A London Borough A Foundation Trust v VT & Ors

This is the final hearing of an application dated 13th June 2008 by the London Borough and the Foundation Trust under the provisions of the Mental Capacity Act 2005 (the “Act”) for decisions to determine:

The original respondent was VT who is ST's first wife.

The case has evolved over the last 23 months since it began and the parties now are:

The primary matters on which decisions need to be made by the court are:

The positions of the parties have changed as the inquisitorial process proceeded and the evidence developed both in written and oral form before me. The final positions of the parties were as follows:

The hearing commenced on Monday 24th May 2010 and lasted three days. At the conclusion of the hearing I gave the parties my decisions but reserved judgement. My decisions are that:

To possess jurisdiction to make decisions for ST I must be satisfied that ST lacks mental capacity to make those decisions. Appropriate declarations were made by myself on 27^th May 2009 found within the order entered on 1^st June 2009. As capacity is not in issue and nothing has changed to cause the matter of capacity to be revisited by the court I do not propose to say anything further on the matter.

Once the jurisdiction of the decision maker is established, the decision maker, namely the court, must make a decision that is in ST’s best interests.

Section 4 sets out certain steps the decision maker must carry out before making a decision and I find myself drawn to the following matters in particular in this case:

“(4)

He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(6)

He must consider, so far as is reasonably ascertainable—

(a)

the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)

the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)

the other factors that he would be likely to consider if he were able to do so.

(7)

He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)

anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)

anyone engaged in caring for the person or interested in his welfare,

....

(d)

any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).”

In my judgement Re P [2009] EWHC 163 (a decision of Lewison J) and Re M [2009] EWHC 2525 (a decision of Munby J as he then was) are authority for the following propositions (which are not exhaustive):

So far as wishes and feelings are concerned in my judgement matters affecting weight to be given to them are:

A useful example of the required exercise can be found in A NHS Trust & B PCT v DU, AO, EB and AU [2009] EWHC 3504 which concerned an 86 year old Nigerian lady with serious medical needs who wished to return to Nigeria. Hedley J said within paragraph 10:

“It is an integral part of the concept of best interests when dealing with a person of this age that the court recognises the imminent possibility of death and the importance of making arrangements so as to secure that the experience of death may be in a context which is the most congenial and peaceful that can be devised. Also implicit in the concept of best interests is the importance of the country and culture of origin and the whereabouts of the family. They will often take precedence over, for example, the question of risk avoidance or the exact quality of care that may be available.”

In short, the risks posed by a care plan to P’s life expectancy may be wholly outweighed by P’s wishes and values and P’s quality of life if those wishes and values are acceded to. Quality of remaining lifetime may well be rather more important than quantity.

I had a trial bundle contained within two full lever arch files with a style of pagination which Heath Robinson might approve but I do not. Thankfully the number of documents to which witnesses needed to be referred was modest. Poor pagination is not just inconvenient; much valuable court time can be lost waiting for the right page to be turned up.

In addition to the statements, expert reports and other evidence in the trial bundle I heard oral evidence from:

Upon completion of the evidence above, especially the evidence of Dr A, it became unnecessary to further canvass the views of two other court appointed experts being Dr J, independent consultant in old age psychiatry and Mr S, independent social worker as such evidence was unlikely to amount to more than further opinion on the ultimate decision to be made

ST was born in Nigeria in 1933 and is of Nigerian race. He came to England in about 1956 and his primary place of residence to date has been in the London Borough. ST frequently visited Nigeria and would stay there at times.

18. ST married a Nigerian, VT (who is one year younger than ST) in 1957; they had two children namely W (who has died) and AT. It seems that marriage subsists to date.

19. ST married for the second time in Nigeria in about 1976 to YT and there are three children of that marriage. I am informed that YT is unwell and she has not played any part in these proceedings.

Notwithstanding the second marriage VT told me she forgave ST and they remained together until 1994 when VT moved out of ST's house and acquired a council house.

Although separated VT remained concerned for ST and would regularly visit him and cook for him.

In the meantime, over the years, ST:

ST suffered from type 2 diabetes since at least 1985.

On 22nd October 2007 ST was admitted to H Hospital with apparent collapse, hyper-osmolate, dehydration and urine retention. Poorly controlled diabetes was soon discovered and this is the first time (I think) that significant dementia is recorded by the health services.

ST was transferred to K and was assessed by Dr O on 20th December 2007 and detained until about 25th January 2008 when he was discharged home into the care of VT. This arrangement broke down and on 6th February 2008 ST was readmitted via Accident & Emergency since which time he has remained in care homes (K, L and a period at M) and has been regularly visited mainly by VT and also by AT.

On 15th June 2009 ST was moved from L to M where ST was so uncooperative in receiving insulin injections that a decision was made to return him to L.

However, ST did have a successful prostate operation in about September 2009 which has meant that his urological problems requiring the catheter ended and the device was removed thereby bringing an end to one of the significant medical concerns relevant to a change in residence to Nigeria.

ST currently resides in L which delivers a high intensity of care and monitoring. Nigerian Food is only available to ST via VT. No other care home in London is suggested for ST and VT no longer proposes to care for ST herself should he remain in London.

The fundamental question to be answered by the court is whether it is in ST's best interests to return to Nigeria to live out the rest of his days. This is not something that can be tested and the reality is that any journey made by ST to Nigeria will be one way.

Sensibly each party has reconsidered their care plan as further evidence was obtained and I am presented with 3 care plans which I summarise as follows.

VT & AT’s Care Plan

ST would remain living at L. Mr G would remain as deputy. The status quo would be preserved.

The majority of the time spent in this case has involved assessing the degree of risks of a move and balancing those risks against ST’s wish to move. I have applied the section 4 process as follows.

ST has appeared in these proceedings by the Official Solicitor as his litigation friend; having seen all the evidence and matters such as Ms Miles' attendance notes of her meetings with ST (and others) I am certain that ST has participated as much as is reasonably practicable.

ST was born in Nigeria, he is Nigerian, has maintained close links with Nigeria and developed property there. I accept that ST would expect to retire to Nigeria eventually to die in the land of his birth and that this is a value held by many Nigerians of ST's generation who would know that they could not:

I also accept (as confirmed by Dr A) it is customary for families to look after their own engaging such outside assistance as they need.

There is very cogent evidence of an expressed consistent rational intention and wish of ST to permanently return to Nigeria to end his days there. All parties agree this to be the case. I also consider there to be consistent evidence of a wish by ST to not live in places such as M or L. I note that:

Family members have corroborated evidence of ST's wishes; see

There is consistent evidence of resistive behaviour on the part of ST to acceptance of treatment and assistance whilst in care; in her statement of November 2008 the review Officer in the Mental Health Team was speaking of ST's refusal to accept help with his catheter (prior to his prostate operation) and refusal to accept medication.

40. Why the behaviour? ST does suffer from dementia. ST's environment and circumstances at L may be a contributing factor; there is evidence that:

Lastly, I am conscious of ST’s wish to be with his family. Either place of residence is likely to involve prejudice to some contact and enhancement of other contact for geographical reasons.

I find that ST's wish to return to Z state Nigeria are strongly expressed rational and consistent with the values applicable to ST. I find that acceding to those wishes gives ST a real opportunity to be happier knowing he will die in the land of his birth.

I had the benefit of written and oral evidence of Dr E, consultant in diabetes and endocrinology whose evidence may be summarised thus:

If ST remains in London all his needs will be met subject to the caveat that ST may again become unreceptive to treatment. In particular:

What of the position in Nigeria? Two people have sought to assist me. The first is VT. In her second statement she put together a Nigerian care package which appeared rather attractive. VT, in conjunction with some members of the family would assemble a care package using family members, outside paid for services such as nurses and the medical services of Dr D a consultant at X Hospital in order to meet all of ST's needs. Dr D wrote a supporting letter on X Hospital headed paper which was to be read as part of that plan.

The second person who has sought to assist me is Dr A whose evidence I find to be invaluable and essential to this case. His role can be summarised as investigation into and reporting upon VT's care plans and alternatives available in the Z region of Nigeria. Dr A is uniquely qualified to give such evidence because of his qualifications and knowledge of resources in England and Nigeria. He was able to show why VT's first care plan was unsatisfactory. His evidence has enabled revised care plans to be drawn. He has been able to give me a little assistance on the Nigerian legal system.

Unfortunately a very serious problem with VT's care plan was uncovered by Dr A. Dr A told me Dr D is not and has never been a consultant at X Hospital. Why the lie? Dr A asked him; in his report of 2^nd July 2009 Dr A tells me:

“Dr D told me that VT explained to him what the situation was and asked him if he would be willing to write a supporting letter. He said that he agreed to do so and said he would write the letter either on the letter heading of his private hospital or of his teaching hospital (not X Hospital). Dr D told me he was advised by [in oral evidence VT] that this would not be satisfactory as it was essential that the supporting letter should indicate that he was working at X Hospital and would therefore have ready access to ST. Against his better judgment he says that he agreed to write the letter of the 1^st April 2009”

In my judgment no criticism could be made of VT for setting out to Dr D what was required of him unless and until she knew or ought to have known that she was asking him to state something which was untrue. Through her counsel VT sought to cast doubt on the accuracy of the reported content of the conversation but at no time in her own evidence was VT able to explain to me or give a cogent reason why Dr D would proceed on a frolic of his own in which she had no hand. I find on the balance of probability that she was complicit in the lie.

I am satisfied that VT is committed to ST’s wishes and welfare. However, my finding above coupled and my findings with respect to her role in the events which have concern ST's estate in England cause me to conclude that VT will engage in improper steps in order to achieve what she wants and to stay in control.

The rest of Dr A's evidence, as updated, may be summarised as follows:

Dr J, Dr O and Mr G were initially against the Nigerian care plan because they saw the risks of a move to Nigeria as being too great. The available reductions in risk has resulted in Dr O moving in favour of a move to Nigeria and Mr G taking a neutral stance. In his final report Mr S is in favour of a move to Nigeria rather than leaving ST “languishing” in a care home.

There is no doubt that:

ST's current estate comprises:

To some extent in her first statement and to a greater extent in her second statement VT has sought to provide the court with assistance on the nature and extent of ST's estate. VT told me that the X property is managed by a lawyer who collects the rents; he wrote a supporting letter dated 23rd April 2009 stating he would be prepared to continue this role for a fee but he did not provide any accounts. The Y property is managed by ST's cousin who collects the rents and pays them into ST's bank account with a Nigerian bank. VT was able to provide a fair amount of financial information; see schedule 2 to her second statement. However, I was surprised by the lack of disclosure of the raw material (such as bank accounts or receipts) which enabled her to provide that information notwithstanding the deputy's requests for the same. Some documentation such as copy deeds might not be in her gift to provide but that does not explain the complete absence of supporting documentation. I am left with an overwhelming impression of a desire to retain absolute control within the family.

The story of V Road from when ST ceased living there is very peculiar. Mr G told me that:

VT and AT were asked about their involvement with these events. Their initial evidence was that they did not know of these goings on until Mr G made his discoveries (thus AT challenged (4) above). VT wanted to sell the house and she told me when she found that the house was occupied she challenged the occupiers to leave.

Initially in his evidence AT presented a picture of being closely involved with ST in respect of ST's properties and affairs and I was also given the impression that AT would manage the same when ST could not. However, it became apparent that AT last went to Nigeria in the 1980's and his evidence then appeared to be on the lines of ST keeping him informed about ST's enterprises. The COP1A completed for AT in September 2009 does not contain the detail one would expect from someone with intimate knowledge to share and is all the more surprising for there being such little information about the bank accounts (given AT told me he collected the statements).

So far as V Road is concerned AT's evidence to me was one of ignorance of what was going on until about September or so of last year. I could not begin to reconcile his evidence of having intimate knowledge of ST's property and affairs with his ignorance of the arrival of the builders and the negotiations with members of the letting agency. I am incredulous that once AT saw there were builders in the property knocking it about he felt that nothing more was to be done than inform his solicitors and make a competing deputyship application. I am also incredulous that he took the same attitude upon discovering that the builders had been replaced by persons living in the property.

59. When Mr G recovered possession of V Road it was boarded up. According to AT this resulted in post being left outside of the property; this could have been resolved by making redirection arrangements with the post office or, I suppose, the installation of an external postbox. In any event this was a matter to be sorted out in consultation with Mr G. AT sought to break into the property to, he says, restore a letterbox. I do not accept his explanation.

I find on the balance of probabilities that AT knew of and was complicit in the works and lettings that were occasioned and that the purpose of these arrangements was to make money from V Road, money which to date has not been accounted for at all by the letting agency or AT. Whilst I do not find that VT was complicit in the works and the lettings I do find she had some knowledge of what was going on and chose to turn a blind eye.

A further matter which arose during AT's evidence and after closing submissions commenced are whether he has a disclosable conviction; AT having declared that he had no such convictions in the COP4 he signed on 28th October 2009. It has been ascertained that AT has a disclosable conviction because he was sentenced to 3.5 years imprisonment.

AT contends that he is the appropriate person to be deputy and that he is capable of managing affairs both here and in Nigeria without engaging in the use of a lawyer in Nigeria; he is supported by VT. He emphasises, and I accept that ST would wish his elder son to take on the role of deputy and that ST would hold as a value the appointment of his eldest son as deputy.

The decision of who to is to be ST's deputy must be made in ST's best interests as for any other decision made for him.

If there is to be a move to Nigeria, there will be obligations on the deputy to undertake complex arrangements with a counterpart in Nigeria, the established competence of the deputy to be able to undertake complex tasks is an exceedingly important matter in the decision making process and, in my judgment, the lack of established competence on the part of AT to manage international transactions alone is such that I would not appoint him notwithstanding cultural expectations and values and the views of VT and AT.

Further, I have no doubt that AT's lack of candour and the way in which he has been involved with ST's property at V Road to date mean that his competence, integrity and reliability are very much in question and I am not satisfied that he is either able or sufficiently trustworthy to undertake the very important role of property and affairs deputy for ST.

Thus far deprivation of liberty has been authorised by orders of this court.

In paragraph 4 of his report dated 30^th December 2009 Dr O states:

“I would unambiguously state that it is my view that ST is currently settled and not showing distress. I no longer feel he is being deprived of his liberty … I believe he accepts care offered without evidencing any signs of distress …... he has repeatedly indicated he is happy with the support that he has received and he is currently not making active steps to leave our care. He has no ability to judge what would be the risks he would be exposed to were he to leave his current care arrangements.”

Given HL v UK [2004] 40 EHRR 761 and the decision of Baker J in Re E [2010] EWHC 621 and the case law referred to in that judgment it is clear Dr O is not addressing the correct criteria. ST is patently being deprived of his liberty because:

Therefore I have no doubt that ST is being deprived of his liberty.

On the matter of residence I need to decide which is in ST’s best interests:

A change in residence meets ST’s wishes and values; there are risks of a move to Nigeria but in my judgment steps can be taken to ameliorate those risks to an acceptable level. In contrast I agree with Mr S that by not changing ST’s residence I would be leaving him languishing in a care home where his liberty is being restricted.

In my judgment it is in ST’s best interests to return to Nigeria to live in his property in X provided that the additional arrangements I have identified as to care package and deputyship are also put in place.

The London Borough, in consultation with all other parties shall draft:

I direct that the further medical report and drafts are filed with the court by 4pm 18^th June 2010; in the event of any dispute I direct the parties to file brief submissions and I shall attempt to resolve any dispute without an attended hearing or give further directions.

Rules 156 to 158 apply with respect to costs.

No party other than AT seeks a costs order other than public funding assessments where appropriate.

Mr G, the deputy pursuant to the order of 27th August 2009, is not a party and is is already entitled to recover his costs from the estate of ST. For the avoidance of any doubt he remains entitled to recover any fixed or assessed costs incurred as a result of his attendance in these proceedings.

AT seeks an order for payment of his legal costs from ST's estate. This is not opposed by VT but is opposed by all other parties.

At one time AT did retain Silverman Sherliker solicitors with respect to these proceedings and I have the impression they were retained by AT to make and progress his application. They have since ceased to be AT's solicitors.

Application of Rules 156 to 158 alone would cause me to conclude that the majority of AT's costs (75%) concerned ST's property and affairs and should be paid out of ST's estate.

Further to Rule 159 I depart from the general rule because of the findings that I have made with respect to AT's actions. Given:

I make no order as to costs.

I conclude by expressing my gratitude to counsel for their assistance in this case.