https://www.bailii.org/ew/cases/EWCOP/2022/54.html
Summary: This case relates to a Court of Protection best interests judgment concerning ‘M’, a 40-year-old man with a moderate learning disability and schizoaffective disorder who lacked capacity. He lived with his family who had a long history of failing to engage with social services. The Local Authority brought an application to remove M from the family home and place him in a supported living facility with the intention of supporting him to develop his independent living skills.
Background
The Judge, Sir Jonathan Cohen, noted that there was a long history of non-engagement with services by M’s family. Historically, M was said to have displayed “bizarre behaviour” and a mix of “maturity and immaturity”. At age 14 his father reported that ill health prevented M’s attendance at school. When seen, M appeared confused and had communication difficulties. M said he wished to return to school but his father rejected input from the health or education departments.
M subsequently had two A&E attendances for self-harm, but his disability and psychiatric team appointments went unattended. Deterioration in M’s behaviour led to a GP prescription for antipsychotic medication, but M’s father refused to allow a psychiatric assessment of him. In 2001 a police alert to the emergency team indicated M’s father was tying him to a radiator but following a mental health assessment, M was not sectioned.
Over the following five years M was seen once by his GP until his landlord reported 14 incidents of broken radiators and neighbours raised concerns about M being tied to radiators. A learning disability meeting was arranged but M did not attend. Further allegations of abuse were not followed up due to lack of evidence. Two years later M presented as withdrawn at a mental health review. The following year M was admitted to hospital having been found running in the street, partially clothed. M’s father took him home but did not permit engagement with mental health services.
M was not seen at all for the following 7 years until his father’s death triggered police attendance at which point M was found behind a locked door, naked from the waist down, covered in faeces in a room with buckets of urine, a dirty mattress and without lights. M was taken to hospital where he demonstrated some ability to feed himself but dropped most of the food, did not know how to use a toilet, had scratches on his arms and chest and there was evidence of an old, sutured wound on his arm. He was only able to use one or two words.
On discharge, M was placed in a specialist residential home, where for 4 years he made good progress: he became able to manage his toileting/hygiene needs, feed himself properly, attended day centres without carers and he conversed with others. However, in March 2020 M visited his family home, and failed to return to the residential home. The judge said that “he was in effect sprung from PH and never returned. I am in little doubt that this was engineered by Dr A, who appeared on the scene in 2019, albeit he had the full support of M’s mother and sister.”
When M was seen at the family home he presented well and was engaging so the Local Authority agreed a protection plan including weekly social work visits and daily carer visits to administer his medication and engage M in activities outside of the home.
In August 2020 the family stopped the carer visits but after some negotiation these were reinstated. M’s psychiatrist, Dr K reinforced the need for independent oversight of medication to prevent relapse.
During the proceedings Cohen J noted that the family opposed the Local Authority’s plans. He observed “M’s family all think and act alike. They are all anxious to limit the involvement of outside agencies not chosen by them to a minimum.”
Cohen J also said he was clear that M and his mother loved each other but, “either his mother believes M is having a fulfilling life in the arrangement described, or she knows he is not but cannot or will not do anything about it. I am not sure which one it is.”
A further party, Dr A, who was the partner of M’s sister, had, along with the family cancelled a large number of carers’ appointments leaving no certainty as to whether M was receiving his medication appropriately. Dr A qualified as a doctor in Pakistan, practised in Saudi Arabia until 2003 but had never registered as a doctor in the UK. He met M’s sister in 2019 but lived independently of the family. The family still lived in the same two-bedroom flat that M had originally been removed from.
The family had demonstrated significant levels of hostility towards the Official Solicitor’s representative stating that she was doing only what the Local Authority wanted. A subsequent trawl through prior court orders with a view to understanding the family’s attitude to both her and carers did not support this but did reveal a penal notice requiring the family to comply with directions to allow care professionals access to M or face contempt proceedings. The records also showed that Cohen J had previously repeated a penal order made by Mostyn J that M must be taken to the LA office to speak to his legal representative without the family present but that the family reported M did not wish to go and that carers remained unable to take M out of the home.
Dr A had also prevented M from speaking with an Independent Advocate who was seeking to ascertain M’s views and wishes.
A letter from a Dr K, who had reviewed M just prior to the hearing, noted M was articulate, wished to engage in more activities and to get out more but that the family dynamics were controlling, hostile and coercive, with M reprimanded for voicing his wishes and feelings.
Discussion
Dr A spoke at length on behalf of the family. Cohen J described him as “excitable and difficult to understand” and also said that “for a qualified doctor, aspects of his evidence were extraordinary. He does not accept that M suffers any intellectual disability or has any special needs. He does not accept he suffers from a schizoaffective disorder. He says M only needs medicine to help him sleep and to calm down when needed.” He added that Dr A “declined to accept evidence of the circumstances in which M was found in 2016 or his life before 2019 as he had ‘seen no proof of it’ “.
Cohen J observed that Dr A’s evidence in some ways went further than other family members detailing M could do things such as go out on his own to cross the road and go to the local shop – which nobody else agreed with, and which M himself had said was not the case. Dr A gave an account of a statement presented by M at a meeting in February 2022 in the form of a long letter. It contained words that M would never have been able to use and write, such as “incontinence”, “psychiatry” and “conversation”. Although Dr A said the statement was written entirely by M, on his own, M told the Judge that the statement was written for him by Dr A and he had copied it and added a few of his own words.
Turning to capacity and best interests it was noted that M lacked litigation capacity and capacity in respect of his residence, care and support, contact with others and finances. M was not able to understand that by staying at home, his opportunities would be limited or that his family would have control over his life. He did not understand his conditions at home previously or the risk of that happening again. He also did not understand the likelihood of his mother opposing his attendance at his day centre.
It was noted that M expressed his thoughts, wishes and feelings well and did this with confidence but that his voice was completely drowned out by his family and Dr A. Whilst he had the ability to express his wishes and feelings he did not have the opportunity to do so. Cohen J stated that: “any opinion he has expressed is because he has been influenced to do so. This is not necessarily to indicate malign intent, but there is clear and consistent evidence over many years the family have not always been able to identify and prioritise M’s needs. Dr K comes to the same conclusion.”
Cohen J concluded that in all respects he was satisfied M lacked capacity and therefore needed to make a decision in M’s best interests.
Having held a 30-minute conversation with M, Cohen J outlined that M was a man with “real, unrealised potential” who lacked self-confidence but who had had no difficulty in following and engaging in their conversation. Cohen J said that he understood M wanted to better himself, would like to go on courses to help with his music and art and work in a local garage. He also said that M was clear to him that he wanted to live at home but Cohen J also said that those views may have been “helped”. Professionals in the case all shared the view that with some help M did have the capacity to move from supported care to independent living with warden assistance.
Judgment
The Local Authority proposal was for M to move to a supported living house a short walk from the family home that was much less regimented than the residential home and more appropriate for M. The family were asked to visit to look at it but they refused. Cohen J observed that this was “not helpful.”
This left a very difficult situation. Moving M from the care of his mother would undoubtedly cause emotional upset. This could be limited if the family supported him, but Cohen J could not assume that would be forthcoming. In weighing up, Cohen J noted that he “faced two alternatives, either the removal of M or his staying at home with injunctive orders requiring attendance at college and free and unfettered access to professionals” to counter the family’s conduct. The Local Authority opposed the second option based on the following reasons which were all seen to have validity:
i) The family have shown that they will not comply with court orders;
ii) The family are convinced they know best;
iii) The family repeatedly turn away carers and have put obstacles in the way of social workers having uninterrupted meetings with M;
iv) M feels disempowered; his views are dictated by his family;
v) The family are stuck in their views, with no insight into M’s condition;
vi) This is the only chance for M to reach his potential and he should not be denied it.
In her position statement at the start of the case the Official Solicitor said that the case was finely balanced. By the end of it, her view was that it was not and there was no workable way of M reaching his potential and improving his abilities if he remained at home.
Cohen J stated that he was “satisfied that it is in M’s best interests to take the opportunity available to him, to provide him with life skills and to move into supported living.” A transition plan was then set out including that the family must permit M to visit the new supported living place, that on the day M moved his mother must make him available and that other parties, including Dr A must not be present. Also, after the move (supervised) contact with M’s mother should commence quickly.
CASCAIDr Comment:
We note that the case report doesn’t say whether a tenancy is to be signed by the Court, or left to the man to decide about. We don’t know if he understands the obligation to pay rent, or how things would work with his mother just around the corner, or whether injunctive relief was going to be sufficient to control the family.
This case deals with what at first appears to be one fairly key decision, should M live in the family home or away from the family home? To answer that though, the question as to whether M has the capacity to decide the issue himself has to be dealt with first.
Having read the shocking background to this case, it is hard to imagine that the idea of M ever returning to the family home was even conceivable, yet it was allowed to happen – we assume because M had appeared to have voted with his feet, and many years had passed, and his father had died and M presented appropriately for some time after returning.
When one first reads the case one wonders whether it would have been better brought in the High Court under the inherent jurisdiction, not the Court of Protection. The virtual assumptions that the man lacked capacity do not sit well with the conclusions as to his potential and his understanding; could he in fact be capacitated but simply overborne by the wills and culture of his family members?
For a long time M had been diagnosed with a moderate learning disability – and the judge said that ‘Having met him, I am surprised that he falls into quite such a low bracket.’ However, the judge had no difficulty applying the MCA tests of absorption and weighing, describing his inability to understand concepts of relevance:
– “As to capacity to conduct proceedings, she reports that M did not understand the legal basis for decisions to be made or the local authority case. He did not understand the concept of capacity or that the court was making decisions in his best interests or the decisions the court could make. He did not think he could tell the solicitors what to do and did not understand what the role of the Official Solicitor was, but he was content for them to act in his best interests.
– As to his capacity to make decisions in relation to residence, M was not able to understand that by staying at home, his opportunities will be limited and his family will have control over his life. He did not understand his conditions at home previously or that there was a risk of something similar happening again. He did not understand he would be unlikely to attend the day centre in practice due to his mother’s opposition.
– In relation to M’s capacity to make decision on care and support, he did not understand why support workers came or the risks of him not receiving medication in the future. He did not understand his intangible needs or that he was particularly vulnerable to abuse or that he needed to be protected from this. He did not understand that people might not act in his best interests.
– In relation to contact with others, he could not understand the risks of social isolation.”
It’s a case that shows, if it were needed, that communication is but one part of the overall question of cognitive function:
“As to ability to express his wishes or feelings, it is noted that M expresses himself well. He was able to clearly and consistently express his thoughts, wishes and feelings. M expressed himself verbally with a high level of confidence; however his voice is completely drowned out by his family and Dr A. He has the ability but not the opportunity to express his wishes and feelings. Any opinion he has expressed is because he has been influenced to do so. This is not necessarily to indicate malign intent, but there is clear and consistent evidence over many years the family have not always been able to identify and prioritise M’s needs. Dr K comes to the same conclusion.”
Cohen J made a judgment which – whilst not meeting M’s wish to remain in the family home – did support his desire to do more with his life and achieve a better balance in terms of M’s well-being needs. It is clear in this case that M’s feelings were very thoroughly considered and that as part of the best interest decision making that M’s desire to maintain the relationship with his family was to be continued in terms of supervised contact. This absolutely falls into the ‘less restrictive’ category. This case is therefore a good example of best interests decision making in action.