WCC v GS & Ors

About six years ago, GS moved from her home in TW to W. She purchased a ground floor flat in sheltered housing accommodation and she lived there with RS, who was her primary carer. He looked after her needs at the time, although it appears that WCC, the Applicant in this case, were concerned about his care of GS. Those concerns included issues relating to the cleanliness of the flat, the fact that GS was found to be sleeping on a mattress, and problems with her medication and diet.

Matters reached a head in March 2010 when GS was admitted to hospital. She had cellulitis and sepsis due to a diabetic-related foot ulcer. The hospital recorded her as having high blood pressure and a urinary infection. During her stay at hospital a number of concerns were noted by the hospital about RS’s behaviour. For example, that he displayed little insight into appropriate visiting times arriving in the middle of the night and that he had followed a female nurse home. He also brought his mother inappropriate items, such as cigarettes whilst she was in the respiratory ward and high sugar foods. The hospital were also concerned that RS showed little awareness of dementia.

FCH was selected by WCC on the basis that it could care for her Alzheimer’s condition and it had the appropriate nursing support. Indeed, GS’s needs were not inconsiderable. The toe and ball of her foot have been amputated and she is therefore non-weight bearing. She requires full support with all transfers and when she is tired or confused, she needs the support of two people for transfer as her sequencing movement is affected by her dementia. GS mobilises with a wheelchair and the use of a Zimmer Frame. Her skin requires monitoring by a community nurse two or three times a week. She also has hearing difficulties.

The position now is that it appears that GS is happy staying at FCH. JS and the Official Solicitor support WCC’s plan for GS to remain at FCH but RS opposes it. It is true to say that prior to the commencement of these proceedings all was not well between RS and the care home. Matters reached a head in December 2010 when it appears that RS forced his way into the care home through a back door and trashed his mother’s room, emptying her belongings all over the floor. I shall return to this later, save to say that contact between RS and GS was suspended and it was for this reason that a standard authorisation for GS’s detention was made under the deprivation of liberty provisions of the Mental Capacity Act 2005.

WCC commenced these proceedings in February 2011 as a result of its concerns regarding RS’s behaviour and to address the issue of GS living at FCH.

The proceedings before me in fact raise three issues. The first issue is whether or not GS lacks capacity to manage her finances, to decide where she should live, to make decisions about her care requirements and to consider whether or not to have contact with RS. The second issue is whether or not GS should live at FCH. The third issue is how to manage contact between RS and GS.

The position of WCC is that GS lacks capacity and that she should remain at FCH. It also proposes a contact plan which sets out arrangements to ensure that RS can have contact with GS, but subject to supervision and appropriate safeguards for GS and the residents and staff at FCH.

For his part, JS agrees with the case put by WCC and supports it. GS is represented in these proceedings by the Official Solicitor who also supports WCC and accepts its position on the various issues before the Court. However, RS takes issue with WCC on all of the issues, hence the hearing before me.

The hearing was originally listed for two days on 13 and 14 July 2011. However, on 13 July RS did not appear. When these proceedings were commenced, District Judge Hilder gave directions transferring the case to Bristol where a case management conference was listed before a nominated judge. The judge then transferred the final hearing to London on the basis that it would be easier for RS to travel to London. WCC gave RS train and underground tickets together with details as to the date, time and place of the hearing, but unfortunately it appears that RS arrived in London the day before the hearing only to return to Bristol or somewhere else on the day of the hearing. Thus he was not here and could not be contacted. The hearing, therefore, on the first day was abandoned. On the second day of the hearing, RS appeared.

I indicated to the parties if we did not finish the case we would need to reconvene on another day, but fortunately all of the evidence and the parties’ submissions were comfortably concluded. At the end of the day, I did not have time to give a full judgment so I announced my decision to the parties on the basis that I would let the parties have my written reasons in due course. This judgment contains those reasons.

I turn to the first of the three issues, namely whether or not GS has capacity to make the decisions that I have referred to already. Dr AB is a consultant in old age psychiatry. He was instructed by the Official Solicitor and he prepared a long report and he also gave evidence before the court. With regard to GS’s mental capacity, he says at paragraph 4.2.2 that:

“The documentary evidence suggests that GS is suffering from an irreversible and progressive dementia, most likely due to Alzheimer’s Disease. She also suffers from diabetes which is associated with short and long-term negative effects on her physical health and cognitive functioning. My assessment is in keeping with this”.

He then goes on to say at paragraph 4.2.3:

“My interview was not easy due to GS having poor hearing and therefore not being certain of her comprehension. However, she did answer appropriately to my questions suggesting that in general comprehension and understanding is good (within the limits of her short-term memory). My main conclusions were that she has significant dementia with short- term and long-term memory impairment and impaired judgment. She cannot appraise her own health risks or manage her own self-care and relies on others for basic care needs. This is largely due to her mental incapacity. She appeared happy and content at interview, and this is described by others, with no express wishes or needs…”

He then goes on to say this at paragraph 4.2.4:

“Although her health may be more stable and her weight may increase if she maintains her current oral intake in my opinion her mental capacity will not significantly improve due to the progressive nature of her illness.”

In response to whether or not any services could be provided to GS to maximise her potential capacity, Dr AB referred to GS being hard of hearing. Hearing aids or amplification devices could help (although there is some resistance by GS to ear wax being removed which precludes this at present) to “maximize her capacity” as Dr AB put it, but his overall conclusion was that it would not make any significant difference to Dr AB’s determination of GS’ capacity in respect of the matters under consideration in these proceedings. Both JS and the Official Solicitor accept Dr AB’s views.

RS challenges Dr AB’s conclusions and the suggestion that his mother lacks mental capacity. He referred to the potential latent in GS and that as he is her son, he has a better understanding of GS. He believes that GS has the potential to understand things.

The second issue concerns where GS should live. Dr AB also addressed this issue in his evidence. He says this at page 26 of his report:

“GS suffers from relatively advanced dementia of at least moderate severity which is irreversible and progressive. This causes significant cognitive impairment, including poor judgment of her own needs and risks. She also suffers with diabetes that currently requires insulin injections. She has poor mobility which has been deteriorating for some years, more recently exacerbated by surgery on her foot due to diabetes complications and her dementia.

GS is fully dependent on nursing interventions being doubly incontinent, unable to maintain her own nutrition or mobilise independently.

She requires 24-hour specialised dementia care. She will not significantly regain any independence, and her physical needs are likely to increase over time.”

He then goes on to conclude that having considered the facilities at FCH and the level of care required by GS, FCH would meet her needs very well. He notes that FCH is a specialist residential care home that is registered for and specialises in the care of people with dementia and there are appropriate care plans in place and that the environment is pleasant. Dr AB also noted that FCH is prepared to manage a “difficult relationship” with RS “which most care settings would find challenging”. Most important of course is that GS appears to be happy and settled there.

Dr AB’s report also says that given the probable less good quality of care if she were to be moved from FCH, there would be significant risks in moving GS. Those risks include worsened diabetes control with subsequent secondary complications, some of which could be life-threatening, probable worsened nutritional intake, possible emotional disturbance from altercations between RS and the care staff at a new home and less broad social stimulation. He also says that GS’s care needs could not be adequately met at home in the current circumstances.

I also heard evidence from IGS, an independent social worker, who was instructed in this case. He prepared a report and also gave oral evidence. When talking about GS’s care needs he referred to the fact that she is fully dependent on care staff and that she does not have any insight into her care needs. IGS said that the advantages of GS being at FCH is that she is in a consistent, supportive and caring environment that attends to her mental and physical wellbeing as well as addressing issues around social inclusion and provision of a stimulating environment where there is a choice of activities aimed at engaging GS. He also notes that GS is settled at FCH and that she benefits from being around others.

With regard to whether or not GS should be moved, he says that this would not be in her interests as she is clearly stable and evidently content with being at FCH. IGS was also concerned that GS could be distressed by a change in her environment. He therefore concluded that it is in GS’s best interests to continue to reside at FCH, especially as she has stabilised with regards to her physical care and that it is not in her best interests to move to an alternative care home as there is nothing to indicate that the care she is receiving at FCH is inadequate. She should also not move back to her home.

The Official Solicitor on behalf of GS accepts the evidence of Dr AB and IGS. Indeed, in his statement, he exhibits a number of pictures taken of GS at FCH which show her to be happy and content in her surroundings. JS too accepts the conclusions of Dr AB and IGS. However, RS does not. He wants GS to live in WY. He says that she should go to a care home in WY that he has proposed, to which I shall return shortly, for a holiday first and then she should go to other care homes which he did not identify. RS referred to his mother’s stay at FCH as her being imprisoned and on a number of occasions during the hearing, he referred to GS being “in prison for 484 days”. He blames lack of social work assistance when GS lived at home and subsequent intervention by social services on his mother’s poor condition. He refers to being harassed and neglected by social workers. In particular, RS referred on a number of occasions and also in an email dated 9 May 2011, which has been treated as his statement in these proceedings, to his having worked with old people in hospital in the 1970s and the fact that he was intending at that stage to study medicine which demonstrated his ability to care for his mother.

RS has put forward another care home, F House. This care home is in WY and he provided the court for the first time at the hearing with a brochure and details of what F House can provide in terms of care and accommodation. F House is rejected by the other parties as an appropriate place for GS on the basis that it is simply a residential home and its facilities are way below the high level of needs that GS requires. RS does not accept this criticism.

The third issue concerns contact. I have already referred to the fact that issues have arisen such that contact has not taken place face-to-face between RS and his mother since December 2010, although there has been telephone contact. There is a long list of complaints made against RS and his conduct. It is said that when GS was in hospital he attended the ward late at night smelling of alcohol, that he brought alcohol and sugary foods to the hospital, and that he visited at inappropriate times, namely 2.30am in the morning on 9 August 2010 and 12.20am on 14 August, that he brought his mother cherryade when she is diabetic, and that he distressed GS by giving her a photograph of the deceased son, C, who committed suicide when he was 23 years old. There are also a large number of other complaints such as refusing to pay for lunch at FCH, trying to make other frail residents stand, placing his hands on the shoulders of various female residents while walking them around the placement, upsetting visitors, turning the television channel over, getting into an ambulance with another resident, smoking in a bathroom at FCH, telephoning and requesting the staff to ask his mother to say that she wished to move to TW, and on one occasion barricading the door to his mother’s room preventing staff from entering. In addition, he has bought his mother electrical goods which he says will promote her independence but which due to her dementia it is said will cause her harm, alcohol and cigarettes when she was on a respiratory ward and a branch with unknown berries saying that it would bring her closer to nature. He has apparently been seen lifting his mother from the wheelchair and unsuccessfully attempting to transfer her to his small car, placing her at risk of injury.

The most serious incident, however, took place in December 2010. It is said that RS pushed his way into FCH through a back door and then trashed his mother’s room, emptying her belongings all over the floor. He then tried to make his mother stand. He shouted and threatened staff with a walking stick before deliberately smashing a fire alarm and setting it off. He was asked to leave but he shouted at the staff and blamed them for GS’s deterioration and said that he did not want her to be imprisoned. He jumped over tables and told his mother that he did not love her.

The police were called and RS was arrested, although it appears that he was charged with another unrelated offence later that day. As a result, FCH suspended RS’ contact with GS and, as I have said, he has not been allowed back into the home since December 2010.

WCC accepts that suspension of contact cannot continue indefinitely and it therefore puts forward a contact schedule which ensures first, that RS can see his mother, second that GS is protected and third, that other residents at the home are safe. Both Dr AB and ISG agree with the proposed contact schedule and have made some useful additions during the hearing to fortify the arrangements.

For his part, RS says that he does not see the need for a contact schedule but he says that he will go along with it. He cannot understand why he has to visit at times that are appointed and agreed by FCH and others. He feels that he should just be allowed to arrive at the home on the basis that if GS does not want to see him he will then go home again although for obvious reasons, that is not acceptable to FCH.

There are many cases in the Court of Protection where large numbers of allegations are made by a care home, a local authority or a family member against another family member (usually a child as in this case) which relate to the family member’s conduct during visits to a care home or at home. The difficulty that is often faced by the court in these cases is whether or not a fact finding hearing is necessary in order to establish the veracity of the allegations first before the court proceeds to impose a final order in a case.

The obvious problem with fact finding hearings is that they can be lengthy, they eat up the court’s pressed resources and they are expensive not only because of legal costs but in terms of the cost of social workers and other professionals involved who need to attend court to give evidence. In this case, both judges who managed this case prior to the final hearing clearly took the view that no fact finding hearing was necessary presumably because they believed that the court would be able to make its own decision after hearing the evidence at the final hearing.

It should be said in RS’s favour that he has accepted some of the allegations such that I have taken the view in agreement with all the parties that there is no need for me to embark on a long fact finding exercise in respect of every event that is found in the papers. I believe this is a proportionate way of dealing with matters.

Instead, I shall record what he RS has accepted. He accepts that in August 2010 he obtained access to FCH in the early hours of the morning and activated an alarm buzzer for the night staff. When they asked him why he was there, RS said that he was bringing his mother a postcard. The staff were concerned that this was in the middle of the night and that his dress seemed inappropriate as RS was wearing a white lab coat.

RS also accepts that he went into GS’s room and trashed it, emptying drawers, cupboards and a wardrobe as I have already described. He told me that he did this because he was looking for GS’ hearing aid. He also accepted that he tried to make his mother stand up and walk. He said that he wanted her to learn how to use her muscles and that he did not make her stand but simply tried to help her to move her muscles in her legs herself so that at a later stage she would be able to stand and walk. He also accepted that he was shouting and screaming at everyone in the room and that he went to a fire alarm and broke the emergency glass.

Given these admissions I do not need to make any further investigation into the various allegations made against RS because the admissions on their own in my view demonstrate that the concerns raised by WCC about RS’ behavior are genuine.

Having set out the various issues in this case, I turn now to my conclusions. I have already said that I have heard evidence from Dr AB and IGS. I also heard evidence from HG, a social worker with WCC. I am satisfied that these witnesses have been truthful and that they have done their best to assist the court.

JS attended the hearing. He did not want to give evidence as he supported WCC, but he did make a statement to the court and cross-examined RS. From the little that I heard from JS there is nothing in my judgment that doubts his integrity and his wish that GS be cared for properly.

RS also gave evidence. Sadly, there can be no doubt that RS is a man who clearly has psychological problems of his own such that in my view he needs professional help. I accept that he dearly loves GS and that he wants the best for her but I also realise that I cannot accept anything he says about what he believes GS wants because he is simply unable to see the reality of her situation.

I turn therefore to the three issues before the court. The first concerns whether or not GS lacks mental capacity.

The Mental Capacity Act 2005 sets out the law that is relevant to this issue.

Section 2 provides that:

“(1)

For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)

It does not matter whether the impairment or disturbance is permanent or temporary.

(3)

A lack of capacity cannot be established merely by reference to –

(a)

a person’s age or appearance, or

(b)

a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4)

In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.”

…

Section 3 provides that:

“(1)

For the purposes of section 2, a person is unable to make a decision for himself if he is unable,

(a)

to understand the information relevant to the decision,

(b)

to retain that information,

(c)

to use or weigh that information as part of the process of making the decision, or

(d)

to communicate his decision, (whether by talking, using sign language or any other means).

(2)

A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)

The fact that a person is able to retain information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)

The information relevant to a decision includes information about the reasonably foreseeable consequences of –

(a) deciding one way or another, or

(b)

failing to make the decision.”

In this case, without any hesitation, I accept the evidence of Dr AB that GS has no capacity. I have taken into account everything that RS has said about his mother having capacity but in my judgment RS is simply unable to understand the reality of GS’s situation both in terms of her mental health and her general care needs. Nothing has been said to me to suggest that the conclusion reached by the experts in this case on this issue is not correct.

I therefore find that GS lacks capacity to conduct litigation, to make decisions in respect of her care requirements, to decide where she wants to live and to decide issues relating to contact with her family.

The second issue concerns where GS should live. In reaching a conclusion on this issue, I must consider section 4 of the Mental Capacity Act 2005, which provides that my decision must be in GS’s best interests. Given its importance, I set out the section in full:

In arriving at my decision I also have regard to the Code of Practice that accompanies the Mental Capacity Act 2005 and various cases where the court has considered the application of best interests, for example, Re S and Protected Persons;C v V, [2008] EWHC B16 (Fam) a decision of HHJ Marshall QC; Re P [2009] EWHC 163 COP per Lewison J (as he then was)and ITW v Z and Others [2009] EWHC 2525 (Fam) per Munby J (as he then was), and to the fact that I need to consider the rights of GS and her family, and in particular RS to family life as provided for by Article 8 of the European Convention of Human Rights as incorporated into English law through the Human Rights Act 1998.

Having set out the relevant law, in my judgment I accept the evidence of IGS and Dr AB that GS should remain at FCH. Indeed, the evidence in support of it being in GS’s best interests to remain at FCH is quite simply overwhelming.

Both GS and Dr AB say that GS is happy there and she is doing well. The Official Solicitor in his statement before the court exhibits some photographs of GS undertaking activities at the home and she is quite clearly very happy in those photographs. To move GS anywhere at this time of her life would be against her best interests and indeed, given her age and her physical and mental condition, it would probably be very dangerous to undertake such a move.

With regard to F House, the care home put forward by RS, a careful perusal of the material from that home shows that it is quite simply unsuited for GS’s needs and even if GS were able to move, that home cannot provide for her medical and general needs. I therefore order that GS shall live at FCH unless she is taken to hospital due to a deterioration of her health.

The third and final issue concerns contact. Any consideration of GS’s best interests must start on the premise that GS is entitled to see her children and in particular RS. This is of course independent of any rights of RS under Article 8 to see his mother. Therefore, when considering contact, the starting point must always be that there should be full and unrestricted contact between a parent and his or her child and that conditions should only be imposed on that contact if GS’s best interests demand it.

In this case, a consideration of GS’ best interests will include the safety and wellbeing of GS during contact. I am clear that this is a case where GS’ best interests demand that contact have conditions attached to it. I reach this conclusion for these reasons. First, because of the admissions RS makes about his conduct. Second, in the context of this case and RS’ admissions, the volume of complaints made by WCC cannot be put to one side and ignored and the court must conclude that there are real issues overall with RS’ behavior which could affect contact. Third, although RS behaved properly during the hearing before me, his presentation nonetheless showed that he has the ability to be difficult in a different setting.

Having decided that it is necessary to impose conditions in respect of contact, the imposed conditions must be reasonable and proportionate having regard to their aim and purpose and the context of the overall situation. In this case, I am dealing with contact in a care home where conditions are required to ensure that GS is safe and well. I also need to have in mind that to ensure that contact continues, any conditions must ensure that other residents of FCH as well as its staff are also protected during a contact session.

When considering the types of conditions to impose both generally and in this case, the court needs to have the following considerations in mind. First, that there should be appropriate reviews of the conditions. Nothing should be set in stone and either the court should review the conditions and/or there should be a review by the local authority. Second, given the medical evidence, an end of life plan should be put in place. The health of elderly people can deteriorate quickly and it may come to a point when even members of a family who have been excluded from contact should be able to spend time with their parent or relative. Obviously there will be exceptional cases where the level of harm or potential for harm by a family member against a vulnerable person is such that even in an end of life scenario contact would not be appropriate, but these will be very exceptional and rare cases. Third, the length to which the conditions should address each step of a contact session. Thus, in some cases there will be a need for conditions to manage every step of the way from the arranging of the visit to the arrival of the family member at the home until his departure. In other cases, a more general approach can be appropriate. Fourth, the dates and times of visits will need to be set out clearly in a contact schedule. Fifth, whether a plan is needed to address problems, for example, the family member cannot get to the home on a particular day due to an emergency. Sixth, whether it is appropriate for financial assistance to be made available by a local authority or other relevant third party to the relative for travelling to and from a care home. Seventh, if the visit is to be supervised, who is to supervise and what level of supervision is required. In some cases the supervision may take the form of detailed note taking by an independent person; in other cases it may be a cursory check-up by a member of the care home staff; in yet other cases, the allocated social worker may attend to just keep a watching brief. Eighth, a right for the home or contact supervisor to cancel the visit if circumstances deem it appropriate, either before the visit or during the visit. Ninth, the ability to shorten or lengthen a visit if, for example, the visit is not going well or if the relative has become sick. Tenth, regulation of behaviour. Conditions may include provision that the family member not be rude to or harass staff or other residents, the point of entry and exit to and from the care home, the fact that other residents need to be left alone, that their care should not be interfered with, restrictions as to what food and drink can be brought into the home and the venue in the home for contact. Eleventh, a record of the visit. The level of formality will depend on the situation. In more serious cases every word may need to be recorded and in other cases a note will simply be taken that the visit passed without incident and everything went well.

In this case WCC has prepared a contact schedule. I have already said that RS grudgingly accepts the provisions (including the restrictions and conditions) on the contact schedule on the basis that although he cannot understand the need for it, he will abide by it. Both IGS and Dr Barker have also approved it. They have made some amendments which I incorporated during the hearing.

I therefore approve the contact schedule. In the context of this case, I believe that its provisions are reasonable and proportionate and that they should achieve the aims required. I also take the view that contact should be reviewed by the court after three months. Although WCC has included a review mechanism in the contact schedule, it seems to me that within the context of this case, a review by the court would be appropriate.

I do not need to do anything about the current standard authorisation dated 1 June 2011 because that is due to expire on 30 November 2011. I also indicated at the end of the hearing when I gave my decision that if any new issues arise in this case there be permission to any of the parties to apply by filing a Form COP 9 and if possible providing a short witness statement in support of the application so that it is clear what the issue is and the court can give appropriate directions.

After the hearing, I approved an order which reflected my decision so no further step need be taken save to arrange the review hearing through the Listing Office at the Court of Protection. For the avoidance of doubt, time for any appeal will run from the date this judgment is sent by the court to the parties.