications of the word 'prohibit' and the judge's definition here is, I find, not the only one. However I find that consideration of this appeal requires me to consider the substance of the order set out later and not the general definition here.

28. The recognition that the deputy may not 'prohibit' contact is carried on in paragraph 43 of the Judgment:

"43. No judge may empower a deputy to decide on P's behalf that it is in their best interests to prohibit contact with a particular person, including a family member. However, unless the order appointing the deputy provides otherwise, a deputy may make decisions which in P's best interests apportion visiting times between relatives, so as to avoid conflict and a breakdown of the care package. Obviously, that power has to be exercised in accordance with sections 1 and 4 and the court's directions."

29. The Judge then goes on to consider whether there is an entitlement to 'suspend' contact and concludes that this is a matter of degree and he gives examples of what he regards as permissible suspension;

"44. Next is the issue of whether the court can authorise a deputy to suspend contact with a named person if a cooling off period becomes necessary."

"45. As with most things, this may be a question of degree and practicalities. The fact that a deputy may regulate and tweak contact in P's best interests will include modifications from time to time to the contact schedule that increase one sibling's time and reduce another's, without any change in the objective of minimising conflict, facilitating contact and enabling P to have good quality contact with all of her children."

30. I note that here, it seems, the Judge is looking not just at the period, but at the purpose of the period without contact as part and parcel of managing contact. The Judge finds that this is not 'prohibiting' contact.

The Judge then considered other arrangements about contact short of a prohibition:

"46. Likewise, asking someone to leave RB's home because they are behaving in a way others present feel is aggressive or disruptive is not 'prohibiting' contact with them, merely bringing that particular episode of contact to an end. The situation is the same, I would say, where the deputy requires a short cooling-off period, along the lines of 'don't visit again until the care co-ordinator has phoned and discussed with you how best to deal with what's just happened.' That is managing contact."

32. The Judge then enlarged on this in the following paragraph:

"47. No deputy can effectively facilitate contact with family members and paid carers in P's best interests without this kind of necessary short-term power to manage contacts "incidents" that have immediate detrimental effect on P. For reasons of public policy, the courts should be slow to create a situation where a deputy has no alternative but to apply to the court for an order each and every time the dispute involving contact occurs when the purpose of appointing a deputy is to deal with and manage periodic incidents and disagreements that hopefully can be resolved."

31. The Judge then summarized the powers of the deputy up to this point in his reasoning:

"48. To sum up, unless the court's order appointing them provides otherwise, in my opinion the welfare deputy's powers include a power to terminate a particular episode of contact where that is necessary in P's best interests. The deputy may also decide on P's behalf that further contact shall not take place for a short period whilst the incident and its effect on P is being reviewed and discussions are taking place with the person concerned as to how best to regulate contact so as to avoid further incidents. That is all part of managing the contact arrangements so as to seek to ensure that P has contact that is in her best interests with all relevant 'named individuals."

The Judge goes on to consider any more extensive arrangement for no contact that leads him to conclude that the court should fix the maximum period for which a deputy can arrange for no contact.

"49. any power to 'suspend' beyond a 'very limited' cooling down period or period of negotiation 'should' be authorised by a judge, 'if not as a strict matter of law then, in this case at any rate, on a best interests basis".

32. The Judge goes on to draw a distinction between setting the maximum period, which he reserves to the court, and managing contact within that framework which he delegates to the deputy. It is this to which objection is taken by Mr Simblett.
33. In paragraphs 50 and 51 the Judge provided an illustrative explanation of his approach which is criticised by Mr Simblet. However, I leave that to one side, and I return to it in due course. First I refer to the following passages in which, in paragraphs 52 to 54 the Judge set out his appointment of the deputy and the main terms of his appointment.
34. I return to paragraphs 52 to 54 that contain the order of the Judge: Paragraph 52 deals with the appointment in itself of the personal welfare deputy. In paragraph 53 he repeats the powers he indicated in paragraph 46 and in paragraph 54 he deals with the deputy's powers that are subject to objection in this appeal;

"52. Having considered the current situation carefully, I believe that it is in RB's best interests for the court to appoint the local authority as her personal welfare deputy for a period of 12 months. This will give it clear authority to coordinate and refine a workable care plan and contact schedule, without their decisions on such matters being continually appealed to a Judge...

"53 I intend to limit the authorities' powers as RB's welfare deputy to making decisions about the following matters:

(a) coordinating, approving, implementing and periodically reviewing a care plan for her which is not at variance with the declarations made in the court's order and includes a contact schedule that sets out when her children may visit her at her home; and

(b) (subject to sections 1 and 4) requiring a named person to leave RB's home immediately and/or not to visit there until that person has discussed with RB's care co-ordinator (or a person nominated by them) the reason for requiring this and has agreed how best to manage future contact so as to avoid the problem or incident recurring."

I refer to paragraph 54 above where the Judge made the order objected to as …. A prohibition.

35. I return to paragraphs 50 and 51 that are criticised by Mr Simblet;

"50. I am conscious that Court of Protection orders made by puisne judges in serious cases do quite often authorise the local authority (without appointing it as a deputy) to suspend contact with a particular person, provide for supervised contact take place, or have a contact schedule attached to them.

51. The rationale behind orders authorising a local authority to suspend contact, without appointing it as a deputy is, presumably, that it is a decision for the court, and made by it. Although the authority is given a discretion as to when and how to give effect to the court's decision,… The court has already decided the disputed matter on P's behalf. The local authority and its officers are simply acting on, and carrying out, a decision made for P by the court, not being deputised to decide the issue brought before the court of whether contact may be suspended. Provided the local authority stays within the boundaries of the court's decision, such a provision does not make it the 'decision maker' any more than a decision that it is in P's best interests to undergo surgery makes the surgeon the 'decision maker' because s/he has control of the operational detail. Ditto, conveying someone to prison in pursuance of a court order (it is not the gaoler's decision), executing a warrant, etc. The court has decided what is to be done, determine the matter in question, resolved on the action to be taken, etc. All that is left to do is to implement that decision."

36. Mr Simblet argues that here even where the Court sets the outer limit of the action, as here described, there remains a discretion on the part of the deputy as to whether to act and if so to what extent. He distinguishes this process from the surgeon or gaoler here described. I agree that the Judge is here describing a process where the court decides on an action and the Local Authority is simply the executant. In a general way I find that this describes a process in which actions are divided between the court and the Local Authority. I agree that if this were intended to be the reasoned basis for the Judge's order it could be criticised for failing to recognise that even with a maximum period of 7 days set by the Court, nonetheless the Local Authority would exercise a discretion within that limit. If this part of the Judgment had gone onto a finding that the Judge was going to authorise the Local Authority not as a deputy but simply to carry out the court's decision of a 7 day period without contact, then of course such a finding would not recognise that the Local Authority would in fact exercise discretion as a deputy.
37. However, I find that when it comes to the actual decision it is clear that paragraph 54 does not follow paragraph 51 in that way. I find it is clear that paragraph 54 treats the handling of contact by the Local Authority as actions of the deputy and within their discretion. The Judge makes that clear by beginning paragraph 53 with the words;

"I intend to limit the authority's powers as RB's welfare deputy to making decisions about the following matters…"

And beginning paragraph 54 with the words

"…the court also makes the decision (rather than deputising the Local Authority to make it) that it is in RB's best interests to authorise the local authority to suspend contact…for up to 7 days"

38. And here the judge recognises that the Local Authority as deputy retains a discretion as to how to act by setting out some of the conditions they should take into account such as reasonable belief and proportionality. I find that the Judge has removed discretion from the Local Authority and decided the maximum period of 7 days. He has then left intact the discretion of the Local Authority as deputy within that period. I find that in paragraphs 50 and 51 the Judge is not to be read as paving the way for finding that the Local Authority acts in relation to all aspects of contact without discretion but as an executant. In any event I find that paragraphs 50 and 51 do not form part of the core decision or 'ratio decidendi' for the actual decision is expressly set apart, I find, from any situation in which the Local Authority does not act as a deputy without discretion. Central to his decision, I find, is the decision of the Judge to limit the maximum period of no contact and I find that this is an important element in distinguishing paragraphs 17(1)(b) and 17(1)(c) the need to do which the Judge, from his judgment, clearly had in mind.
39. On behalf of the Appellant Mr Simblet has raised the following.

(a) It is said that as a matter of principle delegating the power to suspend contact for up to a week is delegating a power to prohibit and therefore an impermissible delegation and the Court should have reserved that power to itself. Mr Simblet argues that the distinction between "deciding what contact if any" and "prohibiting" it is not a matter of fact and degree and a power is either in the nature of a prohibition or not. He argues in this case that it is the provision of the judge for 7 days without contact that is a prohibition, no matter in what way the arrangement for no contact in that period is made. I disagree. I accept that a deputy could act in a way that would be seen as prohibiting contact for a period of a week, but I find that that would depend on the facts of a case. If a deputy were to make a blanket ban on contact for a week without considering all the factors and conditions imposed by the Judge, without reviewing it in the light of representations made, and in the light of particular circumstances, then it may be that in a particular case a deputy could offend the provisions of the Act. I find this is a matter of fact and degree. Mr Simblet has not suggested what period, under section 17 (1)(b), would not, as a matter of general principle, be a prohibition . I find that, as matter of principle, the exercise of the power of a deputy under Section 17 (1) (b) could lawfully lead to a situation in which a particular person had no contact for 7 days depending on the circumstances of the case. I reject the proposition that there is a general principle to be found in rendering one week automatically a prohibition. I find in this case one should consider the whole of the judge's order which relates to the conditions that the deputy must satisfy as well as the period without contact in itself.

(b) Mr Simblet submitted that on the facts, a prohibition where PB and RB had contact almost daily, a power to 'suspend' for as long as a week was of such a change as to amount to a prohibition and impermissible, resulting as it might in RB's being prevented from seeing any of her children for as long as a week. Here I find Mr Simblet does not argue in terms of general principle but rather of fact or degree, to the effect that to prevent RB from seeing her children for as long as a week is perverse and, Mr Simblet would say, amounts to a prohibition. Mr Simblet says one should compare the effect of what results from the control of contact with 'the life as lived', being in this case of a lonely old woman whose life is the visits from her children, PB 5 times a week and the daughters twice a week. A suspension for a week can be a prohibition and when one looks at the circumstances of this case it is a prohibition, he says.

I find that if the period without contact is to fall within Section 17 (1) (b) then in order to avoid being a prohibition it must relate to the circumstances prevailing and to be part and parcel of the process of managing contact in the light of those circumstances. It follows, I find, that the impact of such a course on the people involved is one of the facts to be considered and I accept that one of those facts is to look at the impact on the family, that is its effect on how the family lived or would have lived; the 'life as lived' to which Mr Simblet referred. I find that the Judge clearly had this in mind. As referred to earlier, the Judge had found that RB's wishes for contact varied depending on the levels of conflict and her asking PB to not visit for a while, that on two occasions she had asked PB to not come and RB was recorded as being distressed when there was conflict on such visits. I find that when viewing this factor on its own, it cannot be said that no contact for a week would be such a difference in the 'life as lived' as to be perverse or, indeed, more than the process of managing contact under Section 17 (1) (b). Indeed I find that it would not be inconsistent with what is liable to have occurred in this family if RB had capacity and one was to reflect the 'life as lived'. I find it would not amount to a prohibition on its own, and in any event there are other factors that affect the exercise of discretion of the Local Authority to keep their actions within that sub-section to which I have referred.

(c) Mr Simblet submitted that, following paragraphs 50 and 51 of the judgment it was incorrect to conclude that by setting the 7 day limit the court had made the decision, that no discretion was left to the deputy and that therefore there would be no impermissible prohibition by the deputy. I have already considered these paragraphs; I find that the Judge deliberately did give discretion to the Local Authority by setting the upper limit.

(d) Mr Simblet submits that in reality the provision is not a matter of fact and degree but plainly a prohibition rather than a restriction, a distinction that was argued for by counsel for the Official Solicitor. Mr Simblet referred to the Judge's reference to Tool Metal Manufacturing Co. Ltd. V Tungsten Electric Co.Ltd., to which I earlier referred. In that case the court had to interpret two provisions, one for prohibition and one for restriction. I am referred by Mr Buttler to the speech of Lord Oaksey at page 778 where he said:

"A person, though not prohibited, is restricted from using something if he is permitted to use it to a certain extent or subject to certain conditions but otherwise obliged not to use it"

In that case both 'prohibition' and 'restriction' were statutory terms and the court had to construe them. I note Mr Buttler's submission that the draftsman did not use the term 'restriction' in this instance, but although the word has been used from time to time in these proceedings I do not find it assists in interpretation for it does not appear in the relevant sections of the Act and was not used by the Judge in his central findings and order.

(e) The context in Section 20, where preventing a deputy from prohibiting contact is referred to alongside provisions preventing a deputy from acting where the person had capacity, or from interfering with life-saving treatment, shows the importance of this provision. It is therefore unlikely, it is argued, that Parliament intended the bar against 'prohibiting' contact to apply only to an extreme situation, leaving the deputy otherwise free to substantially prevent contact. I agree that the meaning of words in a statute must be viewed in relation to their context. In so far as the Judge defined in general terms a prohibition as being 'a total cessation of contact until further order' I agree that this does not cover all possible instances of prohibition, as I have instanced in this judgment. However I find that in making his order, limiting a period of no contact to 7 days and emphasising other pre-conditions to providing for such a period, the judge was making provisions, as I summarise below, that in any event did not amount to a prohibition.

(f) Mr Simblet submits that a comparison can be made with the tests to determine when a restriction on a person becomes a 'deprivation of liberty' under the Mental Disability Act, and in particular the use of the words 'the degree of intensity' of the restrictions (Lord Bingham in Secretary of State v JJ [2007] UKHL 1 AC 385) and the comparison with what would be 'normal life' (per Baroness Hale at paragraph 62). Reference was made to whether conditions imposed were 'unusually destructive of the life of the controlee', a test applied in Secretary of State v AP [2010] UKSC 24 [2011] 2 AC 1. Munby LJ in Cheshire West and Cheshire Council v P [2011] EWCQ Civ 1257, [2011] 1 MHLR 430 referred to a comparison process with someone not resident in a care home, with a comparator with the equivalent characteristics of the person being considered. Mr Simblet submits that applying the 'comparative' approach to ask a visitor to leave may be possible to envision, but that it is difficult to envision the banning of one, or more important all, of a person's children for a week. I accept that element of 'prohibition' may be one of degree as to length, and that the longer an arrangement for no contact goes on, the closer it comes to a prohibition in the terms of the statute. However the process of comparison with normal life to be relevant must, it seems to me, include the characteristics of this situation that there is a risk of substantial disturbance and conflict on visiting. I can imagine a family making arrangements that result in limited contact and many elderly relatives are as a result, in my view, visited once a week or even after longer periods. However, the comparison approach was not greatly argued before me, and I have found it of limited assistance in this case. The reason is that the context of the provisions as to contact was a determination by the Judge that the most important aim was to enable RB to remain in her own home, and that this was threatened by the risk of disruptive contact. It was the introduction of arrangements to stop contact that resulted from this aim. No comparator was described to me, and I have not myself found a comparator, here, or comparable 'normal life'. I find that the reference to the cases dealing with deprivation of liberty has been of limited assistance in this case, at least to the extent argued before me. Of more relevance is the examination, on which the parties have focused, of the comparison in fact and in this case between the pattern of life in this family and the potential effect of a period of 7 days without contact.

(g) It is argued that the arrangement for no contact for up to 7 days offends Article 8 of schedule 1 of the Human Rights Act 1998, that recognises the right of everyone to respect for private and family life. Mr Simblet complains that although the Judge placed importance on Article 8 he did not follow this through in the decision making process. Of course the exception to this right is permitted where it is in accordance with the law and is necessary in a democratic society in the interests of the rights and freedoms of others. It seems to me that the Judge, in providing for the court to set the maximum period, was himself setting the maximum limit of interference and leaving to the deputy only the exercise within that limit. Further the judge referred to the 'fearsome family dynamics', and in making his order he imposed the requirement of a 'reasonable belief this is necessary and proportionate for the purpose of reducing conflict in the home. I find that related to the balancing of the rights and freedoms of others. Article 8 provides in the exception to 'the rights and freedoms of others'. I find that the confining of any period to that which was necessary and proportionate in this context ensured that any period without contact would not offend Article 8. In these circumstances it seems to me that the arrangements, properly applied, do not infringe Article 8, but are defined so as to be compliant. It seems to me that for instance in the passage in his judgment quoted in paragraph 11 of this judgment the Judge properly addressed and applied the issues correctly in this connection.

40. On behalf of the Second Respondent Local Authority it is submitted that 'prohibit' means a total cessation of contact. I agree that during the relevant period it imports a total cessation, but that does not dictate the period of that situation. It is submitted that the word carries a 'permanence' and again I agree that it seems to carry that significance but again limited to the period drawn for it.
41. Mr Buttler, counsel for the Official Solicitor, has made a number of submissions:

a. He relies on the principles of statutory construction that words in a statute are deemed to have been correctly used (Spillers Ltd v Cardiff Assessment Committee (1931) 2 KB 21 and that the ordinary sense of the word should be adhered to which is in the Oxford Dictionary 'forbid, deny or preclude', to which I have already referred.

b. reference is made to the Tungsten case that distinguishes 'restriction' from 'prohibition', again to which I have already referred.

c. Mr Buttler points out that on a day to day basis in order to respond to a disturbance that has occurred and in order to bring an end to unsatisfactory contact it is practical and sensible for the local authority to be able to say 'no contact for a period' which is no more than a week. It would be difficult to keep returning to court and would limit the capacity to act quickly and immediately in response to a particular situation. I find that this lies behind the Judge's order in this case as the purpose for it.

d. Mr Buttler points out that to adopt the Mr Simblet's argument would result in a situation where the deputy could not stop contact for any period without its being a prohibition. I find considerable force in this. Mr Simblet conceded that to ask someone to leave a period of contact to avoid a disturbance would be permissible management of contact, but he did not describe any period without contact that could otherwise avoid the description of a prohibition. I have found that the juxtaposition of the subsections implies that there can be periods of no contact that are not to be regarded as a 'prohibition' as that term falls to be defined in the context in which it lies. Further in his comparison to 'the life as lived' it seems to me that the facts of a case do become relevant and that this is not a matter of principle.

CONCLUSION

42. I find the order of the Judge provided for the deputy to be able to arrange for a period of no contact in the following circumstances

A. It had to be no more than seven days

B. In accordance with section 1 of the Mental Capacity Act 2005 the action must be in the best interest of RB and before implementation consideration must be given to a solution that would be less restrictive of a person's rights and freedoms.

C. In accordance with Section 4 in pursuing best interests, if practicable and appropriate, there should be prior consultation with RB, PB and his sisters in so far as the deputy reasonably believes it is in the best interests of RB.

D. The deputy must reasonably believe that the arrangement for no contact is both necessary and proportionate for the purpose of reducing conflict in her home and/or to avoid the breakdown of her care package. This was more fully explained in the passage of the judgment set out at paragraph 12 of this judgment, and requires that any arrangement for no contact (the judge used the word 'restriction' but I find he did not do so with any specific definition in mind) must be in order to manage an identified present risk that home care will be unviable unless contact is so restricted and a more proportionate means of safeguarding RB and enabling her to remain at home the other options. I note the reference to 'managing contact'

E. The purpose would arise if contact were harming RB and the aim was to reduce it to a non-harmful level.

43. The period without contact was not a 'bare' provision, but carried with it obligations of management, relevance and proportionality that had to be fulfilled as summarised in the passage quoted at paragraph 10 or this judgment. I find that this is an important ingredient in determining whether this is a Section 17 (1) (b) or 17 (1) (c) case.
44. I find attraction in the argument that one must compare the effect of no contact with the situation without such provision. I find that the order of the judge did not run so counter to the 'life as lived' to amount to a prohibition because although there was a history of daily contact there was also a history of the requests for less frequency and the discomfort at times of RB.
45. I find that the longer the period of prohibition the more difficult it will be to establish proportionality. I find that 7 days is proportionate where the other conditions are fulfilled. I find that by imposing the maximum of a week the Judge was in effect providing the framework for the deputy, all other conditions being met, to be able to act under section 17 (1) (b) and avoid acting under section 17 (1) (c).
46. I find that the terms imposed rendered the power delegated to the deputy to be part and parcel of the management of contact and to lack the characteristics of prohibition to which I earlier referred. Under the terms the deputy would use the power to 'decide what contact if any' as a management tool to avoid conflict and support the care plan on a day to day basis; he would not be making the sort of strategic or more long term decision that would otherwise be referred to the court, so as to bring his power under the judge's order within section 17 (1) (b).
47. I find that taking all these factors into account the provision by the Judge cannot be said to have been wrong, or plainly wrong, in his being satisfied, as he clearly was, that there was not a prohibition. Indeed I am satisfied he did not provide for prohibition by the deputy. I dismiss this appeal
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