England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
Case No. COP1238388T

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005

AND IN THE MATTER OF MANUELA SYKES

 

BETWEEN:-

Westminster City Council Applicant

and

Manuela Sykes Respondent

(by her RPR and litigation friend, RS)

_________________________________

JUDGMENT

___________________________________

District Judge Eldergill

Court of Protection, First Avenue House, 42-49 High Holborn, London WC1A 9JA

Heard on 10 and 11 February 2014

Judgment handed down on Monday 24 February 2014 at 4pm

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of RS (MS’s litigation friend), MS’s nieces and MS’s professional carers must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. MS may now be identified as Manuela Sykes and the relevant local authority as Westminster City Council.

§1 — INTRODUCTION

This case involves MS’s liberty, residence and care.

MS (‘Ms S’), who is 89 years old and has dementia, is deprived of her liberty at QX Nursing Home by virtue of a standard authorisation granted by her local authority under the Mental Capacity Act 2005.

On numerous occasions, Ms S has expressed the wish to return to her own home, which is a flat in central London where she has lived for 60 years.

Ms S is assisted and supported by Mr RS (‘RS’), her attorney for property and affairs under a Lasting Power of Attorney signed by her on 12 July 2011 and registered on 17 November 2011.

RS is also her litigation friend in these proceedings. He is not related to Ms S but, as with his late wife, has been a close and good friend.

At present RS supports Ms S's objection to her continued residence at QX Nursing Home. He believes that she is not ready for residential care and at the very least should have a trial at home.

The Applicant is the local authority. It has brought the case before a court because of the opposition to the placement and care regime.

The local authority has set out the many problems experienced by Ms S at home during the period leading up to her admission to hospital and then a nursing home: lack of acceptance of care, altercations with neighbours and others, self-neglect, unhygienic living conditions, weight loss, wandering, a lack of awareness of her own personal safety.

According to the local authority, Ms S settles quickly when she returns to QX Nursing Home from outings and has never ‘actually attempted’ to discharge herself.

Three other matters may be highlighted by way of introduction:

Firstly, if 24-hour care and supervision at home is a practicable alternative, which the local authority formally disputes, Ms S's means are limited. She may well be unable to finance it herself for more than a few months. She is also single and has no children. Therefore, the options available to some older persons in terms of a partner and/or children forming a rota of free care are not available to her.

Secondly, the local authority cannot afford or will not fund such a package of care.

Thirdly, provided they do not act so irrationally that it constitutes acting unlawfully, etc, it is for local and other public authorities — not judges — to decide how to allocate their limited resources. Furthermore, the funds available to public authorities, and levels of taxation and public expenditure, are political decisions, that is matters for all of us, i.e. for voters not judges.

§2 — STRUCTURE OF THE JUDGMENT

This decision is structured under the following headings:

§1 —	Introduction	§1
§2 —	Structure of the Judgment	§2
§3 —	Parties and Interested Persons	§3
§4 —	Procedure and Hearings	§4
§5 —	Ms S and her Situation	§5
§6 —	Legal Framework	§6
§7 —	Mental Capacity	§7
§8 —	Deprivation of Liberty Provisions	§8
§9 —	Determining Best Interests and the Law	§9
§10 —	MS's Best Interests	§10
§11 —	Remaining Legal Formalities	§11
§12 —	Order and Directions	§12
§13 —	Applications re Press attendance and Reporting	§13

§3 — PARTIES AND INTERESTED PERSONS

As can be seen from the above, the parties to these proceedings are as follows:

Party	Status	Relationship/representation
A London Council	Applicant	The relevant local authority. May now be identified as Westminster City Council. Represented by Mr Mungo Wenban-Smith of counsel, instructed on the local authority's behalf by Creighton & Partners (Ms Bilkiss Bashir having conduct of the case).
MS (‘Ms S’)	Respondent	The person concerned (‘P’ in the legislation), by her litigation friend, RS. May now be identified as Ms Manuela Sykes. Represented by Mr Parishil Patel of counsel, instructed by Irwin Mitchell (Ms Anne-Marie Irwin having conduct of the case).

 

Interested persons

A number of other interested persons attended hearings without formally having the status of parties. They included Ms S's nieces, HW and MS, and Mr Brian Farmer of the Press Association.

Professional carers

Many professionals have been involved with Ms S's welfare and care. They include Ms P (Care Manager, Older Adults CMHT) and Ms BS (Senior Care Manager, CMHT).

§4 — PROCEDURE AND HEARINGS

On 19 September 2013, the court issued a ‘section 21A application’ filed by the local authority. This asked the court to review the standard authorisation under which Ms S was being deprived of her liberty under the Mental Capacity Act 2005. The accompanying Form DLC stated that, ‘It is not possible to achieve resolution between the parties, consequently, the court is required to undertake a review of the standard authorisation …’ [A/10].

The ‘paper directions’ given by me on 19 September 2013 included holding an attended preliminary hearing on 25 September. The further directions given at this hearing included a telephone hearing on 9 October (by which time it was hoped that legal representation for RS would be in place) and a one-day final hearing on 10 January 2014.

I did not agree that RS was unsuitable to be MS’s litigation friend on the ground that in some way he was too partisan or insufficiently objective. A key part of his role as RPR is to represent ‘P’s’ wishes and feelings.

An independent psychiatric report (followed by an addendum) was commissioned from Dr Andrew Barker, a well-known and highly-respected expert in older age psychiatry.

I met with MS at QX Nursing Home on 7 January 2014, in the company of her solicitor.

The Press Association at the Royal Courts of Justice was informed of the hearing by the court. The association’s Legal Editor, Mr Dodd, provided me with very helpful written representations concerning press reporting, which is dealt with below, at §13.

In the event, the hearing could not proceed on 10 January because a key witness was unable to attend; a two-day hearing took place instead on 10 and 11 February 2014.

Documentary Evidence (The Court Bundle)

The Court had the benefit of a 600-page bundle of documents, including expert reports, a detailed chronology, and witness statements and exhibits from professional carers, family members and friends of Ms S. Excellent position statements were filed by counsel.

Oral Evidence

Oral evidence was given by the care manager, Ms P; the expert witness, Dr Barker; and by MS’s RPR and litigation friend, RS. MS’s nieces relied on their written statements and were not required by the parties to give oral evidence. Counsel made oral submissions.

The oral evidence and commitment of all three witnesses was highly impressive and their evidence carries significant weight. Ms P has been Ms S’s care manager for three years, knows her well and has been very thorough in her assessments. Dr Barker is a nationally recognised expert in this field, his report was detailed and considered and of a very high quality. Mr RS was an ‘expert by experience’, intelligent, considered, compassionate, very knowledgeable about MS’s personality, wishes and behaviour, moderate and measured in his judgements.

Mr Farmer of the Press Association, one of MS’s nieces and one of her good friends attended both days of the final hearing.

Ms S attended the first day, as did her other niece and the Reverend from her church.

Acknowledgments and thanks

I would like to thank all involved for the ways in which they have assisted the court.

The skill and hard work of the solicitors, counsel, parties and professionals involved in the case demonstrate that a deprivation of liberty case with fairly numerous and complex strands can be prepared thoroughly but proportionately and determined in reasonable time.

Everyone involved praised the staff at QX Nursing Home for their thoughtfulness and kindness.

The press’s involvement has been thoughtful and sensitive. Their balanced advice about the potential advantages and disadvantages of different ways of reporting the relevant issues and facts has been appreciated.

§5 — MS S AND HER SITUATION

Ms S has had a dramatic life, and the drama is not yet over.

She has played a part in many of the moral, political and ideological battles of the twentieth century. A vegetarian from an early age; a lifelong feminist and campaigner for women’s rights; a Wren in the Fleet Air Arm; a committed Christian; a political activist who stood for Parliament; a councillor on the social services committee of the local authority that now authorises her deprivation of liberty; the editor for 40 years of a trade union newspaper; a helper of homeless people and an advocate for them; and a campaigner for people with dementia, from which condition she now suffers herself.

The court is not concerned with her particular political views, whether they are left or right of centre, and nor is it concerned with her religious views. These are matters for her. Their main relevance to this court is that by nature she is a fighter, a campaigner, a person of passion. She appears always to have placed herself in the public eye, in the mainstream, rather than ‘far from the madding crowd,’ debating the issues of the day, causing, accepting and courting controversy.

In 2006, she was diagnosed with dementia and appears to have responded to that in the same forthright manner with which she has approached everything else in her life. She participated in a dementia project and campaigned for the rights of dementia sufferers, in particular older women. In December 2006, she made a living Will. Some time later, in 2011, she appointed an attorney for property and affairs, a person she trusted to act for her in accordance with guidance set out in her LPA (attorney) document.

The Living Will

Ms S’s living Will of 12 December 2006 is relevant. It provides as follows:

I DECLARE THAT if at any time any of the following circumstances exist, namely:

1 I suffer from one or more of these conditions: ….

1.5 senile or pre-senile dementia (e.g. Alzheimer’s disease); ….

2 I have become unable to participate effectively in decisions about my medical care; and

3 Two independent doctors (one a consultant) are of the opinion, having examined in full my circumstances and prognosis, that any of the following apply:

3.1 there is no reasonably likelihood of substantial recovery from illness involving severe pain and distress and from which it is likely I will die in the near future; or

3.2 I am in a state of unconsciousness or coma and it is unlikely that I will regain consciousness; or

3.3 I suffer from a mental illness resulting in me having a very limited awareness of my surrounding environment and an inability to perform basic tasks and from which it is unlikely that I will recover.

THEN AND IN THOSE CIRCUMSTANCES my directions are as follows:

1 That I am not to be subjected to any medical intervention or treatment aimed at prolonging or sustaining my life;

2 That I consent to the control of physically distressing symptoms...by appropriate and aggressive palliative care even if such care is likely to have the effect of shortening my life ….

The law on advance decisions to refuse treatment is set out in sections 22–26 of the Mental Capacity Act 2005, accompanying regulations and case law.

Counsel agreed that Ms S is not being deprived of her liberty in order to subject her to the kind of medical intervention or treatment aimed at prolonging or sustaining her life which is specified in her Living Will. That said, the existence and terms of the living Will are relevant to the court’s consideration of her best interests. This is because it is an expression of her wishes, feelings, beliefs and values made by her when she had capacity. The document indicates in general terms that she prioritises quality of life over the prolongation of life.

A second matter to bear in mind is when the terms of the living Will are likely to be triggered. In other words, when is it likely that Ms S will have such a very limited awareness of her surrounding environment and inability to perform basic tasks that she is not to be given any medical interventions or treatments aimed at prolonging or sustaining her life. This is relevant to life expectancy and how much time is left which has a value to her.

 

The Lasting Power of Attorney

Although MS’s Lasting Power of Attorney concerns her property and affairs, rather than personal welfare issues, the guidance to her attorney RS in section 6 of that document is also relevant as an expression of her wishes, feelings, beliefs and values:

I would not like my attorney to sell my property. My wish is to remain in my own property for as long as this is feasible.

At the first hearing, the Applicant questioned the validity of the LPA appointing RS. However, there is a presumption of capacity, the person to be notified of an application to register it was a doctor, the certificate provider was a registered social worker and member of the Association of Independent Visitors UK, the document is consistent with her known wishes, the attorney is clearly a man of principle, there was no objection to its registration, and it was and is registered. Correctly in my view, the issue was not pressed at the final hearing.

I note that a psychologist who is also a Best Interests Assessor under the MCA deprivation of liberty procedures categorised the intensity of Ms S’s wish to return home as ‘an apparent obsession with returning home.’

The circumstances resulting in the deprivation of liberty

It is now necessary to summarise the events that led to MS’s admission to hospital and then to her transfer to a nursing home.

Nothing in this account reflects badly on her. All severe and ultimately fatal diseases inflict unwilled consequences on their victims which they and those around them must try their best to bear.

In Ms S’s case, the court received a detailed chronology of incidents that occurred between June 2011 and the end of September 2012.

The progression of the illness and the sort of incidents which occurred will be familiar to anyone who has cared for or spent time with a family member or friend who is developing dementia, and anyone who is reasonably observant.

There was a gradual but progressive decline in Ms S’s capacity to understand, remember and process information relating to her environment and the people around her, associated as one would expect with significant frustration, problems of care and self-control and conflict with others.

According to her own friend and witness, AB, Ms S has always had a strong sense of self and identity and does not give way easily, and this tendency increased in strength and frequency as a result of developing Alzheimer's disease.

Although there has been no trial as to the truth of the allegations (in this court or any other), and no adverse legal findings have been made in respect of any allegation, the reports during this period included shouting, verbal abuse, physical violence (slapping, pushing) and conduct of a kind which neighbours, contractors, carers and others found intimidating.

Even when one makes every allowance for the possibility of insensitive or difficult behaviour on the part of others, on the evidence it is still necessary to accept that increasingly MS was in significant conflict with others around her because of memory-related misunderstandings and reduced impulse control attributable to dementia.

On 12 January 2012, a Registrar in Psychiatry reported that, unfortunately, MS's dementia affected ‘her non-memory domains and according to reports she was becoming increasingly aggressive towards visiting carers, making their continuation tenuous.

Because visiting carers were not permitted to provide much in the way of personal care during this period, over time Ms S’s health and home environment deteriorated. Her flat was said to have become unhygienic and so cluttered as to be hazardous. Medication was found mixed in with food, papers and clothes. Her weight dropped to around 41kg (54kg in August 2013) but she did not wish to consider an in-patient admission ‘for her malnourished state’.

In my view, Dr Barker summarises the position fairly on page 6 of his 35-page report when he writes:

Due to her increasing verbal, physical and threatening behaviour towards carers, their visiting times were reduced and they always came in pairs for their personal safety. This reduced the care that MS then received.

A two hours a day care package was reduced to 30 minutes daily with two carers attending each visit. They were not doing anything very meaningful in care terms.

Admission to hospital

Because of these difficulties, in October 2012 Ms S was admitted to hospital for assessment (and any necessary treatment) under section 2 of the Mental Health Act 1983.

As I say, nothing in this history reflects poorly on Ms S or should be interpreted as criticism of her. Many of us will find ourselves in this same unwished for and unintended position if we live long enough, so naturally all of us — family, friends, professionals, the press, readers — will wish to take an understanding and sympathetic approach, to focus on ways in which support rather than censure can be provided in such situations.

A best interests meeting was held on 5 December 2012, when a decision was taken to discharge Ms S from hospital to QX Nursing Home, rather than back to her own home.

At this meeting it was acknowledged that her ‘preferred option would be to go home’ [D/59]. However, her flat was in a chaotic state. ‘It was agreed by all [other] parties that a trial period in an EMI nursing home would be the preferred option for MS. It would enable MS to try this option in a planned way and also give RS some time to organise her flat and find a suitable carer if the placement did not work’ [D/60].

Ms S’s transfer to QX Nursing Home

Because Ms S does not wish to live at QX Nursing Home — and has protested, often and vigorously, that she wishes to return home — she has been subject to a series of standard authorisations under the Mental Capacity Act 2005.

As the name suggests, the purpose of these authorisations is to provide a proper legal authority for depriving the citizen of their liberty, to seek to ensure that this really is necessary and in their best interests, and to provide for periodical reviews by independent assessors, one of whom is a professional known as a ‘Best Interests Assessor’ [‘BIA’].

 

Whether to arrange a trial return home

Ms S was unhappy at not being allowed home, with the consequence that consideration was given to arranging a trial of care at home.

On 21 March 2013, Ms P (Care Manager, Older Adults CMHT) emailed MR (Service Manager) and two local authority finance officers, stating [D/98]:

The general consensus seems to be that MS should be trialled back at home. Although not overtly distressed in the care home she clearly and strongly wishes to return home.

It is likely that the Best Interests Assessor will recommend a return home.

Is there any way we can fund or partially fund the 24 hour care at home out of a charge on the property …

In her statement of 17 September 2013, Ms P referred to a further best interests meeting on 15 May 2013, which she summarised in the following way [D/12, para. 30]:

30. A best interest meeting took place 15^th May 2013, to consider whether an alternative care home to QX nursing home should be explored for Ms S. RS ultimately expressed the view that staff at QX [Nursing Home] were very kind to Ms S and indicated that another care home would not add any further benefits. This was the general consensus by all at the meeting; the issue was that Ms S was objecting to the fact that she was not living in our own home and moving to a different care home was unlikely to change how she felt. It was also acknowledged that there is a lack of smaller care homes in central London. The meeting were of the view that the location of the care home is important as it needs to facilitate Ms S’s attendance at St M’s church and her contact with RS.

There was then a further best interests meeting on 1 August 2013, the minutes to which were exhibited by Ms P. This meeting was attended by MR, the adult care manager for social services. He explained that the local authority could not support MS’s return home to her flat. It was not in her best interests ‘because there was little evidence to believe that a return home would work and therefore MS would have to go through the process of having to be removed from her home again … In addition it would be much more expensive to provide 24-hour care at home than in a residential nursing home’ [D/62].

During the course of the proceedings, it became apparent that it would be useful for the court to see some other relevant records made between:

·         21 March 2013 (‘general consensus seems to be that MS should be trialled back at home’) and

·         1 August 2013 (best interests meeting at which MR said that ‘the local authority could not support MS’s return home to her flat. It was not in her best interests …’).

In his response to Ms P’s statement, RS exhibited the minutes to the best interests meeting on 15 May 2013 (Ms P could not remember why she had not exhibited these herself).

Paragraph 3 of the minutes to the best interests meeting on 15 May 2013 (D/101] records the ‘Purpose of the Meeting’ in following way:

‘The overall purpose of the meeting was to decide on M’s long term interests with regard to where she should live to receive her care and treatment. This included a best interests decision to decide if M should have a trial period at home with the appropriate level of support.’

The risks of remaining in care were recorded as being that:

‘If M remains in care she [is] likely to remain unhappy and distressed and her mental health may deteriorate. It is against her current and past wishes and feelings, and her strong sense of independence which she has had all of her life’ [D/103].

The risks of returning home were recorded as the distress caused by having to be returned to institutional care if the trial was unsuccessful; resistance to care in her own home, resulting in self-neglect (poor personal care, poor medication compliance); risk of not eating and weight loss; risk of confrontations with neighbours and others; risk of falls on the stairs; risk of not allowing her home to be maintained (becoming cluttered, etc), risk of increased pressure on the health and well-being of her friend RS whose support was not likely to be sustainable in the long-term [D/103].

The minutes then record the decision of the best interests meeting:

Decision:

MS’s emotional welfare and her past and current wishes to remain at home were weighed against the risks to her if she returned home … On the basis of MS’s emotional welfare it was decided that it would be in [her] best interests to trial a placement at home with a number of safeguards in place. This would include the arranging of a substantial package of care in M’s home to minimise the risks to her as much as possible, following the reduction of environmental risks in her home as much as possible.

It was agreed that the placement at QX [Nursing Home] should remain open for 2 weeks following return home in case the trial at home broke down quickly and a placement was needed – M would be familiar with QX [Nursing Home] staff and they with her.

Agreed Preparation Plan for trial placement at home:

1.              As stated the placement at QX would remain open for 2 weeks after M’s return home in case the situation at home breaks down quickly.

2.              Care manager to explore home care agencies that could provide personalised and skilled support to M at home. There was debate as to whether this should be a live-in carer or day long care (e.g 8am – 8pm). There was a concern that if live-in care arrangements were not in place it would be difficult for a carer to gain access in the mornings. The aim of the care package would be to reduce the risk of self neglect, divert and defuse potential confrontations with neighbours and encourage M to become involved in activities outside of her home.

3.              It was agreed that [the institutional landlord of the flats where she lives] would need to be contacted to discuss mediation strategies to try reduce potential conflicts with neighbours (Care manager to initiate).

4.              The removal of excess belongings to continue a view to creating clear spaces in the home and reduce the risk of trip hazards …

5.              A referral to the Occupational Therapist to do stairs assessment with M to assess her safety on the stairs with a view to a handrail being installed ….

8.              A further review & bests interests meeting to take place on 26^th June 2013 at 2pm to review the situation to date. The aim is for M to return home in early July 2013.

The recorded decision on 15 May was therefore that MS should go home on a trial basis. Of the two options discussed — QX Nursing Home or a trial at home — the latter was preferred; and, as Ms P very fairly conceded in cross-examination, the decision that it was in MS’s best interests to have a trial period at home was one made by the meeting after a full assessment of the competing risks.

At the court’s request, further information (mostly in the form of emails) was provided to the court before the second day of the trial in order to clarify the change of thinking or strategy between:

• 15 May 2013 (when the best interests meeting that it would be in MS’s best interests to trial a placement at home) and

·         1 August 2013 (when MR explained to the subsequent best interests meeting that it was not in MS’s best interests to return home to her flat and that the local authority could not support such a move).

On 17 June 2013, at 8.04am, Ms P updated those involved, including RS and Ms S’s nieces, by email:

I write to give you an update on the situation with regard to M’s care.

I have been getting costings from care agencies with regard to live-in carers.

Unfortunately just very recently senior management have advised that with the increasingly poor financial climate a live-in carer is not something which they can approve ….

I am very sorry about this. I know you will be very disappointed about this but unfortunately the financial situation of local authorities is very difficult and it is becoming increasingly difficult to provide services the way we might ideally like them to be ….

There was then a ‘best interests meeting/review’ on 26 June 2013, the minutes to which were not in the bundle.

The purpose of this meeting was ‘to review the situation in the light of the decision by the local authority not to support fund (sic) MS’s trial at home’.

The minutes to this meeting record:

The Local Authority’s recent decision with regard to 24-hour care

The recent decision by the local authority not to support a trial at home for MS or to provide funding for such a trial was acknowledged and discussed. Potential ways of raising this funding using MS’s assets and savings were discussed (see below). The view of MS’s family was that equity release from [a] private company would be very expensive and they indicated that they did not think this was not [sic] a good use of MS’s assets.

This meeting is then followed, at 1.04pm on 4 July 2013, by an updating email from Ms BS (Senior Care Manager, CMHT, and Ms P’s line manager) to those involved:

‘We met with SB [Director of Adult Social Care] as planned. She I’m afraid still did not agree to [the local authority] funding 24 hour care at home for M. She said that it was too expensive given our budgetary constraints. She also queried whether it would be in her best interests given the risks and the quite high likelihood that it will fail. My view is that as a group we have considered all the pros and cons, and agreed that on balance it was in her best interests to try [to] support her at home with 24 hour care.

We have looked at some ways of raising funds such as selling her share in the property back to Housing. But all these things would take time and [SB] is not inclined to fund the package in the meantime ….’

I must add one last point. Although there is no history of self-harm, on several occasions Ms S has said that she will commit suicide if she cannot return home. She made a living will some years ago and (it seems) is a long-standing advocate of euthanasia where circumstances are such that a person's suffering in life exceeds the benefits of continued life.

§6 — LEGAL FRAMEWORK

The framework to be applied involves considering the European Convention on Human Rights, the Mental Capacity Act 2005, the Codes of Practice to that Act and public law issues.

European Convention on Human Rights

Article 5(1) imposes a positive obligation on the state to protect the liberty of its citizens.

The state is obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge.

Article 5 is engaged where an incapacitated person is deprived of their liberty. A proper authorisation or court order is required, which in this case is the standard authorisation.

The person concerned should have access to a court and the opportunity to be heard in person or, where necessary, through some form of representation.

Special procedural safeguards may prove to be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves. [1]

Article 8 provides a qualified right that everyone has the right to respect for their private and family life, home and correspondence.

Any interference with Ms S’s family or private life must be authorised by law, proportionate ('necessary in a democratic society') and for a permitted purpose, e.g. for the protection of her health.

The court should consider the nature and strength of the evidence of the risk of harm. There must, as Peter Jackson J observed in Hillingdon LBC v Neary [2011] EWHC 413 (COP) at para 15(3), be a proper, factual basis for such concerns.

Once this court has completed its analysis of Ms S’s best interests under the MCA, it must satisfy itself that any infringement of her Article 5 and/or Article 8 rights which arises from its (provisional) conclusion is necessary and proportionate: see K v LBX [2012] EWCA Civ 79 at [35].

Mental Capacity Act 2005 — Statutory principles

The statutory principles set out in the Mental Capacity Act 2005 are well-known to the parties.

Very briefly, section 1 provides that a person must be assumed to have capacity unless it is established that she lacks capacity; a person is not be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success; a person is not to be treated as unable to make a decision merely because she makes an unwise decision; an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in her best interests; and before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Codes of Practice

The relevant codes of practice are the Mental Capacity Act 2005: Code of Practice (Department for Constitutional Affairs, London: TSO, 2007) and the Deprivation of liberty safeguards: Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (Ministry of Justice, London: TSO, 2008). The codes do not have statutory force but professionals and some carers must have regard to their provisions, and the courts must take them into account where relevant: see section 42.

Public law considerations

I accept that this court cannot direct the local authority (or the NHS) to provide services which they have assessed that Ms S does not require or which they have decided at their reasonable discretion not to provide.

§7 — MENTAL CAPACITY

For the purposes of the Act, a person lacks capacity in relation to a matter ‘if at the material time [she] is unable to make a decision for [herself] in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’ [2]

Being ‘unable to decide’ does not literally mean that. Demonstrating incapacity involves establishing that the person’s capacity to make the decision in question is in some way fundamentally compromised by the fact that the functioning of their mind or brain is impaired or disturbed. In other words, because of an impairment or disturbance of their mind or brain they are unable to understand, retain or weigh the information relevant to the particular decision, or are unable to communicate their decision. A link must be demonstrated.

As can be seen, for these purposes a person is unable to make her own decision if she is unable:

^·          to understand the information relevant to the decision,

^·          to retain that information,

^·          to use or weigh that information as part of the process of making the decision, or

^·          to communicate their decision (whether by talking, using sign language or any other means). [3]

A person is not to be regarded as unable to understand the information relevant to a decision if she is able to understand an explanation of it given to her in a way that is appropriate to her circumstances (using simple language, visual aids or any other means). [4]

The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent her from being regarded as able to make the decision. [5]

The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision. [6]

Presumption of capacity

Section 1 provides that a person must be assumed to have capacity unless and until it is established (on the balance of probabilities) that she lacks capacity. Furthermore, a person is not to be treated as unable to make the decision in question:

(a)    unless all practicable steps to help her to do so have been taken without success;

(b)   merely because she makes an unwise decision.

However, whilst a person cannot be found to lack capacity merely because their proposed decision is unwise, fairly obviously an unwise (or irrational) decision may raise significant doubts and so trigger an assessment of their capacity.

Unjustified assumptions

A lack of capacity cannot be established merely by reference to a person’s age or appearance, or to a condition of her’s, or an aspect of her behaviour, which might lead others to make unjustified assumptions about her capacity. [7]

Evidence in this case of an impairment or disturbance of the mind or brain

It is common ground that Ms S suffers from dementia, which is ‘an impairment of, or a disturbance in the functioning of, the mind or brain’.

Effect of this dementia on MS’s capacity to make the relevant decisions

Ms S is intelligent, articulate and knowledgeable. She has no difficulties expressing herself. That her core personality is intact is clearly demonstrated by her continuing and passionate commitment to the causes to which she has dedicated her life. Her weight is healthy, physically she looks many years younger and fitter than her chronological age, she presents well and her care is good. There are, therefore, currently no signs of neglect or refusal of care.

Unfortunately, this is not the whole picture. Her short-term memory is very severely impaired. Because she is so intelligent and articulate, this may not be immediately apparent from a brief superficial exchange.

Following an examination on 2 December 2013, Dr Barker reported that her short-term memory is less than one minute. It is this inability to retain information which lies at the root of many of her recent difficulties. The consequence is that she is unable to retain, nor therefore weigh, information (highly) relevant to the decisions about the treatment, care and support she requires.

In particular, she cannot recall the circumstances and behaviour that caused others to remove her from her own home to hospital and to transfer her to residential care. Lacking this information, she does not accept that she had significant problems at home, nor therefore that she requires a significant package of care and support. Nor can she appreciate that, without additional care, it is likely that the problems will be the same as before, because the situation is the same as before. It is recorded that she has a tendency to become defiant when these issues are raised. This is logical and understandable because, unless one has a memory of the previous difficulties, the professional view must appear patronising and intrusive, and the problems made-up or grossly exaggerated.

Sadly, the preponderance of the evidence requires a conclusion that MS lacks capacity to make the relevant decisions for herself. She frequently asks, ‘Why am I here’ because she cannot remember how her situation has arisen, nor therefore understand and weigh the reasonably foreseeable consequences of accepting or refusing necessary care or support.

To summarise, I accept the professional and family view that she lacks the capacity to make these decisions for herself because her dementia has affected her ability to understand, retain and weigh the relevant information. It is more than simply an unwise decision that she chooses to make, if free to do so.

 

§8 — DEPRIVATION OF LIBERTY PROVISIONS

The relevant Mental Capacity Act provisions can be found in sections 4A, 21A, Schedule A1 and Schedule 1A.

The underlying rationale of the legislative framework is that it is a protective scheme. Anyone who is deprived of their liberty — that is, who is under another person’s complete and effective control and is not free to leave — is vulnerable to abuse.

That risk is multiplied if they are unable to decide whether to remain or leave. Children and adults with mental health problems are particularly at risk and the law has usually afforded them special protection. This protection involves imposing legal duties on those with power, conferring legal rights on those in their power, and independent scrutiny of how these powers and duties are exercised. The effectiveness of such schemes depends on whether, and to what extent, they are observed.

In this arena, the deprivation of liberty scheme ensures that there is at least an annual assessment by two suitably qualified and independent professionals, who can ensure that the arrangement really is necessary to protect them from harm, is in their best interests, proportionate and so forth.

The six requirements

Schedule A1 to the 2005 Act provides that a person may only be deprived of their liberty under a standard authorisation if they meet six statutory requirements: age, mental health, mental capacity, best interests, no refusals, eligibility.

The purpose of these requirements is the same as in the case of the ‘sectioning criteria’ in the Mental Health Act 1983, i.e. to prevent people who do not meet certain conditions or requirements from being deprived of their liberty.

In MS's case, the legal position with regard to the six requirements appears to be as follows:

The age requirement

A child may not be deprived of their liberty under a standard authorisation. MS is an adult and therefore satisfies this age requirement.

The mental health requirement

A standard authorisation may not be granted in respect of someone who does not suffer from a mental disorder within the meaning of the Mental Health Act 1983 (disregarding any exclusion for persons with learning disability).

Dementia is a mental disorder. Therefore, Ms S also satisfies this requirement.

The mental capacity requirement

People who have capacity to make their own decision about whether to be accommodated in the particular hospital or care home, in order to receive the care or treatment in question, may not be detained there for that purpose under a standard authorisation.

For reasons given above, MS lacks capacity to make this decision for herself and so meets this requirement as well.

 

 

The no refusals requirement

MS has not appointed RS or anyone else to make decisions concerning her personal welfare; her Lasting Power of Attorney relates to financial matters. Therefore, the local authority's decision to grant the standard authorisation is not contrary to a decision made by a personal welfare attorney on her behalf.

Nor does it breach an advance decision made by her because her living Will does not prohibit the kind of care or treatment which is being provided to her at QX Nursing Home.

Because there is no conflict in either of these respects, this requirement is also met.

The eligibility requirement

This requirement is concerned with the inter-relationship between the Mental Health Act 1983 and the Mental Capacity Act 2005. In certain situations where the Mental Health Act 1983 is ‘in play’ detention or compulsory treatment or care takes place under that Act, not the Mental Capacity Act.

The eligibility requirement prohibits an incapacitated person from being deprived of their liberty under a standard authorisation if she comes within any of the following groups:

1.              People who are currently detained in a hospital under one of the following sections of the Mental Health Act 1983: sections 2, 3, 4, 35–38, 44, 45A, 47, 48, 51.

2.              People who, though not currently detained, are subject to one of these sections or to a community treatment order, if the care or treatment in question consists wholly or partly of medical treatment for mental disorder in a hospital.

3.              People who, though not currently detained, are subject to one of these sections, or to a community treatment order or guardianship, if accommodating them in the hospital or care home under the Mental Capacity Act would conflict with a requirement imposed on them under their Mental Health Act section.

4.              People who are subject to guardianship under the Mental Health Act, if they object to being accommodated in the particular hospital for the purpose of being given some or all of the proposed medical treatment for their mental disorder (unless they have a donee or deputy who consents to each matter to which they objects).

5.              People who meet the criteria for being sectioned under section 2 or 3 of the Mental Health Act 1983, if they object to being accommodated in the particular hospital for the purpose of being given some or all of the proposed medical treatment for their mental disorder (unless they have a donee or deputy who consents to each matter to which they object).

Because this is a care home case, not a hospital case, it is conditions (3) and (4) in the list that are pertinent.

Looking at those conditions, MS satisfies the eligibility requirement because she is not also subject to section 17 leave, a community treatment order or to guardianship under the 1983 Act.

Therefore the question of whether she is ineligible to be deprived of her liberty under a standard authorisation, because it would conflict with a Mental Health Act 'order', does not arise. Consequently, this requirement is also met.

The best interests requirement

The upshot is that only one of the six requirements is in issue: best interests.

Unlike the Mental Health Act 1983, it is not the case that a person can only be deprived of their liberty under the Mental Capacity Act if they have a mental disorder which is of a nature or degree that 'warrants detention'. Provided there is credible expert evidence that the individual is of unsound mind and lacks capacity to decide the relevant issue, the issue is simply whether deprivation of liberty is in their best interests.

Necessarily, this involves and includes considering whether detention is appropriate and proportionate and whether the purpose for which the proposed detention is needed could be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. [8]

The ‘best interests requirement’ is in reality four requirements masquerading as one.

It is satisfied only if all of the following four conditions are satisfied:

1.              MS is being detained in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of her liberty; [9]

2.              This is in her best interests;

3.              This is necessary in order to prevent harm to her; and

4.              Her detention in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of her liberty is a proportionate response to the likelihood of her suffering harm, and the seriousness of that harm (if she were not so detained).

If one or more of these conditions is not satisfied, the person does not meet the best interests requirement; and, because a standard authorisation may only be given if all six requirements are satisfied, Ms S may not be deprived of her liberty under that scheme.

Taking the conditions in turn:

Is MS being detained in the care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of her liberty?

This condition simply requires considering whether or not the particular individual is or is not deprived of their liberty. If MS is not being deprived of her liberty then there is nothing that needs authorising.

Deprivation of liberty requires that the person has been confined in a particular restricted space ‘for a not negligible length of time’. [10] This is the ‘objective condition’.

In addition, a ‘subjective condition’ must be met. This is that the person has not validly consented to the confinement. However, if a person lacks capacity to consent to being confined, by definition she cannot consent, with the consequence and one is concerned only with the objective condition. That is the position here.

Many people (such as children) are subject to some restrictions on their freedom without it amounting to a deprivation of their liberty. It can therefore be seen that the distinction between deprivation of liberty and restriction of liberty is one of degree or intensity. [11] The starting-point is the specific situation of the individual concerned and the type, duration, effects and manner of implementation of the measures in question. [12] Of considerable importance is whether the professionals exercise 'complete and effective control’ over the individual’s care and movements, so that she is ‘under continuous supervision and control and is not free to leave.” [13]

Currently, the case law concerning precisely how to decide who is and who is not deprived of their liberty is in something of a state of flux. The leading decision is Cheshire West and Chester Council v P [2011] EWCA Civ 1257, [2012] COPLR 37. However, that decision is itself subject to appeal and the Supreme Court’s decision is due shortly.

In this case, MS is readily given permission (leave) to go out on outings with her friend RS, and the routines at QX Nursing Home are benign. RS can take her out to the cinema or for walks. She goes to St Martin’s in the Field. However, it has not been argued that she is not deprived of her liberty, or that she is simply residing there in the same way as someone subject to guardianship under the Mental Health Act. This is because of the strength of her objections to living at QX Nursing Home, the fact that she is effectively prohibited from even visiting her own home, and it will be sold and she have to live out her life in residential care, unless the standard authorisation is lifted.

In my view, that is correct when one looks at her specific situation, and the situation is not of the subtle Cheshire West kind where it is necessary to think in terms of comparators in order to reach a finding.

Patently she is not free to go home or visit her home, and the state claims legal power to control her liberty and movements indefinitely, and not simply to define a place of residence for her; therefore she has been deprived of that usual liberty which the rest of us enjoy. No aspect of her liberty of movement remains under her own control.

(If I am wrong on this then, having regard to Articles 6 and 8 of the Convention, in my view it would still be legally necessary for a court to review the fact that she is prevented from returning to and residing at her own home in a situation where the state's intends that her home should be sold and this situation endure for the rest of her life notwithstanding her clear objections. I would still need to decide what I have been asked to decide, that is whether it is in her best interests not to return home and whether to permit such an interference with her Article 8 rights.)

Is this is in her best interests?

This, it was agreed, was they key issue and it needs to be examined in greater detail, under two headings: §9 — The Law and Determining Best Interests, §10 —MS's Best Interests.

§9 — DETERMINING BEST INTERESTS AND THE LAW

The correct approach to determining questions about what is in MS’s best interests is set out in Section 4 of the Mental Capacity Act 2005:

Section 4 Best interests

(1)          In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—

(a)          the person's age or appearance, or

(b)         a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)          The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)          He must consider—

(a)          whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)         if it appears likely that he will, when that is likely to be.

(4)          He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)          Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)          He must consider, so far as is reasonably ascertainable—

(a)         the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)         the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)          the other factors that he would be likely to consider if he were able to do so.

(7)          He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)         anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)         anyone engaged in caring for the person or interested in his welfare,

(c)          any donee of a lasting power of attorney granted by the person, and

(d)         any deputy appointed for the person by the court,

as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

(10)      “Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11)      “Relevant circumstances” are those—

(a)         of which the person making the determination is aware, and

(b)         which it would be reasonable to regard as relevant.’

Balancing the considerations and “magnetic importance”

In the case of ITW v Z [2009] EWHC 2525 (Fam), Munby J (as he then was) gave the following guidance with regard to the different considerations listed in section 4 which the decision-maker must have in mind: [14]

                                   i.          The first is that the statute lays down no hierarchy as between the various factors ... beyond the overarching principle that what is determinative is the judicial evaluation of what is in P's “best interests”.

                                 ii.          The second is that the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature or factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight.

                              iii.          The third, following on from the others, is that there may, in the particular case, be one or more features or factors which, as Thorpe LJ has frequently put it, are of “magnetic importance” in influencing or even determining the outcome.

Significance of the person’s own wishes and feelings

The weight to be given to an incapacitated person’s own wishes was also dealt with in the case of ITW v Z [2009] EWHC 2525 (Fam), [15]

                                   i.          First, P's wishes and feelings will always be a significant factor to which the court must pay close regard: see Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at paras [121]-[124].

                                 ii.          Secondly, the weight to be attached to P's wishes and feelings will always be case-specific and fact-specific. In some cases, in some situations, they may carry much, even, on occasions, preponderant, weight ... it all depends ... upon the individual circumstances of the particular case [and] ... the weight to be attached to their wishes and feelings must depend upon the particular context ….

                                iii.          Thirdly, in considering the weight and importance to be attached ... the court must ... have regard to all the relevant circumstances. [These] will include [but are not] limited to such matters as:

a.             the degree of P's incapacity, for the nearer to the borderline the more weight must in principle be attached to P's wishes and feelings: Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124];

b.             the strength and consistency of the views being expressed by P;

c.              the possible impact on P of knowledge that her wishes and feelings are not being given effect to: see again Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, at para [124];

d.             the extent to which P's wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and

e.             crucially, the extent to which P's wishes and feelings, if given effect to, can properly be accommodated within the court's overall assessment of what is in her best interests.

Managing risk

The following passage from the decision of Munby J (as he then was) in Re MM [16] are of considerable relevance and assistance in many cases:

[119] ... 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.

Risk cannot be avoided of course. All decisions that involve deprivation of liberty or compulsion involve balancing competing risks, of which the risk that others may suffer physical harm is but one. For example, detention and compulsory care or treatment may risk loss of employment, family contact, self-esteem and dignity; unnecessary or unjustified deprivation of liberty; institutionalisation; and the unwanted side-effects of treatment.

Pessimism not necessarily determinative

In Re: GC, [17] Hedley J considered whether to allow an elderly man to be discharged from hospital to the home where he had lived for many years with his nephew KS, notwithstanding that there were serious though entirely unintentional shortcomings in the care provided by KS. Hedley J commented:

GC is a man in the 83rd year of his life and my concern is to ask myself: how will he most comfortably and happily spend the last years that are available to him? Secondly I have approached this case on the basis that his primary need is for emotional warmth, emotional security and the commitment of human relationship. That has been a huge feature of his life to date and one that is not readily to be set aside. Next it seems to me that for the elderly there is often an importance in place which is not generally recognised by others; not only physical place but also the relational structure that is associated with a place ...

In connection with the issue of a trial placement, the Judge commented at paragraph 24:

It seems to me that it would be wrong not to try, even with a degree of pessimism, a placement with a package of support that has been advanced, and this is another factor that has weighed with me in this case ….

A balance-sheet

The best interests test is an objective test, concerned with the best interests of MS and not the best interests of another person. The following passage concerning the need for a balance-sheet approach to best interests comes from the then President’s judgment in the case of Re S (Adult’s lack of capacity: carer and residence) [2003] FLR 1235: [18]

… The question ... is: which outcome will best serve her interests? … [It] is clear that the court goes about deciding that question by drawing up the balance sheet identified by Thorpe LJ in Re A (Male Sterilisation) [2000] 1 FLR 549 at 560F–560H:

Pending the enactment of a checklist or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit … Then on the other sheet the judge should write any counter-balancing disbenefits to the applicant … Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of that exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses. Obviously only if the account is in relatively significant credit will the judge conclude that the application is likely to advance the best interests of the claimant.

§10 — MS's BEST INTERESTS

Having summarised the legal framework, I must consider MS’s best interests in the context of it.

There is, of course, no solution.

In the suggested care settings the situation will be less than optimal.

None of the options canvassed with the court will provide Ms S with security, safety, liberty, happiness, an absence of suffering and an unrestricted home life. These different considerations cannot all be reconciled and promoted within a single setting, and the realisation of some of them must inevitably involve the sacrifice of others. The task is to choose which of these legitimate values and aims to compromise and which to give expression to, in her best interests.

Participation of MS in the decision-making

So far as reasonably practicable, Ms S has been permitted and encouraged to participate as fully as possible in the decision-making process. She has had many opportunities to express her wishes and preferences, and has done so.

Whether a recovery of capacity is likely

I find that it is unlikely that MS’s capacity will improve so as to enable her to make this particular decision for herself. Therefore, a decision must be made for her now, by me, in her best interests.

MS’s past and present wishes and feelings

MS's wishes and feelings are important factors to be taken into account when reaching my decision: after all, why would anyone wish someone to be cared for otherwise than in accordance with their wishes if they can be adequately cared for in accordance with their wishes?

In taking her wishes and feelings into account, I have considered the case of ITW v Z, [19] the degree of incapacity, the strength and consistency of her views, the likely impact of knowing that her wishes and feelings are being overridden (if my decision is contrary to her wishes), the extent to which her wishes and feelings are rational, sensible, responsible and pragmatically capable of sensible implementation, and the extent to which her wishes and feelings can properly be accommodated within the court's overall assessment of her best interests.

I have noted the consistency of her wishes and feelings; the effect on her mental health, happiness and well-being of the continued loss of her home; her attitude towards institutional life and the importance to her of her freedom. She values her privacy and the sense of security at home.

MS is still able to appreciate and express the value of being at liberty and being allowed autonomy. [20] The importance of individual liberty is of the same fundamental importance to incapacitated people who still have clear wishes and preferences about where and how they live as it is for those who remain able to make capacitous decisions. This desire to determine one’s own interests is common to almost all human beings. Society is made up of individuals, and each individual wills certain ends for themselves and their loved ones, and not others, and has distinctive feelings, personal goals, traits, habits and experiences. Because this is so, most individuals wish to determine and develop their own interests and course in life, and their happiness often depends on this. The existence of a private sphere of action, free from public coercion or restraint, is indispensable to that independence which everyone needs to develop their individuality, even where their individuality is diminished, but not extinguished, by illness. It is for this reason that people place such weight on their liberty and right to choose.

Any written statements made by her when she had capacity

Ms S’s living Will and the guidance in her Lasting Power of Attorney are written statements which I have considered and taken into account. They indicate a wish to remain in her own property for as long as 'feasible' and in general that she prioritises quality of life over the prolongation of life (see §5).

Relevant beliefs and values

The law requires objective analysis of a subject not an object.

Ms S is the subject.

Therefore, it is her welfare in the context of her wishes, feelings, beliefs and values that is important. This is the principle of beneficence which asserts an obligation to help others further their important and legitimate interests. In this important sense, the judge no less than the local authority is her servant, not her master.

The available evidence indicates that Ms S's relevant beliefs and values include a very strong belief in and commitment to the value of open public debate and social services for those who need them.

She has unambiguous opinions about what is right and what is wrong, and has spent much of her life airing those opinions. It seems plain that it is fundamental to her nature and purpose in life that she is free to air and promote her political and personal values through discussion, marches, rallies, newspapers, campaigning and other forms of political activity.

She has a strong will to change the world, to influence others and to draw their attention to the plight of those she believes need and deserve more care, such as the homeless and people experiencing dementia. She also has a strong desire to promote the interests of those she believes are politically disadvantaged: women as compared with men; the homeless compared to those with homes; the older and more frail compared with the younger and fitter; and, to use her term, the 'double whammy' disadvantage of older women.

These political and personal values have a religious element, evident from her expressed religious beliefs and attendance at church services and Quaker meetings.

One thing she seems never to have lacked is courage and a willingness to place herself at the centre of public debate and attention. She stood in two Parliamentary by-elections and campaigned to have Buckingham Palace rated. Indeed, the impression is that she relishes being at the centre of public events because it means that she is exerting influence; is being heard; is affecting the outcome of social issues important to her.

All of this is highly relevant when it comes not only to the court’s decision concerning her care package but also, and perhaps even more so, the decision whether she should remain anonymous or be identified as the person at the heart of her case. What she has done with her life indicates that she has always wanted to be 'someone', to have influence.

Realistically, this is her last chance to exert a political influence which is recognisable as her influence. Her last contribution to the country's political scene and, locally, the workings and deliberations of the council and social services committee which she sat on.

On a personal level, her strong sense of self, her belief in the importance of the individual, her desire for freedom and autonomy are magnetic factors, operating at positive and negative poles by providing both the pull of freedom and the counterforce of resistance to outside care.

Views of non-professional carers

I have taken into account the evidence of RS, Ms S’s nieces and MS's Reverend where relevant and appropriate, and have sought to incorporate it into my analysis of the potential advantages and disadvantages of each option. Their insights have been of great assistance.

Ms S's nieces and Reverend now consider that it is in her best interests to remain in residential care and, by and large, support the view of the local authority professionals and the expert, Dr Barker.

Dr Barker’s evidence

Dr Barker produced a detailed, considered and thoughtful report and addendum, and gave oral evidence at the final hearing. I have sought to incorporate his reservations in the relevant parts of this judgment, which aim to set out fairly and in detail the difficulties facing professional carers and indeed MS herself. In his original report, at paragraph 5.5.1, he concluded that in his opinion, ‘on the balance of probabilities it is in MS’s best interests to remain where she is, unless a subsequent best interests meeting concluded that an alternative placement could better meet her needs’. He considered that she needs a 24 hour care package to meet her needs and was of the opinion that at home ‘she would revert to assuming that she does not need help and would resent the carers presence’. In his supplementary report, he dealt with questions raised in relation to his original report, and the evidential basis for some opinions. His conclusions remained essentially unchanged. As always he was a highly impressive and fair witness and expert, and I have given what he has said careful consideration and significant weight. I have accepted the medical realities, and the funding realities, and weighed them in the balance with all of the other realities, such as the loss of liberty, Ms S’s wishes, feelings, beliefs and values, her personality, the value to her of her home, and so forth.

Other relevant considerations

The following considerations seem to me to be relevant considerations:

The risk of self-harm

As regards the risk of self-harm or suicide if Ms S is not allowed home, or is only allowed home with carers present for much of the time, it is in the nature of such assessments that it is not possible to be certain. Ms S is someone who responds to situations that she abhors with decisive action and she seems to believe that there is a place for euthanasia in society. This implies, as does her living Will, that she believes life may cease to have a value for its possessor before it is extinguished. She is not known to have harmed herself in the past and is not receiving treatment for depression. On balance, and having had careful regard to the psychiatric evidence, I find it likely that her statements are expressions of frustration and unhappiness, bordering on grief, at the loss of her home and her former life.

The accommodation which is available

With regard to the location of care, the two available options are her flat and QX Nursing Home. The possibility of a smaller care home has been explored. However, MS was resolute in her response that a smaller care home would not make any difference. Furthermore, the one identified as possibly the best alternative decided that it could not meet her needs. The suitability of extra care sheltered accommodation has also been ruled out, by both parties.

I was informed that the local authority does not have a block contract with QX Nursing Home, but does have a special rates arrangement. Although staff are friendly and kind, and everyone was full of praise for them, the home does appear to be built on an economic model. It provides for 176 residents across several floors. The two corridors I saw were long and narrow. Several perplexed residents were wandering along Ms S’ corridor, one of whom entered her small room. Given the cost of land close to central London, not surprisingly the impression was of space being at a premium. MS's IMCA has requested a larger room for her but, if successful, it would not be much larger.

Likelihood that MS will reject care and/or be in conflict with others

It is relevant (and necessary) to consider the likelihood that MS will accept care and support at home; the importance to her well-being of any care or support that is likely to be rejected; the risks that would then arise and how long it would be before she experiences significant distress; the possibility of conflict with carers, neighbours or others, and the likely nature and seriousness of any such conflicts.

Naturally, the parties took different positions on these issues.

The local authority was strongly of the opinion that a home-based package of care was not in Ms S's best interests. Its reasons for believing this to be the case included the following:

1.                   For most of the time MS is now settled at the nursing home. She has a considerable amount of freedom to go out with RS and others and a reasonable quality of life. It is not in her best interests to interrupt these arrangements.

2.                   The historical evidence is such that it is almost inevitable that such a trial will fail. This is apparent from her rejection of care and carers during the period leading to her hospital admission in October 2012, and from her own statements.

3.                   She is 'very territorial' in her own home; at home she is likely to reject care which currently she accepts at QX Nursing Home, because she interprets it as intrusive and interfering.

4.                   Her flat has quite a number of stairs, her mobility is imperfect and there is a risk of falls.

5.                   She will be at significant risk at home and others may be as well.

6.                   It will be traumatic for her to have to return to institutional care when the trial fails or her money runs out. She might refuse to abandon her flat, resulting in the need to resort to the Mental Health Act 1983 and/or police and ambulance crew.

Mr Patel pointed out that there have been some positive developments since October 2012:

1.                   She would be resuming life at home at a much higher level of health and day-to-day functioning than in October 2012.

2.                   Since then, there has been an improvement in her physical health and she is also much calmer (evidence of Ms P, based on her visit of 4 February 2014, accepted; consistent with my own observations when I visited and with Ms S's engagement in court).

3.                   There has been no evidence of aggressive or intimidating behaviour at the nursing home.

4.                   She has recently engaged very well with carers from the B Care Agency, who take her out during the week and spend time with her.

5.                   It is significant that she has responded to the expertise and kindness of staff at QX Nursing Home and has established a rapport with staff there. Provided carers have dementia experience and expertise, and are adept at dealing with periodic challenges and refusals of care, it is possible to establish workable day-to-day care arrangements.

6.                   Her home has been decluttered and it will be safe and fit to occupy.

7.                   A care agency has been identified, has assessed her and is willing to trial a period of home-based care.

8.                   MS will also have the support of RS and friends and acquaintances from her church.

In my opinion, the balance of the evidence, while not conclusive, indicates that there are likely to be significant difficulties gaining Ms S's acceptance of care within her own home.

Prior to her admission to hospital, her engagement with carers and services was quite problematic at times. When I visited her, she was at pains to tell me that the paid carers who visited her at home previously had been patronising and insensitive at times, and that some of the people she fell into conflict with outside her home had been offensive or inconsiderate.

There may well be some truth in that but it is not a complete explanation. MS does not understand the nature and range of care she requires or the risks to which she is liable. Her limited short-term memory may well result in her becoming distressed by home care and not engaging because she cannot remember or understand why the individual is in her home. This has (in the past, at any rate) caused conflict and a level of care which is inadequate to maintain good physical health. The fact that her physical health is now good, and she is calmer, suggests that her health is better protected in a nursing home.

I accept that she is 'territorial' about her home, as are most people. It is her home, her territory. Like the rest of us, in an institutional setting such as a hospital or care home she can accept that someone else is in charge and that the rules and schedules are made by others. In her own home she can regard paid carers who 'prompt' and 'encourage' her to accept the same care as patronising and interfering, bossing her about in her own home.

It is harder to know — impossible without a trial — how rapidly such problems will emerge and in how many areas.

If the transitional arrangements can manage the possibility of immediate refusal of a home care package, it may be possible to sustain a home-based care package for at least several months even if her acceptance of care is patchy. Her dementia is progressing at quite a slow rate and she is starting from a good baseline in terms of her health. However, on the evidence, in my view it is likely that there would be a gradual deterioration in her health and welfare over a period of months which would eventually compromise her ability to enjoy daily life and activities and make home care no longer viable.

Nevertheless, for a number of reasons I do not consider the fact that significant problems and some distress lie ahead, and that 'failure' is quite likely in the loose general sense that some have been using the word, to be fatal to the case for a period of trial leave:

• If not now then when?
• Ms S is 89 years old and her life is drawing to a close. It is her life. Several last months of freedom in one's own home at the end of one's life is worth having for many people with serious progressive illnesses, even if it comes at a cost of some distress. If a trial is not attempted now the reality is that she will never again have the opportunity to live in her own home. Her home will be sold and she will live out what remains of her life in an institution. She does not want that, it makes her sufficiently unhappy that sometimes she talks about ending things herself, and it involves depriving her of her liberty.
• The fact that it will or may be traumatic if once more Ms S has to be taken from home to institutional care is at one level an acceptance that it is now traumatic for her to be in institutional care and to be deprived of her liberty there.
• Although there is a significant risk that a home care package at home will ‘fail’, there is also a significant risk that institutional care will 'fail' in this sense (that is, produce an outcome that is less than ideal and does not resolve all significant existing concerns).
• If it is in MS’s best interests to live out what remains of her life in a nursing home — and it may be — it must be on the basis that any possible viable alternative has been explored, i.e. trialled and found not to be feasible in the sense of being practicable and more satisfactory for her.
• The judgment in Re: GC is pertinent in this respect:

“… it seems to me that for the elderly there is often an importance in place which is not generally recognised by others; not only physical place but also the relational structure that is associated with a place ....”

“It seems to me that it would be wrong not to try, even with a degree of pessimism, a placement with a package of support that has been advanced, and this is another factor that has weighed with me in this case ….”

• The purpose of a trial is to try something that may or may not work. If 'failure' was not a possibility there would be no need to trial the arrangements.
• The care agency ('HH') contacted by RS has proposed a one-month trial.
• The risks can be minimised, but not eliminated, by a careful transitional plan which involves being introduced to carers over a short period, trying to match her with people sensitive to her personality, and by the encouragement and presence of RS, her nieces or members of her church at initial visits, to help establish relationships and habits.
• RS, HH and social services can be relied upon to ensure that MS receives help if she becomes seriously unwell or at immediate risk.
• The fact that RS is MS's attorney for property and affairs can be utilised to minimise some of the risks of conflict over basic care. He has a key to MS’s flat (which is ‘her property’) and under the LPA he is guided to seek to ensure that she can stay in her own home for as long as possible. It would not be unlawful for him to licence visiting carers to enter the flat while she is on outings for the purpose of cleaning, dusting, washing clothes, leaving shopping or food, de-cluttering, etc. If that is agreed as being appropriate, it may reduce the risks of face-to-face conflict with carers over these care tasks.
• At the best interests meeting on 15 May 2013, before the availability of public funding in this case became a more central issue, Ms P and MS's care team themselves decided that 'M should have a trial period at home with the appropriate level of support’. The risks of remaining in care were that, ‘If M remains in care she [is] likely to remain unhappy and distressed and her mental health may deteriorate. It is against her current and past wishes and feelings, and her strong sense of independence which she has had all of her life’. A plan was agreed for a trial placement at home and, as Ms P very fairly conceded, the risks recorded then are the same as the risks recorded now, and then the risk was considered to be worth taking. It must be conceded at the very least that the decision is finely balanced.
• Many adults who experience poor mental health and impaired capacity are discharged home from hospital in the full knowledge that further problems are likely and readmission will be required in due course. This is on the basis that periods of liberty and time at home are important to their dignity and quality of life.
• The fact Ms S will experience some distress at home is an important concern, but again not determinative. Almost all progressive and ultimately fatal illnesses —dementia, some cancers, severe neurological conditions — involve distress for the sufferer and those close to them. The aim must be to minimise the distress and then to weigh what remains against the inseparable benefits. In this case, home life is likely to be a mixture of pleasure and distress. One wants to minimise the suffering, of course, but that goal has to be balanced against her desire in difficult circumstances to make the best of what time remains — to strive for as long as possible to achieve those ends which have given her life its value and which she still wishes to pursue, even if it means some distress and pain. MS also experiences, and will experience, some distress at the nursing home.
• Her own safety is one part of any consideration of her welfare but not an overriding consideration. In my view she is well aware of the risks of falling at home. She cared for her mother, who had dementia, at home and sadly her mother died following a fall at home. For many people, there is also a risk of falling in a care home (unless one does not allow an older person who can do imperfectly the dignity of using the toilet alone).
• The welfare of the occupants of the other two flats in the building where MS lives is, indirectly, a relevant consideration. Under the 2005 Act I am only concerned with MS’s best interests but her life beliefs and values include a belief in the need to consider the welfare of others. Furthermore, any consideration of her best interests must include considering the practicability of a return home, which involves reflecting on the possibility that if things do not go well third parties might consider it in their best interests to take their own steps in response (e.g., public health notices, action by landlords, injunctions, Mental Health Act assessments because of a perceived risk to others, etc).
• Because MS’s case remains before this court and the trial will be carefully monitored, I am satisfied that the risks are acceptable and manageable:

·               Any significant breakdown in the care package will no doubt be identified immediately and followed by appropriate action, including if necessary an application to this court. There will be no question of an unsatisfactory situation at home developing and being allowed to drift.

·               There are also powers in sections 115 and 135 of the Mental Health Act 1983 which enable a speedy response in emergency situations (these powers are not confined to situations where someone needs to be assessed for admission and date back to Victorian legislation).

·               Other legislation allows for urgent police intervention where life or limb is at risk.

Summary

It is my view that it is in Ms S's best interests to attempt a one-month trial of home-based care.

Very helpfully, at the end of the final hearing the local authority told me that if I rejected its primary case, and decided on such a trial, they would put a transitional plan in place to enable the trial to proceed.

It is for RS, the local authority and HH to discuss and agree the content of the care package that is necessary, having regard to the need within available resources to maximise the chances of the package being accepted by MS.

From the court's point of view, I am very conscious that RS's own age and health, and the distance he lives from Ms S's flat, mean that it is not physically possible for him to support Ms S at past levels of intensity for more than a further short period of time. He has been heroic in the care he has provided and now needs more, not less, rest. All need to consider what support he may be entitled to in his own right as a carer in the short-term.

It would be helpful to know whether MS is more likely to accept support at home from NHS staff and what is available (if anything) in terms of NHS input and funding (GP support, district nursing, equipment and occupational therapy, community matron support, assistive technology).

In terms of the structure of the trial, from the court's point of view there needs to be a break clause and careful monitoring, together in the order with liberty to apply on 24 hours notice (or, in any genuine emergency, ex parte).

At least three critical periods need to be planned for:

1.                   The risk of the package breaking down almost immediately because Ms S feels that her paid carers are unsuitable, does not engage, rejects their 'prompting' and is in conflict with them. It was suggested that MS be introduced to carers at the nursing home and outdoors first of all, and that RS as well as MS be involved in their selection. MS's network in the form of RS, nieces and local church all appear to be willing to seek to maximise the chances of a positive start.

2.                   The situation at the end of the one-month trial period when the outcome is reviewed and the possibility arises that it is agreed or asserted that home care has been shown not to be feasible.

3.                   The situation after 4-6 months if Ms S remains at home and her current savings are exhausted. There are unfortunate if understandable gaps in the evidence as to the extent that Ms S’s financial resources can be augmented. It is essential to look at ways of increasing her resources. She ought to be entitled to Attendance Allowance and there may be other benefits or grants which would help her. In terms of the equity in her property, it appears that her landlord is not able or willing to buy this back in any way that would assist her. Therefore, it may be necessary to investigate private equity release schemes, even if normally the terms would not make them attractive propositions. Hopefully, RS and the local authority can agree how best to progress all of this speedily.

I do not intend to consider the possibilities beyond around six months time because in my view the circumstances of Ms S's situation mean that an order which seeks to produce that degree of finality is not possible today.

Hopefully, the trial (and any continuation of it over the following months) will produce sufficient clarity one way or the other that final declarations and orders can be made largely by consent. If not then a further hearing will be required. Obviously, that is what the court is here for.

Whether the relevant purpose can be achieved in a less restrictive way

In reaching my view, I have had regard to section 1 and the need for me to consider whether the purpose for which the act is needed can be as effectively achieved in a way that is less restrictive of MS’s rights and freedom of action. I do not believe so. An unstructured return home is not feasible.

Compliance with the European Convention on Human Rights

In my opinion, the interference with MS’s home and private life is prescribed by law, proportionate (to the identified risks) and for a permitted purpose (her health).

§11 — REMAINING LEGAL FORMALITIES

Because I have decided that the standard authorisation is not in MS’s best interests once the trial period at home is organised, and because my overall findings are clear, by agreement it is unnecessary for me to say more about the third and fourth conditions in the best interests requirement.

§12 — ORDER AND DIRECTIONS

The court’s Order includes the following provisions:

1.              The Standard Authorisation dated 23 November 2013 is extended until the respondent returns home in accordance with the transition and care plans filed pursuant to paragraph 5 …

2.              In the event that one or both of the parties consider that the trial return home is not succeeding and in the event that there is disagreement between the parties in relation to the respondent’s best interests as to her residence and care, liberty to the parties to apply on 24 hours’ notice to District Judge Eldergill for orders authorising the respondent’s return to a residential and nursing care setting.

§13 — APPLICATIONS RE PRESS ATTENDANCE AND REPORTING

‘I was ever a fighter, so — one fight more’

Ms S’s ‘strong wish’ was for her situation to be reported and to be named as the person with whom these proceedings are concerned.

Because of timing of her request, there was no formal assessment of her capacity to understand the possible or likely consequences of the court granting such a request. However, on the evidence, it was common ground that the court could, without making unjustified assumptions, proceed fairly on the basis that MS lacks capacity to understand and weigh relevant considerations. To give one simple example: because she has no memory of many problems at home, including her own conduct, it is highly unlikely that understood and weighed that information and the possible consequences for her of its publication when making her request.

Her litigation friend was supportive of her request but also aware of the competing considerations. He asked me to take her strong preference into account, along with all of the other relevant privacy, confidentiality and public interest considerations, when undertaking the overall balancing exercise required of me.

The Press Association’s application

The Press Association is the national news agency of Great Britain and Ireland.

Following my discussion with MS on 7 January 2014, and in keeping with the court's desire for transparency, the Press Association’s office at the Royal Courts of Justice was notified of the hearing on 10 January. Mr Farmer of the Press Association attended the hearing and produced a short, anonymised, report.

The court then received a written submission from the Press Association’s Legal Editor, Mr Dodd, prior to the final hearing on 10 and 11 February 2014, in which he sought permission to name MS in press reports and to publish certain information relating to the proceedings.

Mr Farmer attended the final hearing and made some supplementary oral submissions in support of the application, for example in relation to publishing a photograph of Ms S.

The Press Association argues that MS's case is one of considerable public interest and should be reported widely and fully. The ‘normal rule of anonymity relating to Ms S can and should be lifted, so that she, and members of her family who wish to speak on her behalf, may be named’.

Legal considerations

Under the Court of Protection Rules 2007, the general rule is that a hearing is to be held in private.

This reflects the personal, private, nature of the information which the court is usually considering.

That is not the same as being secretive; a GP is not a ‘secret doctor’ because the press have no unqualified right to be present during patient consultations or to report what is said. All citizens have a right to expect that information about them will be held in confidence by their doctors and social workers, and to expect that any overriding, future, need to breach this right will go no further than necessary, and only exceptionally involve seeing it in national newspapers.

Everyone benefits from, and enjoys, this level of privacy and therefore there is a strong public interest in privacy. Not to allow an incapacitated person the same general right to privacy or confidentiality that we claim it for ourselves would be to discriminate against them because of their mental illness and vulnerability.

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.

While it is sometimes necessary to distinguish between ‘the public interest’ and ‘matters which the public finds interesting,’ there is a high public interest in seeing that hearings which determine the rights of incapacitated people, and their families, are fair and properly administered.

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. (No application was made for a public hearing in this case.)

As concerns the publication of what is said at a private hearing, and the 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. 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.

What section 12 therefore protects is the privacy and confidentiality of both what has gone on in front of the judge in court and the documents in the court file, such as affidavits, witness statements, reports, position statements, skeleton arguments, transcripts, notes of the evidence, submissions, the judgment.

The 2007 rules (rr.90–93) contain additional legal provisions concerning the publication of information relating to the proceedings.

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.

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.

It may also 'impose such other restrictions on the publication of information relating to the proceedings as the court may specify'.

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.

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 particular case (or some of its features) and/or the way in which the Court of Protection functions.

The President's recent guidance

Recently, the President of the Family Division and 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.

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 ….' Paragraphs (11) and (12) do touch on the issue of anonymity:

11 The normal terms as [to anonymising judgments] ... may be appropriate in a case where no-one wishes to discuss the proceedings otherwise than anonymously. But they may be inappropriate, for example, where family members wish to discuss their experiences in public, identifying themselves and making use of the judgment ….

12 If any party wishes to identify himself or herself, or any other party or person, as being a person referred to in any published version of the judgment, their remedy is to seek an order of the court and a suitable modification of the rubric: Media Access & Reporting, para 82; Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam), [2012] 1 FLR 466, paras [17], [19].

20 In all cases where a judge gives permission for a judgment to be published:

(i) public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named;

(ii) the person who is the subject of proceedings in the Court of Protection and other members of their family should not normally be named in the judgment approved for publication unless the judge otherwise orders;

(iii) anonymity in the judgment as published should not normally extend beyond protecting the privacy of the adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.

21 Unless the judgment is already in anonymised form, any necessary anonymisation of the judgment shall be carried out as the judge orders. The version approved for publication will contain such rubric as the judge specifies. Unless the rubric specified by the judge provides expressly to the contrary every published judgment shall be deemed to contain the following rubric:

“This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.”

In the case of In the Matter of RB (Adult) (No 4) [2011] EWHC 3017 (Fam), Munby LJ noted that such a rubric is binding on anyone who seeks to make use of a judgment to which it is attached. Anyone who disobeys it is, in principle, guilty of a contempt of court:

‘The rubric [which in that case was worded slightly differently] is in two parts and serves two distinct functions. The first part (“The judge hereby gives leave for it to be reported”) has the effect, as it were, of disapplying section 12 pro tanto, and thereby immunising the publisher or reporter from proceedings for contempt. But the second part (“The judgment is being distributed on the strict understanding that …”) makes that permission conditional. A person publishing or reporting the judgment cannot take advantage of the judicial permission contained in the first part of the rubric, and will not be immunised from the penal consequences of section 12, unless he has complied with the requirements of the second part of the rubric. This is merely an application of a familiar principle which one comes across in many legal contexts and which finds expression in such aphorisms as that you cannot take the benefit without accepting the burden, that you cannot approbate and reprobate and that if a thing comes with conditions attached you take it subject to those conditions’ (at para 16).

His Lordship continued, at paragraph 17:

As I said in Re B, X Council v B (No 2) [2008] EWHC 270 (Fam), [2008] 1 FLR 1460, para [13] ….:

“There is nothing to prevent Mrs B or J or W identifying themselves in public as people involved in the care proceedings brought by Blackpool Council or, subject to compliance with section 12, discussing in public the nature of the dispute in the proceedings. Nor is there anything to prevent Mrs B or J or W making whatever use they wish of my judgment in the anonymous form in which I gave leave for it to be reported. But what, on this view of the rubric, they cannot do — and what of course they want to do — is to link themselves with the judgment; to say that the Mrs B referred to in my judgment is in fact Mrs Brown and that the J and W referred to in the judgment are in fact James and Wilfred Brown (I use pseudonyms to illustrate the point, these are not in fact their true names).”

The remedy for someone who wishes to publish material prohibited by the rubric is to apply for a suitable modification of the rubric.

It can be seen that 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. The normal rule with regard to a local authority is that the local authority should usually be named, and the position is the same for expert witnesses in that respect.

Two suggestions were made to me in passing in relation to the President’s guidance.

Firstly, that the local authority ought not to be named unless Ms S is named because of the risk that it may then be possible to identify her or the nursing home involved. I do not find that an attractive argument. The borough has a population of around a quarter of a million people, approximately the same size as Nottingham. Not identifying a local authority because of that level of risk would significantly undermine the accountability of local authorities and the transparency of court judgments. Identifying the local authority does provide a starting point for someone intent on trying to identify an individual or care home, but most people are not so intent and in an ordinary case the prohibition on publishing the identity of P or the nursing home remains in force. In my view, there are no compelling reasons for not identifying the local authority. Indeed, quite the opposite. The case for identifying the local authority, and enabling residents in the borough to know about such cases when they cast their votes, and to be able to ask their councillors suitable general questions about the allocation of resources and services to older people with dementia, is compelling.

The second point was that the guidance — for example in relation to naming the authority — does not apply to this decision because paragraph 14 of the guidance states that it 'applies to all judgments in the Court of Protection delivered by the Senior Judge, nominated Circuit Judges and High Court Judges'. It does not apply to district judge decisions.

I do not find that an attractive argument if the suggestion is that different principles apply to district judge decisions, for example with regard to the naming of local authorities and experts. It is not practicable for the guidance to apply to all district judge decisions given the volume and type of cases dealt with by them. However, the public interest and level of interference with a citizen's ordinary legal rights in a deprivation of liberty case is not less because it has been authorised by a district judge rather than a circuit judge. The issue is not whether the DJ has anything worth saying or reporting but knowing what s/he has done in the exercise of her/his powers.

Interplay between the guidance and the rules

The relevant legal rules remain in force and 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)

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

Analysis and decision

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

Good reason

There was good reason for permitting the press to attend hearings in this case and there is good reason for permitting the press to publish the court’s judgment. The case involves matters of fundamental importance, such as deprivation of liberty, the rights of people incapacitated by dementia, the funding of dementia services and residential care. There is a clear public interest in imparting and receiving information about the case and the way in which the Court of Protection functions. For the same reasons, and for the reasons advanced by Ms S and the press, there is also good reason for making an order lifting the veil of anonymity. The court must therefore balance the various competing considerations.

I bear in mind (a) that 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 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.

Balancing exercise

The considerations which require balancing include the following:

·                     The Article 8 rights of MS, her nieces, RS, her neighbours and anyone else whose private life may be in some way intruded on if an order is made (while, in the great majority of cases, Article 8 considerations add nothing to the factors or the weight accorded to them under common law, in rare cases it may intensify the focus on such rights, and in other cases could conceivably affect the outcome).

·                     Any likely effect of publicity on MS’s care or well-being.

·                     Whether information relating to her mental or physical condition should be in the public domain.

·                     The effect of publicity on her nieces, RS or others connected with her.

·                     Any inability of her part to respond to public debate or media comment due to her lack of capacity.

·                     Any gain or loss of dignity.

·                     The effect of publicity on any care team or residential service.

·                     The importance of freedom of expression, a free press and Article 10 rights (which were engaged when the application was made by the media and the request by MS).

·                     Whether matters or issues are already in the public domain.

·                     The fact that some information is already in the public domain, but not in national newspapers.

·                     Whether the public interest will be satisfied by anonymised court reporting of the judgment and proceedings.

The case for not lifting the cloak of anonymity includes, it seems to me, the following arguments:

^·                      Although MS has had a public profile, her general entitlement to protection and respect for her private life is undiminished.

^·                      When deciding whether to exercise any power under rules 90–92, the court must give great weight to the actual or potential invasive effect which an order may have on the private life of anyone whose privacy is intended to be protected by those rules.

^·                      It is not in her best interests for personal information about her illness and the problems associated with it to be published nationally. MS did not herself disclose much of the information described in court when she had capacity (albeit that she was not then deprived of her liberty or at risk of losing her flat).

^·                      Her request is made without an adequate understanding of the relevant information and issues, including the foreseeable consequences, advantages and disadvantages of publication. 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.

^·                      The presence of the press at hearings has permitted some interference with MS’s usual right to privacy and confidentiality. The combined effect of their attendance, an anonymised judgment and anonymised media reports strikes a proportionate balance between the public interest in individual privacy, the public interest in a free press, public knowledge and debate of important issues and the desirability of access to courts of law. The press and the public are able and free to comment on and criticise the court and the local authority.

^·                      So far as understanding the jurisdiction and powers of the court is concerned, and any issues of public importance, these ends can just as successfully be achieved by publishing the judgment in anonymised form.

^·                      Indeed, an anonymised judgment, leading to anonymised press reports, allows for a much fuller account of the relevant facts to be published and disseminated, resulting in more accurate and better-informed public debate.

^·                      Once MS is identified as the person concerned, and personal information about her is placed in the public domain, the court cannot control damaging comment or attention (the Pandora’s box argument).

The counter-arguments in favour of lifting the cloak of anonymity include the following:

^·                      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.

^·                      MS’s personality is a very critical consideration. Some people are very private; she is very public. She has always been a campaigner and a fighter. She has a strong will to change the world, to influence others and to draw their attention to the plight of people, including those with dementia, that she believes need and deserve more care. She would wish her life to end with a bang rather than a whimper.

^·                      She has never lacked courage or a willingness to place herself at the centre of public debate and attention. Indeed, she appears to relish being at the centre of public events because it means that she is exerting influence; is being heard; is affecting the outcome of social issues important to her. What she has done with her life indicates that she has always wanted to be 'someone', to have influence. Realistically, this is her last chance to exert a political influence which is recognisable as her influence. Her last contribution to the country's political scene and, locally, the workings and deliberations of the council and social services committee which she sat on.

^·                      She is a 'political creature' who has never shied away from public controversy. She stood for Parliament in 1957, 1959, 1972 and February 1974. Subsequently, she was city councillor for several years. For more than half a century, she seems to have positively wished to place herself at the centre of public debate and controversy. As a politician, she will have been well aware of and used to publicity about her activities.

^·                      She has discussed, and wishes to discuss, her experiences in public and to identify herself. This is consistent with her life-long approach towards public discussion of social and personal issues.

^·                      More particularly, she has already placed much information about herself and her medical condition in the public domain, and publicly identified herself as someone suffering from dementia. Her mother also suffered from dementia and she has campaigned for the rights of people with the condition and for better services. On the internet, the Trebus Project quotes her as saying:

She explained that she had “given her mother a terribly hard time” when she developed dementia. Her hope was that people learn from this transcription what it is like to have dementia ….

It has been getting worse for the past couple of decades… To make a change in care we need to make a change in the politics of care… (a) It’s ignorant and (b) it’s… indefensible… cheaper and easier.

Dementia… I was told mummy had it… I was told I would get it… I was told. I was told that it hits more women than men… and older people… and mostly women… they’re marginalised… and stigmatised… and hidden. I’m very distressed at the way the subject is avoided.

It is rare for a carer to have real integrity, and I should say this applies to the people that run the so-called care homes… They take advantage in so many ways, including theft...  If you examine the character of quite a lot of people involved in… quote ‘care’… you do a bit of research and… you’ll find a lot of people involved in care are… are… bossy boots… I did an article on that… Go and read it in the British Library… Forty years of it… I raised quite a mail bag… most of it unprintable… They really were very angry… I’m blunt… I don’t believe in wasting words… I had the experience of nursing Mummy… I’ve seen what happened in the hospitals…

My mother developed dementia… It seems to run down the family line… I looked after her mostly and… I found it very difficult… because… you’re expected to care for people but you’re never, ever given… I don’t know about now… but I was never given a real understanding of what she was going through and why… or… given advice on how best to look after her… You have to be able to understand in order to be able to look after properly ….

Dementia care in this country doesn’t exist... The problem is that… a great many people who are supposed to be carers… have contempt… for the loss of memory… and… the mental problems that that leads to… and take advantage of it. They behave in the most diabolical way and think they can get away with it… because… no one would believe the poor woman with dementia.

^·                      Her willingness to discuss publicly her condition is a strong factor in favour of allowing her to be named and her case to be reported fully. She could have told her story and made her points on the internet anonymously but chose not to. She is one of only two of the 250 dementia sufferers interviewed by the Trebus project who have been given their real name — because of her insistence that she wished to be identified and wished to make clear her views on the treatment of people with the condition.

^·                      There is nothing to stop MS from identifying herself as someone who suffers from dementia, or from publishing a good deal of personal information about herself, outside these proceedings. The usual prohibitions and my orders only apply to restrict publishing information relating to these proceedings.

^·                      She has strong and clear views about the situation of women in society; and, in particular, older women; and, even more particularly, older women experiencing dementia. If she still had capacity, she would wish her own plight and personal story to be known in the hope that it will help people understand the difficulties faced by older women with dementia, and the resources available to them.

^·                      She is a journalist herself. For 40 years, she wrote a paper called, ‘Voice of the Unions’. Therefore, the court can be confident that her belief in and commitment to a free press and freedom of expression pre-dates any incapacity.

^·                      She was also a member of the local authority's social services committee. She spent much of her free time discussing and decisions of the kind that her local authority faces in trying to provide social services to her.

^·                      There is a clear and genuine private benefit, as well as a public benefit, to allowing her to be named in reports. It confers dignity, the dignity of being heard, rather than undermines her dignity, the indignity of being forgotten.

^·                      Given the circumstances, it is likely that the press and most people with whom she is in contact will take an understanding and sensitive approach that does not have harmful effects for her or her family, and does not impact on her care or her care team.

^·                      There is a clear public benefit. This is a matter of great public significance given that it involves deprivation of liberty; depriving older vulnerable people of their liberty; Article 8 and Article 10 rights; a society facing a rapid growth in the number of older people who are likely to be in need of care services in one form or another; the right of people to live in their homes; the sale of their homes against their wishes.

^·                      There is nothing prurient about the press interest. Although these matters can be discussed in the abstract, in a case such as hers the impact derives from knowing that the person is Ms S and her history and circumstances, how her dramatic life has ended in deprivation of liberty in a care home. In Application by Guardian News and Media and Others ([2010] 2 AC 697, at paragraph 63, Lord Rodger highlighted that w riting 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 well 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.’

^·                      The people with whom MS is in regular contact, including people in her locality, are already very familiar with her and her circumstances, and will know to whom an anonymised report refers.

^·                      Because the nursing home will not be named, the home and its staff will not be adversely affected by publicity.

^·                      Ms S’s litigation friend is not opposed to her being named and simply asks the court to weigh the various considerations.

Decision

Having thought about the issue carefully, I have decided on balance — and it is quite finely balanced — that lifting the usual veil of anonymity is appropriate. In my opinion this is a relatively unusual case where the case for being named outweighs that in favour of continuing the usual anonymity. MS’s personality is a critical factor. She has always wished to be heard. She would wish her life to end with a bang not a whimper. This is her last chance to exert a political influence which is recognisable as her influence. Her last contribution to the country's political scene and the workings and deliberations of the council and social services committee which she sat on.

It is also appropriate to permit the press to publish the (old) photograph of her which appears on the Trebus Project website and/or similar archival photographs from her days as a politician, but not a current photograph.

For the avoidance of doubt, her nieces may not be named, nor may the nursing home or any of her professional carers be named unless they wish to name themselves and to comment on the judgment. The local authority and the expert may be named, and the local authority may comment on the judgment and (in order to ensure fairness) respond to any comments of the parties. The press, parties and public are of course free to criticise and discuss the court’s judgment and the approach taken by it.

ADDENDUM

By Order dated 24 February 2014, MS (‘Ms S’) may be identified publicly as referring to Manuela Sykes and her name may be substituted for her initials or the term ‘Ms S’ in any passages quoted from this judgment. The local authority may be named publicly as Westminster City Council.

There is no application for leave to appeal and the terms of a court order necessary to give effect to this judgment have been agreed by the parties.

District Judge Anselm Eldergill

24 February 2014