HN v FL & Anor

This is the judgment of the Court of Protection upon an application by HN, against Hampshire County Council, “HCC”, for the following decisions of a personal welfare nature to be made on behalf of HN’s sister FL”:

This application comprises the second set of personal welfare proceedings concerning the same parties. The first set of proceedings were concluded by consent order in which the parties (all of whom were represented by counsel) agreed that:

HCC opposes HN’S current application and considers that there should be some additional restrictions on contact but that otherwise the consent order of 27^th July 2009 should generally be adhered to.

Once again the Official Solicitor, “OS”, has accepted the court’s invitation to act as FL’s litigation friend. The OS opposes HN’s application and considers that subject to some amendment the terms of the consent order should prevail.

Given the consent order, the initial approach of the court was to treat HN’s application as a review of contact only, no material changes having occurred since the consent order to cause the matter of FL’s residence to be reviewed; see the order of 31^st March 2011.

Unfortunately it became apparent that HN considered she had entered into the consent order under duress and she was insistent upon re-opening all issues. The primary issues requiring determination by the court were as follows:

The findings sought by HCC and HN with respect to each other’s conduct are found in schedule form in Part A of the hearing bundle.

This hearing took place over four days beginning on Tuesday 27^th September 2011. Further to an order made by myself the OS was excused from appearing on the first three days which were occupied primarily with the giving of evidence relating to the findings of fact sought by HN and HCC. At the conclusion of the fact finding hearing on 29^th September 2011 I informed the parties that although I would give a written judgment in due course the court would generally be finding in favour of HCC and that I would hear from all parties, including OS, on the terms of any final order on Friday 30^th September 2011.

Further to an order made by myself on 27^th September 2011, IPL (publishers of The Independent newspaper) were permitted to attend the hearing by one of its journalists and further to an order made by myself on 30^th September 2011 IPL were permitted to publish details about the case subject to the restrictions in that order. Oral reasons were given but in brief I found that IPL made out both:

FL was born in 1943 so she is now 68 years old. HN is FL’s younger sister and is now 63 years of age. HN and her son, DB, appear to comprise FL’s only immediate family. I understood there to be other relatives who live in X. They have taken no part in any of the Court of Protection proceedings.

As a teenager FL formed a lasting friendship with AC, (HN challenged the quality of that friendship and I return to that matter later).

In about 1976 FL was diagnosed as having multiple sclerosis and she retired from her final employment in 1986 on medical grounds. In 1987 FL went to live with and be cared for by her parents; her mother died in 1994 and by 1996 FL was wheelchair bound.

It is thought that FL began to suffer from memory impairment in the 1980’s and by the late 1980’s there was concern that FL was displaying psychotic symptoms described by Dr M as ‘schizophrenia like’ secondary to her multiple sclerosis. A low dose anti-psychotic was prescribed.

By 1994 a diagnosis was being made of serious mental impairment as a direct consequence of progressive brain damage caused by multiple sclerosis.

FL entered residential accommodation at Y Nursing Home on 1^st October 1996 when her father was no longer able to care for her. FL formed a relationship with EN at the Y Home and they shared a room together.

HN was vocal about the poor quality of care she perceived the Y Home as giving to her sister. It was the Y Home who gave FL notice to leave the home which resulted in FL living at BCH pending identification of a more suitable placement.

From 1^st February 2003 to 31^st March 2003 FL lived at BCH and from 1^st April 2003 to 14^th April 2003 she lived at RH. These were temporary placements pending identification of a more suitable home.

Notwithstanding the distance between her home and the care home, HN identified The Z Home as suitable for FL and FL moved there on 14^th April 2003. At this time FK was deputy matron and described as an “experienced community mental health nurse” in ON’s statement of 23^rd July 2008.

At all relevant times BC was an owner of the Z Home.

The relationship between the Z Home and HN swiftly began to break down.

In 2006 there was evidence of depressive illness resulting in anti-depressant medication being prescribed. Unfortunately there were signs of serious depression and a second anti-depressant was added following review in September 2007. The evidence to the court revealed a good response noted by Dr A amongst others.

Other than a nephroctomy in 2008 at the X Hospital FL has been generally well but such is her illness that FL’s mental capacities have continued to decline.

Whilst FL was in hospital in May 2008 HN was advocating Q House as a suitable home for FL although it was not EMI registered.

FL has remained living at the Z Home to date and has therefore lived there for nearly eight and a half years.

By 2002 FL’s financial resources derived from two trusts leaving only income from the trusts, pension income and state benefit to be managed.

On 10^th December 2002 FL made an enduring power of attorney appointing HN and a family friend, BX as attorneys. They applied to register the power on 21^st February 2003 but the application was opposed by a former attorney YZ on the ground that HN was unsuitable.

By consent an order was made on 29^th August 2003 for registration of the power subject to production of an annual account by HN.

On 26^th February 2007 the trustees of the two trusts, LM and AC applied for an order to cancel registration of the power and to revoke it on the ground of HN unsuitability. That application succeeded before Master Lush (as he then was) on 1^st June 2007 and a copy of the judgment is found at page B61 in the bundle.

The evidence taken into account by the court is identified in the judgment of Master Lush and I note the evidence included written observations and representations from BC the owner of the Z Home.

Master Lush made certain adverse findings against HN:

On page 12 he found:

“There has been an effective challenge to [HN] honesty and integrity. She has not acted entirely in FL’s best interests, and the hostility between her and others who have a legitimate interest in FL’s welfare has had, and is continuing to have, a detrimental effect on the proper use of her funds. HN has also contravened her authority as attorney by assuming decision-making powers of a personal welfare nature.”

On page 13:

On page 15:

“... and that she {HN} has deliberately manoeuvred her way into an unassailable position of control over FL’s finances.”

In 2007 the first set of personal welfare proceedings came about further to cross applications by HCC and HN:

The first personal welfare proceedings came before the court for a final hearing beginning 20^th July 2009. All parties were represented by counsel and a consent order was made on the first day the terms of which may be summarised as follows:

Notwithstanding the past orders made it is apparent that HN and DB sought to:

Notwithstanding the conclusions in the property and affairs proceedings HN has remained involved laterally; see her application of 26^th April 2011 to view the deputy’s report (which was refused). In the meantime it appears that they have not cooperated with the professional deputy WN; see the correspondence from the Deputy to HN. During the course of these proceedings it has been necessary to steer HN away from property and affairs issues.

When HN brought her personal welfare application I hoped that this might be a case where the issue of contact could be reviewed with a view to restrictions being reduced rather than increased; see my order of 31^st March 2011. Unfortunately that is not the case and HN seeks to reopen all relevant personal welfare issues in these proceedings.

The papers in this case fill four lever arch files and amount to some 1,644 pages to which one must add position statements and additional material introduced by the parties.

Much of the evidence comprised that obtained for the previous proceedings concluded by the consent order of 27^th July 2009.

No oral expert evidence was requested or given. Although HN did not accept the expert opinion of Dr J (the jointly instructed expert in the first proceedings) no written questions were put and Dr J did not attend the hearing.

Further to a witness template (Footnote: ²) oral evidence was taken over the first three days from:

For HN:

For HCC

Further to the court’s order of 19^th March 2009 in the first set of personal welfare proceedings, Dr J was instructed jointly by HN, HCC and OS; his expert evidence in reports dated 1^st June and 25^th June 2009 stood as expert evidence in these proceedings.

It struck me that all witnesses who gave evidence:

However I must add some qualifications in respect of HN; as will be apparent from the findings I make later in this judgement I consider her to:

In stark contrast I found the other witnesses, including DB, to be much more measured and thoughtful in their evidence. I was impressed that HCC’s witnesses including BC had not allowed any understandable exasperation with HN to pollute their evidence. The one witness whose feelings did come to the fore was AC and so I treated her evidence with a little more caution.

Having heard the evidence it seems to me that the findings sought by HCC and HN can be categorised as follows:

There is a pre-existing finding that HN failed to interact satisfactorily on a personal level with the proprietors of a number of care homes.

Whilst it is right to observe that HN was not alone in possessing concern with the quality of care being provided by the Y Home (see the oral evidence of LM and letters from DS) it is apparent that FL was settled in the home and had formed a relationship with EN; see the letter from FL’s GP Dr A dated 11^th October 2001. In oral evidence HN told me she did not approve of the room being shared although FL’s father was content.

Dr A, FL’s GP, wrote to HN on 11^th October 2001 to state that:

“My renewed assessment of FL’s position at the Y Home remains unchanged, in that she receives good quality care and is happy with her situation there. The companionship that she receives from EN, I think is also of huge significance to her.”

In oral evidence HN told me she thought HCC put the GP

“up to this letter”.

Unfortunately HN chose to adopt a confrontational approach with respect to her concerns and FL’s placement was put at risk; see the letter from MN dated 9^th October 2001.

It is also the case that HN involved herself inappropriately with staff at the Y Home; see MN’s letter of 26^th June 2002 (this sort of behaviour was to continue at the Z Home). This resulted in the care home giving FL a notice to quit; see its letter of 26^th June 2002. Although this was not actioned it does seem to be the case that FL’s placement at the Y Home was terminally damaged; see S’s letter of 23^rd December 2002. I find that that damage was caused by HN.

The result of the damage referred to above is that FL had to be placed into temporary accommodation pending identification of a new suitable home.

Although it was HN who identified the Z Home as an appropriate long term home for FL, HN soon became dissatisfied with the Z Home and approached her concerns by way of confrontation and complaint rather than civilised discourse.

As with the Y Home it became apparent in her oral evidence and line of questioning that HN had sought to involve herself inappropriately with staff at the Z Home. HN found herself talking about power of attorney matters with a cleaner “RX” and about staffing matters with “TY”. No good explanation was offered to me by HN for having conversations about such matters with staff at the Z Home.

It is apparent from the detailed notes kept by the Z Home staff such as SX that HN was in frequent communication questioning the manner in which FL was being cared for (see for example the copious notes in the bundle at G127 ff)

HN queried the qualifications of the Z Home’s mental health nurse FK without there being any evidence that FK’s abilities were in question. In fact FK was registered as a mental health nurse in SA. HN became so fixated on the mater of qualification that she took the matter up with professional bodies but there is no evidence that such conduct could assist FL.

FL suffered bruising to her finger(s)/ hand in early January 2007. HN complained. I am satisfied that the Z Home acted appropriately with respect to this minor injury. To this day HN relies on the injury as evidence of abuse and will not contemplate accidental injury as a cause. There was no evidence before the court to suggest abuse.

At one time HN arranged for services such as hairdressing to be provided to FL and paid for. One can see the merit in the Z Home arranging such services for all their residents so as to bring about the least disruption possible. Notwithstanding her lack of standing once the EPA was revoked HN argued about who should be arranging services when FL’s trustees were content for the home to provide them.

HN has sought to blame BC for the situation which has arisen. She alleged that he was a bully and paranoid. I had the opportunity of forming my own view of BC and have read various pieces of correspondence sent by BC such as his letters to HN dated 14^th December 2006 and 1^st February 2007. Whilst I perceive a justified element of exasperation in BC I found no evidence of bullying or inappropriate behaviour on his part and BC impressed me with the way that on paper and in evidence he remained measured and objective. In my judgement the restrictions that the Z Home started to impose on HN in 2008 (see for example BC’s letter of 26^th June 2008) were reasonable in the circumstances and the result of HN conduct.

In evidence it was put to HN that her default assumption is that the Z Home do not provide properly for her sister as she states in paragraph 4 of her statement of 10^th July 2009.

The following persons have assessed the Z Home and concluded that FL is being cared for well notwithstanding HN’ assertions to the contrary:

HN complained to CSCI in late 2006 about the care provided to FL by the Z Home; CSCI were content with HCC’s positive assessment The Care Quality Commission has assessed the Z Home as a whole; in their letter of 1^st July 2011 they said:

“When the inspection team (which included a qualified pharmacist) inspected the Z Home in March of this year, they looked at your sister’s care plan. They were satisfied that her care plan, including her medication records, were well maintained And indicated appropriate levels of support and care”

HN has sought to continue the battle by complaining about the Z Home’s statement of purpose; the CQC have looked into this and once again there seems to be nothing that could be achieved beneficially for FL by making this complaint.

HN sought to rely on the views of Dr M and Dr A. It is right to note that in Dr M’s letter of 29^th August 2007 and Dr A’s report of 13^th April 2008 both practitioners brought into question whether the Z Home had the necessary expertise. Both practitioners were involved at a time when FL was suffering from serious depressive symptoms; see paragraph 7.4 of Dr A’s assessment of 14^th May 2008 and paragraph 8 of the report prepared on 19^th June 2008 in which he concluded it was in FL’s best interests to be placed in an EMI nursing home.

However, HN’s evidence raised no more than a debate about where FL’s needs might best be met in the future. There was no evidence that remaining in the Z Home was likely to cause harm to FL and regard must be had to the preponderance of professional views and the conclusions of Dr J.

Unfortunately the atmosphere that HN brings about when visiting FL at the Z Home can cause upset to FL; see for example the account of the visit of 16 March 2011 in which HN was noted as self absorbed. HN’s fixation on negatives as described by CK (social worker) in his statement of 8^th June 2011 at paragraph 6 is unlikely to help. Generally, I accept HCC’s social workers’ accounts of the visits between HN and FL which appear to have a common theme of excessive intensity and negativity.

Further HN’s behaviour causes FL’s placement at the Z Home to be insecure. There is no legal obligation upon the Z Home to keep FL as a resident. HN behaviour and demands have taken up much of the Z Home’s (and HCC’s) resources as is evident by the sheer quantity of paper and persons involved in this case.

In about September 2006 HN sought to change FL’s GP; see the letter from PO NHS Trust dated 18^th September 2006

By letter dated 13^th November 2009 HN complained to Dr D, Senior Partner of W Surgery about Dr JT on the basis that she was obstructive. It would appear Dr JT was respecting her patient’s privacy notwithstanding HN’s threat to take the dispute to the NHS Ombudsman.

HN has continued to assert that FL is over medicated. There is no medical opinion to support this contention at all. HN put the point to FL’s GP in September 2009 Dr JT who was content with the medication, see Dr JT’s letter of 2^nd September 2009. HN’S reaction appears to have been to pursue Dr JT. HN was also unhappy that Dr JT did not agree with a further assessment of FL in London. I was provided with the opinion of FL’s current GP dated 27^th September 2011 and the report of Dr C, Consultant Psychiatrist dated 27^th September 2011 both of whom are content with FL’s current treatment regime.

HN complained to the Chief Executive of HCC; she did not accept the response dated 12^th February 2010 and complained about HCC and the court proceedings generally to the Local Government Ombudsman; the LGO concluded that the complaints were outside of his remit; see the response of 10^th November 2010.

FL was admitted to hospital in the late spring of 2008. HN’s solicitors threatened injunction proceedings to prevent FL from being discharged from the hospital back to the Z Home before a best interests meeting took place; see their letter of 3^rd June 2008. HN sought to impress me that her solicitors wrote this letter without her instructions but there was no later attempt to retract the threat or to apologise for it. It is difficult to see why FL’s discharge from hospital should await the best interests meeting given there was no evidence at all that the Z Home could not continue to provide a home to FL until that meeting took place.

The best interests meeting duly took place on 11^th June 2008 and the minutes show the following conclusions:

“It is in FL’s immediate best interests for her to return to the Z Home as soon as possible”

...

“An EMI Nursing Home placement will be sought for FL if her Mental Health needs increase to the extent that the Z Homeand Community Support are unable to met {sic} her needs”

Those conclusions are wholly unsurprising and I cannot see there was ever any ground for forcing FL to remain in hospital pending this meeting. I find that the threat of injunctive proceedings was a deliberate tactical move on the part of HN.

At all relevant times DY was the Multiple Sclerosis Practitioner for P Community Health Services. HN made complaints about DY resulting in the latter withdrawing her service from FL. However, as far as I can see, the only criticism that could have been made of DY was a reference by herself to a power of attorney. There is no evidence of lack of ability but HN conduct had the effect of driving this person away from FL.

A fair amount of time was explored in the hearing regarding the imposition by X Hospital of a DNR. Without evidence, HN insisted it was HCC that somehow imposed or brought about the DNR notwithstanding that:

it was in fact HCC who obtained a review of the DNR .

HN sought to involve DS, a former emotional partner of FL, who on investigation did have some concerns about DH but sought to disassociate himself from HN. According to his letter of 27^th March 2002, HN became offensive to him.

HN has a hostile relationship with AC and it is clear from the evidence that HN historically has not accepted AC’s status as friend of FL and trustee. One manifestation of this attitude was the dispute over the clothing to be worn by FL at Christmas 2006 (see the note of 26^th December 2006 made by XY). A more recent manifestation of the hostility arose in a phone call that HN made to the Z Home on 9^th February 2011 in respect of which both HN and AC gave evidence. I accept AC’s account of a tirade from HN followed later by HN telephoning AC’s husband and subjecting him to a tirade. AC wrote about the phone conversation on 28^th February 2011 soon after the incident took place.

All parties accept that FL cannot feed herself and that she has swallowing problems such that food must be given by someone with appropriate skill/training to avoid FL choking. The food must also be soft or processed so that FL can swallow it.

In her statement of 10^th July 2009 HN accepted that she had been forbidden from bringing food to FL (and see paragraph 25 of the consent order).

However, on 27^th September 2009 HN brought some crackers, cheese and figs to the Z Home and fed the same to FL notwithstanding the absence of permission (which HN accepts she did not have)

Notwithstanding the response of the Z Home and HCC to the incident above HN fed FL a digestive biscuit on 13^th January 2011. HN says she had the permission of ‘V’ (a staff nurse at the Z Home); the contemporaneous notes show HN did not have permission and I consider HN to incorrect.

HN continued to hold herself out as a person with authority to act for FL when this was plainly not the case given the consent order; see HN appeal dated May 2010 in respect of the refusal to not award NHS continuing care. It was for FL’s property and affairs deputy to decide whether or not to pursue continuing healthcare.

Lastly HN chose to track down MP, husband of another resident at the Z Home. She identified his village and ascertained his address at a pub. She then went to MP’s home. I accept that MP made objections to the Z Home about HN’s behaviour.

As I indicated on 30^th September 2011 I generally found those allegations made by HCC and pursued to be made out on the balance of probability and in turn those made by HN to not be proved.

It was common ground until Friday 30^th September 2011 that FL lacks capacity to make decisions with respect to her personal welfare and her property and affairs.

There is no doubt from the many reports before me that the Multiple Sclerosis which afflicts FL has caused brain damage and dementia such that she has lost the ability, in particular, to retain sufficiently and weigh information in order to make primary decisions of a personal welfare nature. There is no evidence other than HN’s belated assertion on 30^th September 2011 to suggest that FL does have capacity.

Past appropriate declarations as to capacity have been made and nothing has occurred to cause me to revisit capacity in any further detail.

I remind myself that I must determine best interests in accordance with section 4 of the Mental Capacity Act 2005. Although HN sought to rely on Articles 5 and 8 of the Convention as incorporated into domestic law by the Human Rights Act 1998 I was not drawn to any conflict between section 4 and those articles and I am not aware of any conflict arising in these proceedings.

No case law was cited to me but I have in mind the decision of Hedley J in Re GC [2008] EWHC 3402 (Fam) which is authority for two propositions:

The State should not intervene in an individual’s private family life unless the continuance of that private family life is clearly inconsistent with the welfare of the person whose best interests the court is required to determine

When determining best interests the court must draw up a balance sheet of the positives and negatives of the courses of action proposed.

HN has said that FL has expressed a wish to not be at the Z Home; Dr J noted that FL had spontaneously expressed such a view to staff at the Z Home but when in a negative mood. The preponderance of evidence is that FL is happy with and comfortable at the Z Home and forms relationships with staff; it was noted that FL had a particularly positive relationship with FK the matron.

When seen by Dr J on 13^th May 2009 FL was describing a good relationship with HN but with some caveats; I note in particular that when Dr J asked:

“Has HN had any arguments or disagreements with the staff here?”

FL’s response was

“I don’t know, but she can be very determined”

Further, when Dr J asked:

“Do you think you need to go somewhere new now?”

FL replied:

“I would like to go somewhere else, but I am not sure it is necessary. HN says to me “FL, get a move on, you have to move”. But it is up to me to move, not her.”

HN seeks to move FL to a care home which:

There is an issue upon whether the period of contact between HN and FL should be restricted because of:

All parties agree that FL swiftly tires although HN persists in her belief that the tiredness is due to excessive sedation.

FL’s upper limit for a visit appears to be about 1 hour. There may be days when she is tired after 30 minutes. HN accepts that this may be the case but would like to be with her sister to keep her company for the rest of the time.

HCC asked for contact to be reduced to a period of 30 minutes; it then moved to 45 minutes. The OS remained with a period of 1 hour.

Given the control there will be on contact I could see no benefit to FL by reducing the period of contact to 30 or 45 minutes but I can see the benefit of retaining the upper limit. It is of note that the Z Home has offered and continues to offer HN the opportunity to be with FL during afternoon activities; to date HN has not availed herself of this offer.

I wholly accept a number of points that have been made by HN or should be made by me on her behalf:

The ethos of the Mental Capacity Act 2005 and the Code of Practice is collaboration in the decision making for those persons who no longer have the capacity to make the decision in question. Section 4(7) of the Act sets out the persons whose views should be obtained; those persons include:

“anyone engaged in caring for the person or interested in his welfare”

This collaborative process is successful in most cases. Disputes can and do arise and the Court of Protection is there to resolve disputes but with as little intervention as possible.

Sadly this is a case in which it is HN who frustrates the collaborative process. She will not collaborate and it is her extreme and vexatious conduct which results in this court concluding on behalf of FL that it is in FL’s best interests for very serious restrictions to be placed on HN and the contact she has with FL for otherwise:

HN past disobedience of court orders and her conduct generally persuade me that penal notices are appropriate in this case.

Any new application to the Court by HN would require the grant of permission under the Rules. I do not think it appropriate nor can I find authority to add a further permission hurdle but I can see that any application in this case ought to be made on notice to all other parties.

Therefore I have made the order which is dated the same date as this judgment. Whilst not a facsimile of the consent order, in is very similar in substance.

I express the hope that HN will conduct herself with decorum in the future and that she focuses upon spending quality time with her sister. Such a change in conduct may diminish or extinguish the need for the current strictures.