England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF MANUEL MARTINS

		Royal Courts of Justice
		10th June 2016

MR. JUSTICE BAKER:

1. These proceedings in the Court of Protection concern an 81 year old man called Manuel Martins, now suffering from dementia. He is currently in Portugal, having been taken there by his sister, Teresa Kirk. Previous orders have been made by other judges of this court ordering his immediate return. To date, Mrs Kirk has failed to comply with those orders and it may be therefore that she is in contempt of court as a result. That is not however a matter for this hearing. Because of the passage of time, I considered it appropriate at an earlier hearing to direct a further assessment of where Mr Martins' best interests lay. The fact is that he has now been living in Portugal for some time and I considered that it would be right in the circumstances to direct a further assessment. That assessment having now been carried out, I have today conducted a hearing to determine whether it is in Mr Martins' best interests to return to this country, to reside at a unit hereafter referred to as "A House" in the town where he lived for many years before going to Portugal, or rather to remain in his current residential unit in Portugal.
2. The background to the case is summarised helpfully by Miss Wills-Goldingham QC in her position statement, from which I have derived this summary.
3. Mr Martins has lived in this country for most of his life and has lived in Sidmouth in Devon for the last 50 years, owning a property there at one stage where he lived until 2014. Following his divorce, he lived alone with his cat, Tuna. In about 2012, he was diagnosed as suffering from vascular dementia. By the following year, he was receiving a small amount of care, most of which was provided informally by friends, in particular a friend and neighbour who I shall refer hereafter to as "JF". JF is someone of whom Mrs Kirk has very considerable criticisms, as I shall describe later.
4. In 2013, Mr Martins signed a power of attorney appointing JF's brother and Mrs Kirk as attorneys both for health and welfare, property and affairs. I am told that there is some concern about whether he had the capacity to execute a lasting power of attorney at that stage.
5. In 2014, Mr Martins disclosed to one of his carers that Mrs Kirk intended to take him on holiday to Madeira to see his other sister, who lives on that island. I should say that Madeira is the place where Mr Martins was born and where he was brought up. It is of course a Portuguese-speaking island. Mr Martins and his family are Portuguese, although in fact he has never lived on the Portuguese mainland at any stage in his life. A capacity assessment was undertaken by the social worker then involved in the case dated 12 June 2014 and concluded that he had the capacity to make a decision about whether to go on holiday. At the same time, his wishes and feelings about that issue were recorded and he made it clear that he did wish to go on holiday with Mrs Kirk, but was also clear in stating that he wanted to return home to Sidmouth to be back with his cat.
6. In the event, Mrs Kirk took Mr Martins away from his Sidmouth home without, it seems, giving notice to anybody. It was not for several weeks that social services were notified that he was in fact living at Mrs Kirk's address, following an intervention by the police. Mrs Kirk then informed the local authority that she would be taking Mr Martins on holiday, would be returning him no later than 8 July, and would be away for three weeks. However, concern was raised because the neighbours observed items of property being removed from Mr Martins' home, including furniture and possessions. As a result, the local authority made contact with the police. It then emerged that Mr Martins' house was up for auction. A request made by the local authority to the auctioneer to remove the property from the sale was refused. That left the local authority with no alternative but to start proceedings in the Court of Protection. On 9 September 2014, an injunction was obtained against the auction house barring them from selling the property.
7. As Mr Martins' house had been cleared, it was agreed that he should remain living with Mrs Kirk for the time being, until the next court hearing. A further mental capacity assessment was then conducted and concluded that he lacked capacity in all regards, including the ability to manage his property and affairs. This led to a full application being made to the Court of Protection for the revocation of Mrs Kirk's appointment as his attorney. Mr Martins remained living with Mrs Kirk in her home notwithstanding the concerns raised by the local authority.
8. By a court order of 16 March 2015, a district judge ordered a mental capacity assessment to include an assessment as to his capacity to consent to travelling to Madeira on holiday at the end of March 2015, as was now proposed. The assessment was carried out by a consultant psychiatrist specialising in old age who confirmed that Mr Martins suffered from at least moderately severe dementia and that, on the balance of probabilities, he lacked capacity to manage his financial affairs, or the capacity to make decisions about where he should live or as to the arrangements for his care or contact with others. The report also concluded that he lacked capacity to make the decision as to whether to go on a short holiday to Madeira. The assessment concluded:

"Mr Martins is in my view vulnerable to influence. He has a very significant cognitive impairment, communication difficulties and is dependent on others for his care needs. There are concerns that Mrs Kirk is adversely influencing Mr Martins against his best interests. If this were the conclusion of the court, then it may be that he would need to live away from Mrs Kirk and without regular visits from her in order that his views, without that influence, could be determined."

9. The psychiatrist was asked as to whether it was in his interests to go on holiday to Madeira. He took into account the fact that he had been born on that island, that he had family members still living there, including another sister, that there seemed to be no medical reasons why he should not go and that he managed a trip to Portugal in the previous year without any adverse consequences. The doctor therefore concluded that it was in Mr Martins' best interests to go on this holiday to Madeira with Mrs Kirk.
10. The court also ordered an independent social work report, which was produced on 20 April 2015. She concluded that it was not in Mr Martins' best interests to remain living with Mrs Kirk but, rather, that it was in his best interests to return to live in the Sidmouth area, where he had lived for the previous 50 years and had, as the social worker found, a large circle of friends built up over many years. The independent social worker observed:

"As Mr Martins' dementia progresses and his memory deteriorates, he will benefit more and more from being in the environment he has lived in for the majority of his adult life and having contact with people his past. If Mr Martins' returns to live in Sidmouth, it is my opinion that he will benefit from having significantly more terms of reference than in the place where Mrs Kirk lives and, as his memory worsens, these will become increasingly important to ensure his emotional wellbeing. I recognise that a further move at this stage in Mr Martins' life is not ideal. However, I am not aware of any reason why this should not take place."

In view of the uncertainties as to Mr Martins' property, the independent social worker recommended that he be provided with a period of rehabilitation in residential care, pending a decision as to whether or not it was feasible for him to return home, given the practical difficulties and also his particular needs.

11. Following the production of this assessment report, the matter was due to return to court on 30 April 2015. However, on the morning of the hearing before the district judge, it emerged that Mrs Kirk had in fact taken Mr Martins out of the jurisdiction without notice to any professionals in the case. It is recorded that she had informed her solicitor that she was unhappy with the recommendations of the independent social worker. It is important to note that these travel arrangements were made without notice to the Official Solicitor, the local authority or the court and certainly without the permission of the court then entrusted with the decision-making responsibilities in respect of Mr Martins.
12. The matter was therefore allocated to a High Court judge and came before Mrs. Justice Pauffley on 4 June 2015, where the learned judge made an order directing Mrs Kirk: "to cause Mr Martins' to return to England and Wales on a date between 25 June and 30 June". A penal notice was attached to the order. Mrs Kirk failed to return him to the jurisdiction as required by the terms of the order.
13. On 9 July, the matter was brought back before Mr. Justice Newton. The local authority made an oral application for Mrs Kirk's committal as a result of the breaches of the order made by Mrs. Justice Pauffley. Mr. Justice Newton gave directions for the filing of application evidence in that regard.
14. The matter was brought back before me in September 2015 during the High Court vacation to consider the means by which Mr Martins could be returned to this country in the absence of cooperation from Mrs Kirk. I had then before me a handwritten note provided by Mrs Kirk purporting to seek a variation of the order of Mrs. Justice Pauffley. I directed that the matter be listed later in the vacation before Mr. Justice Mostyn to determine whether Mrs. Justice Pauffley's order should be varied. That application came before Mr. Justice Mostyn the following week on 18 September. The learned judge on that occasion upheld the order of Mrs. Justice Pauffley and ordered Mrs Kirk, who was it seems present at the hearing, to cause the return of Mr Martins to the jurisdiction and further ordered that the local authority should use its best endeavours to secure his return.
15. Once again, Mrs Kirk failed to facilitate the return of Mr Martins to this country. Instead, she arranged for Mr Martins to be placed in a residential care home in Portugal, hereafter referred to as "S Home". Efforts to enlist the assistance of that establishment to facilitate the return were also unsuccessful. Those responsible for running S House indicating that they would refuse to comply with any orders unless Mrs Kirk or the Portuguese authorities gave them authority to do so. This led the local authority to return the matter to this court again and thus the matter came back before me on 18 January of this year.
16. By that stage, Mr Martins had been in Portugal for some eight months and in S House for seven months. Notwithstanding the fact that there appeared to be flagrant breaches of at least two orders by Mrs Kirk, I took the view that, having regard to my obligations under the Mental Capacity Act to make orders in accordance with Mr Martins' best interests, it was necessary for a further assessment to be carried out to establish whether it was in his best interests to be returned to this country or whether, having regard to all the circumstances including the passage of time, he should now remain in Portugal. I therefore directed that a further assessment be carried out. The local authority duly arranged for that to be carried out by the practice manager of the complex care team in Devon, hereafter referred to as "NS", and by the community matron for dementia, hereafter referred to as "SP".
17. NS and SP travelled to Portugal and undertook an assessment of Mr Martins at S House on 20 and 21 April. I shall describe that report in more detail shortly. Suffice it to say that their conclusion was that it was in Mr Martins' best interests to return to this country and specifically to a care home in Sidmouth, A House, which the local authority had identified as a suitable place where he should reside.
18. At a directions hearing on 11 May, having received the documents on 11 May, I directed that there should be a telephone hearing on 17 May. Mrs Kirk took part that hearing and I gave directions for a fully contested hearing to take place today, 10^th June, giving permission to Mrs Kirk to file further evidence in support of her position, which is strongly to oppose the proposed return of Mr Martins to this country.
19. The issue that I have to determine therefore is a simple but important one. Is it in Mr Martins' best interests to continue to reside in S House in Portugal or to return to live in A House in Sidmouth in this country? In reaching that decision, I have to apply the provisions of the Mental Capacity Act. I am satisfied - and no one has contended otherwise - that he lacks capacity to make decisions as to his residence and care. It follows that I have the power to make decisions as to his future care and welfare and, in making the decisions, I must act in his best interests having regard to the principles in s.4 of the 2005 Act. I have all those principles firmly in mind when making this decision.
20. In considering the evidence, I turn first to the report prepared by NS and SP following their visit to assess Mr Martins in Portugal in April. NS and SP were shown round S House and had a good opportunity to examine the facilities there. They were shown Mr Martins' bedroom on the ground floor, which he shares with another resident. They described the room as very simply furnished and, in her section of the report, NS noted that, apart from a photograph next to the bed, there were no other personal effects in the room. The report continues by noting that all bedrooms in the home are accessed from two long, wide corridors, one of which had no natural light and felt rather dark. There were no distinguishing features on the doors to aid identification, apart from room numbers. There are other facilities at S House, including a gymnasium, a hydrotherapy pool and other medical facilities and also a massage couch. NS summarises her impression of the property as follows:

"My impression was of a very clinical environment, more akin to a hospital than a home. There were very few home comforts evident around the house. Whilst we did not see all bedrooms, Mr Martins' room did not contain any of his belongings from home and, other than one photograph, there were no other pictures or ornaments. I am aware that Mr Martins' friends from Sidmouth have sent in photographs but these were not evident in his room".

21. NS and SP then had an opportunity to speak to and assess Mr Martins himself. In her report, NS describes that he seemed happy to see them. They explained to him that they had come from Sidmouth to see him and to see if he was all right. NS gave Mr Martins a number of gifts from friends in Sidmouth, including a photograph montage of pictures of his friends and also of his cat, Tuna. NS reported - and she has confirmed this in oral evidence to me today - that Mr Martins appeared pleased to see the photographs, particularly of JF and Tuna. He enjoyed holding the montage of photographs on his lap and stroking the pictures. As NS gave him the presents that friends had provided, she talked to him about the people who had given them. At one point, she noted that Mr Martins became a little tearful when looking at the picture of his cat. She helped him open a colourful, woollen jumper from JF and her brother, AF. NS describes him as being visibly pleased with the present and said that he was able to identify the picture of JF from the photographs on the montage. NS described Mr Martins as appearing quite overwhelmed by the presents and the pictures. He was, she says, relaxed and happy to talk about things and was enjoying the memories and the photographs. When the time came for lunch and he was called in to have his meal, he seemed reluctant for NS and SP to leave and appeared to them to be indicating that he wanted them to stay.
22. NS and SP returned to S House the following day. On this occasion, to their surprise, Mrs Kirk was present and took the opportunity to explain at length about the history of the court case as she saw it and, in particular, her feelings about JF. At lunch time, Mr Martins went to the dining room. That gave NS and SP an opportunity to observe him having his meal. NS was somewhat concerned by the approach of one of the carers, who did not seem to engage Mr Martins in any friendly conversation, as would have been expected in a care home for people with dementia.
23. In her overall assessment, NS draws attention to a manual for good social work practice produced by the Department of Health headed, "Person Centred Dementia Care" and, in particular, the following passage:

"' Person Centred Dementia Care' is about understanding and responding to the person with dementia as an individual. It involves considering the whole person, taking into account not just their health condition but also each individual's life history, unique abilities, interests, preferences and needs. It is about building relationships with people with dementia and their family carers, putting them at the heart of decision-making, ensuring that the person is an equal partner in their health and care".

24. NS describes S House as being a modern, clinical building. She says that it was, in her opinion, not very homely and was not what Mr Martins was used to having. The building and the atmosphere were similar to that of a hospital ward. NS reported that she and SP found the staff members to be kind but, in her view, they showed limited insight into the importance of encouraging reminiscence and memory order to maintain a sense of emotional wellbeing. NS is concerned that, whilst ensuring that Mr Martins was, in her words, "safe, clean, fed and watered", the staff of S House do not have the necessary knowledge or experience to recognise the importance of ensuring that he was able to maintain important links with the person that he once was.
25. Somewhat curiously, it might be thought, she observed that Mr Martins was addressed by a different name from his first name which is Manuel. When she asked why, she was told that when he arrived there was another man bearing the same first name as he already living in the house, so they called Mr. Martens by his second name.
26. In her assessment of best interests, NS seeks to identify evidence of past wishes and feelings as to where he would live. She noted that Mr Martins had chosen to live in Sidmouth for 50 years, where he had been a well-known and well-respected member of the community. She noted that, at the time when he had been assessed to establish whether he had the capacity to decide whether or not to go on holiday in 2014, he had been very clear in saying that, although he did wish to go on holiday, he wanted to return home to Sidmouth. As to his beliefs and values that would be likely to influence his decision if he had capacity, NS noted that, since his retirement from his job at a local hotel, Mr Martins had lived alone with his cat. She spoke, in the course of her assessment, to his ex-wife who reported that he was devoted to the cat and said that he would never have made the decision to move away or be parted from the cat. This accorded with NS's own observations as to Mr Martins' reaction on being shown a photograph of the cat.
27. NS also considered, as she was required to do in assessing best interests, the views of friends and family members interested in Mr Martins and his care. She spoke to members of his family and to his friends. It is fair to say, having read all of her comments and records about those conversations, that the preponderance of view clearly expressed by Mr Martins' family and friends, except for Mrs Kirk, was that he should return to Sidmouth. Amongst those holding that view were Mr Martins' other sister, his niece, his friend, JF, her brother, AF and other friends reading NS's summary of those conversations. I was struck in particular by one observation made by a couple who have known Mr Martins for many years in Sidmouth.

"Mr Martins has been for many years a recognised figure of the town and we had quite taken it for granted that he would continue living in Sidmouth with his cat, perhaps eventually moving into an immediately local care home where his many Sidmouth friends and acquaintances will be able to visit him in his declining years".

That encapsulates the consensus view amongst the friends and family of Mr Martins, with the exception of Mrs Kirk whose views I shall consider shortly.

28. NS was of the view that, were Mr Martins to remain in Portugal, he would not receive visits from wider family and friends. It is possible that friends might have been willing to travel to Portugal but they may well be put off by reports from JF and AF about what happened when they visited and an altercation had taken place involving Mrs Kirk. It has not been possible for me to get to the truth of what happened on that occasion. I have not heard full evidence about it. Suffice to say that Mrs Kirk manifestly has strong views of her own about JF and her behaviour towards her brother.
29. Drawing these strands together, NS concluded that, having regard to all the factors in s.4 of the 2005 Act, it was in Mr Martins' best interests to return to Sidmouth as soon as possible. She noted that a room had been identified in the local residential home, A House, which was only less than a mile from his old home and he could therefore be visited regularly by friends and from where he could be taken on outings in the local area including, if appropriate, to his old place of work, the hotel. As to that, NS observed that it was clear from Mr Martins' reaction to the photographs that the hotel remained an important feature in his life, he having worked there for many years.
30. As I have said, NS was accompanied by a community matron for dementia, SP. Her report is appended to the back of NS's report. I have read that carefully and I note that the views expressed in that report accord very much with those expressed by NS. She was able to use her experience in dementia care to assess Mr Martins' wellbeing needs. Although her assessment indicated that his physical needs were being met, his emotional needs were not being addressed. She confirmed the impression which NS received, that the staff appeared to have no awareness or understanding of M's history and life before he arrived at S House.
31. At the conclusion of her report, NS helpfully provided a balance sheet considering the advantages and disadvantages of the various options. I have read that, but it is to all intents and purposes closely reflected in the Official Solicitor's balance sheet which I shall consider later. I do not propose to lengthen this already lengthy judgment by spelling out what NS said in the balance sheet herself, though I am grateful to her for that helpful additional document.
32. Mrs Kirk has filed no fewer than seven statements in these proceedings at various times. I have read all of them and carefully considered the contents and the exhibits to those statements. The early statements deal largely with the circumstances of the various movements of Mr Martins described above and need not be recited again in this judgment which is concerned, as I have said, with Mr Martins' future placement. On that issue, I have had the benefit of Mrs Kirk's evidence in her later statements and in her oral evidence before me today.
33. Mrs Kirk feels very strongly that Mr Martins would be better off remaining in S House in Portugal. She believes that it would cause him distress and harm to be uprooted from that environment and brought back to this country. She says he is settled and happy there and is well cared for by kind and considerate staff. Although he has not lived in Portugal before, he was born and brought up in Madeira and speaks Portuguese as well as English. The staff at S House speak Portuguese and some of them speak English. Mrs Kirk therefore feels that it would be to Mr Martins' advantage to be cared for by people who share the same languages as he. In contrast, she is critical about the care offered at A House in England. She notes that, for some years, it was the subject of criticism by regulatory authorities. On this point, NS assures the court that A House is now regarded as of a high standard, under new management and has been passed appropriately by the CQC. NS herself has arranged for other adults to be placed in A House and has no concerns about the prospect of Mr Martins moving to that accommodation. Mrs Kirk does not share that view and she is also critical of the staff at A House, although she has not visited that property. She suggests that a number of the staff at least will be from Eastern Europe and, unlike those at S House, would not share the same linguistic skills or languages as Mr Martins.
34. Mrs Kirk does not believe that the fact that Mr Martins has had friends in the Sidmouth area should be a significant factor in the decision that the court has to make. She believes that the various people identified in NS's report are acquaintances rather than close friends and that Mr Martins' relationship with them is not a crucial factor. She believes that the deterioration in his mental state means that he is no longer able to recognise people to the extent that he was before. In any event, Mrs Kirk says there is no reason why friends from Sidmouth should not go out to visit him in Portugal. She is particularly critical, as I have already said, of Mr Martins' friend JF who she believes to have become obsessed with Mr Martins and who she describes as having stalked Mr Martins for many years. Mrs Kirk believes that the social workers and other family members and friends who all support Mr Martins' return to the UK are doing so under the influence of the views expressed by JF. Of the other family members, she does not believe that any of them have a relationship that is as close or significant to Mr Martins as hers. If Mr Martins remains in Portugal, she will spend more time in that country herself so that he will have regular contact with her. In short, she does not accept that Mr Martins' links with Sidmouth are of such a strength to be a decisive factor in the decision that this court has to make, even though he has lived there for 50 years. She says that he has no interest in visiting the hotel where he worked for many years. She accepts that he is fond of his cat, but points out that the cat is now 15 years old and therefore unlikely to be a feature in Mr Martins' life for very much longer. She summed up her case by saying that, if Mr Martins were returned to this country, he would be devastated. She contends that NS's report is a false account of what happened during the visit to Portugal.
35. On behalf of the Official Solicitor, Ms Victoria Butler-Cole in her position statement identifies a number of instances in these court papers which may indicate Mr Martins' wishes and feelings as expressed in the past. I have considered them carefully but I conclude that the court must be cautious about interpreting these matters in view of Mr Martins' declining mental powers. Ms Butler-Cole also provides a helpful balance sheet which I do consider accurately summarises the advantages and disadvantages of the options.
36. In considering first a return to Sidmouth to the local care home, A House, the advantages would be as follows:

1. It would coincide with Mr Martins' preferences when he had capacity. He chose to live in Sidmouth for 50 years and did not choose to move to Portugal when he first developed dementia, nor is there any evidence that he ever discussed that as an option for the future.

2. It is in accordance with, or at least not contrary to, his current wishes. He retains memories of his friends, the cat and the locality. He appeared to be distressed at their absence, suggesting that his emotional wellbeing may be improved in returning. There is no evidence that he does not want to return home.

3. There is the factor of social isolation. In England, he will be able to see as many friends and his cat as well as family members here.

4. There is the question of the appropriateness of the care home environment. If he moves to A House, it is likely that he will receive more appropriate person centred dementia care, including being referred to by his proper first name.

5. A return to this country accords with the views of people with an interest in Mr Martins' welfare other than TK. Those include JF, AF, Mr Martins' sister and other relations and friends.

37. The disadvantages of a return to Sidmouth, to A House, are as follows:

1. It would cause a disruption to Mr Martins through the flight and transport to Sidmouth and a change of environment.

2. It is possible that, as a result, he may have less contact with some family members than he would do if he remained in Portugal.

3. It is likely that the cost of the care home would be more expensive in Devon.

38. Turning to the second option, remaining at S House in Portugal, the advantages identified by Ms Butler-Cole as far as possible are as follows.

1. Remaining there would mean there was no disruption caused by any return and travel.

2. He would remain in a home with which he has some familiarity, as opposed to moving to a home he has never visited.

3. His basic care needs appear to be being met.

4. The cost of the care in Portugal is less than it is in this country.

5. He will continue to have contact with those family members who are in Portugal.

6. Ms Butler-Cole records that TK has asserted that Mr Martins is happier in Portugal.

39. The disadvantages of a stay in Portugal identified by Ms Butler-Cole are as follows.

1. It is very unlikely that he would see any of his English friends again. It is possible that may be putting it rather high. Certainly however, it is fair to say that he would see very considerably less of his English friends than he would do if he were returned to this country.

2. Remaining in Portugal is not in accordance with those wishes Mr Martins expressed when he had capacity.

3. A return to Portugal conflicts with the views of all people, family and friends identified by the professionals, with the exception of Mrs Kirk.

4. There are the concerns about the appropriateness of the care offered in S House as described above.

5. It seems that, when Mr Martins' capital is depleted, if it is depleted while he is still alive, he may not be able to remain at the property.

Conclusion

40. I accept the balance sheet set out by Ms Butler-Cole as an accurate summary of the advantages and disadvantages of the two options I have to consider. Of particular importance, it seems to me, is that it identifies a number of positive features of Mr Martins' life in Sidmouth which he would be able to enjoy again, should he return to this country. Mrs Kirk does not agree that these factors carry weight, but I find that they do. I prefer and accept the evidence of NS and the assessment she has carried out in that regard. I also accept the analysis of NS and SP as to the comparison between the two environments in S House and A House respectively. I accept in particular that the environment in A House appears to offer a type of care better attuned to the needs of persons suffering from dementia, in particular providing an emotionally warm environment which contrasts with the clinical environment of S House, as described by NS and SP.
41. In reaching that view, I stress I am not in any way criticising those who run S House which, on any view, is a professional establishment. It is certainly not for this court to criticise the social care arrangements that arise in other countries. It is however my responsibility to decide what option meets the best interests of M. I consider the environment offered by A House to be better attuned to his particular types of problems. I accept that the environment at A House is better attuned to his particular needs. I accept that a move back to this country will cause disruption but this disadvantage is, in my judgment, outweighed by the advantages identified above.
42. I take into consideration all the matters required of me under s.4 of the Mental Capacity Act in assessing where Mr Martins' best interests lie. I conclude that the balance plainly comes down in favour of a return to this country and a placement at A House. The advantages identified by the local authority and the Official Solicitor in their analyses, which I accept, manifestly outweigh the disadvantages.
43. I shall therefore make whatever order is required to facilitate the speedy return of Mr Martins to this jurisdiction.