England and Wales Court of Protection Decisions

COURT OF PROTECTION
MENTAL CAPACITY ACT 2005

		Court of Protection, First Avenue House, 42-49 High Holborn, London WC1V 6NP
		20 March 2014

§1 — FORMAT AND HEADINGS

1. This judgment is set out under the following headings:

		Paragraph
§1 —	Format and Headings	1
§2 —	Introduction	1
§3 —	Parties and Interested Persons	31
§4 —	The Issues	33
§5 —	RGS's Residence at X Care Home	36
§6 —	Contempt of Court Issues	45
§7 —	Media Attendance, Reporting and Publicity	50
§8 —	Contact	106
§9 —	European Convention and Article 8	113

§2 — INTRODUCTION

2. These proceedings have a long history.
3. RGS is 84 years of age and he suffers from vascular dementia. He has two children, a son RBS and a daughter A.
4. Until 2009, RGS lived at his own home, W Cottage in Essex. He was admitted to hospital on 17 September 2009, with a 'black left 1st toe' caused by vascular problems. On 22 September 2009, the toe was amputated.
5. In October 2009, he moved to X Care Home where he has lived ever since. According to the social work statement which formed part of the original court application, RGS had suffered from neglect at home:

'RBS states that he would bring his father fresh food weekly and in return eat the ready meals the neighbours would purchase for him, this is adamantly disputed by RGS's neighbours and housekeeper who state RBS eats his father's food and leaves him without. They state he would leave his father for weeks on end and [will] then come and use his washing machine to do the washing, leaving the house a "mess".'

6. Following RGS's move into residential care, in a letter dated 20 May 2010 his Independent Mental Capacity Advocate (IMCA) from Age Concern

'noted that RGS has gained weight consistently each month since his admission and appears to be quite settled within this environment … There does (sic) not appear to be any occasions documented where [he] has expressed wanting to leave [X Care Home] or has shown any distress or upset at being there ….

… It is my opinion that RGS would be at very high risk if he returned home due to previous self-neglect …'

7. RBS son disagreed and on Friday 13 August 2010 he did not return his father to the care home following an afternoon visit.
8. On Monday 16 August 2010, RBS refused to tell the social worker where his father was.
9. Discussions aimed at resolving the problem informally were unsuccessful. Therefore, given the neglect and welfare concerns, the county council applied to a High Court Judge for an order that RBS disclose his father's whereabouts, that the council be authorised to return him to X Care Home, and also authorised to suspend contact between father and son until further order.
10. On Wednesday 18 August 2010, the Honourable Mr Justice Roderic Wood made an interim declaration of incapacity and a 'seek and find' order in the terms sought. A penal notice was attached and the police were requested to assist in implementing the order.
11. RGS was returned and on Thursday 24 August 2010 RBS undertook to the court not to remove his father from the care home without the prior agreement in writing of the county council. The Honourable Mr Justice Singer made a further interim declaration that it was in RGS's best interests to live at X Care Home and for contact with his son to be supervised and regulated by the council (and, if necessary, temporarily suspended).
12. On 9 November 2010, I received a consent order declaring it to be in RGS's best interests to continue to reside at X Care Home, and for contact with his son to be supervised and regulated by the council (and, if necessary, temporarily suspended).
13. RBS, who was legally represented, was one of the parties who consented to that order.
14. On the same date, having also been informed by RBS's then solicitors that he had withdrawn his objection to the county council being appointed as his father's deputy for property and affairs, I appointed the council to act in that capacity.
15. Some time later, the case became active again.
16. On 2 November 2012, I held a one-day hearing to deal with various issues that had been raised with the court: an application concerning the sale of paintings belonging to RGS, in particular one by Lucien Pissarro; unauthorised expenditure by RBS from his father's estate; the need for a statutory Will; RGS's best interests in relation to residence, care and family contact; the unauthorised publication by RBS of information about the proceedings; media applications to attend and report the proceedings; litigation capacity; litigation costs and other costs.
17. For those who wish to know precisely what was decided, the full judgment was reported on Bailii as Re RGS [2012] EWHC 4162 (COP).^[1] Two of the outcomes were that a litigation friend was appointed for RBS, because it was felt that he was damaging his own litigation interests and welfare, and further inquiries were commissioned concerning his father's residence and the practicality of a return home to W Cottage.
18. On 19 July 2013, by consent and on the basis of several independent assessments the court declared that it remained in RGS's best interests to live at X Care Home and for contact with his son to be regulated and supervised, and if necessary temporarily suspended.
19. That short judgment was circulated on the day to the media applicants who reported the case and the outcome. The judgment was summarised in 39 Essex Street's Mental Capacity Law Newsletter (Issue 37, September 2013, pp.19-21).^[2]
20. For the benefit of those who are interested in the full history, this short judgment endorsing the consent order appears as Appendix A to this judgment. However, with regard to the residence issue I found as follows:

RGS's place of residence

Sadly for RBS, I have concluded that it is not in his father's best interests to return to W Cottage.

RGS's son tells me that he has fought 'for what I believed father wanted'. His father is still able to remember his home and 'has at times yearned to return there'. It has been 'his dearest wish'. He promised his father that he would do everything in his power to get him home, and has tried to make it safer and more secure.

The evidence of friends at the hearing on 2 November 2012 demonstrated that his father has a loyal, intelligent and kind-hearted group of friends who provide him with valuable social support. That is a very relevant factor. However, neither RBS nor their friends are able to provide personal care. The balance of the evidence is strongly in favour of RGS remaining at his current place of residence.

RBS's view that his father has a strong and clear wish to return to W Cottage is not shared by many people. His sister believes that her father is well placed and best placed where he is, as do his professional carers. The Deputy Official Solicitor, the IMCA (Independent Mental Capacity Advocate) involved on his behalf, the member of the Association of Independent Visitors (who has 16 years experience as a Court of Protection visitor) who visited him and the court's Special Visitor could not elicit any real evidence supporting RBS's interpretation of his father's wishes and feelings.

When RGS met the Deputy Official Solicitor he referred to having a home called 'Ivy House'. When shown a photograph of W Cottage, he said that it was in a different town to where it is. On being prompted, he remembered having lived at W Cottage but wanted to stay where he is.

The Special Visitor (psychiatrist) observed that he seemed quite happy where he is. He 'did not, despite being presented with alternatives, express any wish or preference to live elsewhere' (para. 62). Transferring him to a different environment would add to his confusion and be likely to make him more agitated. It was 'difficult to see [how] he would benefit from this given his current level of cognitive impairment' (para. 67).

The member of the Association of Independent Visitors came to a very similar view (see my previous judgment).

When I visited RGS, he told me that after my visit he would be driving home in his old van to W Cottage, where he lived with his wife E. His wife and two children lived there with him. His son RBS lived with them 'morning, noon and night'. Although his children were now adults, aged around 20-25, they had no children of their own. His wife cooked for them. However, he could cook for himself; what he cooked depended on what he could catch. He told me that he was aged around 35-40.

Watching a parent become frail, and their mental health decline, is a sad thing. It is obvious that RGS's son has been very distressed by this and that it has affected his own health. As a devoted son, he has fought hard to preserve the life they shared, the family home — 'W Cottage' and family heirlooms such as the Pissarro painting. Recently, his own marriage has been dissolved, he has lost contact with his child and has been in poor health. During this period of great stress and upheaval, emotionally it has been very important for him to hold on to cherished family possessions, with their associations of a more settled time, and to hope to have the chance of a last short period living at home with his father. However, it is, I believe, a natural and understandable need which he now has much more than his father, much as his father loves him. Just as his father's dementia has borne him into the past, there is a sad and all-too-human Gatsbyesque quality to his wish to hold on to a life together that he knows is about to pass and perhaps already is in the past. 'So sad, so strange, the days that are no more.'

If he still had capacity, no doubt his father would be keen to know his son's wishes and feelings, and would wish to do all he could to accommodate them and promote his welfare. That is the approach I have taken but I, no less than RGS when he had capacity, am subject to the law (as a judge more than anyone), and in particular to care home charging regulations and the legal requirement to pay off sizeable accumulated debts. Settling his affairs — and the costs and debts incurred by his son — is in his best interests, and that now requires RBS to return to his own home and for his father's property in storage to be sold. This will release the funds necessary to enable his father to be well cared for in a good-quality environment where he himself is content.

21. Shortly after making my decision, RGS was assaulted on three occasions over a period of three days by a fellow care home resident with dementia. On each occasion 'Y' hit RGS with a walking stick — resulting in bruising, a skin tear and a broken tooth. RGS was subsequently seen by a dentist but apparently no treatment was considered necessary.
22. Following these incidents Y was constantly monitored and no further incidents occurred. Y was sectioned under the Mental Health Act 1983 on 22 August 2013, has not returned, and will not be returning to X Care Home.
23. The manager of RGS's care home promptly reported the incidents to RBS and to the county council, so that they could be investigated under the council's safeguarding procedures.
24. On 15 November 2013, the court commissioned a report from the county council as to the circumstances which was produced on 29 November. According to this report, the safeguarding investigation found 'that there was a failure … to ensure that RGS's safety needs were met. An action plan was put in place to ensure that practice at the home was improved and further placements at the home were suspended'.
25. On 13 December 2013, of its own motion (i.e. without any application) the court considered that it was in RGS's best interests for the court to review the existing arrangement. It made the following recitals:

2. On 19 July 2013, the court declared that [residence at X Care Home] continued to be in RGS's best interests.

3. Since that date, RGS has been injured by another resident in the circumstances described in the section 49 report …

4. Having investigated the circumstances, the local authority's opinion remains that it continues to be in RGS's best interests to reside at X Care Home.

5. The court understands that such incidents do occur from time to time in well-managed hospitals and care homes at which people with mental health needs live. No adverse findings or inferences have been made or drawn.

6. However, on its own motion, the court considers that it is in the best interests of RGS that the existing arrangement is reviewed by it in a proportionate manner.

7. The Official Solicitor previously acted on RGS's behalf as his litigation friend in relation to media and other applications and he is familiar with the case.

8. The court recently found that RGS's son RBS lacked capacity to litigate in Court of Protection proceedings concerning his father and it has not received any evidence to cause it to review or reconsider this finding.

9. The media organisations referred to in this order attended and reported the hearing on 19 July 2013 and have a legitimate interest in being kept informed of relevant developments, attending (any) future hearings and being permitted to report developments, subject to the same restrictions as to the identity of those involved as were imposed in relation to the hearing and order of 19 July.

26. In essence, the need for RGS to be in a care home had been determined by the court in 2013 but it could be the case that it was in his best interests to move to another care home.
27. The court commissioned an independent best interests report from one of its (social work) General Visitors, Ms Barbara Joyce, who was asked 'to file a report reviewing whether it continues to be in his best interest to reside at X Care Home'.
28. Having been given a copy of this report, by 4pm on Friday 31 January 2014 the parties were to file and copy to each other any application notices which they wished the court to consider, together with any directions requested; any consent order which they wished the court to consider; and any statements concerning the report and the circumstances which led to it being prepared.
29. In the event, no applications, orders or statements were filed by Friday 31 January 2014, or indeed by the time of the scheduled final half-day hearing on 4 March.
30. RBS attended this hearing. Although he has a litigation friend, which has enabled me to manage the litigation process, at the court's invitation he sat on the front bench, spoke with the other parties, and with the Official Solicitor's representatives in private, and was given regular opportunities to address the court as each issue was considered.
31. Given RGS's limited funds, it was common ground that the court and the parties should co-operate as far as possible in seeking to resolve this issue in a proportionate manner.

§3 — PARTIES AND INTERESTED PERSONS

32. The parties in relation to the primary proceedings concerning RGS's personal welfare are:

Party	Status	Relationship/representation
Essex County Council	Applicant	Represented by Mr Derek Jones, Principal Solicitor, Essex Legal Services.
RBS	First Respondent	The son of the person concerned, by his litigation friend Mr A.
RGS	Second Respondent	The person concerned ('P' in the legislation), by his litigation friend, the Official Solicitor (Ms Janet Ilett, Deputy Official Solicitor, having conduct of the case). Represented by Mr David Rees of counsel.

Press attendance

33. The hearing on 4 March 2010 was attended by Mr Brian Farmer of the Press Association and by Ms Sarah Morrison of the Independent and Independent on Sunday, both of whom made very helpful oral submissions and observations as to the publication issues.

§4 — THE ISSUES

34. The primary issue was whether it continued to be in RGS's best interests to reside at X Care Home having regard to the fact that he had been injured there. The two secondary issues concerned contempt of court and reporting restrictions.

Issues that the court has already determined

35. The court made it clear in December 2013 that it would not allow any of the parties to use the review to reopen certain issues which had already been determined by the court at previous hearings:

Issue	Court's decision	When decided
Money of RGS which could not adequately be accounted for	RBS was unable to account satisfactorily for significant sums of money withdrawn by him from his father's shares and bank accounts. Because it was unlikely that RBS could raise £76,500, and having regard to his health, the court and the local authority decided against taking any action to recover this sum during his father's lifetime. It is to be deducted from any inheritance due to him under his father's Will (see below).	Order of 19 July 2013
RGS's Will	A rather unsatisfactory home-made Will led to a safeguarding concern being raised that RBS was attempting to persuade his father to change his Will so as to exclude RGS's grandchildren. According to RGS's daughter, her father 'would never have made the statement that he did not wish any of his grandchildren to inherit anything. My father was always a kind, generous and fair man.' I authorised the execution of a statutory Will on his behalf which made the usual provision for grandchildren in the event that the relevant parent predeceased RGS. The Will also brought into account the £76,500 referred to above.	Orders dated 26 February 2013 and 19 July 2013.
Family issues	Related to the Will issue, RBS has frequently tried to raise with me irrelevant issues about members of his sister's family. I am satisfied that these are his grievances, not his father's. If he wishes to pursue such matters, he must do so in his own name and at his own expense.	4 March 2014
Sale of W Cottage	The sale of W Cottage was authorised by the court in 2013, following prolonged court proceedings.	Court order of 19 July 2013
Sale of paintings and property in storage	At the same time, the sale of a painting belonging to RGS by Lucien Pissarro was authorised by the court. As I noted at the time, the relevant regulations require that the cost of RGS's care is paid for from his own assets until these are depleted to almost nothing. The position is the same for people with and without capacity and can only be changed by Parliament or by the government acting in accordance with regulations. (When I asked RGS what the word 'Pissarro' meant to him, he answered that it was the name of a local family. He then added that Pissarro was a friend whom he had met at school.)	Court order of 19 July 2013
Need for a litigation friend	The court found that RGS's son RBS lacked capacity to litigate in Court of Protection proceedings concerning his father and it has not received any evidence to cause it to review or reconsider this finding.	2 November 2012
Smoking	RGS has always been a keen smoker. On the evidence, subject to the indoor smoking regulations, I am satisfied that he can usually smoke when he wishes to. No one has argued to me that his smoking should be restricted in a manner contrary to his wishes.	Various dates
Media reporting	The court has already directed that Essex County Council may be identified as the local authority involved in the case. The court, judge and independent experts may, of course, also be identified.	19 July 2013
Costs	As far as one can in this case, the court needs to ensure that the costs are proportionate to their significance and what RBS's father can afford. It is unfortunate that he has been involved in so many different legal actions: Court of Protection proceedings (personal welfare and financial proceedings), statutory Will proceedings, High Court seek and return orders, habeas corpus proceedings, European Court of Human Rights proceedings, issues about the use made of his father's money, contempt of court issues, matrimonial proceedings, contact proceedings and litigation involving previous solicitors. Considerable costs have been incurred. They include the significant cost of professional help to enable his son to sort out his own legal problems which I permitted to be drawn from his father's estate on the basis that his father has always been a kind father and would have wished it.	Various dates

36. It is necessary for me to summarise this history because of unfair press and public criticism of Essex County Council and its staff, based on one-sided information provided by RBS himself. This is not a simple case of good versus evil, of an uncaring local authority riding roughshod over the rights, wishes and feelings of a family which seeks only the right to live in peace in the family home free from the tyranny of busy-bodies and petty tyrants. Rather, it is a complicated matter with many sad strands and several interwoven motives: there has been altruism and compassion but, as is the mixture of life, also self-interest and an inability to distinguish between one's own emotional and financial interests and those of a vulnerable close relative.

§5 — RGS'S RESIDENCE AT X CARE HOME

37. The best interests issue for review is therefore whether it remains in RGS's best interests to reside at X Care Home following the assaults on him by Y.
38. RBS's position remains that his father is a prisoner; he passionately wants to return home; they were chased by two police forces; their treatment was 'horrifying'; his father should be 'released'; he has a duty of care to his father; the local authority should pay for home care until compensation is awarded to them.
39. Many independent people have visited RGS at the care home because of his son's concerns in order to evaluate the accuracy of what RBS says, including:

a) A Special Visitor appointed by the court (Dr Tennent, consultant psychiatrist);

b) A General Visitor appointed by the court (Ms Farrer, solicitor);

c) A second General Visitor appointed by the court (Ms Joyce, social worker);

d) Myself (Judge);

e) The Deputy Official Solicitor (Ms Ilett);

f) A member of the Association of Independent Visitors (Ms Surtees, social worker).

g) Care home staff.

h) County council social workers throughout the period since 2009.

i) Those professionals who visited following the assaults by Y in order to undertake a safeguarding investigation.

40. All say the same. RGS is content where he is. When presented with alternatives by them, he did not express any wish or preference to live elsewhere. Transferring him to a different environment would add to his confusion and be likely to make him more agitated. His son cannot bear or accept this painful truth.
41. The Official Solicitor says that the incidents involving Y were isolated incidents involving a specific resident. The home's procedures have been reviewed and revised. Although no individual's safety can ever be totally guaranteed, the local authority is satisfied that X Care Home is safe for RGS and other residents. RGS has been there for 4½ years and is well settled. A move to another care home would not bring any benefits with it for him and would have clear disbenefits. All of the concerns and risks associated with a move home raised in the earlier section 49 reports remain valid. 'Notwithstanding the very regrettable assaults … the Official Solicitor is of the view on the basis of the current material that it remains in his best interests to remain at X Care Home … It would appear that a return … to W Cottage is not a practical option that can properly be considered by the Court' (Position Statement, para. 27).
42. The position of the local authority also remains the same.
43. Whilst ensuring that RBS's views are before the court, as an officer of the court his litigation friend has been bound to accept that the balance of the evidence is clearly in favour of RGS's continued residence at X Care Home.
44. I accept that the very clear balance of the evidence indicates that it continues to be in RGS's best interests to reside at X Care Home. There are things that I would wish to add:

a) Having spent almost 30 years in mental health, chaired inquiries and worked as a Coroner, I can say without qualification that it is a sad fact that assaults and other serious incidents do sometimes occur at well-run care homes, nursing homes and psychiatric units because of the mental ill-health of someone receiving care or treatment there. That is one important factor to consider when deciding whether it is in someone's best interests to be at home or in a shared environment.

b) In this case, X Care Home is a spacious manor-type house set in the open countryside. It passed all of the overall standards at its last Care Quality Commission visit in January 2014, including the standards concerning caring for people safely and protecting them from harm. RGS is generally content at the care home. The independent people who have visited him are satisfied with his general care and quality of life.

c) There is no practical alternative. He suffered neglect at home. His son's actions would make a home care package unsustainable even if it was affordable. The financial feasibility of a return home was explored in 2013 in deference to RBS's wishes. It was not feasible. The position today is the same. If W Cottage is not sold, RGS has debts which cannot be met of £199,908 (much of which ironically and tragically relate to his son's actions). Therefore, W Cottage must be sold.

d) RBS now says that home care could be financed by a 'flood claim' against the Anglian Water Authority pending the award of compensation to him and his father. That is not realistic. The Official Solicitor was correct to say that the option of residence at W Cottage is 'not remotely affordable' even if it was otherwise feasible.

e) It is not appropriate for RBS to be appointed as his father's deputy for property and affairs, in place of the county council. The conflict of financial interest is too great and his previous unauthorised dealings with his father's assets make this impractical.

45. The issue of family contact is dealt with below.

§6 — CONTEMPT OF COURT ISSUES

46. As noted on many occasions, RBS has an unfortunate habit of publishing information relation to the proceedings. Indeed, the Official Solicitor's position statement was already online by the time the hearing started.
47. He has persuaded some local newspaper editors to publish stories about his father and his own efforts to 'release' him from 'prison'. These publications have breached section 12 of the Administration of Justice Act 1960, the Court of Protection Rules 2007 and court orders.
48. It is highly unlikely that he falls within the old M'Naghten Rules (see Wookey v Wookey [1991] Fam 121 and P v P (Contempt of Court: Mental Capacity) [1999] 2 FLR 892) such as to have an absolute defence to enforcement proceedings for such alleged contempts of court.
49. Since December 2013, RBS has also written to me about the case at a private email address, copying to me numerous emails and correspondence with the parties and other persons.
50. Because the local authority has taken a compassionate (and long-suffering) view, no one has yet applied to have him committed for contempt of court and I do not propose to take any action at present on my own motion. The position remains exactly as before:

'… taking a punitive approach to someone who is unable to comply with litigation rules and directions would be unjust. I would be punishing him for something beyond his control or in respect of which his responsibility is clearly diminished.

I have told him of one of the relatively rare exceptions, which is where I am forced to balance his vulnerability and needs against those of the children at the margins of the case.

As it happens, I am a judge who believes that there are cases where prison is the appropriate sanction for contempt of court. The option exists because it has been found to have utility in appropriate cases where a party does not comply with court orders concerning residence, contact, confidentiality and the like.

It is simply that I do not believe that it is appropriate in the case of people who suffer from a significant mental illness which affects their behaviour, and which also makes them wholly unsuited to a custodial regime. I have spent a good deal of time in prisons and psychiatric units over the years, and enough time with RBS to know that his health would be unlikely to survive it.'

(Re RGS, Bailii judgment, p.27)

Unauthorised publication of information about the proceedings

One can legislate for marriage but not for a happy marriage. The law provides a framework for dealing with or containing disputes but it cannot remedy the underlying realities and relationships. Things are as they are. RBS has endured mental health problems since the age of 16 and quite often this has been trying for him, and no doubt for his father, to cope with. His father appears no longer to have capacity to decide how to deal with, or to respond to, his son's behaviour when it affects his own well-being and interests. I must decide for him. On the current evidence, I think his father is devoted to his son and would wish me to take the same forgiving approach to his actions that he seems to have taken over the years. At present, therefore, I continue to prefer not to take any formal steps against RBS. The position remains the same as set out in my order of 18 May 2011:

'(7) The court also reserves the right to take action in relation to the contraventions of previous orders, which includes dealing with those contraventions as contempt of court, but will have regard to RBS's compliance and co-operation today and in the future before deciding whether any action is required, together with any new evidence of misappropriation and the matters referred to in section 4 (his father's best interests, including any wishes and feelings of his father).

Put differently, I am counting the breaches and reserve the right to take the conventional action in respect of all of them, but hope to avoid having to do so. Ideally, he will bear in mind the benefit to him of now seeing the court visitor, and the cost to him of continuing to breach orders, such that when the time comes I cannot trust him to observe undertakings he offers, or orders he asks me to make, concerning his father's personal welfare. He must also refrain from doing anything that injures the children's interests and feelings, and those of his sister and individuals who are simply doing their job by carrying out the court's or deputy's instructions. Hopefully we will not reach the tipping point.

(Re RGS, Bailii judgment, p.48)

§7 — MEDIA ATTENDANCE, REPORTING AND PUBLICITY

51. The Official Solicitor reminded me of the need to balance Articles 8 and 10 of the European Convention on Human Rights. He submitted that the court should seek to ensure that the publicity generated by the case does not come to RGS's attention and does not interfere with his day-to-day care.
52. I agree with the importance of the second point. However, unless contact with his son is prohibited or supervised continuously within the care home, which is not desirable, the first objective is I think unachievable given his son's habit of reading press reports generated by him to his father.

RBS's position

53. RBS again tells me that he would like the court to identify him and his father as the people at the heart of this case, and to authorise the press and other third parties to identify them in reports. He would also like me to authorise identification of the care home and the other persons involved in the proceedings and his father's care.
54. The reasons why I appointed a Litigation Friend for RBS are set out in detail in Re RGS [2012] EWHC 4162 (COP), the first of the three judgments in this case.
55. In brief, at a hearing on Thursday 14 June 2012, which the newspapers interested in this case attended at RBS's request, the parties and I agreed that RBS's litigation capacity was an issue. The trigger was a collective concern that he did not understand the possible implications of having his own conduct and identity publicised in national newspapers. He appeared to lack any appreciation that some of his conduct could be the subject of adverse comment in his local community and indeed nationally; for example, the unauthorised dealings with his father's money, the handwritten Will, the exclusion of the grandchildren from the Will. Given the medical history, there was a concern that this might be a capacity issue and not merely an unwise decision on his part.
56. In the event, I decided and remain of the view that RBS lacks litigation capacity. He is unable to understand or weigh the reasonably foreseeable consequences of a decision permitting the press to report his identity and conduct. Acceding to his request would be likely to cause significant harm to his health and well-being and is not in his best interests.
57. RBS may make all the points he wishes, and may criticise the court and me publicly, including to the press, without being identified as the critic. Any advantage to him in being named is overwhelmed by the disadvantages to him and his health of being the subject of adverse public comment.

The Media Applicants

58. The media applicants already have permission to publish the identity of the local authority. In addition, of course, the court and I may be named, as may the independent experts who prepared reports and are named in this judgment.
59. There was no specific application on their part to go wider than this, more a constructive and informative dialogue between press representatives and the court as to the potential advantages and disadvantages of naming other persons or institutions involved in the proceedings.
60. Because the court and the press have legitimate, essential, functions to perform it has been a matter of trying to formulate together the competing considerations which the judge must have in mind and weigh, subject of course to the usual press rights of appeal if they then think that the judge has got it wrong.

Relevant law

61. Under the Court of Protection Rules 2007, the general rule is that a hearing is to be held in private.
62. This reflects the personal, private, nature of the information which the court is usually considering. Everyone benefits from, and enjoys, this level of privacy. Therefore there is a strong public interest in privacy.
63. Not to allow an incapacitated person the same general right to privacy and confidentiality that we claim it for ourselves would be to discriminate against them because of their mental illness and vulnerability.
64. The one, highly important, difference is that whilst in an ideal world incapacitated people would have exactly the same right to privacy and confidentiality that the rest of us enjoy, when judges make decisions for them this brings into play the competing consideration that the public ought to know how courts of law function and administer justice: what kinds of decisions they are making, the quality of those decisions, and so forth.
65. The Court of Protection Rules 2007 allow for this by providing that the court may by order authorise any person, or class of persons (such as members of the press), to attend a private hearing or part of it.
66. As concerns the publication of what is said at a private hearing, and publication of court documents, the general rule in primary legislation is that publishing information relating to proceedings before a court sitting in private is not of itself a contempt of court.
67. However, one of the exceptions to this general rule is where (as here) the proceedings are brought under the Mental Capacity Act 2005: see section 12 of the Administration of Justice Act 1960.
68. The 2007 rules (rr.90–93) contain additional legal provisions concerning the publication of information relating to the proceedings.
69. These court rules provide that the court may by order authorise the publication of such information relating to the proceedings as it specifies, or authorise the publication of the text or a summary of the whole or part of a judgment or order made by it.
70. In either case, the court may 'on such terms as it thinks fit' impose restrictions on publishing the identity of the person concerned, any party, any witness, or any other person, and it may prohibit the publication of information that might lead to them being identified.
71. It may also 'impose such other restrictions on the publication of information relating to the proceedings as the court may specify'.
72. The court can only make any such orders if there is 'good reason' to make it and a proper balancing of the competing interests and considerations justifies it: see A (By his litigation friend the Official Solicitor) v Independent News and Media Ltd, Associated Newspapers Ltd, Guardian News and Media Ltd, Times Newspapers Ltd, Telegraph Media Group Ltd and the Press Association ([2010] EWCA Civ 343; [2010] 3 All ER 32, [2010] 1 WLR 2262, [2010] 2 FCR 187), where the Lord Chief Justice stated at paragraph 11:

11. None of these orders may be made unless there is "good reason" for making it.  We do not propose to re-write the words "good reason".  They mean what, taken together, they say.  Arguments about whether the general rule that the hearing should be in private amounts either to a presumption or to a starting point are in practice unlikely to be anything other than semantic.  If in the judgment of the court there is good reason to grant the authorisation, the order may be made: otherwise not.  No doubt more compelling reasons would be likely to be required in support of a full public hearing rather than a suitably anonymised publication of the court's judgment.  In agreement with Hedley J, we would emphasise that, even when good reason appears, before the necessary authorisation can be granted better reasons may lead the court to refuse it.  Accordingly the reality is that provided good reason appears, the court will then assess all the relevant considerations and make a balanced, fact specific judgment whether the specific authorisation should be granted. In other words, before the court makes an order under Rules 90 to 92, a two stage process is required; the first involves deciding whether there is "good reason" to make an order under Rule 90(2), 91(1) or 92; if there is, then the second stage is to decide whether the requisite balancing exercise justifies the making of the order.

73. At paragraph 35, the court observed that the good reason relied on by the media would invariably be based on the public interest in imparting or receiving information about the case or some of its features and/or the way in which the Court of Protection functions.
74. Because the second stage is a balancing exercise, (a) even when good reason appears, before the necessary authorisation can be granted better reasons may lead the court to refuse it; (b) almost invariably, more compelling reasons are required to support naming the person concerned than are for publishing an anonymised judgment; (c) the person who is the subject of proceedings and other members of their family should not normally be named.

The President's recent guidance

75. Recently, the President of the Court of Protection has issued guidance on transparency: Transparency in the Court of Protection: Publication of Judgments, Practice Guidance issued on 16 January 2014 by Sir James Munby, President of the Court of Protection.
76. As its title and paragraph 1 indicate, the guidance is concerned primarily with the publication of judgments, not the lifting of anonymity, and is 'intended to bring about an immediate and significant change in practice in relation to the publication of judgments ….'
77. The normal rule with regard to a local authority is that it should usually be named, as should expert witnesses.
78. The normal rule and expectation remains that the anonymity of the incapacitated person and members of their family will be strictly preserved, and that all persons must ensure that this condition is strictly complied with.
79. The relevant legal rules remain in force and therefore the effect of the guidance is, it seems to me, a very clear steer to judges to interpret those rules, and terms such as 'good reason' and 'on such terms as [the court] thinks fit', wherever possible in a manner consistent with the guidance.

Guidance in Court of Protection Practice 2013 (Jordans)

80. The 'Blue Book' (Court of Protection Practice 2013, Jordans) contains very useful practical advice, at p.698, concerning factors which the court may wish to take into consideration.

Analysis and decision

81. Having regard to the law, my analysis and decision are as follows:

Good reason

82. The press have been attending court hearings since 2012 and have been authorised to publish judgments and information relating to the proceedings, subject to not identifying RGS, family members and the care home.
83. There was and is good reason for permitting the press to attend hearings, to report what is said in court and to publish the court's judgments. Furthermore, a proper balancing of the competing considerations justifies this. The case has involved important matters such as the rights of people incapacitated by dementia, the quality of their care, laws which permit the sale of private property to finance their care and the way in which the Court of Protection functions.
84. In my view, there are also good reasons for lifting the veil of anonymity in relation to the identities of some other people. Much information is already known by residents local to W Cottage; information about RGS and others involved in the case has been published by local newspapers; RBS has published many accounts of the conduct of the local authority, the care home and staff on the web, social media and by email; much of this information is inaccurate, unfair and one-sided; in consequence, innocent people on modest incomes who perform a valuable caring role in society have been subjected to persistent, unfair, unmerited and demoralising criticism; those affected, who are often named by RBS in his communications, would be able to defend themselves openly; there is a risk that people in need of care in Essex may be put off seeking help because they believe that what is untrue is true; the publication of the identities of those involved would enable people to make better-informed judgements.
85. Whether to authorise further identification therefore turns on the second part of the two-stage test, which requires me to balance the various competing considerations.

The balancing exercise

86. Taking a balance sheet approach, the arguments for and against broadening identification of those involved in the proceedings include the following:

In favour of the existing position	In favour of broadening identification
The general rule provides that anonymity is the starting point which the court may only depart from if there is good reason and a balancing of all relevant considerations justifies it.	Freedom of expression, a free press and Article 10 rights —which were engaged when the application was made by the media and a request by RBS — are all essential to a free society.
When deciding whether to exercise any power under rules 90–92, the court must give great weight to the actual or potential invasive effect that an order may have on the private life of anyone whose privacy is intended to be protected by the rules.	The court has authorised the naming of individuals involved in some cases, notably Derek Paravicini and Steven Neary, and no evidence has emerged that their interests were harmed by that.
The President's guidance provides that normally the person who is the subject of proceedings and members of their family should not be named, and that local authorities and experts should be named. That is already the position here.	There is nothing prurient about the press interest. Many of the issues raised by the case are of great public importance. Much of the impact of public debate, however, derives from personalisation — sympathy with an identified person and the fact that it is a personal narrative.
In reality, publicly identifying RBS will also publicly identify his father. However, his father has never expressed a wish to be identified or for the world to know that this is his medical condition and these are his personal circumstances.	In Application by Guardian News and Media and Others ([2010] 2 AC 697, at paragraph 63, Lord Rodger highlighted that writing stories which capture the attention of readers is a matter of reporting technique; that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed; that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information; that a requirement to report it in some austere, abstract form, devoid of much of its human interest, could mean that the report will not be read and the information will not be passed on. Ultimately, 'such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.'
Nor has RGS expressed any wish to comment on his case or to criticise his professional carers. RGS did not disclose sensitive family information publicly when he had capacity and he continues to be entitled to protection and respect for his private life.	Nor has RGS expressed any wish to comment on his case or to criticise his professional carers. RGS did not disclose sensitive family information publicly when he had capacity and he continues to be entitled to protection and respect for his private life.
There will be a significant loss of dignity for RBS and RGS if they are identified as people to whom personal information in this judgment relates. Furthermore, publicly identifying them will enable the identity of A and RGS's grandchildren to be ascertained and impact on their Article 8 rights.	There will be a significant loss of dignity for RBS and RGS if they are identified as people to whom personal information in this judgment relates. Furthermore, publicly identifying them will enable the identity of A and RGS's grandchildren to be ascertained and impact on their Article 8 rights.
RBS's request is made without an adequate understanding of the relevant information and issues, including the foreseeable consequences, advantages and disadvantages of publishing his name. The case is different therefore to that of, say, a 19-year old with capacity who wishes to talk about their experience of having been the subject of care proceedings.	Those who google an anonymised judgment using fairly obvious search terms will come up with the names of RGS and RBS. The people with whom RBS is in regular contact, including people in his locality, are already familiar with him and the circumstances and will immediately know to whom an anonymised report refers.
Although many people very local to W Cottage know of the case and whom it involves because of RBS, many other people will not have made the connection.	People local to W Cottage already know whom the judgment refers to. It will only be news to people in e.g. Manchester who are not in personal contact with RGS, his family or the care home. None of them will be significantly affected by strangers having that knowledge.
The fact that RBS may continue to seek to publicise the proceedings does not mean that section 12 and existing injunctions serve no useful purpose at all in protecting his father's privacy. RBS remains liable for his breaches and his father is protected by the fact that everyone else is bound by the law.	Authorised responsible newspaper reports that include the relevant identities will balance previous unauthorised and irresponsible reports which included the relevant identities.
In this case the public interest is satisfied by the existing order which allows for reporting the court, judge, judgment and what was said in court.	Justice will be served by full, fair and accurate reports which name the individuals involved and enable praise and censure to be more fairly distributed.
The combined effect of press attendance, an anonymised judgment and anonymised media reports is that a proportionate balance is struck between the public interest in individual privacy, the public interest in a free press, public knowledge and debate of important issues and open justice. Press and public are able and free to comment on and criticise the court, judge and local authority.	The press can be relied upon not to door-step the care home and to take an understanding and sensitive approach to the care home and professional carers. This will ensure that reports do not have a harmful effect on RGS and do not impact on his care or care team.
The court and the judge are known publicly and they can be criticised just as openly and effectively if RGS's and RBS's identity and privacy are protected. There is nothing 'secret' about what the court has done or authorised.	In any case, RBS and/or RGS could be identified without the nursing home being named.
An anonymised judgment, leading to anonymised press reports, allows for a fuller account of the facts to be published and disseminated, resulting in more accurate and better-informed public debate.
Once RGS and/or RBS are identified and personal information about them is placed in the public domain, the court cannot control damaging comment or attention (Pandora's box).
Identification of the care home carries a significant risk of undermining RGS's care. Ever since he went there, care home staff have had to endure a very difficult situation and there is a risk of staff no longer being willing to endure RBS's repeated criticism.
The care home has other residents whose needs must be considered and whose care may be prejudiced by publicity. The local authority and county have already been named, which helps the press to give context to their reports and increases the interest of readers.

The court's decision

87. Having weighed up these considerations, I have decided that the existing reporting restrictions strike an appropriate balance, subject to the modification referred to below.
88. In my opinion, the main benefit in naming RBS, which in effect also names his father, is that it is a matter of open public record that the court supports those he has named and vilified, and has found on evidence that his attacks are unjust.
89. This reassures them and so provides greater stability to RGS's future care. It also satisfies justice because there is a proper public accounting from which it can be seen that they emerge with considerable credit. (I am sure that their performance is not faultless, anymore than my mine is, but fair people would see that RGS has been well served by them in trying circumstances.)
90. On balance, however, the case for not identifying RGS and RBS seems the stronger one:

a) Not all of RBS's conduct can easily be attributed to his mental illness and public censure may result and at one level be just. However, his mental ill-health has affected his judgement and it is likely to affect his capacity to withstand the full glare of publicity. He would be likely to pay a very high price in terms of his health. His father would not want that, he lacks litigation capacity, and a mental health court would not want that.

b) RGS did not disclose sensitive family information publicly when he had capacity. He has never expressed a wish to be identified, for the world to know his medical condition and that these are his personal circumstances. Furthermore, publicly identifying him or his son will enable the identity of A and RGS's grandchildren to be ascertained and affect the rights of other innocent parties.

c) The identities of Essex County Council, the court, the judge and the experts are already public knowledge. They are all accountable regardless of whether or not RBS and his father are identified.

d) All of the relevant issues and facts are set out in the three published judgments and can be fully debated by the public. Removing the anonymity of the care home and paid carers who carry out the court's or deputy's directions will add little.

Modification — Fair play/level playing- field provision

91. The local authority, the care home and their staff have stoically borne a lot of undeserved, inaccurate and at times rather vicious criticism in the past two years.
92. They have been unable to defend their reputations by responding to inaccurate, unauthorised, press and internet reports initiated by RBS. I am conscious that this may well be for fear that in doing so they may breach a rule or injunction that prohibits publishing or republishing the names of people involved in the case. The advantage taken of this by RBS has meant that it is not a level playing-field.
93. Eventually, such an unrelenting campaign of criticism can be demoralising and affect people's performance and willingness to continue to provide care.
94. The county council could not have been more compassionate in their response to RBS's conduct.
95. He has been very ably assisted by his solicitor and litigation friend, Mr A, who has also been subjected to fairly relentless and unjust criticism. As RBS's litigation friend, he has circulated these personalised attacks on his character to the other parties in the form of exhibits to statements filed by him on RBS's behalf. Despite all of this, he has continued throughout to work tirelessly for RBS and has helped to broker the best possible outcome for him.
96. It is in RGS's best interests that when necessary those caring for him know and can say in response to personalised criticism that in fact they have the court's support; also that, after detailed inquiries, the court is satisfied that they have provided a high level of service.
97. The modifications to the existing order are that local authority staff and Mr A have permission to confirm their identity or to name themselves as the person being referred to (where initials are used and it is obvious to people in contact with them who is being referred to) if they consider it necessary in order to protect their reputation by correcting an unauthorised posting on the internet and/or an unauthorised press report.
98. In other words, where their names are published or they are identifiable in unauthorised articles and internet postings published in contempt of court, they will not themselves be in contempt if they reply and draw attention to relevant parts of the court's judgments — even if their rebuttal involves confirming their identity or giving their name and would but for this modification itself be a (technical) breach of the injunction and legal rules.
99. Obviously, any person availing themselves of this concession can only name themselves; they cannot name another person in their response.
100. In the case of the care home and its staff, depending on the precise circumstances at the time allowing them automatically to defend themselves in this way could conceivably harm the interests of RGS and/or other care home residents. In their case, I shall have to require them to file a quick application notice in Form COP9 if they wish to defend themselves in this way in response to a particular article or post. I will deal with any such requests promptly.
101. Local newspapers and online publishers apparently unaware of the law relating to contempt of court have gained an unfair advantage over responsible newspapers that take the trouble to establish and abide by the law. They are liable to legal proceedings.
102. The local authority is invited to circulate this judgment to all newspapers and news agencies in Essex, to draw their attention to the relevant passages which set out the contempt of court provisions and to request that they remove any unauthorised online content. No doubt they will wish to comply, given (one hopes) that their publications were in error.

What is permitted

103. For the avoidance of doubt, the press may name the Applicant (Essex County Council), the court, the judge, what was said in court (other than the one matter which they know of) and everything in the three published judgments.
104. Subject to maintaining the anonymity of other persons and the care home they may also:

a) Quote from any court documents such as position statements which were handed out during the hearing and which in effect formed part of what was said in court;

b) Interview any of the parties or persons at the hearing on 4 March who wish to speak with the press and give their reaction to the judgment, whether and why it is fair, unfair, etc. That of course includes RBS, so that reports may say that he told press after the hearing that [whatever it is].

105. The press, the court and the parties have worked together constructively. When deciding whether, when and how to interview RBS, and what to report, I am sure that I can rely on the press to have regard to his health and welfare as well as to the terms of the order.

Terms of the Order

106. Save as above, the order should set out afresh the existing injunctions, including the original 'not to remove from the care home' injunction which should be personally served. The same terms as before in relation to costs.

§8 — CONTACT

107. Relatively little progress has been made.
108. Since the High Court made a seek-and-find order the position has been for contact to be supervised and regulated by the local authority and/or the care home, and if necessary temporarily suspended by them 'if in their professional opinion it is necessary to do so'.
109. It continues to be important to try to restore normality. Ms Joyce has recommended mediation which the local authority and RBS may wish to explore. Everyone accepts that the ideal position is that a father and son can see each other and go out together without restrictions. However, the need for a High Court 'seek and find' order in the past complicates the picture, as does unauthorised photographing of RGS, unauthorised postings on the internet and the continuous breaches of court orders and arrangements. The problem is one of trust. As I tried to point out to RBS in an earlier judgment:

'Ideally, [RBS] will bear in mind the benefit to him of now seeing the court visitor, and the cost to him of continuing to breach orders, such that when the time comes I cannot trust him to observe undertakings he offers, or orders he asks me to make, concerning his father's personal welfare.'

110. I have slightly modified the wording of the existing injunctions to allow the local authority and care home staff slightly more flexibility in relation to contact arrangements in the event that RBS does demonstrate greater trustworthiness.
111. However, until RBS gives me some cause to trust him progress will have to be made within the existing legal structure, which is that visits are on notice and are 'loosely supervised'. If RBS can demonstrate, by his behaviour rather than his words, that I can trust him to adhere to court orders hopefully I may be able to relax the arrangements. However, I must be careful not to place RGS in the same position as before, vulnerable and at risk in an unknown location in the community, with all the distress associated with a further seek-and-find order.
112. I should be grateful if the local authority can (again) file a short report in three months time setting out any ways in which we may be able to move forward towards a relaxation of the existing restrictions.

RGS's email and internet access

113. Email and internet access is a form of contact and an issue which involves freedom of expression. As a general principle, RGS ought not to be denied any internet and email facilities that the other residents enjoy provided that he has the capacity to derive some benefit. However, I am satisfied that it is not something that RGS seeks but something which his son has tried to arrange so that his father can be videoed and shown his son's internet coverage. Because of his significant cognitive impairment, RGS does not understand email or the internet and has no desire to use them as a means of communication or information.

§9 — EUROPEAN CONVENTION AND ARTICLE 8

114. My decision does interfere with the family's Article 8 rights. However, for the reasons given, I believe that this interference is lawful, necessary, proportionate and for a permitted purpose. I also believe that the purpose for which the various decisions are needed cannot be achieved in a way which is less restrictive of RGS's freedoms.

District Judge Anselm Eldergill

20 March 2014




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APPENDIX A

COURT OF PROTECTION                                    No. 11831647

MENTAL CAPACITY ACT 2005

In the matter of RGS (No. 2) DECISION AND REASONS

District Judge Eldergill

Court of Protection, Thomas More Building, Royal Courts of Justice, Strand, London WC2A 2LL

Heard on Friday 19 July 2013

Introduction

This brief judgment summarises for the parties, and in particular for RBS and members of the press, the outcome of today's hearing and key developments since the hearing on 2 November 2012.

My previous written decision was a detailed one and this judgment should be read in conjunction with it. Unfortunately for RBS, reports and inquiries since that hearing have borne out the reservations of others and have not supported his case.

Because this is so and therefore a consent order has been produced for the court, this judgment is a short one by comparison.

Relevant law

The law is well-known to the parties, and has not really been in issue in this case, so I shall not set it out in any great detail.

In general terms, the court must apply section 4 ('best interests') and adopt a balance sheet approach to RGS's best interests in relation to each issue on which he lacks capacity (see MCA in ITW v Z [2009] EWHC 2525 (Fam) and Re S (Adult's lack of capacity: carer and residence) [2003] FLR 1235). The court must then examine, weigh and apply the relevant Article 8 considerations (see K v LBX and Others [2012] EWCA Civ 79). I must also have regard to the relevant codes of practice, as required by the 2005 Act.

On the important residence issue, I have sought to give proper weight to the importance of family life. In the Neary case (The London Borough of Hillingdon v Steven Neary and Mark Neary and Others [2011] EWHC 1377 (COP)) at para 24, Peter Jackson J reminded local authorities, the courts and others of the importance of family life and the significance to be attached to it:

'Decisions about incapacitated people must always be determined by their best interests, but the starting point is their right to respect for family life where it exists. The burden is always on the State to show that an incapacitated person's welfare cannot be sustained by living and being looked after by his or her family, with or without outside support.'

In Re MM Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, paras 115-121, the President stated:

"[115] … As I said in Re S, at para [48]:

'I am not saying that there is in law any presumption that mentally incapacitated adults are better off with their families: often they will be; sometimes they will not be. But respect for our human condition, regard for the realities of our society and the common sense to which Lord Oliver of Aylmerton referred in In re KD …, surely indicate that the starting point should be the normal assumption that mentally incapacitated adults will be better off if they live with a family rather than in an institution – however benign and enlightened the institution may be, and however well integrated into the community – and that mentally incapacitated adults who have been looked after within their family will be better off if they continue to be looked after within the family rather than by the State.

[116] We have to be conscious of the limited ability of public authorities to improve on nature. We need to be careful not to embark upon 'social engineering'. And we should not lightly interfere with family life. If the State – typically, as here, in the guise of a local authority – is to say that it is the more appropriate person to look after a mentally incapacitated adult than her own partner or family, it assumes, as it seems to me, the burden – not the legal burden but the practical and evidential burden – of establishing that this is indeed so. And common sense surely indicates that the longer a vulnerable adult's partner, family or carer have looked after her without the State having perceived the need for its intervention, the more carefully must any proposals for intervention be scrutinised and the more cautious the court should be before accepting too readily the assertion that the State can do better than the partner, family or carer.

[117] At the end of the day, the simple point, surely, is this: the quality of public care must be at least as good as that from which the child or vulnerable adult has been rescued. Indeed that sets the requirement too low. If the State is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the State is going to provide a better quality of care than that which they have hitherto been receiving: see Re F, F v Lambeth London Borough Council [2002] 1 FLR 217 at para [43].

[118] The fact is that in this type of case the court is exercising an essentially protective jurisdiction. The court should intervene only where there is a need to protect a vulnerable adult from abuse or the real possibility of abuse: see Re K, A Local Authority v N and others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at paras [90]-[92], and X City Council v MB, NB and MAB (by his litigation friend the Official Solicitor) [2006] EWHC 168 (Fam), [2006] 2 FLR 968, at para [27]. The jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. That said, the law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives, partners or friends: NS v MI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444, at para [8].

[119] There is one final point to be made. The court, as I have said, is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk."

RBS's litigation capacity

At an attended hearing on 14 June 2012, when the Joint Applicants were all either present or represented, the parties agreed that RBS's litigation capacity was in issue. He agreed to being examined by one of the court's Special Visitors (a psychiatrist) and directions were given to enable that to take place. Subsequently, he withdrew his agreement. Therefore, the Special Visitor was unable to report to the court.

On 2 November 2012, a fact-finding hearing was held. I made an interim declaration that he lacks litigation capacity and appointed his solicitor Mr A as his litigation friend. I told RBS my decision and again invited him to see the Special Visitor. It was 'an opportunity for him to show me that my anxieties are misplaced and my findings erroneous. If that medical examination does not take place, or takes place and results in a medical opinion that he lacks litigation capacity, then it is likely the declaration will be made final.' Unfortunately, RBS again declined to see the Special Visitor and, in my view, there is no case to depart from the finding reached on 2 November.

There are just two brief points to make.

Firstly, as noted in the earlier judgment, even though RBS lacks litigation capacity, he should be encouraged to participate fully in these proceedings by and through his litigation friend:

'He is very welcome to attend hearings, to file statements and evidence through his litigation friend, and as a devoted son to keep the court informed of his views as to his father's best interests. Mr A has always helped him to do that and I am sure that he will ensure that RBS is able to contribute, but in a way that is in keeping with the rules and the rights of others.'

RBS has provided me with a helpful statement for today's hearing which sets out his views.

Secondly, although RBS lacks capacity to compromise these proceedings, and consent to the final order has been given by his litigation friend on his behalf, I still give weight to his evidence and opinions (and those of his witnesses) as to what is in his father's best interests.

I also acknowledge the reality that RBS does not himself consent to the order and that the decision not to proceed further, for example to a lengthy and costly contested trial, does interfere with a citizen's usual constitutional rights.

However, in my view, this is not a summary decision. In addition to the hearing on 2 November, I have had the benefit of visiting RGS myself, of reading the reports of experts and other persons visiting him, of listening to the evidence of his friends and of reading a large amount of documentary evidence.

Based on all of that, I do not believe that it is in the interests of justice or in RGS's best interests to decline to approve the consent order. There is ample evidence to conclude that the proposed order is in his best interests and that a further hearing is not justified by even a small prospect of a materially different outcome and order.

The overriding objective is to deal with the case justly. I must consider the need to ensure that the issues are dealt with as fairly and expeditiously as possible, that RGS's interests and position are properly considered, that the parties are on an equal footing and, having regard also to the costs incurred by his son's approach to legal issues, that the court's approach is proportionate. Having taken account of Article 6 of the Convention, rule 3(3) of the CoP Rules 2007 ('The overriding objective'), rule 4 ('The duty of the parties … to help the court to further the overriding objective') and rule 5 ('Court's duty to manage cases'), the proposed compromise of these proceedings is approved.

RGS's place of residence

Sadly for RBS, I have concluded that it is not in his father's best interests to return to W Cottage.

RGS's son tells me that he has fought 'for what I believed father wanted'. His father is still able to remember his home and 'has at times yearned to return there'. It has been 'his dearest wish'. He promised his father that he would do everything in his power to get him home, and has tried to make it safer and more secure.

The evidence of friends at the hearing on 2 November 2012 demonstrated that his father has a loyal, intelligent and kind-hearted group of friends who provide him with valuable social support. That is a very relevant factor. However, neither RBS nor their friends are able to provide personal care. The balance of the evidence is strongly in favour of RGS remaining at his current place of residence.

RBS's view that his father has a strong and clear wish to return to W Cottage is not shared by many people. His sister believes that her father is well placed and best placed where he is, as do his professional carers. The Deputy Official Solicitor, the IMCA (Independent Mental Capacity Advocate) involved on his behalf, the member of the Association of Independent Visitors (who has 16 years experience as a Court of Protection visitor) who visited him and the court's Special Visitor could not elicit any real evidence supporting RBS's interpretation of his father's wishes and feelings.

When RGS met the Deputy Official Solicitor he referred to having a home called 'Ivy House'. When shown a photograph of W Cottage, he said that it was in a different town to where it is. On being prompted, he remembered having lived at W Cottage but wanted to stay where he is.

The Special Visitor (psychiatrist) observed that he seemed quite happy where he is. He 'did not, despite being presented with alternatives, express any wish or preference to live elsewhere' (para. 62). Transferring him to a different environment would add to his confusion and be likely to make him more agitated. It was 'difficult to see [how] he would benefit from this given his current level of cognitive impairment' (para. 67).

The member of the Association of Independent Visitors came to a very similar view (see my previous judgment).

When I visited RGS, he told me that after my visit he would be driving home in his old van to W Cottage, where he lived with his wife E. His wife and two children lived there with him. His son RBS lived with them 'morning, noon and night'. Although his children were now adults, aged around 20-25, they had no children of their own. His wife cooked for them. However, he could cook for himself; what he cooked depended on what he could catch. He told me that he was aged around 35-40.

Watching a parent become frail, and their mental health decline, is a sad thing. It is obvious that RGS's son has been very distressed by this and that it has affected his own health. As a devoted son, he has fought hard to preserve the life they shared, the family home — 'W Cottage' and family heirlooms such as the Pissarro painting. Recently, his own marriage has been dissolved, he has lost contact with his child and been in poor health. During this period of great stress and upheaval, emotionally it has been very important for him to hold on to cherished family possessions, with their associations of a more settled time, and to hope to have the chance of a last short period living at home with his father. However, it is, I believe, a natural and understandable need which he now has much more than his father, much as his father loves him. Just as his father's dementia has borne him ceaselessly into the past, there is a sad and all-too-human Gatsbyesque quality to his wish to hold on to a life together that he knows is about to pass and perhaps already is in the past. 'So sad, so strange, the days that are no more.'

If he still had capacity, no doubt his father would be keen to know his son's wishes and feelings, and would wish to do all he could to accommodate them and promote his welfare. That is the approach I have taken but I, no less than RGS when he had capacity, am subject to the law (as a judge more than anyone), and in particular to care home charging regulations and the legal requirement to pay off sizeable accumulated debts. Settling his affairs — and the costs and debts incurred by his son — is in his best interests, and that now requires RBS to return to his own home and for his father's property in storage to be sold. This will release the funds necessary to enable his father to be well cared for in a good-quality environment where he himself is content.

Costs

It is very unfortunate that RBS has been involved in so many different legal actions in respect of his father and his own personal affairs. There have been Court of Protection proceedings (personal welfare and deputy applications), statutory Will proceedings, High Court seek and return orders, habeas corpus proceedings, European Court of Human Rights proceedings, issues about the use made of his father's money, contempt of court issues, matrimonial proceedings, contact proceedings and litigation involving previous solicitors. Considerable costs have been incurred. They include the significant cost of professional help to enable his son to sort out his own legal problems, which I permitted on the basis that his father has always been a kind father and would have wished to help him. This is not a criticism of his son. He has tried his best in difficult circumstances but he has found it difficult to accept or follow professional advice.

Sale of paintings and property in storage

RBS says that he has concluded that there is now no point in trying to retain these items given that his father needs to remain in a care home. The items should now be sold and the proceeds used towards his father's continuing care and daily needs.

Sadly, I agree with that. RGS sold a similar painting in the past, in order to purchase shares, and his daughter agrees that the remaining paintings should be sold. I also note that RBS himself suggested in September 2010 that his father's paintings and furniture be sold.

When I asked RGS what was the most important thing he owned at W Cottage, and then prompted him by asking what 'Pissarro' meant to him, he answered that it was the name of a local family. He then added that Pissarro was a friend who he had met at school.

In an ideal world the Pissarro painting would be passed by father to son or daughter, and be a treasured keepsake. If his father still had capacity to appreciate the painting, I am sure that he would prefer that. However, the regulations require that the cost of RGS's care is paid for from his own assets and it is no longer possible to keep the painting. The position would be the same if he still had capacity to make that decision for himself.

The making of a statutory Will for RGS

It has been established that RGS lacks testamentary capacity. A statutory Will is required for the reasons set out in my decision following the hearing on 2 November. This avoids upsetting and expensive litigation later and ensures that the grandchildren's situation is considered fairly.

At that time, the two issues to resolve were what provision (if any) to make for RGS's grandchildren and whether to deal with the sums owed to him by his own children by way of a hotchpot clause in the Will, rather than by repayment now.

Frankly, there is no real evidence that RGS would wish to cut his grandchildren out of his Will, if he was still aware he has grandchildren. I accept his daughter's evidence that in the recent past her father was 'very angry with her brother for trying to make him change his Will … when my brother brought him a new Will form for my father to sign he lost his temper ripped up both his old and the new Will and said he wanted to die intestate.' Her father 'would never have made the statement that he did not wish any of his grandchildren to inherit anything. My father was always a kind, generous and fair man.'

The statutory Will therefore makes the usual substitutional provision for grandchildren in the event that the relevant parent predeceases. It also includes a hotchpot clause and a simple mechanism for adjusting the amount to be brought into account if later it transpires that either or both children owe RGS less than appears to be the case at present.

I would like to thank the Deputy Official Solicitor, Ms Janet Ilett, and David Rees of 5 Stone Buildings for all of their work in this case, and for the elegant draft order tying up all of the relevant issues.

RBS's wishes and feelings

RBS says that he still thinks that his father would be better off at home but has lost all hope of him returning to his own home. Consequently, he feels that he has let his father down.

He has certainly not let his father down. Although we have taken different views as to his father's best interests, I fully accept that he is a caring and devoted son who has done his best to advance his father's best interests as he sees them in very difficult circumstances. Throughout he has been very well assisted by his solicitor and litigation friend, Mr A, who has worked tirelessly for him and who has helped to broker the best possible outcome for RBS.

RBS's visits to his father at the care home

RBS's son says that he does not feel that it is fair that he has to give a week's notice in order to visit his father. He understands 'the concerns of the court and other parties'. However, he has learnt from previous mistakes, has 'no intention of absconding with him' and will do nothing to upset his father or the care home. He would like to be able to visit his father at his residence without restrictions. He would also like to be allowed to take his father out from time to time, subject to 'monitoring' of his visits and their excursions.

At the moment, RBS is not able to visit his father for entirely innocent reasons. I have asked the local authority to let me have a short report in three months time setting out any ways in which we may be able to move forward as quickly as possible towards a relaxation of the existing restrictions. Everyone accepts that the ideal position is that a father and son can see each other, and go out together, without restrictions. The need for a High Court 'seek and find' order in the past complicates the picture but it is important to try to continue to try to restore normality.

European Convention and Article 8

My decision does interfere with the family's Article 8 rights. However, for the reasons given, I believe that the interference is lawful, necessary, proportionate and for a permitted purpose. I also believe that the purpose for which the various decisions are needed cannot be achieved in a way which is less restrictive of RGS's freedoms.

Freedom of expression and of the press

The press, the court and the parties have worked together constructively. When deciding whether, when and how to interview RBS, and what to report, I am sure that I can rely on the press to have regard to his health and welfare as well as to the terms of the Order, which seek to balance their right to keep the public informed about judicial work and matters of public interest with a citizen's right to confidentiality and some measure of privacy.

I have authorised naming Essex County Council as the local authority. The local authority and its staff have stoically borne a lot of undeserved and inaccurate criticism in the past two years, and they have been unable to defend their position in reply to local press articles and internet reports initiated by RBS. Eventually, such a campaign of criticism can become demoralising for staff, and affect their performance and willingness to continue to provide care. It is in RGS's best interests that those caring for him know and can say that they have the court's support and that, after very detailed inquiries, the court is wholly satisfied that the county council has provided him with a very high level of service. Furthermore, the council could not have been more compassionate in its approach to RBS's difficulties. Naming the local authority will also help the press to give context to their reports, which will increase the interest of readers, and therefore their interest in judicial matters and the workings of the court.

I have not read any reports of the proceedings so as not to be influenced by anything that is not evidence before the court. However, the press have been very impressive in the way they have approached the hearings and liaised with the court. There have been a lot of positive insights which I have gained from that and I have no doubt that the media applicants will continue to press their legitimate interest in the proceedings in a very constructive way. In particular, I would like to thank Ms Canneti of The Independent and Mr Farmer of the Press Association, who have worked with the parties and the court since the media applications were issued.

Other issues

On the evidence, subject to the indoor smoking regulations I am satisfied that RGS can usually smoke when he wishes to. It is simply that members of staff tend to give him only two cigarettes at a time because of his habit of breaking them up and scattering them on the floor (see the Special Visitor's report, para. 26). No one has argued to me that his smoking should be restricted in a manner contrary to his wishes.

As concerns his email and internet access, this is a form of contact and also an issue which involves freedom of expression. As a general principle, he ought not to be denied any internet and email facilities that the other residents enjoy provided he has the capacity to derive some benefit. However, I am satisfied that it is not something that RGS seeks but something which his son has tried to arrange so that his father can be videoed and access the former's Facebook pages and other postings. Because of his cognitive impairment, RGS does not understand email or the internet and has no desire to use them as a means of communication or information.

Order

The attached order is approved.

The press may freely report this judgment, as well as the order itself.

District Judge Professor Anselm Eldergill

19 July 2013

Note 1   [2012] EWHC 4162 (COP)    [Back]

Note 2   http://www.39essex.com/docs/newsletters/mc_law_newsletter_september_2013.pdf    [Back]