England and Wales Court of Protection Decisions

IN THE CARDIFF CIVIL AND FAMILY JUSTICE CENTRE
Court of Protection

		2 Park Street Cardiff South Wales CF10 1ET
		16th October 2017

Reporting Restrictions Applied: Yes

Her Honour Judge Parry:

1. Today's hearing is the second part of a judicial investigation into the issues of capacity which affect MB. On the 8^th August I handed down a written judgment which explored and reached some conclusions on the existing evidence that was before the Court in respect of aspects of MB's capacity to make decisions about his residence and future care. I am not going to repeat, for the purpose of this ruling, the background which is outlined in that written judgment or the analysis of the expert evidence of Dr Leighton.
2. Two issues concern the Court which, in the Court's judgment, required the instruction of a second expert. It is fair to say that Mr O'Brien, Queen's Council who represented the Local Authority at that hearing was very clear that the Local Authority may well find itself in a position, if the second expert's report was in similar terms of that of Dr Leighton, that the proceedings would have to terminate because the essential requirements of the Act conferring jurisdiction upon the Court would not be met.
3. The aspects of Dr Leighton's evidence which caused concern to the Court was the extent to which MB would, from time to time, in circumstances that could not be accurately predicted, lose capacity to make decisions about his immediate wellbeing and the duration of that loss of capacity. It could have been, in the view of Dr Leighton, for a matter of hours or even for a matter of days. MB's proceedings have, in various forms, been before the Court now for approximately ten years and the Local Authority and those who have provided care to MB over the years have done so on the basis of judgments arrived at in 2007, 2008 and latterly, 2014. It was not easy to identify, on the basis of Dr Leighton's evidence, how MB's situation had changed so radically from a position that had previously been accepted, both by experts in the field and by the learned Judge who had had conduct of MB's litigation between 2007 and 2014.
4. One of the consequences, and I accept that it may not be seen in these terms, is that the protection that has been provided to MB by the continued involvement of Court between 2007 and 2014 and during these proceedings is lost as a result of the now joint opinion of Dr Leighton and the second instructed expert, Dr Rippon. It is accepted, by the professionals at least, that MB will experience challenges at various times in managing his levels of anxiety and emotional fluctuations around issues that he finds difficult. It would be entirely wrong, in the Court's judgment, and this is what generated the need for a second expert, to deprive MB of the levels of protection which the 2005 Act provides if to do so places him in a worse rather than a better situation.
5. The opinion of Dr Rippon echoes wholeheartedly the conclusions arrived at by Dr Leighton. Although both experts agree that MB lacks capacity to conduct litigation on his own behalf, they are both of the view that he has capacity to make decisions regarding his care package, residence and contact arrangements. Equally, they both agree the following which I will include from their joint statement as they have expressed it:

"Both Dr Rippon and Dr Leighton agreed that MB's capacity could fluctuate during times of seizure activity but also when his level of anxiety rises and he becomes distressed because of environmental triggers. It was Dr Leighton's view that these periods could last for several days and he gave the example of the time that MB had become angry with his RPR and had refused to see her for a week. However, what is less clear is whether his capacity was affected over the whole of this period. Therefore, although both doctors agreed that MB's capacity had fluctuated, what is less certain is how long these periods could last."

6. I have already made an order discharging the CCG as parties to these proceedings. They were legally represented at the capacity hearing on the 4^th August. They wished to mount no challenge to the expert evidence and saw themselves very much as standing behind the Local Authority who accept their responsibility to continue to provide the care packages that MB's own individual needs require. There is going to be continued discussion between the Local Authority and the CCG about the continued joint funding of MB's care package and I am content to record, as a recital to the now wholly agreed Consent Order resolving these proceedings, the position as between the Local Authority and the CCG.
7. The only other partly contentious matter was whether MB should have the benefit of a care advocate under the 2014 Act and whether his current RPR would be the appropriate individual to conduct that role. I have been taken to the relevant regulations, the Care and Support (Independent Advocacy Support) (Number 2) Regulations 2014, and I accept Miss Stickler's submission that, whilst the Local Authority have to consider this as a potential future support and the suitability of MB's RPR to discharge that function, they cannot categorically agree, either that it is likely that MB's case meets the requirements of the regulations, or perhaps less likely that his RPR will not meet the requirements of the regulations. But it is right that I record the Local Authority's willingness and indeed, in my view, obligation to consider this ongoing additional support for MB in the decisions that he will now be making on his own behalf.
8. I am satisfied on the basis of the evidence that is placed before the Court that I should approve the consented disposal of these proceedings. I do so on this basis, all Courts make decisions on the evidence that his presented to that, to that extent, the Court is the servant of the evidence that is provided by the parties. Whilst the Court has an overall directing role in identifying the type and nature of evidence that it requires to make decisions, ultimately those decisions must be faithful to the evidence that is capable of being accepted.
9. I was asked to give an indication last week as to whether the Court would require to hear from Dr Rippon. I was not in the position to say yea or nay without knowing what the respective positions of the parties to the proceedings is. It was helpfully confirmed very quickly after I gave that indication, that there were no contentious issues between the Local Authority and the Applicant in relation to the crucial issues of capacity that confer jurisdiction upon the Court. There is no evidence before the Court which would allow the Court to arrive at a different conclusion from that which is sought by the parties.
10. It would therefore be illogical for the Court to arrive at a different position from that which is jointly argued for on the basis of evidence which is jointly accepted as valid. It is a clear undercurrent in these proceedings that those who know MB particularly well, including those who have been providing care to him over a number of years and his social worker, have worries about MB's future and how he will adapt to the changes that may become open to him. There are also understandably legitimate concerns and worries as to the impact upon him of making changes to a routine that he has become very used to over the last nine years or so. Those are legitimate concerns for professionals to have both at a personal and professional level for MB.
11. The proceedings conclude without any clarity as to what alternative care arrangements could be made available for MB. It is no longer the responsibility of the Court, in the light of the declarations that the Court is being asked to make as part of the Consent Order, to have any involvement in deciding what appropriate residence and contact arrangements there should be for MB. The Court was made aware on the 4^th August that there had been inquiries about the possibility of MB moving to his preferred location but that no possible options had been identified in that area so the search for an ongoing care arrangement for MB which meets much more closely his own wishes about where he lives and under what arrangements, is ongoing. That will now be the responsibility of those who have a continued statutory obligation to MB as the result of his above average and increased level of need as a result of his longstanding individual conditions.
12. It is perhaps a less than satisfactory position at which to be concluding these proceedings, but the evidence is clear that in those areas where what capacity is essential for the Court to be able to assume jurisdiction over welfare, care and contact, there is no alternative but to approve this Consent Order. That concludes the Court's judgment.

This Transcript has been approved by the Judge.

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