[2011]JRC090
royal court
(Samedi Division)
27th April 2011
Before : |
M. C. St. J. Birt, Esq., Bailiff, and Jurats Le Cornu and Nicolle. |
IN THE MATTER OF PROPOSED CURATORSHIP FOR K
H Sharp, Q.C., Solicitor General.
A appeared in person.
judgment
the bailiff:
1. This is an application by the Solicitor General for the appointment of a curator to manage the affairs of K. The application is opposed by her son, A, who argues that she is capable of managing her own affairs.
2. As a second aspect, the Solicitor General argues that, should a curator be necessary, an independent solicitor, Mr Del Amo should be appointed as curator. A, on the other hand, argues that, if a curator is necessary, he should be appointed.
3. The matter came before the Court on 12th April. On that occasion the Court decided that K was in need of a curator but adjourned the question of who should be appointed as curator. The Court now gives the reasons for its decision on the first part of the application.
Factual background
4. K is aged 84. Until the events in question, she lived at home. In November 2009 she was admitted to hospital with a broken hip. Subsequently she was moved to Samarès Ward at Overdale. On 1st February, 2010, Dr Richardson, the consultant physician, concluded that she was in need of a curator and signed a report to that effect. He stated that she was not capable of managing her own affairs because of senile dementia and that she was unlikely to recover. He referred in the report to the fact that A wished to live with his mother in her house and care for her but he went on to say that K did not have the capacity to go home with A and staff had deemed this an unsafe discharge plan as K required 24 hour care.
5. In May 2010 K was taken home by one of her sisters, although this was apparently contrary to medical advice. A also changed K's doctor to Dr Hamilton. A curatorship hearing was fixed for 2nd July, 2010. On 16th June, Dr Hamilton telephoned the Law Officers' Department to inform those working on the case that K was coping well and did not need a curator. Dr Hamilton wrote further on the matter on 29th June suggesting that the Law Officers consider a formal cognitive/mental state assessment as he was not convinced that she was unable to manage her own affairs. As a result, Dr Lesley Wilson, the consultant psychiatrist of old age, was requested to carry out an assessment. Dr Wilson made attempts on 9th July and 4th August to see K at home but was unable to gain access on each occasion. Finally she was able to see K on 15th October. A and his brother B were also there. She wrote to the Law Officers' Department on 28th October stating that in her opinion K lacked the capacity to manage her own affairs and needed a curator. She indicated that K's score in a mini-mental state examination was 9 out of 30. The letter indicated that A had said that he would contest the appointment of a curator.
6. On 3rd November, 2010, K was found wandering in Queen's Road and was subsequently detained pursuant to the Mental Health (Jersey) Law 1969. She has remained at St Saviour's Hospital since then. The curatorship hearing originally fixed for 17th December, 2010, was adjourned as A objected to the appointment and the advocate who had been suggested withdrew.
7. On 21st January, in the absence of Dr Wilson due to illness, Dr Nalpas, the locum consultant in old age psychiatry, produced a further report. She concluded that K was not capable of managing her affairs on the grounds that she suffered from dementia and her cognition was severely impaired. Paragraph 10 of the report read "K's family have been refusing to accept that she suffers from dementia and that she is no longer able to live independently. Consequently they have not acted in her best interests, contesting curatorship and opposing placement in residential care, putting her at risk."
8. On 10th April, 2011, Dr Nalpas wrote a further report in which she confirmed that diagnosis. She also stated that K had appealed to a Mental Health Review Tribunal against the decision to detain her. The Tribunal dismissed her appeal on 12th January, 2011, but went on to recommend that K should be "transferred to a residential home at the earliest opportunity and that the appointment of her Curator to manage her property and affairs be concluded as soon as possible to facilitate this."
9. As mentioned earlier the matter came before the Court on 12th April. Dr Nalpas gave oral evidence and confirmed her opinion that K is incapable of managing her own affairs and that a curator is necessary. She said that she had carried out a further mini-mental state test that morning on K who had scored 10 out of 30. The score had been very consistent over the period varying from 9 up to 11 on occasions. Although it was not possible to be precise as to the score at which a person would need a curator, a score in the region of 23/24 was the cut-off for indications of dementia. K's problem was with her short term memory and comprehension. A score of 11 or below indicated severe mental impairment.
10. No medical evidence was called to counter that relied upon by the Solicitor General. A submitted that a curator was not necessary. He said that his mother did not want to live in a nursing home and her sister would be willing to move in and look after her full time at home. He submitted that what his mother needed was assistance, not a curator.
Conclusion
11. On the basis of the evidence before it, the Court is in no doubt that K is not capable of managing her own affairs and there is a need to appoint a curator to do so on her behalf. The medical evidence in this respect has been consistent and Dr Richardson, Dr Wilson and Dr Nalpas have all come to the same conclusion. It appears that her general practitioner Dr Hamilton may have been of a different view in June and July 2010 but we have heard no evidence from him. Even if we had, it seems highly unlikely that such evidence would have outweighed that of the three specialists referred to.
12. It was for these reasons that we concluded that a curator should be appointed for K.
13. After the evidence had been heard and the Solicitor General had made his submissions, A applied for an adjournment on the basis that he had only received the Solicitor General's bundle of documents on the Friday before the hearing. On analysis, it transpired that the only new information provided in that bundle was that contained in the documents at pages 36 - 55 of the bundle comprising records of the Health and Social Services Department. These were however directed towards the question of whether A would be suitable for appointment as a curator if the Court should think that one was necessary. A had been aware for a considerable period that the medical opinion was to the effect that a curator was necessary and had known this issue was to be considered at the hearing on 12th April.
14. In the circumstances, we rejected his application to adjourn any decision on the issue of whether a curator was necessary. However, in view of the short time that he had had in which to review the Health and Social Service records referred to in the preceding paragraph, we acceded to his application to adjourn the decision as to whom the Court should appoint as curator.
Authorities
Mental Health (Jersey) Law 1969.