The Public Guardian v CT & Anor

This is the first occasion on which a respondent has sought an order for costs against the Public Guardian in respect of a safeguarding application regarding the respondent’s conduct as the donee of a Lasting Power of Attorney.

CT was born in 1929 and formerly worked for Ford Motors at Dagenham.

He used to live in Hornchurch, Essex. His wife still does.

He has two children:

On 19 May 2013 he suffered a right hemisphere stroke, as a result of which he has left hemiplegia and impaired vision in the left visual field. He was admitted to Queen’s Hospital, Romford, where he was diagnosed as having vascular dementia.

His stroke seems to have precipitated a deep rift within the family, with CT and his daughter aligned on one side, and his wife and son on the other.

On 18 June 2013 CT executed an LPA for property and financial affairs, in which he:

Gerald Barrington of Moss & Coleman Solicitors was one of the two certificate providers who assessed CT’s capacity to create the LPA. The other certificate provider was a fellow freemason who had known CT for over 40 years.

On the same day, 18 June 2013, an application was made to the Office of the Public Guardian (‘OPG’) to register the LPA.

On 21 June 2013 CT’s son completed an application form objecting to the registration, but, because he was not a named person, he was not entitled to object and the OPG registered the LPA on 2 August 2013.

In October 2013 CT was transferred to King George’s Hospital, Goodmayes, where he remained until 18 November 2013, when he moved in with his daughter and her partner.

On 16 July 2014 the Public Guardian applied for the following order:

“An application is made under section 48 of the Mental Capacity Act 2005 for directions relating to CT’s mental capacity to make decisions in relation to his finances and property.”

Section 48 of the Act is headed “Interim orders and directions” and provides that:

“The court may, pending the determination of an application in relation to a person (“P”), make an order or give directions in respect of any matter if-

(a)

there is reason to believe that P lacks capacity in relation to the matter,

(b)

the matter is one to which its powers under this Act extend, and

(c)

it is in P’s best interests to make the order, or give the directions, without delay.”

The application was accompanied by a witness statement made by David Richards, an investigations officer with the OPG, who said that:

On 21 July 2014 I made an order requiring:

On 14 August 2014 EY filed an acknowledgment of service, accompanied by a witness statement, in which she objected to the application and said that:

“The evidence in the attached witness statement shows unequivocally that CT had the capacity to make complex decisions in relation to his finances and property in September 2013. He underwent a further capacity assessment in November 2013 prior to discharge from hospital after nearly six months treatment and he was again assessed as having the capacity to make the very difficult and important decision as to his destination and future place of residence following his discharge. There has been no stroke activity since the incident in May 2013, nor any other event which might cause or signal a material change in his capacity since the last test was carried out some nine months ago. There is therefore no valid reason why he should not be presumed to have capacity at this time.”

EY proposed that “the application be dismissed and the OPG be ordered to pay the respondents’ costs (including the costs of taking legal advice).”

The directions hearing took place on 20 August 2014 and was attended by Philip Dayle, counsel for the OPG, and Mark Baxter, counsel for EY. With counsel’s assistance I made an order:

Robin Jacoby DM, FRCP, FRCPsych, is the Emeritus Professor of Old Age Psychiatry at the University of Oxford. He examined CT on 2 October 2014 at EY’s home and wrote his report the following day.

As regards a diagnosis, Professor Jacoby said:

“Because I do not know CT’s full medical history and have not seen his notes, I cannot be firm in giving a diagnosis, but in my opinion he probably does have cerebrovascular dementia. I also consider that he is subject to recurrent episodes of delirium which are probably due to a combination of cerebrovascular disease, prescribed medication and UTI’s. Fortunately for the purpose of my examination, I do not think that he was delirious at the time.

For the assistance of the court and non-medical readers of this report, delirium is, like dementia, a global impairment of multiple higher cortical functions but differs from dementia in certain crucial ways. Its hallmark is a disturbance of conscious awareness and the sleep-wake cycle. Delirium also differs from dementia in other ways: it is of more rapid onset, i.e. days or hours, compared with years for dementia; and resolution either by remission or death occurs within hours, days or weeks, although it may recur frequently in vulnerable individuals. The causes of delirium are legion and can be summarised as any underlying physical illness or toxicity, especially drug toxicity. If the underlying cause remits, delirium too resolves itself. Older people are at particular risk of delirium because they lack cerebral reserve. Dementia sufferers are at high risk of delirium, often as a result of an underlying infection, such as of the urinary tract. Delirium is sometimes termed ‘an acute confusional state’ by physicians and surgeons.”

Professor Jacoby prefaced his assessment of CT’s capacity with the following preliminary remarks:

“I shall deal with the separate capacities as set out in my instructions which were taken from the directions order of 20 August 2014. Before doing so I wish to stress that I am relying on CT’s mental state as I observed it on 2 October 2014. However, I believe his mental state fluctuates both as regards his dementia and his episodes of delirium. I should make the following preliminary remarks:

(a)

When he is delirious, in my opinion, he does not have any of the capacities listed below.

(b)

When he is not delirious, but his dementia is more prominent, his capacities are weaker than when he is at his best.

(c)

When he is at his best he does retain some capacities as described below.

(d)

When he is at his best he is able to communicate his decisions, and I shall not comment further on this fourth limb of section 3(1) of the Mental Capacity Act 2005.

(e)

When at his best I believe that his capacities can be enhanced by assistance in line with the judgment of Gibson LJ in Hoff et al v Atherton [2003] EWCA Civ 1554, in which he stated “it is a general requirement of the law that for a juristic act to be valid, the person performing it should have the mental capacity (with the assistance of such explanation as may have been given [my italics]) to understand the nature and effect of the particular act (see, for example, Re K (Enduring Powers of Attorney) [1988] Ch 310 at p. 313 per Hoffmann J.).” As I understand it, although I may be corrected by the court, giving assistance to persons with marginal capacities in order to enhance them is within the spirit of the Mental Capacity Act 2005.”

With regard to the nine areas of capacity specifically referred to in the court’s order, Professor Jacoby expressed the following opinion:

Professor Jacoby concluded his report as follows:

“In my opinion, when CT is at his current best and not in an episode of delirium, he retains the capacity to manage his affairs and to revoke or make an LPA, but that his capacities would be enhanced by disinterested advice. His capacity to litigate is not totally lacking but is, in my opinion, below a sufficient threshold, and he would, therefore, require a litigation friend.”

On 6 November 2014 Gemma Hopper, a trainee solicitor with the OPG, made a witness statement, which concluded as follows:

“The Public Guardian understands that it can be difficult for an attorney to carry out their duties. However, it is of course important that the Public Guardian is not prevented from safeguarding potentially vulnerable adults as required by the Mental Capacity Act.

It is the Public Guardian’s position that if EY had complied with the OPG’s requests then a medical report would have been completed sooner and at no expense to CT. The results of the report would have resulted in the closure of our investigation.

The Public Guardian accepts the opinion of Professor Jacoby and awaits further directions from the court.”

The hearing duly took place on 19 November 2014 and was attended, again, by Philip Dayle on behalf of the OPG and Mark Baxter on behalf of EY.

Mr Baxter submitted a draft order containing declarations that CT has capacity to:

The draft order also proposed that:

There was consensus that the application should be dismissed but disagreement on the proposed order for costs.

Mark Baxter also produced a position statement on behalf of his client, EY, in which he said as follows.

“EY is the only party other than the OPG who has been put to costs by this application. EY asks the court to depart from the general rule and order the OPG to pay her costs.

EY accepts, of course, the OPG’s statutory function to deal with complaints about the way in which the donee of an LPA is exercising his powers (MCA 2005, s 58(1)(h)). Her complaint is that the OPG’s conduct of their investigation, of which the application forms part, has been such that neither CT nor herself should be required to bear the costs that investigation has caused.

The manner in which the OPG has conducted its investigation has been disproportionately heavy-handed and without regard to the limits of its statutory jurisdiction, the available evidence, or the presumption of capacity.

In summary, the OPG:

(1)

Concluded without any, or any sufficient evidence, that EY was exercising or had exercised her powers under the LPA:

(a)

the OPG assumed this to be so and assumed it had statutory jurisdiction to investigate;

(b)

it has always been EY’s position that she has never acted under the LPA, and accordingly that the OPG did not have jurisdiction to investigate, but this was dismissed by the OPG without any, or any proper, consideration.

(2)

Failed to apply the presumption of capacity, accordingly:

(a)

the OPG assumed EY, not CT, was managing CT’s property and affairs;

(b)

the OPG corresponded with EY, not CT, about C’s property and affairs and the question of his capacity, when there was no basis for disenfranchising CT in this manner;

(c)

the OPG sought information about CT’s property and affairs from EY, notwithstanding she was not in a position to provide this;

(d)

the OPG sought to arrange capacity assessment(s) of CT with EY, rather than with CT, and appears to criticise her for such assessments(s) not taking place as they wished.

(3)

Ignored the evidence of CT’s capacity to manage his property and affairs; and ignored the shortcomings in the evidence casting doubt on his capacity, which confirmed (or did not displace) the presumption of capacity:

(a)

the OPG gave insufficient weight to the positive assessments of CT’s capacity on 20 April 2012, 12 November 2012, 13 June 2013, 17 September 2013, and 22 October 2013;

(b)

the OPG relied on the evidence of a medically unqualified Visitor, who purported to assess CT after rousing him from a deep sleep from which he remained exhausted;

(c)

the OPG ignored its own conclusion that there was conflicting evidence as to CT’s capacity to make decisions in relation to his financial affairs and property.

Further, the OPG has conducted these proceedings poorly in that:

(1)

it refused to agree at the hearing on 20 August 2014 to the appointment of Professor Robin Jacoby to prepare a report on CT’s capacity, notwithstanding being provided with a copy of his CV, which demonstrated his eminent suitability, and the court’s own endorsement of his expertise.

(2)

it took twelve days thereafter (just four days before the deadline for the instruction of the expert) to enquire of the two candidates as to their availability.

(3)

notwithstanding the direction of Senior Judge Lush in his email to counsel of 20 August 2014 that the parties should attempt to agree a letter of instruction to the expert (who, the order of 20 August 2014 makes clear, was to be instructed jointly), and the OPG’s counsel confirming he would convey this to his client by email of the same date, the OPG instructed Professor Jacoby unilaterally, without any attempt to agree the letter of instruction.

(4)

The letter of instruction purported to enclose “all information available” but while it did enclose the OPG COP 1 Application and the supporting witness statement of David Richards dated 17 July 2014, it did not enclose the witness statement of EY dated 14 August 2014 in reply, which disputed much of David Richards’ evidence – thus Professor Jacoby was not provided with all the available evidence, and in particular was not provided with EY’s evidence.

As the OPG admits, the application (and the costs thereof) could have been avoided if the OPG had obtained an assessment of capacity by consent. That could have been achieved if the OPG had properly applied the presumption of capacity, corresponded with CT from the outset, and sought his consent to an assessment of capacity (properly explaining its reasons for this) without involving EY.

Instead, the OPG unreasonably and improperly made and acted upon two presumptions, none of which were supported by the evidence and one of which was contrary to the MCA 2005 seeking to place the onus on EY of securing the assessment they sought and of convincing the OPG of CT’s capacity, when the question of his capacity and consent to an assessment ought to have been addressed to CT himself. As a result of the OPG’s wrong approach, this application and its costs became all but inevitable.

Conclusions

In all the circumstances, from the evidence available at the time, it should have been reasonably apparent to the OPG that an application to determine that CT lacked capacity to manage his property and affairs was doomed to fail.

In any event, the application would have been unnecessary if the OPG had applied the presumption of CT’s capacity to manage his property and affairs and consent to an assessment and engaged with him (and him only) on these questions.

At the very least, the application almost certainly would have been dealt with consensually if pre-action correspondence had been with CT and the application itself had not criticised EY for simply acting on the basis that CT had capacity.

In all the circumstances, EY has been put to unnecessary and increased costs by the OPG’s failure to comply with the MCA 2005, and its poor conduct in bringing and pursuing this application in the manner it has (including ignoring the court’s exhortation to attempt to agree a joint letter of instruction to Professor Jacoby).

Accordingly, it would not be just for either CT or EY to bear any costs of this application. The only alternative is for the OPG to be required to bear its own costs and those of EY.”

Counsel for the OPG, Philip Dayle, did not produce a skeleton argument as such but opposed EY’s application that the Public Guardian should pay her costs.

The primary source of law on costs in Court of Protection proceedings is the Mental Capacity Act 2005, sections 55 and 56. Section 55(1) provides that “Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are at its discretion.”

The secondary sources of law relating to costs in the Court of Protection are:

There are two rules that need to be considered in this case - rules 156 and 159 – both of which refer to the person to whom the proceedings relate as ‘P’. These rules provide as follows:

In G v E (Costs) [2010] EWHC 3385 (Fam); [2010] COPLR Con Vol 454, Mr Justice Jonathan Baker awarded costs against Manchester City Council in personal welfare proceedings. At paragraphs 38 to 41 he made a number of observations about the circumstances in which the court may be justified in penalising a public body as to costs. He said:

“[38] The work carried out by the local authorities and other public bodies such as NHS Trusts in this important field cannot be underestimated. …

[39] That does not mean, however, that local authorities, or any other public bodies, can be excluded from liability to pay costs in appropriate cases. The rules about costs must be applied fairly to all litigants, regardless of who they are. …

[40] Of course, it is right that the court should follow the general rule where appropriate. Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made. The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong.

[41] In this case, however, I am entirely satisfied that the local authority’s blatant disregard of the processes of the MCA and their obligation to respect E’s rights under the European Convention amount to misconduct which justifies departing from the general rule. …”

EY claims that the OPG gave “insufficient weight to the assessments of capacity on 20 April 2012, 12 November 2012, 13 June 2013, 17 September 2013 and 22 October 2013.” These assessments were historic and need to be considered in the context of a progressive deterioration in his condition. Professor Jacoby stated, “in my opinion CT’s prognosis is poor and he is likely to deteriorate over time. For instance, it would not surprise me if he had lost all the above capacities in six months or a year, if he lives that long.”

EY criticised the OPG for unilaterally commissioning the single joint expert’s report. I agree that the matter could have been handled better but, ultimately, it made no difference to the outcome of the report. At the hearing I asked EY’s counsel whether it would have made any difference. He replied, “Fortunately not. The second respondent was present when the visit took place, but if her witness statement had been attached, she would have made the point about attending in the afternoon.” This response was not entirely satisfactory because it is clear from Professor Jacoby’s report that he had made two phone calls to EY to arrange the visit, and she could have informed him during the first call that CT was at his best in the afternoon, rather than in the morning. In paragraph 15 of his report the professor said, “I phoned EY in September to fix the appointment and I phoned her on 2 October 2014 to confirm the appointment.”

EY has criticised the OPG because “it took twelve days (just four days before the deadline for the instruction of the expert) to enquire of the two candidates as to their availability.” With fairness, the court’s order, though made on 20 August 2014, was not issued by the court until 27 August. So, seven of the twelve days’ delay had nothing to do with the OPG.

It is contended that the OPG should have corresponded with CT from the outset but this flies in the face of reality. EY was consistently communicating on his behalf. For example, there was a letter to CT’s wife dated 7 September 2013, which purports to have been dictated by him and refers to an incident that had occurred the previous day. He said:

“I have asked EY to assist me in writing this letter to you because I remain unable to write clearly and I do want to be sure you fully understand what I wish to say to you as it is very important to both of us. …

I remained in the car for a long time because at first it seems you refused to even come out to the car to speak to me, apparently the reason you gave was that you were too frightened by the presence of EY and (her partner) who were accompanying me back to the hospital. Anyway, it seems you created quite a stir with the result that the police were called.”

The letter ended: “As explained above, EY is acting on my behalf whilst I am confined to hospital.” I should add that this intensely personal letter was copied to eleven other individuals - “Jean, Mr Duncan, Chris, Man opposite No 24, Peggy, Ruth, M & A, Sgt Flynn, Shaun (Social Worker), Minister of Church” – which seems like an astonishing violation of CT’s right to respect for his private and family life, home and correspondence.

In fact, I can find no communication that came directly from CT. Even his letter to David Richards of the OPG, dated 11 February 2014, began:

“Thank you for your letter dated 5th February 2014 which my daughter has read to me and discussed at length. I am grateful that you have had the courtesy of writing to me directly with a degree of openness not previously evident in your correspondence.”

EY makes the point that she was not using the LPA because CT still had capacity, but even this is disingenuous. Professor Jacoby states in his report that “He is subject to recurrent episodes of delirium. … When he is delirious, in my opinion, he does not have any of the capacities listed below.” She should have been using the LPA during the recurrent episodes when CT lacked capacity.

The point is made that CT’s capacity should have been presumed. The precise wording of section 1(2) of the Mental Capacity Act is that “a person is assumed to have capacity unless it is established that he lacks capacity.” The Court of Protection General Visitor believed that CT possibly could suspend or revoke the LPA, but that he would require considerable support in doing so. The reason why the OPG asked a Special Visitor to see CT was so that a specialist could look for objective evidence that would be sufficient, on the balance of probabilities, to establish whether CT had capacity or not and, accordingly, whether the Court of Protection had jurisdiction or not.

EY would not allow the Court of Protection Special Visitor to examine CT because she mistrusted anything to do with the OPG. The Special Visitor’s report would have been provided to CT free of charge, from public funds, but EY insisted on instructing an independent expert, instead. This resulted in the proceedings being more expensive and protracted than they need have been.

I have no real concerns about the OPG’s conduct. Any investigation will seem heavy-handed to the person under the spotlight, but the OPG’s conduct was by no means disproportionate and does not even approach the threshold identified by Mr Justice Jonathan Baker in G v E (Costs). The OPG certainly did not act in blatant disregard of the Mental Capacity Act processes or in breach of CT’s rights under the European Convention on Human Rights. Having regard to all the circumstances, it would be unjust to penalise the OPG by way of a costs order.

I must now consider EY’s conduct before, as well as during, the proceedings.

The court takes a dim view of anyone who obstructs a Court of Protection Special Visitor. Indeed, prior to the implementation of the Mental Capacity Act 2005, obstruction was a criminal offence. Section 129(1) of the Mental Health Act 1983 provided that:

There is no doubt about it. EY and her partner refused, without reasonable cause, to let the Special Visitor visit CT or even speak to him over the phone. Dr Tennent’s report of 31 March 2014 stated:

“Over the course of these conversations EY referred everything to her partner. Quite politely they told me that CT did not want to see me but would not permit me to speak directly with him. They would not provide me with the name or address of CT’s current general practitioner. As I understood it, they were of the view that although CT had made an LPA he was still capable of managing his own affairs and they were not using the LPA and therefore the OPG should not be involved with his affairs. They told me that they were in correspondence with the Office of the Public Guardian about the matter and that until this had been resolved they did not want me to visit their home.”

EY’s insinuation that a Court of Protection Special Visitor is neither independent nor impartial is both unwarranted and offensive.

For me, the most striking feature of Professor Jacoby’s report was the repetition of a theme, which, like Ravel’s Boléro, rises in a continuous crescendo.

In response to question (2) he said:

“Again, I consider that he would benefit from disinterested advice before making this decision.”

He deliberately highlighted the word ‘disinterested’ by italicising it.

In response to question (4), he said:

“Where more complex decisions are required he would, in my opinion, benefit from disinterested advice.”

In his reply to question (5), Professor Jacoby said:

“I consider that at his best CT does retain the capacity to give instructions to his attorney in relation to his property and affairs, and that he would benefit from disinterested advice for more complex decisions.”

In his conclusion, which I have set out in paragraph 23, he said:

“… his capacities would be enhanced by disinterested advice.”

And in response to question (4) again, the professor actually ventured to say that:

“I am not making any comment here about the quality of the advice he now gets from EY because this is beyond my remit and I have no information on it anyway. However, because he is now dependent on her for his day to day care he might be more likely to accept her advice without more careful consideration.”

I have never before read a report on someone’s capacity that has contained so many references to the need for ‘disinterested advice’. The only interpretation of this can be that Professor Jacoby believed that, although CT still has capacity in certain areas, he is being influenced by his daughter, and her advice is anything but disinterested.

If I were to apply the general rule for costs in a property and affairs case (rule 156), I would be required to order CT to pay the costs of these proceedings.

The Public Guardian was seeking no order as to his own costs, whereas EY was seeking an order that her costs should be paid by the Public Guardian.

For the reasons given above, and having regard to all the circumstances, I consider that a departure from the general rule is justified and I shall order EY to pay her own costs because her conduct, before and during the proceedings, has been aggressive and disingenuous and has resulted in both sides’ costs being far greater than they would otherwise have been.

The overall effect is that I shall make no order for costs, though, having agreed to commission a report from a single joint expert, the Public Guardian and EY are jointly liable to pay a half of Professor Jacoby’s fee of £2,200 (£1,850 + VAT) for reading the documents, travelling from Oxfordshire to Essex, examining CT, and writing his report.