[2007]JRC079
royal court
(Samedi Division)
10th April 2007
Before : |
Sir Philip Bailhache, Kt. Bailiff, and Jurats Tibbo, and King. |
IN THE MATTER OF A NOTICE OF HEARING OF AN APPLICATION FOR REINSTATEMENT IN THE MATTER OF JWD AND THE MATTER OF THE MENTAL HEALTH (JERSEY) LAW, 1969.
Advocate P. M. Livingstone for the Applicant.
Crown Advocate S. Sharpe for the Crown.
judgment
the bailiff:
1. This is an application by JWD for the discharge of an order of this Court of 7th April 2006, whereby, on the application of the Attorney General, he was found to be incapable of managing his property and affairs and Mr Barry Keith Pickersgill was appointed as his curator. The hearing took place in private, but this judgment is being delivered in public.
2. The original representation by the Attorney General was made on 24th March 2006. The application was adjourned to 7th April when evidence was heard from Dr Michael Holmes. Dr Holmes' evidence, as encapsulated in the Mental Incapacity Report which he signed on 9th February 2006, was that JWD was incapable of managing his affairs on the ground that he was suffering from dementia caused by long-term alcohol abuse and cerebral ischemia. JWD was said to have no insight into his financial affairs and was being stripped of his assets on a daily basis.
3. The Mental Incapacity Report contained a statement by Dr Holmes pursuant to rule 6(1) of the Mental Health (Jersey) Rules 1971, to the effect that service of the proceedings on JWD should be dispensed with on the ground that he would be incapable of understanding such notice. The curator was therefore appointed in the absence of JWD and without any notice to him. In evidence before us, Dr Holmes stated that, at the time when the Mental Incapacity Report had been completed, he had thought that JWD would not be able to understand what the proceedings were all about. We accept that evidence, but we wish to emphasise that the dispensing of service of proceedings upon proposed interdicts on the statutory grounds, is a matter which requires the most careful consideration.
4. When JWD learned of the curatorship order he immediately raised objections and on 26th April 2006 applied for legal aid to assist his application for reinstatement. Arrangements were made for medical assessments by Dr Dale Harrison, consultant psychiatrist, and Miss Julie Moignard, consultant psychologist. Miss Moignard undertook a number of standard tests upon JWD and concluded:
"Despite a decrease in IQ there is no indication of attention, problem solving, recall or mood difficulties. This is not the pattern of scores expected from someone with dementia or a marked impairment from alcohol intake and therefore it is not indicated from these assessments that cognitively he should be unable to manage his own affairs."
5. JWD was then seen by Dr Harrison. Dr Harrison is an experienced psychiatrist. JWD had in fact been referred to Dr Harrison by Dr Holmes early in 2006 but had failed to keep two appointments. The referral by Dr Holmes had been overtaken by the curatorship proceedings. A head CT scan had been undertaken in June 2005. A report of that scan stated that there was mild, age appropriate, generalised cerebral atrophy. No acute lesions were identified and very minor vascular changes were described. When seen by Dr Harrison JWD was alert and oriented in time, person and place, he was well groomed and smartly dressed, and his speech was spontaneous and normal in form and content. He showed no evidence of thought or mood disorder, nor of any psychotic symptoms. Dr Harrison's report of 21st August 2006 concluded that there was no evidence that JWD was cognitively impaired to the extent that he was unable to manage his own financial affairs.
6. Following those reports a formal application for reinstatement was made on 5th September 2006 pursuant to Article 43(10) of the Mental Health (Jersey) Law, 1969. The application came on for hearing on 9th November, and the Court heard evidence from JWD and from Mr Pickersgill. We shall revert to the substance of JWD's evidence below, but the Court determined that it should hear further evidence from Dr Holmes and Dr Harrison. The Court also directed the Crown Advocate to consider whether it might assist to hear evidence from Dr Brian Ellis, a newly appointed general practitioner to JWD. Other directions were also given but they are not now material.
7. The matter came back before the Court on 21st December 2006 when evidence was heard from Dr Harrison. Unfortunately Dr Holmes was unavailable. The Court adjourned the hearing again so that a report could be obtained from Dr Lesley Wilson, a consultant psychiatrist specialising in dementia, and evidence from Dr Holmes. Dr Wilson's report was furnished on 13th February 2007, but further delays occurred before the matter could be brought before the Court again today. We have heard evidence from Drs Holmes and Wilson, and further evidence from Dr Harrison.
8. The evidence from Dr Harrison and Dr Wilson can be shortly summarised. Dr Harrison did not resile from the evidence given in his report which we have noted above. He did however speculate that the mild atrophy in the brain, shown by the CT scan, might have led to the changes in behaviour and judgment which others had noted. He reiterated that there was no evidence of cognitive impairment. He was however puzzled by some elements of the behaviour of JWD and he recommended that further advice should be taken from Dr Wilson. JWD accordingly attended upon Dr Wilson on the 6th February. He accused his daughter, to whose evidence we shall come in a moment, and Dr Holmes of drumming up grounds for the interdiction. JWD's account of the proceedings in April 2006 was contradictory. At first he stated to Dr Wilson that the first he had learned of the curatorship was when he saw a notice in the Jersey Evening Post. Later, however, he told Dr Wilson that he had been present when Mr Pickersgill was sworn to office but had said nothing because he was in awe of the Court. He was defensive when asked questions about his finances. He admitted to extravagance during 2006 and said that he wanted to get his finances back on an even footing. Dr Wilson's conclusion was that she could find no evidence of mental illness and, more specifically, no evidence of mood disorder or dementia. In her opinion there were no grounds for continuing the interdiction.
9. The medical evidence, leaving aside the initial views of Dr Holmes, appears conclusive and we would not prolong this judgment but for other worrying aspects of the evidence which we have heard and which we must weigh in the balance. We summarise them briefly:
(i) There is no doubt that JWD's finances are in a state of great disorder. Numerous judgments have been taken against him and indeed against his curator, arising from JWD's actions since the interdiction was imposed. The evidence of Mr Pickersgill indicates that JWD's debts amounted to over £88,000 in November 2006 and that total had increased by 4th April 2007. JWD had refused to cooperate with Mr Pickersgill making the latter's task very difficult.
(ii) JWD appears to have made improvident gifts of large sums of money to a business associate. Indeed the Attorney General was moved to begin proceedings against that business associate in March 2006 in order to arrest cash totalling £34,450 in £50 notes, which had been seized by the Police from that associate. In addition the associate had ordered a motorcycle for which he had paid £8,000 in cash, these monies having also been obtained from JWD.
(iii) The evidence of JWD's daughter, who is an English solicitor living and working in England, was that her father had found it increasingly difficult to cope since the death of her mother in 2003. Her mother had always managed the household accounts and the daughter expressed strong concerns that her father was dissipating his assets and was vulnerable to exploitation by others.
(iv) The evidence of JWD himself was superficially coherent and plausible. When questioned about his business plans, however, he became defensive and his answers appeared to the Court to be, not only improvident, but occasionally bizarre.
10. Our conclusion is that JWD is indeed highly vulnerable to exploitation by unscrupulous or ill-intentioned individuals. The law is however clear. There are only two grounds upon which a person may be deprived of the capacity to manage his or her own affairs. Article 43(1) of the Mental Health (Jersey) Law, 1969, provides that:
"The grounds upon which a curator may be appointed...to manage and administer the property and affairs of a person are the same grounds as those on which, before the coming into force of this Law, a person might be placed under interdiction in respect of his or her person and property or in respect of the person's property alone."
Those grounds at customary law are:
(i) That the person is incapable by reason of mental disorder of managing his property and affairs, or
(ii) That the person has, notwithstanding that he is in full possession of his mental faculties, abandoned himself to alcohol and is dissipating his assets.
We leave open for decision on another day whether other examples of addiction combined with dissipation of assets might, in these times, justify the appointment of a curator.
11. Applying the evidence to the Law, we are bound to conclude that there are no grounds for maintaining the curatorship. We harbour grave concerns as to the quality of JWD's decision making in the last two years or so. His business plans seem to us to be improvident and even foolish. In the absence of medical evidence of mental disorder, and in the absence of evidence that JWD has abandoned himself to alcohol, the fact that he is dissipating his assets is not sufficient on its own to justify the continuance of the interdiction. We wish to emphasise, however, that the application for a curatorship was brought, in our judgment, properly and in good faith. We were impressed by the evidence of Dr Holmes this morning whose initial report was based upon his long experience of JWD, as his general practitioner over 30 years, and as a business colleague while they were both engaged in policing activities. Dr Holmes believed, at the time when he signed his Mental Incapacity Report, that there was evidence of dementia justifying the appointment of a curator. The fact that consultant psychiatrists have subsequently expressed a contrary opinion does not mean that the application was not reasonably made with a view to protecting the best interests of JWD.
12. The curatorship is accordingly discharged and the curator discharged from office. [An application for costs was made by Counsel for JWD.]
13. When the Attorney General made his application for the appointment of a curator he was fulfilling a statutory duty based upon a Mental Incapacity Report which he had received from a registered medical practitioner. That medical practitioner was, I am quite satisfied, acting in good faith and with a view to protecting the best interests of JWD. In all the circumstances there are no exceptional grounds for making an order for costs against the Attorney General. The application is accordingly refused.
Authorities
Mental Health (Jersey) Rules 1971.
Mental Health (Jersey) Law, 1969.