London Borough of Redbridge v G & Ors (No. 2)

In this complex case, difficult interlocutory questions arise for my consideration and determination, which engage some fundamental questions about the role of a responsible local authority in proceedings under the Mental Capacity Act 2005, the function of the Court of Protection itself, and the freedom or right of people affected by the proceedings, indeed even the subject of the proceedings, to speak freely and publicly about them.

I give this ex tempore judgment at the conclusion of a hearing listed for two hours before me today, 26 March, although the case has in fact taken the best part of one full day. The hearing took place in private, pursuant inter alia to the direction of Russell J (see paragraph 90 of her 26^th February judgment [2014] EWHC 485 (COP)), and in any event, pursuant to rule 90(1) of the Court of Protection Rules 2007. Pursuant to rule 90(3) I have, nonetheless, authorised accredited members of the press to attend and sit in court today and they have been welcome. A Reporting Restriction Order is in place dated 17^th February 2014. Every party to this litigation accepts that the Reporting Restriction Order should remain in place for the time being. I have, nonetheless, during this hearing given permission to the press to report on this hearing, save as might otherwise be prohibited by the Reporting Restriction Order. By the order I make today, I propose to vary the 17^th February order in one limited respect: namely to delete para. 3(1) (which had prohibited the naming of the Applicant, Local Authority).

These Court of Protection proceedings concern G. She was born on 5^th January 1920; she is therefore 94 years old. She is reported by Dr. Andrew Barker, Consultant in old Age Psychiatry, to suffer dementia (see COP3). Russell J, in her judgment to which I will make further reference later, who heard Dr. Barker's evidence, recorded that Dr. Barker described it as "moderate severity dementia" (see para. 54 of the 26 February judgment [2014] EWHC 485 (COP)).

G currently lives in her own home, a comfortable, tidy and well-appointed home where she is cared for by C and F. She has no interested family members to care for her who are relevant to these proceedings.

These Court of Protection proceedings in fact began life as proceedings under the Inherent Jurisdiction in November 2013, by application brought by the London Borough of Redbridge, which is represented today by Miss Davidson. G was identified as the first respondent. Within those proceedings, the Official Solicitor was invited to act and has so acted throughout the proceedings and is today represented by Mr. Patel. At a hearing before His Honour Judge Clifford Bellamy on 15 November 2013 G's carers, C and F were joined as parties and are represented today by Ms Hewson and Ms Burnham respectively. Court of Protection proceedings were subsequently instituted in February 2014, in circumstances described by Russell J in her 26 February judgment and are due for final hearing in June 2014.

At this hearing, as at some of the earlier hearings in this case, Associated Newspapers have been present and are represented, today at least, by Mr. Wolanski. He made clear that the interest of Associated Newspapers at this hearing is limited to (a) correcting (where necessary) any misapprehensions or misinformation inadvertently given about its reporting of the proceedings when the issue of press reporting was discussed at the last hearing before Bodey J (19^th March 2014); and (b) responding to any application which any party proposed to make today for an injunction, which may have an effect on Associated Newspaper’s ability to report these proceedings (save otherwise than restricted by the Reporting Restriction Order referred to above).

The application before me is dated 18^th March 2014; by this application, the London Borough of Redbridge seeks injunctive and other orders specifically targeted at C and, to a lesser extent, F. The application is framed in this way; it seeks an order:

In fact, that general form of relief has been distilled and adapted into more specific provisions, set out in a proposed draft order which has been in circulation between the parties prior to today's hearing, and discussed at this hearing. Specifically, the London Borough of Redbridge seeks orders that:

For the purposes of determining that application I have read with care the judgment of Russell J dated 26^th February 2014 [2014] EWHC 485 (COP), the statement of the social worker filed in support of the application dated 18^th March, together with the exhibit (a statement from an off-duty police officer); I have read, furthermore, the statement in reply filed by C and the statement of Anna Moore, solicitor instructed on behalf of G at Bindmans on behalf of the Official Solicitor, together with appendices or exhibits containing attendance notes and other records. I have read the further attendance note of Anna Moore detailing her visit to G on 25^th March. I have seen and read the report as to capacity prepared by Dr. Barker dated 6 January 2014. I have read three press reports of these Court of Protection proceedings – two authored by Mr. Christopher Booker; one written by Ms Sue Reid. I have heard from G herself, on several occasions throughout the course of the hearing; she has made known to me clearly her views about the issues in question.

The background history is fully set out in the judgment of Russell J, and I therefore do not propose to rehearse it again here. It is relevant for me only to focus on key events occurring since that judgment, which have provoked this application.

On or about 13^th March G and C took part in a demonstration or protest outside Ilford Town Hall; the protest appeared to be about the local authority’s involvement with G. It appears from the evidence that I have read (but I make no findings about this) that the incident provoked not inconsiderable interest among the public. A passer-by, an off-duty police officer, who observed the protest, made the observation that C:

The officer in question managed to speak with G at the location of the protest. G indicated to him that

On 18^th and 19^th March 2013, it appears that G was taken to the Houses of Parliament where (on 18 March) the Select Committee was receiving evidence on the function of the Court of Protection. Indeed on the first day on which G attended at Parliament the President of the Family Division was giving evidence to the Committee. While at Parliament it appears that G (on that or the subsequent day) signed a petition (on the encouragement of one of its members) asking the Government to intervene in her dispute with the local authority.

As further discussed later, in this period there has also been communication between members of the press and G.

It is further apparent that in the period since Russell J delivered her judgment there have been some, but I make clear not insuperable, difficulties in G's legal representatives obtaining access to meet with her. In fact, Miss Moore from Bindmans has been able to visit G on two occasions: 4^th March and 25^th March.

The London Borough of Redbridge through its social worker has made attempts to meet with G. On the day following the protest (14 March 2014) the social worker attempted to visit G at home. When she reached the home she saw two police officers at the front door and was advised that

As earlier indicated, orders of an injunctive nature are sought by today's application. In circumstances which I shall outline in a moment, the local authority seeks that the injunctive orders are supplemented by declarations in relation to G's best interests.

Much of the hearing has been dedicated to consideration of what, if any, orders I should make in relation to G’s (or C's) contact with the press concerning these proceedings. The issue is of very considerable significance, in my judgment, given that

I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.

Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J's judgment or the evidence heard by the court. That is highly regrettable.

The London Borough of Redbridge's application to restrict G’s access to the press was originally framed by a proposed requirement that C should give 48 hours' notice to the local authority if she wished to arrange a meeting between G and members of the press. When pressed by me as to the purpose of that exercise, Miss Davidson advised me that this was so that a representative of the local authority could meet with G to establish whether this is really and truly what she wanted to do. When pressed further, the London Borough of Redbridge indicated it may well (it seemed to me would almost inevitably) want to obtain a capacity assessment to evaluate G's capacity to communicate with the press in those circumstances. When pressed further still, the London Borough of Redbridge indicated if G’s capacity to decide on this issue was in question it may want to bring the matter back before the court (within the 48 hours) for a ‘best interests’ decision in the event that such an arrangement (i.e. for G to meet the press) had indeed been made.

The Official Solicitor proposed, alternatively, that any question of G speaking to the press should be dealt with by a representative of the press making an application to the court on 48 hours' notice. That seemed to me to be placing an improper burden on the press. Mr. Wolanski confirmed that at present his client had not, of course, made an application to vary or discharge the Reporting Restriction Order, but indicated that his client may yet do so. He opposed any restriction being placed on the freedom of the press to interview G. Ms Hewson, on behalf of C, also opposed any order being made today which imposed any restriction on G's freedom to speak to the press, emphasising powerfully G's right to freedom of speech.

Having heard these submissions, I invited all counsel to consider whether the first question which I should in fact be considering in this case on these issues is whether G has capacity to communicate directly with the press now. Given the press interest (it is, after all, here both in the form of a court reporter and as an interested party, represented) the sooner there is a capacity assessment available on that issue the better. After an adjournment for parties to take instructions, the London Borough of Redbridge indicated that it accepted this approach and refined its position to seeking an adjournment of today's application in order to commission a further issue-specific capacity assessment by Dr. Barker. It was said that this could be completed within two weeks; it proposed that the matter should then be relisted for consideration. It invited me to make interim orders, as holding orders, in the meantime.

This approach was supported by the Official Solicitor in all respects.

Those orders were opposed by C, who asserted that there was no proper basis on which I could or should go down this route. F associated himself on this issue (as on all issues) with C.

It is self-evident that the question of G's capacity to engage with members of the press (with a view to sharing her story publicly) has to be assessed properly and expertly before the court could reach any informed view as to whether it is in G’s best interests that she should in fact do so. In those circumstances, I propose to accede to the application to adjourn the Local Authority's application for substantive relief in this respect, and shall re-list this application on the first available date, which is 2^nd May 2014, before Russell J. I shall give the Local Authority leave to instruct Dr. Barker to undertake the capacity assessment specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing.

I shall require Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G's decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form.

That takes me next to the question of whether, and if so what, order I should make in the interim period. Under section 48 Mental Capacity Act 2005 I may, pending the determination of the application to which I have just referred, make an order or give directions in respect of any matter if:

In this respect, I start by reviewing the evidence, so far as it is available, in relation to section 48(a). I approach that question by assuming, as per section 1(2) of the 2005 Act, that G has capacity in relation to this question unless it is established that she lacks it. I bear in mind the provisions of section 1(3), section 1(4) and section 1(5). I am greatly assisted in making an interim order at this stage, to have to hand the report of Dr. Barker (referred to above) and the judgment of Russell J of 26^th February. Russell J was impressed with Dr. Barker's analysis and his careful application of the section 3 functionality test relevant to the questions that he was asked to consider at that time.

Dr. Barker discussed G and her capacity in numerous domains of her life, making this pertinent observation:

On that basis, I have “reason to believe” that G does indeed lack the capacity in relation to decisions concerning communications with the press.

There is no doubt that in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.

As to section 48(c), I have to do my best to weigh up on the evidence available to me whether it is in G's best interests that I should make such an order.

On the one hand, there is evidence before the court that G indeed wishes to communicate with the press. That evidence is provided not only by G herself, but also by Ms Reid, a journalist who has now met with G on one occasion at her home. Furthermore, in a discussion with Miss Moore, G is reported to have said that she was "happy" that the article written by Ms Reid had indeed been written: "… it let them know what they do to the elderly".

Of course, at present the press is circumscribed in what they can report of what G says about the proceedings. In my judgment there is indeed a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G's private and family life.

On the other hand, it is clear from the attendance notes helpfully provided by Miss Moore that at other times G has expressed less than positive views about the involvement of the press in her life. She has said: "The newspaper trying to say I am crazy when I am not crazy…" She has gone on to say, when asked about the article in the Daily Mail: "I don't know how happy I would be about that. I don't want anybody from the press. They put what they like. They put in details that are not correct." She also told me that she valued her privacy.

There is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore, graphically described herself as the fly "in the spider's web … the fly cannot get out of the spider's web". She has confirmed elsewhere and to others that C is "the spider".

There is a concern that while Ms Reid has indicated to me that she has made but one visit to G's home, others may have visited or repeatedly phoned G. G told Miss Moore, on her most recent visit yesterday:

I bear in mind, when considering G's best interests in this regard, that there is now clearly signalled a likely application by Associated Newspapers to relax the Reporting Restriction Order. The press will argue for a wider ability to report on G and her situation.

It seems to me that, weighing these matters one against the other, it is not in G's best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G's best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2^nd May.

This order is explicitly supported by the Official Solicitor on G’s behalf,

The second matter which I have been invited to adjudicate upon is what, if any, role should be played by the Applicant authority in the interim period between now and the 2^nd May hearing? The London Borough of Redbridge invites me to direct that C and F shall facilitate visits to G by one of their employees twice weekly. On behalf of C it is said that any visits to G can properly and appropriately be conducted by members of the community neighbourhood police team. Importantly, G herself spoke directly to the court on this issue. She told me in terms, indeed she repeated it many times: "I want to be left alone." It is evident from what she told me that she does not wish Social Services' continuing involvement, especially the current allocated social worker. She told me: "I know what I want and I know what I need. I am quite capable of speaking for myself." She further protested that: "All these people are intruding on me, on my privacy, pretending they are here to help … I have my family; I have my niece…".

She complained to me that the London Borough of Redbridge social workers are: "pressurising us". She was clear that she did not welcome in any respect the involvement of the Local Authority.

As for the position of the respective parties, the Local Authority advised me that they wish to visit twice a week to fulfil their statutory monitoring role, urging on me that that was both a reasonable and proportionate level of intervention. They drew attention to the fact that there are real concerns about G's welfare in her own home, evidenced by the 13^th March incident, the observations of Miss Moore on her attendances at G's home, and by reference further to the social worker's evidence of her recent visit. Of course, those recent concerns have played out against a backcloth of a history of alleged concerns recited clearly in the judgment of Russell J about which, of course, no findings specifically have yet been made.

The Official Solicitor supported the need for G to be monitored in the way proposed by the Local Authority and supported the Authority in the orders it sought.

On behalf of C, Ms Hewson urged upon me that the continuing engagement of Redbridge Borough Council was "counter-productive". She invited me to consider that the evidence before the court demonstrates that G is "perfectly well looked after in her home" and that Redbridge's concerns were "a fuss about nothing". Notwithstanding those submissions, she invited me to adopt the proposal suggested by her instructing solicitor in a statement dated 25^th March 2014 for monitoring to be conducted by the Redbridge Community Police Neighbourhood Team. Mr. Campbell-Taylor, helpfully in my view, set out in his statement the conversations he had recently had with PC Kinsler of that team to assist me to evaluate the viability of that proposal.

I am satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G's needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital. I do not believe that the neighbourhood team proposed by Ms Hewson would adequately or appropriately discharge the function of monitoring as I envisage it should be delivered. I was advised that the neighbourhood team:

For those reasons it is self-evident that the Neighbourhood Team could not discharge the responsibility which I regard as important in order to safeguard G's welfare within the home.

I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers, going forward.

That is my judgment.