Court Report: 7th January 2021 @ The Court of Protection before DJ Beckley
“Rest assured absolutely everything that could have been said on your behalf was” – I recall these words directed at a defendant by a Judge of the Crown Court whilst handing down a rather hefty sentence. Indeed, both barristers had done a fine job in leading the court through every twist and turn of the facts possible. I left the court confident that not only had justice been done but it had also manifestly and undoubtedly been seen to be done.
The ability to observe justice, in the words of Lord Justice Toulson “lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.” It is against this backdrop that I remotely attended a case publicised on Twitter by the Open Justice Court of Protection Project.
The hearing concerned an application made by the local authority (“LA”) to appoint a so-called Panel deputy over the financial affairs of Mr P. The gov.uk website helpfully explains that “Panel deputies support people who lack mental capacity by helping them to make decisions about their finances”. The application was resisted by Mr P’s daughter who I will refer to as Ms D.
What makes this hearing extraordinary is that Ms D is facing the court alone, without any representation. Dealing directly with a court is a formidable task at the best of times, no doubt even more so when it concerns the autonomy of a family member. I found her submissions, if I may say, cogent and dignified throughout.
The hearing started with a discussion about the disclosure of documents as the judge had previously ordered that both parties should prepare and agree a Court Bundle for today’s hearing. Ms D claimed she was given no opportunity to input into the preparation of the bundle and that she had only received it from the LA some two days prior. A similar complaint was made by the LA who claimed not to have received Ms D’s position statement, although counsel for the LA explained that the senior solicitor had left the practice at the end of 2020 and Ms D’s “e-mail may have gone into the ether”.
Ms D explained that a document that was missing from the bundle was an e-mail she had received from the LA in early October 2020. This e-mail was sent prior to a hearing later that month which resulted in an order appointing an Interim Deputy over the financial affairs of Mr P. Ms D told the court that the LA initially wanted to appoint themselves as a Deputy however this e-mail acknowledged her concerns over alleged conduct by the LA which included among other things “racist attitudes expressed towards [P]”.
District Judge Beckley stated that he saw the issues as firstly whether Mr P has capacity to manage his own affairs and secondly whether the issues raised in relation to allegations of inappropriate conduct were relevant. The judge explained that the objections to the LA “as an entity should to a large degree be overcome by the fact that [LA] aren’t seeking their own appointment as deputy of affairs but instead a Panel deputy”. This was accepted by the parties and the court proceeded to talk about the “most central question” which was capacity.
The judge explained that he had made an order in February 2020 that “on the balance of probabilities, taking into account the presumption of capacity unless established otherwise, that Mr P does lack capacity” to manage his property and affairs. DJ Beckley further noted that the order had not been appealed.
Ms D replied that she had “objected at the time and was objecting now”. Asking:
“on the balance of what probabilities? He was going shopping, doing activities. It was made very clear at the time that the reason for financial control was to force the surrender of P’s 40-year-tenancy otherwise the alternative would have been eviction proceedings.”
She continued:
“Why does he need a deputy? [P] has not been assessed by any medical person. What is the intention behind such a coercive action and how is it in my father’s best interests?”
In response to DJ Beckley’s question whether there was “any evidence he can make decisions” Ms D replied that Mr P had been “going out managing his money, with success” and “Father never at any point had difficulty with his finances“. Additionally, in any event “the presumption should be he has capacity, there’s no evidence he hasn’t”.
Mr H, representing the Local Authority, explained that the court had ordered three consultant psychiatrists to prepare a joint expert report and this was done in February 2020. Mr H relied upon a statement in the report which said “that [P] was not likely to have capacity to decide his affairs”. In response Ms D emphasized that “likely is not the same as having been assessed”.
Ms D also referred to statements within the reports which included one doctor writing “I was not able to make an assessment with regards to property and finances”, another stated that the Doctor was “not able to conduct the report”. By way of explanation the court was told that Mr P had simply not engaged with the Doctors.
In handing down judgment District Judge Beckley said that “The essential question at this time is does [P] have capacity to manage his property and affairs. If he lacks capacity then as a Judge of the Court Of Protection I can consider whether it’s in his best interest to appoint a panel deputy.”
The judge reminded himself of Section 1, Part’s 2, 3 and 6 of the Mental Capacity Act 2005:
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Explaining that capacity is both time and issue specific, DJ Beckley explained that despite deciding in February 2020 that Mr P lacked capacity it would be “improper” to rely on that so the court will again consider the evidence, retaining a presumption in favour of capacity.
The circumstances of one assessment, written prior to the appointment of the three consultant psychiatrists was read out as part of the court’s Judgement:
“Mr P was sitting in his chair listening to music and reading a book. His manor was pleasant. Mr P asked me to write my name in cover of his bible. I explained I had been asked to judge capacity. Mr P responded no comment, I asked Mr P where are you living at present? He answered “no comment”. I asked is it better to speak in front of daughter? Again he answered no Comment. I asked if Mr P wanted to return to his flat? He replied no comment and wished me a Merry Christmas and said Good Bye.
It was not possible to establish whether he understood my role and not possible to assess capacity as he terminated the interview.“
The report also described several “psychotic symptoms” exhibited by Mr P: the first that his food and water had been poisoned, and secondly that his facial hair was being pushed out by men in his chin. (It’s worth noting that Ms D disputes these claims and does not recognise them as holding any merit). The report explained that Mr P suffered from “vascular dementia which would result in stepwise deterioration” and ultimately “global loss of cognitive functioning”.
The judge also referred to a report that had been produced by a social worker which stated that Mr P “was unable to explain suspicious financial transactions on bank statements” but ultimately the “report was very limited help” to the court.
Explaining that parliament has stated that judges can make finding of capacity DJ Beckley ruled that “today it is more likely than not that Mr P lacks capacity to manage property or affairs”. Therefore, “the requirements of Section 2 of the Mental Capacity Act is met” and Mr P does lack capacity.
The judge then considered:
“that having made the decision that P lacks capacity, I now need to decide whether best interest for a deputy to be appointed… The fact is decisions regarding property and affairs have to be made on a day by day basis therefore cannot be made by the court. The least restrictive option in this case is to appoint a deputy. The deputy is bound by section 4 of Mental Capacity Act and therefore decisions have to be made in best interest of Mr P.”
The judge explained the duties of the deputy would include:
“For example ensuring Mr P receives any benefit he is entitled to. Choosing where savings are held to ensure most advantageous return with regards to interest. The actions of a deputy maximise income and minimise liability. Specific decisions in this case is to decide for how long rental should be on his storage locker and a discussion should take place to allow Mr P and family to decide which belongings should be retained and which should be discarded.”
The judge then considered the issue of the security bond. DJ Beckley explained that such a bond was necessary in case “the deputy were to act in a way not in [P] best interest and then the loss could be made up from the security bond”. The judge told the court that as professional deputy who will have Indemnity Insurance, the purpose of the bond was to allow time for a claim against that. The bond was set at £33,000 following reference to case law.
With regards to costs, Mr H for the LA submitted that Ms D “should pay the applicants costs as these proceedings had been drawn out unnecessary”. Ms D contended that there has been a “History of disturbing conduct from the LA to the family” and despite Mr H claiming litigation had been drawn out – “there was no evidence of that“.
In making his decision DJ Beckley explained that the general rule states costs should be charged to estate unless justified and in this case the court was not persuaded to depart from that.
Permission to appeal by Ms D on the grounds that there was no medical evidence to support such a serious matter was denied on the basis that there was no real prospect of success.
Opinion
So was justice done? Good question. I left the virtual hearing with a certain nagging doubt as to whether the test in the MCA: “A person must be assumed to have capacity unless it is established that he lacks capacity” was met. The words ‘must’ and ‘established’ invariably colliding with the phrase ‘on the balance of probabilities’.
Certainly the proposal by the LA to charge costs to Ms D personally left a bad taste in the mouth. I wondered if whether a professional barrister had represented Mr P what threads could they have pulled to unravel or change the result?
Mouse in the Court 