London Borough of Redbridge v G & Ors

The court is concerned with applications originally made by the London Borough of Redbridge under the Inherent Jurisdiction of the High Court in respect of an elderly woman considered to be a vulnerable adult and a proposed application under the Mental Capacity Act (MCA) 2005 in respect of the same elderly woman following psychiatric evidence of lack of capacity due to mental impairment. Before the case can proceed any further a decision has to be reached as to capacity; if G lacks capacity and if she does whether it is because of mental impairment within the meaning of the MCA sections 2 and 3 or if not whether she is a vulnerable adult deprived of capacity by constraint, coercion or undue influence and so entitled to the protection of the court under its inherent jurisdiction. The local authority and the Official Solicitor (who acts as litigation friend for G) have both submitted that G lacks capacity and falls within the MCA. C (her current live-in carer) submits that she does not lack capacity under the MCA nor has she been deprived of it by duress or the influence of C and F.

In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

The elderly lady, G, with whom the court is concerned lives in her own home in London. G is 94 years old. She worked for many years in the health service and should now be enjoying the end of her retirement at home, in comfort and in peace. G has herself told me from the well of the court on more than one occasion that she is her own woman, she knows her own mind, that she and the people living with her are family and that they want to be left alone and not bothered. It is not hard to imagine that these proceedings must feel like the most unwelcome and distressing intrusion into her life. I was impressed by her dignity and determination to say what she wanted.

G is British African Caribbean; her family came from Barbados and lived in St Lucia for a time. G has never married and has no children. She has no family living in the UK; her only family appears to be her surviving sibling, a brother C, who lives in Barbados and a cousin or niece, O, who lives in the Netherlands. G lives in the house that she bought in 1983. G suffers from conditions that have limited her mobility; arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also has high blood pressure and double incontinence. G rarely leaves home now, except for hospital appointments. But she has come to court and sat in court all day for the two days of this hearing. G is clearly an intelligent and a capable woman and she has been and wants to continue to be independent.

I set out the facts as they appear on the papers before the court: G first came to the notice of the local authority when her GP contacted them following some invasive surgery in March 2011. Following this a care support package was put in place providing two calls each day to assist with care and meals. In November of the same year there was a safeguarding referral as G alleged that money had been stolen from her house; but as it was not possible to ascertain that the money had been in her home there was an inconclusive investigation. In July 2012 G again alleged money had gone missing and a 2^nd safeguarding referral was inconclusive.

In March 2013 G’s case was allocated to a social worker (Ms Murray) following a safeguarding referral made by a care co-ordinator from Carewatch. Carewatch had been providing the care support package put in place which included twice daily visits. It was reported by the daily carers that there were concerns that C (identified as G’s lodger) was possibly intimidating her; C asked to be named as G’s next of kin and refused to leave the room when they were attending to her personal care.

Initially Ms Murray visited G at home on the 6^th March 2013 and G told her that C and her husband F had moved into her home around May 2012; they had been introduced by a friend at church. G said she needed help at night so the arrangement was that C would move in to provide it and that she would live there, rent-free, in return. G said that C wanted to order her around and she could only go upstairs at 9 pm and not before and her access was blocked; that C had taken over the house and told her to stay out of the kitchen; that C ignored G’s wishes. G confirmed that C would not leave the room when the carers were attending to her and ignored requests to leave and that C was very possessive. C listened in from the other side of the door and entered the room shouting and ranting, saying she did not like the questions G was being asked. However when the social worker returned the next day G retracted the allegations saying she could not remember the visit of the day before, she did not want to be asked questions and felt she was being harassed.

There followed a safeguarding referral on the 8^th March 2013 from Age UK. This concerned the bullying behaviour of H (then recorded as G’s next of kin). There were complaints regarding the behaviour of the carers; that they were inattentive, ate food from the fridge and arrived at different times. This complaint originated from A (a church elder), and by the time it was received H was no longer visiting G.

On the of 18^th March 2013 there was a request from G to cancel her care support package. This was communicated by A, who did not give a reason for the request. On the same day one of the care workers reported that G had told her the request came from C. G told the care worker that she was no longer free in her house or safe any more. There followed another visit by the social worker accompanied by a senior practitioner. They were unable to speak to G on her own – F stayed in the room. She said that the care package was cancelled as C was doing everything for her.

During March 2013 when on a house call G’s GP was unable to see G on her own; despite asking for privacy C stayed in the room. A, a church elder visiting G, reported that he was unable to speak to G on her own. The local authority became concerned that G would often change her mind about what she had said, not only withdrawing complaints about C but also changing her mind when she spoke positively of someone, such as her erstwhile care worker. There were concerns that this was as a result of manipulation by C. The change of view invariably occurred when C was in the room. The local authority became concerned about the management of G’s financial affairs and that this may be happening because she was increasingly isolated.

On the 27^th March 2013 the social worker visited to complete a safeguarding risk assessment. C was present as was A. G said that she was not at risk and that she was satisfied with the support provided by C. The support provide by Age UK was also cancelled in April 2013. G refused the offer of daily monitoring calls and declined support to apply for attendance allowance.

At the time of the first visit by the social worker G was being regularly visited by members of the church and supported by them. However their visits have been discouraged to the extent that G, at the time of this hearing now has little or nothing to do with them. G had been a member of her local Seventh - Day Adventist church for over 10 years. When her health deteriorated in 2011 and she was no longer able to attend church, there was a rota arranged to visit her at home. Two members of the church were named as executors in her will. Someone from the church (A) was helping with her financial affairs. It was through A that G came to the attention of the local authority again in May of 2013; he alleged financial abuse and said the C was attempting to take over the affairs of G. Again the investigation into the allegation was considered inconclusive.

Members of the congregation had become concerned that G had fallen under the influence of C and in June 2013 further concerns were raised regarding intimidation by C of G and the management of G’s finances. 3 church members had visited G on the 2^nd June 2013, the Pastor of the church and two church elders. Each wrote down a description of their visit and they reported their concerns to social services asking them to investigate. The Pastor reported that he had visited following a phone call from G who was complaining that she was having serious problems with the people who were in her house; C interrupted the call, taking it over saying that neither she nor G wanted A to deal with the finances. According to the pastor A had done this for some time with the agreement of O (G’s niece).

All three described a meeting after which they concluded that G was being controlled by C who initially refused to leave the room and allow them to speak to G alone. They described G as looking fearful while C was in the room and visibly relaxing when she left. G complained that she was not allowed to speak privately on the phone, that her money was being spent on high phone bills; she expressed a fear that she would end up losing her house. She said that she was in a corner in her own house. She complained that A (the church elder) had withdrawn cash and not given it to her. G complained that she was not allowed access to her mail. She was described as no longer appearing to be as she had in the past, an independent person, and as being more physically frail than she had been previously. She was described as being dependant on her lodgers and having to placate them. G said she was in a mess and asked for some government authority to intervene on her behalf.

After this meeting she called the pastor who called her back. He reported that he could hear C in the background directing the conversation. She said she was confused and under stress and asked for C to be responsible for her. C then took the phone and started shouting saying she was now in charge of G’s affairs from the government’s point of view. The pastor called O who said she and G’s brother were extremely unhappy about C’s influence over G. The pastor said that as much as it appears G is in control, she had lost control and has to be rescued from C.

On the 24^th May 2013 there was a safeguarding referral from A who had concerns about G’s financial affairs; she had contacted him asking that he return bank cards, PIN numbers and passport in order that G take them over. A alleged that G was being influenced by C. He said that his contact with her has been substantially reduced.

On the 28^th May 2013 the social worker called G to advise her of the referral and the need for the social worker to visit, to which she agreed. C could be heard shouting in the background and later called to say that G did not want a visit. C handed the phone to G who repeated this and said she would not allow the social worker access. When told that the social worker would then have to bring the police G changed her mind. This was followed on the 31^st of May by a phone call from G who handed the phone to C who told the social worker she had sought legal advice and felt she was being harassed by social services.

On the 7^th June 2013 further information was received from the pastor who reported that another church elder S and his wife had visited G and heard a lot of shouting and screaming. C was observed to be shouting at G. A neighbour was in the house trying to calm the situation. Both S and the neighbour were reported to be very concerned as to G’s safety. The police were alerted by the social worker and they completed a welfare check.

There was a safeguarding conference on that day, which the police also attended, C was shouting at G and as a result C was escorted from the house. G then appeared to speak freely saying she was not in control of her own affairs, C did not allow her to answer the phone or open the door and followed her around. She confirmed that a letter of complaint about the social worker had been dictated by C. The conclusion of the meeting (which was minuted) was that the allegations of intimidation were substantiated. Various steps were to be undertaken including regular monitoring by the social services in the form of announced and unannounced visits.

Following the meeting a neighbour, P, spoke to the social worker and voiced his concerns about G’s treatment by C, who he described as loud and domineering, speaking to G as if she were a child. He said another neighbour had been prevented from visiting G by C.

On the 12^th June 2013 there was a further visit by the social worker, with the pastor and A present. C was asked to leave the room. G appeared to relax and told them that she had not seen any of her bank statements or post as C opened it all. She was unaware of the amount of money C withdrew from her account. G spoke of a letter that said her house had been transferred to A. A telephone call to the Land Registry confirmed that the house was still in G’s name. If such a letter had been shown to her it must have been false and calculated to create distrust of A in G.

On the 24^th June, there was a further visit by the social worker, this time accompanied by a review officer. G was seen without C present in the room, however she remained just outside and could be heard shouting. G said C was doing her best and shouted at her because she cared; she wanted C to care for her and said that C was her niece. When asked if she had now seen any bank statements G replied that she had not and when the social worker suggested contacting the bank for a balance request C then entered the room and told G that social services were trying to get her to sign over control of her finances to them. G asked them to leave.

The Police Vulnerable Adults team did not consider that there was sufficient evidence to bring C in for questioning, as there had been no complaint of criminal behaviour by G. The police community support officers maintained their weekly monitoring visits.

In August 2013 L of LW&T told the social worker that he had visited G on the 28^th July at home at the request of C to change the contents of her will. It is believed that she had left the bulk of her estate to the church. He became concerned about what he witnessed during his visit. He was told that G had been ostracised by the church. He was able to see G on her own but was presented with a piece of paper on which was written in C’s writing “I wish to leave my house my money to A and F” signed by G. G said to L that she had been told by C and her husband to leave everything to them. G said she wanted her brother CG and his family to be beneficiaries. L was able to assess the size of her estate which appeared to be in excess of £300,000. In her note book he observed that G had written the words “threatening behaviour” under the names of C and F. G told him they were being very bad to her. She later said that C had told her that if she made alternative care arrangements C would tell everyone that G had Alzheimer’s so that she would placed in residential care. This is something that G greatly fears. L thought G appeared resigned to her predicament. When leaving he said he would be contacting G’s brother to act as Attorney.

The next day L received 24 calls from G’s phone number. Two messages were left on voice-mail, one with C shouting in the background. In the second message C said G needed to speak to him as soon as possible. On returning the call G appeared to be reading from a script and said she no longer wished to change her will but would not engage in any further conversation. Later he received written confirmation. L sent a report to the local authority. He outlined his concerns and view that G was being manipulated by her current carers and that if she were released from their sphere of influence she may regain her confidence and improve her mental abilities.

As a result of the information received from L the local authority undertook a further safeguarding visit accompanied by the police. On arrival C refused to allow the social worker in the house and had to be calmed by the police officer in order to gain entry. G initially said C should stay in the room; but C was accompanied upstairs by the police officer. C told the social worker that she felt obliged to change her will in exchange for the support she provided; she confirmed that neither C nor F contribute to the household expenses and that C bosses her around and shouts at her; although she was good to her now. She again said that she did not see her bank statements and did not know how much she had in the bank but that she wanted a quiet home. G revealed that she had signed papers for some man that day that she could not identify. G said the visit would result in her being shouted at but that she would not be physically harmed. On departure C began shouting at the social worker saying that she hated her; once outside C could be heard shouting and slamming doors. G’s comments seem to indicate that she is accepting of apparently abusive behaviour.

There was a strategy meeting on the 3^rd September 2013; the police officer who attended was concerned for G’s welfare. The police said they were restricted in any action they could take in the absence of a complaint by G. The same day an old friend of G’s, N, contacted social services and told the social worker that G had changed in her attitude towards her saying that people wanted to take her house from her and someone had called social services and said she had Alzheimer’s, to take possession of her home and put her in residential care. C called the friend the next day and said that she did not want her to visit. N said that she no longer visited and that one by one the visitors from the church had ceased to visit. N went on to say that G had changed and her mental ability seems to have been affected, C always stayed in the room and never left G alone with her. N said that O (the cousin or niece) had been banned from visiting and her brother had been told that G considers C is her family. She had seen C shouting and screaming at G.

In September 2013 a letter of complaint, apparently from G, was sent to the local MP and G said she wanted an advocate. She was assigned one from Voiceability. The banks where G held accounts were alerted to the risk of possible financial abuse.

On the 4^th October 2013 the Office of the Public Guardian confirmed that an application was in progress for a Lasting Power of Attorney both in respect of Health and Welfare and Property and Financial affairs to grant the power of attorney to C. I shall return to this later in my judgment. The safeguarding team were advised of the concerns regarding possible abuse by C.

Outwardly G seems to be well cared for, her home is clean and tidy and she herself shows no physical outward signs of neglect or maltreatment. G is able to express herself and to communicate with people who visit and has been vocal in her appreciation of the care she has received. But she has been reported as complaining about C’s care, of saying that she is restricted in what she is allowed to do in her own home, about what and when she is allowed to eat and drink and where and when she should sleep. G has expressed a very understandable fear of being placed in a care facility away from her home or being left in the care of F which she would find acutely embarrassing and unacceptable as she would not want her intimate needs met by a man. G is reported as saying that she has been threatened with both scenarios by C. G has described herself to Dr Barker and Mr Gillman-Smith, the two experts appointed by the court, as being trapped and, to the latter, as being caught in a spider’s web with C as the spider.

It should be noted that G has complained about the behaviour of others; including members of the church from which she is now estranged. There is no evidence to support those complaints. The court has not heard from any witnesses other than the experts in respect of capacity and is not in a position to make findings on the facts of this case which are likely to be the subject of dispute. C in particular complains about the descriptions of her behaviour and denies any intention to control G, her property or her finances. F is unrepresented and has difficulty in understanding English; although there is little evidence against in respect of his behaviour towards G other than living in her house without making any contribution to costs or up-keep; his passive acceptance, if that is what it is, of his wife’s behaviour if the concerns reported have substance it raises questions as to his culpability.

Little is known about the background of C and F. In her unsigned statement C says she is from St Lucia and came to the UK around 2003 on a visitor’s visa. She says she had recently married F. The court is not aware of her current immigration status and has no information about F at all. C seems to have become acquainted with G at some time during the spring of 2012 through a friend H who carried out some tasks to help G. G has known C for about 20 or so months and F for less than that. Fairly swiftly after meeting G, C and F moved into her house where they have lived rent free since. They do not appear to contribute anything to any household expenses. It is not known what their circumstances were before they moved in, or where they had been living. Prior to the meeting and shortly before they moved in they were total strangers to G; and their motivation and personal histories remain an enigma.

C sets out in her statement her regimen for caring for G. It is clear that C undertakes a great deal of G’s care and as I have said there is no outward sign of physical neglect and her house appears well tended and looked after. C does not describe any visitors to the home and it would seem to be a very isolated existence. C describes G as forgetful and needing to be kept an eye on as she does things like leaving gas on in the kitchen which would seem to be an example of short-term memory loss. She says she takes G to Jehovah’s Witness meetings on Tuesdays and Sundays, although that is not the religion G had practised before.

C says that G would benefit from an advocate, and suggested L to oversee G’s affairs. She says she does not object to some independent person being appointed to manage G’s affairs should it be decided that G’s unable to make her own decisions and says it would be of benefit for her and F have everything open and independently monitored.

Even less is known about F. He has not been represented and, I am told, does not speak or understand English well. He will require the assistance of an interpreter should the case continue. He has not filed any evidence.

The proceedings were originally brought under the inherent jurisdiction as the local authority took the view that G was a vulnerable adult who did not lack capacity as a result of the impairment of, or disturbance in the functioning of, the mind or brain. The local authority had received reports from numerous sources including personal and professional contacts, from agencies providing care support and from a solicitor asked by C to act on G’s behalf. The case came before His Honour Judge Clifford Bellamy (sitting as a Deputy High Court Judge) on the 14^th November 2013. None of the Respondents, G, C or F were represented. The solicitors who had seen G expressed concerns about her capacity to litigate. The Official Solicitor informed the court that he would be prepared to act if the court made a Harbin Masterson order.

The court was satisfied that G was a vulnerable adult and injunction orders were made in respect of C and F forbidding them from harassing or intimidating G or damaging or disposing of her possessions. The Court also made orders for the Applicants to arrange and file an assessment of G’s litigation capacity and capacity to manage her property and affairs by the 29^th November. Orders were made that C and F had to allow full access to G for the assessment to be carried out. In the event that G was found to lack litigation capacity the Official Solicitor (OS) was invited to act as litigation friend. The investigations to be carried out to ascertain G’s true wishes and feelings were set out in the order and directions were made for evidence to be filed. The case was listed for one and a half days on the 17^th and 18^th of February 2014. It came before me.

It emerged that in addition to the two expert reports that had been prepared a Dr Lowenstein (an educational and clinical Psychologist) had been instructed by C with the assistance of a third party. Dr Lowenstein’s report was not approved by the court nor was the disclosure to him of documents produced and filed within the proceedings. He had not received any formal instructions. Counsel for C, Ms Hewson, submitted that his evidence should be taken into account by the court. Despite the failure to comply with any of the procedural rules pertaining to the preparation and production of expert evidence and provided Dr Lowenstein’s evidence could be challenged by cross-examination, I allowed it in as G was aware of it, having been taken to see Dr Lowenstein. It is important for her to be aware that the court had heard all the available evidence about her capacity. There can be little doubt that had the local authority sought to adduce evidence in this way Ms Hewson would have been vociferous in her condemnation of such an attempt.

The local authority have withdrawn their application to have C and F excluded from G’s house at this stage not least as there has been no alternative care plan prepared. The local authority submits that G lacks capacity under the MCA 2005 and relies on the evidence of Dr Barker. The case would then proceed in the Court of Protection and any orders that are made as to G’s situation would be made under the provisions of that legislation and in keeping with her best interests. They do not seek have her moved from her home but to provide a care support package that ensures she remains there in safety. They seek the court’s guidance as to the Health and Welfare Lasting Power of Attorney in favour of C which has been registered with the Office of the Public Guardian.

G is represented by leading counsel instructed by the Official Solicitor. Ms Richards QC has been punctilious in ensuring that G’s views are not only put before the court but that any argument in support of those views has been articulated. The Official Solicitor also submits that G lacks capacity under the MCA in one or more relevant respects i) as to who should live with her; ii) as to contact with other people; iii) as to managing her own financial affairs and vi) as to litigation. It was submitted that Dr Barker was correct in his view that she lacked capacity in all four areas under the provisions of ss2 and 3 of the MCA 2005. Both the OS and the local authority submitted that the evidence of Dr Lowenstein could be disregarded as he lacked the relevant expertise and lacked experience and training in undertaking an assessment under the MCA.

On behalf of G it was submitted that the court must consider the contrary points; i) the presumption under s 1 that the subject of proceedings has capacity; ii) that G is intelligent; iii) that G is a capable person; iv) that she is fiercely independent; v) that she has a good long term memory; vi) that she has a good understanding of many of the issues before the court; vii) that the court should prefer the evidence of Dr Lowenstein against that of Dr Barker in the dispute over short term memory loss and viii) that she has clearly expressed her views about the first two in the list of relevant areas of decision making (who she lives with and contact with others). That she would say she can make her own decisions without assistance and that she wants no outside interference from the local authority or from any other source. She does not want anyone sticking their nose into her life. I have kept these points in mind.

The OS did not submit that the case should proceed under the inherent jurisdiction but if the court found that G was a vulnerable adult adversely affected by the influence of others reminded the court it was bound by the decision of the Court of Appeal in Re L. The further measures that were needed were an up-to-date care assessment and care plan, following receipt of which there should be an assessment of G’s best interests. It was suggested there should be a round table meeting to try to resolve the case without the need for further litigation. The court was asked to appoint a panel deputy on an interim basis to administer G’s property.

On behalf of C it was submitted that G does not lack capacity; but if she does her capacity had been adversely affected by the proceedings brought by the local authority and the many visits including those involving the police. It was submitted that there had been a lack of communication, particularly by letter, to G and that as a result she did not understand what the case was about. I note that G has complained that her mail is kept from her by C. Counsel submitted that this was a complicated area of law which was “over-lawyered” and would be difficult for anyone to understand. Paradoxically counsel then submitted that should the court decide that G did not lack capacity under the provisions of the MCA then the court should, for complex legal reasons, reject the decision of the Court of Appeal in Re L and give permission to appeal to the Supreme Court “leap – frogging” the Court of Appeal.

From the history of the case set out above and the repeated complaints made to the local authority and from various sources concerned about G and, and I emphasise this, by G herself; the local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they heard many reports about possible financial predation. The obstruction of C and by F led to the intervention of the police more than once. Local authority staff should be permitted to carry out their duties unhindered.

It was submitted by C that C had lived with G for a “significant period of time” of 18 or so months; and that the evidence of Dr Lowenstein should be preferred to that of Dr Barker because he had spent 3 times as long with G. It was said on behalf of C that there were no decisions to be made other than day to day decisions about her care and therefore the court need not intervene as there were “no major decisions on the cards”. While that may be true as of the end of this hearing, there being no alternative care plan in place, it is, at the very least disingenuous, as the decisions about who is to live with G and how her care and financial affairs are to be managed are what is at issue and are complex and difficult matters about which G has to be able to decide. It is not a “moot decision” that the court is being asked to make but one that is entirely pertinent to G’s welfare and longer-term future care. Similarly it was put that there was no need to appoint a financial deputy or to have a public health and welfare deputy appointed in place of C as C was able to continue to deal with day to day financial matters and, in the case of the latter there were no major health or welfare issues.

Whatever else may be said I accept that for G she must feel that there is some reassurance, familiarity and certainty in C remaining in her house: and she is worried that she will lose her home and be moved to a care home. From what she has said to others G knows that she needs help with her personal care and that C provides that. G is an old lady and she has sat in court displaying dignity and determination to get her views across. It is the duty of this court to listen to what she says and to keep it in mind when considering the evidence about her, about her capacity and when reaching a conclusion about her ability to make her own decisions. As I shall first consider whether G lacks capacity under the MCA I keep in mind the principle that it is assumed she has capacity unless it is established, on the balance of probabilities that she does not.

At the outset of the hearing it was drawn to my attention that there had been a very short article on Sunday in the press which, thankfully, did not name G. I have held these proceedings in open court but have restricted the publication of the names of the parties, and at this stage, of the local authority and the expert witnesses. This will be subject to review. I have done so to protect the privacy of G who is old, frail and vulnerable. She has repeatedly told me she wants no further intrusion in her life. The purpose of this order is to protect her privacy and to protect her from intrusion. As the case was heard in open court I have to make an order restricting publication of identification of G and the other parties to put that protection in place. Members of the public and the media were present in court through out the hearing.

The two expert reports ordered by the court were a psychiatric report from Dr Barker, a consultant in old age psychiatry and Mr Gillman-Smith an independent social work expert. Dr Barker was asked to report on G’s capacity to make decisions in the following areas 1) the people who live with her; 2) contact with others; 3) financial matters; and 4) litigation capacity in respect of those three areas. He was also asked to assess whether G will gain capacity to make decisions and the time period for that, any practical support to assist and any further assessment which he recommended.

Dr Barker prepared a thorough and careful report. He has considerable experience and specialist knowledge of the field of Old Age Psychiatry, being a consultant since 1997. He scrupulously applied the tests under the MCA ss 2 &3 and sets out his opinion.

On the first occasion he went to interview G on 12^th February 2014 he was told by F that G wanted an advocate present, G then repeated this when F was present in the room. He returned for a 2^nd interview on the 19^th February 2014. There was an advocate present, L, who said that he had been employed by C and was to report back to her. G seemed to be unaware of who he was or the reason for his presence. She complained about H and her husband and said the proceedings in the High Court were initiated by them. She described being shouted at by C and F; that they had her bank card and PIN and that she did not know how much money they took out. She explained that she needed help because of her poor health. She appeared to be in ignorance of and confused about her financial situation. She thought social services were after her money. On applying the Montreal Cognitive assessment Dr Barker concluded that G could not maintain attention and concentration, and had a low score on delayed recall of 5 words. G was unable to retain information, a necessary part of the function of decision-making. In addition G was worried about being taken out of her own house and put in the “mad house”. She wanted to live in her own house and for the court to leave her alone.

Dr Barker was of the opinion that her score was in keeping with moderate severity dementia (although he modified that view in oral evidence somewhat he remained of the opinion that there was dementia) failing on a short memory task and on executive functioning tasks both of which are involved in weighing information to come to valid decisions. In his oral evidence he explained how the thought process in decision making is affected by short-term memory loss. While past memories may be clear to make decisions one has to bring past memories and experience forward and apply them to the present and the future. G’s loss of short term memory seriously compromised her ability to do this and to make decisions. More complex decisions such as who lives with one require abstract thought weighing relevant information and experience in the present and G’s ability to do this was impaired.

That G is vulnerable is not in dispute; Dr Barker, Dr Lowenstein and Mr Gillman-Smith all agreed that she is vulnerable. Dr Barker said that she was vulnerable to influence and dependent on the live-in “carers”. That latter is certainly true and, again, is not a matter of dispute between any of these witnesses. Dr Barker said that G did not have the capacity to make decisions regarding having contact with others for the same reasons as she could not decide about who she lived with and that this was harder for her because of the influence of C and F. He had found that G was unaware of her financial situation, income or expenditure and that her finances were controlled by C and F without her involvement; but that even if she were supported she could not do so because of impaired retention and an inability to weigh information due to mental disorder.

He further concluded that she did not have litigation capacity, observing that it would be highly unusual for someone to have litigation capacity without the capacity for the subject matter of the litigation, echoing the words of Munby J (as he then was) in Sheffield CC v E & S [2005] FAM 236 at [34]. Whilst it is not impossible that a person could retain litigation capacity it is not the case here as the decisions which G would have to make are complex. Dr Barker was of the opinion that G was unlikely to regain the capacity to make these decisions and that he thought it most likely she was suffering from dementia which is irreversible and progressive.

Mr Gillman-Smith, the independent social worker (ISW) was instructed to carry out an assessment of capacity and the nature of any lack of capacity such as by undue influence. Mr Gillman-Smith was asked to prepare a report in which he was to ascertain the true wishes and feelings of G in respect of her care arrangements; her living arrangements and her property and affairs. He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA or because of undue influence. Orders had been made prior to his instruction that C and AF leave the property and allow the assessments to be carried out.

On this occasion G had an advocate present in the person of D (D attended these proceedings and sat in court) who left and allowed Mr Gillman-Smith to interview G alone. G had difficulties in remembering her relatives; she could not remember the name or her relationship to her relative in the Netherlands. She was quite forthcoming about C and F describing C as bossy and herself as like the fly in the spider’s web, “and the spider eats you up.” C she indicated to be the spider.

G was at best ambivalent about C; as she said “she works well” but that she threatened to walk out and then F would look after her if G did not do what C was asking; she does house work “but what is in her mind?” G described her as a wolf in sheep’s clothing. She also said this of church members. C would not let her sleep during the day; she said C physically shakes her sometimes; dresses her and then undresses her replacing her clothes with the same ones. She said she was rough with her; She repeated that she was shaken and like the fly in the spider’s web. She repeated the belief that the court proceedings had been brought by H.

Mr Gillman-Smith said that G was not “content” with C caring for her rather he saw G as passively accepting the current arrangements and feeling dependent on C. G is fearful that should it cease either F would undertake personal tasks which she does not want, or she would be made to leave her home. Mr Gillman-Smith was of the view that G was unduly influenced by C and had developed a dependency on her. Whilst I accept his evidence about that I do not share his view that G lacks capacity solely due to being unduly influenced by C. Although I am certain that the dependency and the influence inhibit G’s ability to reach decisions and undermines her capacity to do so I prefer evidence of Dr Barker as to capacity. There is evidence from various sources of confusion and short term memory loss, not least from Mr Gillman- Smith but also from C herself and from the social worker.

Mr Gillman-Smith is not qualified, as Dr Barker is, to reach decisions as to mental impairment or disturbance. As a social worker, albeit a highly experienced and well qualified one, he does not have the knowledge and training that a psychiatrist possesses in that respect. Rather his field is in welfare and as such he is well placed to give an opinion on the relationships and inter-personal functioning within G’s household; he is well qualified to advise on what steps could be or should be taken to assist G to regain capacity and what should be put in place to reduce her dependency on C. He did not apply the tests in ss 2 and 3 of the MCA in his report nor was he asked to do so in the letter of instruction which directed him instead to s4.

There is no criticism of Mr Gillman-Smith; he did what he was asked to do in the letter of instruction. Both he and Dr Barker, however, share the view that G’s capacity to reach decisions is undermined by the influence and presence of C and F. It is about the extent of the effect of that influence that they differ as Mr Gillman-Smith is of the opinion that the lack of capacity is as a result of the undue influence whereas Dr Barker finds that there is evidence that G is suffering from an impairment or disturbance in the functioning of her mind or brain. When it comes to that part of the assessment I prefer the evidence of Dr Barker given his speciality, expertise and knowledge of the functioning of the mind and brain. The differences in their views reflect the difference in their disciplines and field of expertise.

The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94”; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

Dr Lowenstein clearly had considerable concerns about G’s ability to manage her own affairs and recommended that she should be represented by the OS, as it was his opinion “on the balance of probabilities that G would have some difficulty in litigation matters.” He also recommended that her property and financial affairs should be managed by an independent authority “such as the Court via an Official Solicitor [sic] or someone else working with the court.” This was set out in page 17 of his report. This directly implies that Dr Lowenstein was of the opinion that G lacked the capacity to take decisions related to litigation or connected with her property and financial affairs. When asked about this in cross-examination Dr Lowenstein reiterated these recommendations and felt it all the more necessary in light of the misleading picture he had been given of the relationship between G and C.

Thus the evidence of all three experts who gave evidence whatever their area of expertise, qualifications or origin of their instructions was that G lacked litigation capacity and the capacity to take decisions as to her property and finances. G, as I have heard, is more than able to express herself and her wishes must be taken into account, whatever the decision is in respect of her capacity.

The court cannot and will not interfere in the lives of those who are able to make their own decisions, however unwise or foolish those decisions may appear to be; this is provided for in s1(3) of the MCA. People are entitled to mess up their own lives regardless of the opinions of others. The law provides for the protection of those who lack capacity and those who are vulnerable but I must guard against any sympathetic imperative to exercise that protective jurisdiction unless it is soundly based in law. I reiterate that I keep in mind G staying in court and addressing me directly on several occasions to emphasise her wish to make her own decisions.

I take as my starting point the principle set out in s 1 (2) of the MCA 2005; a person must be assumed to have capacity unless it is established that [s]he lacks capacity. G should not be treated as if she lacks capacity unless all practicable steps have been taken to help her without success. If I do decide that she lacks capacity any course undertaken or decision made on her behalf must be in her best interests and achieved with the least restriction.

To decide whether G lacks capacity under the MCA 2005 she must meet the provisions of sections 2 and 3 of the Act. Section 2 (1) sets out the definition of a person who lacks capacity:

“(1)

...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.”

I keep in mind that lack of capacity cannot be established merely by reference to a person’s age or appearance.

This is a two-stage test; the first consideration being whether it is established that there is an impairment of, or disturbance in the functioning of the mind or brain; the second being whether that impairment or disturbance in functioning is sufficient to render the person (G) incapable of making that particular decision. Capacity is decision specific; the decisions which are particular to G were set out in the letter of instruction to Dr Barker, namely: decisions in respect of 1) the people who live with her; 2) contact with others; 3) financial matters; and 4) litigation capacity in respect of those three areas. It does not matter, for statutory purposes, whether the impairment or disturbance is permanent or temporary.

Section 3 sets out in what circumstances a person can be considered to be unable to make a decision for him or herself. Under s 3 (1) G would be considered to be unable to make the decisions set out above if she was found to be unable a) to understand the information relevant to the decision; to be unable b) to retain that information; to be unable c) to use or use or weigh that information as part of the decision making process or (d) to communicate the decision (whether by talking, using sign language or any other means). Section 3 (3) specifically provides that the fact a person is able to retain the information relevant to a decision for a short period only does not prevent her from being regarded as being able to make the decision. Thus short term memory loss alone would not be sufficient to find that G was unable to make the decisions. Sub-section 4 provides that 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.

I have to decide applying the provisions of MCA whether G lacks capacity. If I find that she does not I will then consider whether she is a vulnerable person who lacks capacity because she was, or could reasonably believed to be (i) under constraint, or (ii) subject to coercion or undue influence, or (iii) for some other reason deprived of the capacity to make a relevant decision, or disabled from making a free choice; and as such outside the provisions of the Act but entitled to protection, if necessary, under the inherent jurisdiction of the High Court following the decision of Re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No 2) [2012] EWCA Civ 253. Any decision I make will be made on the civil standard of proof – the balance of probabilities.

Taking as my starting point the assumption that G has capacity I ignore the wisdom or otherwise of allowing strangers to live in her house and control her finances. I turn to the evidence regarding G’s capacity or lack of it; Dr Barker and Mr Gillman-Smith both found evidence that G lacked capacity (as did Dr Lowenstein to an extent) but differed in their reasoning; their evidence is set out above [50] – [61] and I do not repeat it here. The requirement of s1 (3) that G is not to be treated as unable to make a decision unless all practicable steps have been taken without success is, in this case, more difficult to assess as any steps taken by the local authority or others have been hampered by the actions of C and, to a lesser extent, F. However the local authority has, on many occasions, attempted to intervene on G’s behalf and tried to assist her without any success.

For the purposes of s 2 I must decide whether it is more likely than not that there is an impairment of, or a disturbance in the functioning of, the mind or brain of G. When it comes to this question I prefer the evidence of Dr Barker, for reasons I have alluded to previously. He is an expert in Old Age Psychiatry and eminently qualified to reach the conclusion that he did; finding evidence of significant cognitive impairment on the basis of his examination of G which included carrying out tests recognised and approved by the National Institute for Health and Care Excellence (NICE). There is no evidence from an equally well qualified expert to gainsay his evidence and on the balance of probabilities I find that G has an impairment of her mind or brain.

The second stage, under the provisions of s 3, is to consider whether this impairment of her mind or brain has rendered G incapable of making decisions in relation to 1) the people who live with her; 2) contact with others; 3) financial matters; and 4) litigation capacity in respect of those three areas. The evidence before the court in respect of G’s litigation capacity has not been challenged and therefore in the absence of any evidence to the contrary I find that G is not able to reach decisions as to this litigation because of impairment of her mind or brain as diagnosed by Dr Barker.

In respect of financial matters there is evidence that G is unaware of her financial situation, of her income and expenditure. While there is good reason to believe from what she herself has told others, that this information is being kept from her and that she is fearful of C should she try to regain control, there is also evidence that she has difficulties in retaining information and formulating decisions as described by Dr Barker [46]. Both he and Mr Gillman-Smith considered the influence and controlling behaviour of C and F to make decision making even more difficult for G; it is obvious to this court from what she has said that she is at times almost paralysed by the threats regarding her removal to a care-home or to have F take over her personal and intimate care.

The impairment of G’s brain has affected her ability to retain information relevant to the decisions she has to make, as described by Dr Barker. She has difficulty in understanding the necessary information and to use and weigh the information. G could not remember the details of her will, and did not know the name of the advocate present when she saw Dr Barker or why he was there, despite having told Dr Barker his name the previous week. G referred to C and F as H and R (the previous carers) and expressed paranoid ideas about social services and previous friends from the church saying they were after what they could get from her.

There is evidence that G understands some of the information relevant to decision making, for example she well understands that she is frail and needs assistance with her personal care and house-work to be able to remain in her home and that C provides that care. At the same time G is either unaware of or unable to remember details of C’s and F’s backgrounds; she could not, for example, say how old they were. She also understands that C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her.

I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction.

The local authority have prepared an application under the MCA 2005 which will now be issued. The case will progress to determine what is in G’s best interests (pursuant to s4 of the MCA) which will specifically include G’s past and present wishes and feelings (s4(6)) and what steps should be taken to safeguard G’s welfare and enable her to remain in her home.

On the 13^th August 2013, G executed to Lasting Powers of Attorney (LPA), appointing C to be her sole attorney for property and financial affairs, and for health and welfare. Applications to register the LPAs were received by the Office of the Public Guardian on the 4^th September. On the 15^th November 2013, His Honour Judge Clifford Bellamy (sitting as a High Court Judge) made an order paragraph 17 of which requested that the Office of the Public Guardian did not register the LPAs. The Office sent this court a helpful position statement in respect of the LPAs and their position in respect of the order.

There was a defect on the instrument for the property and affairs LPA which meant that the Office could not register it as provided for in paragraph 5 Schedule 1 of the MCA 2005. On the 13^th November 2013 C was informed of the defect but has not submitted the necessary documentation so that the LPA remains unregistered. The court will appoint an independent deputy from the panel to administer G’s property and affairs.

The health and welfare LPA was registered in compliance with the provisions of schedule 1, paragraphs 11 to 14 of which set out the only exceptions to the obligation to register within the time period prescribed by Regulation 12 of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007, which is 4 weeks from the date that the Public Guardian notified the donor or attorney. In the this case the date for registration was 8^th November 2013. The Public Guardian submitted that the objectives of the court could be achieved by directing the attorney not to exercise any powers under the LPA pending determination of the applications before the court. The Public Guardian asked that the court vary the order of the 15^th November 2013 directing C not to exercise any of the powers conferred on her under the LPA in respect of G in relation to her health and welfare.

It is my intention to so direct.

When Mr Gillman-Smith attended to interview and assess G on 3^rd of January 2014, a gentleman, D was present. He said he was an advocate for G and he helped to facilitate the interview with G, leaving the house so she might be seen on her own. He has accompanied her to court and has offered along with two others to assume responsibility and oversight of her Estate and Financial Affairs and Health and Welfare interests. I thank D for his help and interest in G’s welfare but there is a statutory framework for the affairs of persons who lack capacity which the court must put in place.

Rule 90 of CPR 2012 states that the general rule is that hearings in the Court of Protection will be in private. The court can authorise publication and order that hearings will be in public (rules 91 and 92).

G is a person who lacks capacity and is subjected to pressure from C and F. She has consistently complained of intrusion and that, along with the fact that this next stage of the proceedings will involve consideration of some of the most intimate aspects of her life, leads me to decide that the hearings will now be in private.

Rule 90 (3) allows me to authorise any person or class of persons to attend the hearing and, given the interest of the Press, I will allow accredited members of the media to attend. However there will be an order, as before, prohibiting the publication of anything that will lead to the identification of G, C and F and any other private individual concerned with the proceedings. I consider that this to be necessary and a proportionate to the need to balance the right to freedom of expression with the need to protect the privacy of G and those who are closely associated with her. The aim is to protect the incapacitated adult from intrusion.

Notwithstanding the presumption in the CPR 2012 I have also in mind the case of Re S(A Child)(Identification: Restriction of Publication) [2004] UKHL 47 and the competing rights which must be balanced since the Human Rights Act 1998 came into force. I consider that the media is well able to report this case and express opinions on it but that it is necessary and proportionate to protect G from intrusion and from possible manipulation by those who are in close contact with her into exposure of her private affairs.