London Borough of Brent v NB

Filed on behalf of the Applicant:

Filed on behalf of the First, Second and Third Respondents jointly:

Filed on behalf of the Second and Third Respondents jointly:

Filed on behalf of the First Respondent:

Filed on behalf of the Second Respondent:

Filed on behalf of the Third Respondent:

Filed on behalf of the Fourth Respondent:

Filed on behalf of the Fifth Respondent:

Expert and Other Reports:

Miscellaneous:

Documents filed in the adjournment period

Position statement by Andrew Bagchi QC on behalf of MB (undated) [A279]

Position statement by Miss Gannon on behalf of Applicant, dated 10^th July 2017

Joint submission by SA and AD, dated “End 11 July 2017”

Letter from MB’s solicitor dated 30^th June 2017

“THE G. – Recommendations and management of MB moving forward” (undated)

Assessment report by Wendy Shuttle in respect of J Centre, dated 28^th June 2017

Letter from Dr Nyein of J Centre, dated 26^th June 2017

Report of Professor Murphy dated 10^th July 2017

I heard oral evidence from Amanda Bairstow, Dr. Poz, Karen Carter, Fiona Firman, JW (former case manager), DY (current case manager), AD, SB, HD and ZS.

On the fourth morning of the hearing (a time chosen by his representatives) I met MB in a private room in the court building, in the presence of a support worker, his solicitor and a notetaker. MB’s representatives took the view [A284] that it was not appropriate for MB to attend the hearing on 12^th July.

On 12^th July, I heard oral evidence from DY and closing submissions on behalf of the Applicant, MB and SB.

Attendance of the parties:

On the first morning of the hearing NB attended, as she has throughout these proceedings, in person. She declined the offer of assistance from the Personal Support Unit. She asked for the hearing to be adjourned so that she could find legal representation. That application was supported by SB but opposed by all other parties. The application was refused for reasons given at the time but in summary because the Court

NB attended the whole of the first day of the hearing. On the second day, NB found it difficult to listen to the evidence being given and was offered the opportunity to give her evidence first instead. She declined. She left Court at 12.25pm to deal with a telephone call and did not return to the hearing for the afternoon.

NB attended on the third day, and submitted a handwritten statement. On the fourth day, the hearing was scheduled to start later. NB attended and handed in a second handwritten statement, which lead to discussions in open court to clarify her position. So that NB had chance to consider those discussions, the lunch adjournment was taken early without having heard any evidence. NB did not return to the hearing after lunch. She did not attend on the fifth day, when she was scheduled to give her evidence according to the hearing plan; or on 12^th July.

SA and AD attended for the morning on the first day of the hearing but did not return after the lunch adjournment. They did not attend on the second day but sent a message confirming that they had no questions to put to Dr Poz and accepted her conclusions. On the third and fourth days AD attended but SA did not. After lunch on the fourth day AD informed the Court that SA was on his way but he did not arrive.

Neither SA nor AD attended the fifth day of the hearing. Telephone calls were made to check their intentions. The Court was told that SA would take about 40 minutes to arrive and wanted to have a fixed time for giving his evidence. The Court agreed that SA could give his evidence at 11.30 am, and the matter was adjourned until then. By 11.40am SA had not arrived and there was no further response to calls. The hearing proceeded in his absence.

Neither SA nor AD attended on 12^th July. MB’s solicitor received a call from SA saying that he was not prepared to come to court but wanted to give some information. Mr. Lamb objected to that information being relayed to the Court. On being assured by Mr. Bagchi that SA’s information would not alter the decisions to be made (except that it may inflame proceedings and prevent progress); and that it did not suggest any immediate risk such as to require any particular action to be taken by the Court or others, I declined to hear an account of SA’s information unless he attended Court to give it himself.

SB, and the representatives of the Applicant and MB, attended each day of the hearing.

FACTUAL BACKGROUND

Family Circumstances

MB was born on 28^th September 1994. His family is of Lebanese origin and Druze faith. NB is his mother and SB is his father. SA is his uncle (the brother of NB). AD is the partner of SA. MB also has three younger brothers, none of whom are party to the proceedings.

As a result of injury at birth MB suffers from dyskinetic tetraplegic cerebral palsy. His physical disability is extensive. He needs constant supervision and help with all aspects of daily living. He is wheelchair-bound and needs to wear a spinal jacket combined with various straps and harnesses to provide him with support and maintain an upright seated position. He has an intolerance of pain and needs regular physiotherapy to ensure that his flexibility, muscle tone and function are maintained. He requires PEG feeding. Any food that he does eat orally must be pureed and drinks must be thickened. Many people have described him as “very sensitive.”

However MB’s mental functioning is “relatively spared.” Assessments variously refer to “Moderate Learning Disability,” “Mild Learning Disability” [E18] and “Significant Impairment of Intellectual Functioning” [E233]. School records indicate that he has been able to acquire skills in maths, science and ICT assessed at National Curriculum Level 3 (Footnote: ¹) [E18]. His receptive communication is predominantly verbal and he understands both English and Arabic. However he is unable to use verbal communication to express himself. He uses instead a range of methods to communicate “including nodding and shaking his head, directional eye gaze, emphatic eye contact, a symbolic and photographic communication book, postural changes and some pre-verbal vocalisations.” [E17] He is also able to use an iPad with a head switch when this is made available to him.

Sometime around 2002, when he was 8 years old, MB’s parents divorced. His younger brothers were subsequently taken into care as his mother “found it difficult to balance the needs of all the children.” They remained as Looked-After Children throughout their childhood. [E17]

In June 2007 MB was awarded some £4 420 000 in damages from the relevant NHS Trust. The funds have been used in part to purchase and adapt the house were MB now lives with his mother and his grandmother. The balance is managed by a professional property and affairs deputy, PTC.

MB has a long-established relationship with SA and AD. He has more recently re-established contact with his father and two of his brothers.

Until the end of the 2016/17 academic year MB was attending a local college on a part-time basis. He was enrolled on a course called “Branching Out” which is aimed at “students who are transitioning out of college.” His place came to an end at the end of the school year, with all indications so far made known to the Court being that this will be the end of his access to formal education. MB would like to continue with his college placement if he could and is worried about what will happen when it ends. [C94]

The proceedings to date

MB’s involvement with the Court was initially focused on his property and affairs. RC was appointed first as Receiver and then, after the coming into effect of the Mental Capacity Act 2005, as deputy for property and affairs.

Unfortunately, the relationship between RC and MB’s family did not run smoothly. In 2013 RC applied to the Court to resolve a dispute about gratuitous care payments to NB and for appointment of a health and welfare deputy for MB. In response, seemingly acting on the united instructions of NB, SA and AD, PTC applied for RC to be discharged and for its own appointment in his place.

The property and affairs issues were subsequently resolved by agreement. NB, SA and AD had together instructed solicitors who conducted detailed negotiations on their behalf in correspondence with RC [A20]. On 19^th May 2014, orders were made which recorded that “the relationship between [RC] and [MB] and his family has broken down;” discharged RC ‘s appointment as deputy; and appointed PTC in his place [B36]. By separate order [B29] the new deputy was authorised to make to NB in accordance with a memorandum of agreement [B31] gratuitous care payments and expenses payments at the rate of £2 500 per month and £400 per week respectively.

The welfare issues were not so resolved. The Court initially identified concerns that

“there may be:

a.

an issue of urgent serious medical treatment (namely spinal surgery)…and

b.

further issues of securing an appropriate wheelchair and educational opportunities for MB

which require determination...”

The Official Solicitor articulated concerns about MB’s access to treatment and services. At a hearing on 19^th May 2014 the Court [B25] :

There was a delay in identifying an appropriate expert to prepare the capacity report. Mediation did not take place. Dr Fairhurst filed a report but an addendum was required, and in any event MB now had an appointment to see Mr. Gibson, Consultant Orthopaedic Surgeon. At a telephone hearing on 11^th September 2014, specific directions were given to progress the matter. [B48]

There was then a further delay in the light of a request by Mr. Nordeen and Mr Gibson to file a joint report as to MB’s posture and need, if any for surgical intervention. On 5^th November 2014 the Court approved a draft consent order which provided for such report, a round table meeting between the parties, and the filing of statements of issues. No party complied with the directions for filing the schedule of issues.

On 29^th June 2015 [B56] the Court recorded:

The issues were identified as:

Directions were given for joint instruction of an independent social work expert, Amanda Bairstow; for the joint report by Mr Gibson and Mr Nordeen as to MB’s posture management and possible need for treatment; for the local authority to file a statement setting out the conclusions of its safeguarding enquiries; and for the filing of responses by the family respondents.

The Court was subsequently informed by the Official Solicitor (Footnote: ²) that “appointments necessary for the preparation of the required independent social worker’s report have not been kept by MB, apparently because NB has failed to co-operate.” On 11^th September 2015 the Court made an order [B60] listing the matter for attended hearing to consider whether injunctive orders requiring NB to make MB available for any appointments should be made. The order recites explicitly that “NB may wish to consider obtaining separate legal representation for the hearing.”

On 23^rd September NB, SA and AD all attended Court but without representation and declining the assistance of the Personal Support Unit. NB gave formal undertakings [B71] to permit Amanda Bairstow to have access to MB, not to obstruct her assessment of him, and to maintain all other appointments arranged for MB.

Ms. Bairstow’s assessment was then duly completed. The London Borough of Brent sought permission to disclose it to the family respondents in person at a meeting arranged on 3^rd November, and an order facilitating that approach was made [B76].

At the hearing on 18^th November 2015 the family respondents sought “early resolution of court proceedings” [A65]. The Local Authority considered that proceedings did not need to continue but the Official Solicitor sought an order to give effect to Ms. Bairstow’s recommendations over a 6 month period, with a further review by the Court. The order [B77 (Footnote: ³)] records all parties’ agreement that a care plan formulated in accordance with Ms Bairstow’s report was in MB’s best interests, and NB’s agreement “not to obstruct or impede the implementation of the care plan” but the Court declined to terminate proceedings. The matter was listed for hearing after 7 months.

Perhaps unsurprisingly, the implementation of the care plan in accordance with Ms. Bairstow’s recommendations did not proceed smoothly. On 17^th June 2016 the Official Solicitor filed a COP9 application updating the Court and seeking further directions. A dispute had arisen as to MB’s capacity to make relevant decisions for himself. The Court [B80] granted permission to the parties jointly to obtain from Dr. Poz, and also from Ms. Bairstow, an updating report. The hearing scheduled for June 24^th was vacated and the matter relisted on 8^th November 2016.

On 8^th November, the Official Solicitor’s position statement noted that “one year on from the November 2015 acceptance of the care plan for professional care, little progress has been made…” [A107]. The family respondents were, for the first time, joined by SB who was joined as Fifth Respondent. The Court recorded [B83] that the level of “paid external support for MB is currently 1 hour of personal care in the morning and 1 hour of personal care in the evening.” The Court gave structured directions intended to bring about progress by co-operation:

MB’s legal representatives were required to provide the parties with a plan in table form setting out each stage. Provision was made for any party to indicate disagreement to any part of the plan, with a requirement on the Applicant to inform the Court of any disagreements by 29^th November 2016 so that any such disagreement could be determined either by further hearing or on the papers, as the Court determined. The matter was listed for attended hearing at the end of the three month period, with costs warnings given about any slippage in the timetable.

The formulation of the tabulated plan was achieved within required time limits. There was no disagreement raised by any party and so, on 25^th November 2017, the Court gave directions for it to be treated as an agreed plan. [B92]

Unfortunately, and despite previous assurances that the timescales were realistic, the London Borough of Brent was not able to identify either a psychologist or a family therapist as required. The Court made orders on 22^nd November 2016 [B89], 7^th December 2016 [B95], 14^th December 2016 [B96] and 13^th January 2017 [B99] extending time for compliance but requiring full explanation of continuing delay, submissions as to why the Local Authority should not pay the costs occasioned by its two applications to extend time, and written submissions from all parties as to what further steps (including the joinder of additional bodies as party) should be taken at the next hearing to progress the engagement of the required services.

When the matter returned to court on 6^th February 2017 the new case manager, DY, had reached the conclusion that “because of the resistance of NB to the involvement of additional carers, a better solution for MB would be for him to move to a specialist brain injury facility for a temporary period of intensive residential rehabilitation”[A140]. The parties agreed to convene a meeting of all family members and professionals involved in MB’s care to discuss DY’s proposal and to settle the main elements of a plan to achieve its realisation.

At the hearing the Court made several orders:

The meeting took place on 21^st March 2017 but it was limited in what it could achieve [G57] because of the nature of the engagement in the process by several family members. SB arrived for the meeting with his younger sons, who had not been invited. SB advised that he would not attend the meeting without them; and NB indicated that she would not take part without SB being present. A decision was taken not to include the brothers in the meeting. Both SB and NB did return to the meeting but NB subsequently left again, and was heard “wailing and screaming”. An ambulance was called, and NB was taken to hospital (from where she was discharged later the same day.) Other family members were asked to leave “due to security concerns.” The minutes of the meeting record a unanimous professional agreement that a move to a rehabilitation centre would be in MB’s best interests.

Further case management directions were required. Orders were made ‘on the papers’ on 6^th April 2017 [B111], to cater for hearing Ms. Bairstow’s evidence and to address the unresolved question of funding for the proposed rehabilitation placement; and again on 12^th April 2017 [B113], to address outstanding issues of funding decisions and identification of factual disputes.

On 24^th May 2017 the Official Solicitor made a COP9 application without notice to the family respondents seeking orders in respect of MB’s passport and to prevent any person from removing him from the jurisdiction. A hearing was held the following day. The Applicant local authority attended and did not support the application. The Court was not satisfied that the application should be granted without notice to the family respondents and made directions for them to be served and the application considered again the next day.

At the ‘on notice’ hearing on 26^th May 2017, SB was represented; SA and AD indicated by e-mail that they neither supported nor opposed the application; and NB took no part. Mid-way through the hearing a message was received that, as SB had indicated she would, NB had handed over MB’s passport to a person nominated by MB’s solicitors. The court made an order providing for it to be held by the property and affairs deputy pending further order.

The substantive hearing then took place on 8^th, 12^th, 13^th, 14^th and 15^th June. (The listing on 16^th was vacated in the light of the non-attendance of the family respondents.) It was the commonly preferred approach of all the parties present on 15^th June that, rather than have closing submission immediately, there should be a period of adjournment with a view to MB and NB and any other family member who wished to visiting the two placements under consideration. I adjourned the matter to 12^th July, giving directions for further steps to be taken in respect of the proposed rehabilitation placement, and leaving open the possibility of NB and SA giving evidence then. It was expressly recorded that the Court would be likely to notify the parties of the decision on 12^th July, with a fully reasoned judgment to follow.

In the adjourned period, the directions were not met. MB had not been willing to visit either of the proposed placements.

On 12^th July, the only family member to attend was SB. DY gave updating oral evidence. Those parties who were present made closing submissions. The Court made clear its conclusion both that MB presently lacks capacity to make the decisions in issue, and that there should be no order in respect of the proposed move to residential rehabilitation, with reasoned judgment to follow.

CAPACITY

The parties’ positions

The Official Solicitor’s position statement for the final hearing states at paragraph 4:

“It does not appear that any party is challenging the conclusions of Dr. Poz in relation to MB’s mental capacity.”

In his statement [A197] SB says:

“I believe that MB is a very intelligent man who knows his own mind and expresses his wishes and feelings very clearly. However I will respect the Court’s decision as to his capacity.”

The position statement filed on his behalf (dated 6^th June 2017) confirms SB’s view that MB “has insight and understanding” and can “weigh information concerning his own care” but says at paragraph 9:

“Dr. Poz makes an interesting distinction between MB’s decision making in relation to his therapy which arises ‘not so much because of an impairment of, or a disturbance in the functioning of, MB’s mind or brain (MCA s2(1)) but because of the consequences of the impairments…one of the consequences of which has been the evolution of an enmeshed relationship between MB and his Mother.’ Whether this distinction, albeit illustrative, is capable of withstanding an analysis of capacity under MCA 2005 remains to be seen.”

(For the purposes of this judgment I shall refer to that part of Dr Poz’s evidence as “the causation quote”.)

NB aligned herself with SB’s position at the beginning of the hearing. Subsequently, in her second handwritten statement she said:

“…I would like [MB] to have his wish on what he may want as his own choice, and if he is not happy to stay at residential care then I feel he should be given the right to decide.“

SA and AD have now confirmed that they accept Dr. Poz’s conclusions.

The Law

When addressing questions of capacity the Court must apply the principles of the Mental Capacity Act 2005. I remind myself in particular that:

I further remind myself that:

The test for determining whether a person is unable to make a decision is set out in section 3 of the Mental Capacity Act 2005:

With respect to the level of understanding which is required for decision-making to be capacitous, I have regard to the well-known observations of Macur J in LBL v. v RYJ [2010] EWHC 2664 (Fam) at paragraph 24 that “it is not necessary for the person to comprehend every detail of the issues…it is not always necessary for a person to comprehend all peripheral detail.” What is required is that the person can “comprehend and weigh the salient details relevant to the decision to be made” (paragraph 58).

With respect to how sections 2 and 3 of the Act inter-relate, I have regard to the judgment of McFarlane LJ in PC & NC v. City of York Council [2013] EWCA Civ 478 at paragraphs 52 and 56 to 58:

“…for the Court to have jurisdiction to make a best interests determination, the statute requires there to be a clear causative nexus between mental impairment and any lack of capacity that may be found to exist (ss2(1)).”

“The core determinative provision within the statutory scheme is MCA 2005, s2(1)…. The remaining provisions of s2 and s3, including the specific elements within the decision making process set out in s3(1), are statutory descriptions and explanations which support the core provision in s2(1)…. Section 2(1) is the single test, albeit that it falls to be interpreted by applying the more detailed description given around it in ss 2 and 3.”

Mr Lamb says, at paragraph 13 of his final position statement,:

“The key question is not whether the person’s ability to take the decision is impaired by the impairment or, or disturbance in the functioning of, the mind or brain but rather whether the person is rendered unable to make the decision by reason thereof (see Re SB (A Patient: Capacity to Consent to Termination) [2013] EWHC 1417 9COP) at [38].” (Footnote: ⁵)

I understand Mr. Lamb to be distinguishing between an impairment/disturbance of the mind/brain which has some adverse impact on decision-making ability, and one which negates such ability completely; and further to be contending that only the latter is sufficient to render someone incapacitous within the meaning of the Mental Capacity Act 2005. Having read very carefully the decision of Holman J in Re SB, I am not satisfied that it amounts to authority for the full sophistication of Mr. Lamb’s contention (at paragraph 38 or otherwise). I do however accept his contention, on the basis of the ordinary wording of S2(1) itself (“because of”) and in the light of the decision of the Court of Appeal in PC & NC and City of York. In the complicated nature of being human, there may be a number of factors operating in a person’s life circumstances at any particular time but unless the Court is satisfied on the balance of probabilities that the impairment/disturbance itself causes an inability to perform those thinking processes set out in section 3, the statutory test for incapacity is not made out.

Capacity is both issue- and time-specific: a person may have capacity in respect of some matters but not others, at one time but not another. The question to be determined is whether, at the date on which the court is considering the matter, the person has or lacks capacity to make the decision in issue (Footnote: ⁶).

The court must consider all the relevant evidence, including but not limited to evidence from an independent expert:

“Clearly the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in many cases the evidence of other clinicians and professionals who have experience of treating and working with P will be just as important and in some cases more important. In assessing that evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians treating, and the key professionals working with, P……in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective.” (Footnote: ⁷)

It goes without saying of course that the relevant evidence includes also that of non-professionals involved in P’s life, and in particular his family members; and they too may be influenced by a protective urge.

The Evidence

The independent expert: Dr. Poz is an Associate Fellow of the British Psychological Society, holds chartered status with the British Psychological society and has 19 years of experience of Clinical Psychology. She currently holds an NHS role as a Clinical Psychologist and Clinical Neuropsychologist. She was instructed as a joint expert. Over the lengthy course of these proceedings she prepared 5 written reports and she gave oral evidence.

The first report (13^th October 2014): Dr. Poz met MB on 3 occasions in two different settings (home and college), spending 7 hours with him directly, at all times in the presence of a person experienced in his methods of communications. She records that

“[MB] showed skills in turn-taking with his communication methods, he also demonstrated patience in managing the listeners’ incorrect assumptions, and persistence in communicating his point. On some occasions he declined for the assessment to be moved forwards until he had achieved the correct understanding from the listener of the thought he wished to communicate.” [E17]

Dr. Poz records that, notwithstanding two previous assessments of capacity to manage his property and affairs (Footnote: ⁸) which recommended specific technological aids, MB did not have available to him full use of technological assistance:

“[MB] has available to him an iPad with a head switch. This was provided at the first assessment but the iPad had not been charged and the head switch was broken. [MB] appeared keen to use the switch and the iPad, for example communicating to his mother where the plug should be attached. Unfortunately by the end of my final visit the iPad and switch still did not function.”

Dr Poz noted that communication “optimally require(s) the involvement of someone who is familiar with [MB’s] methods of communication” but “it was not always possible even for the person who has known [MB] the longest ie his mother, to interpret exactly what MB wishes to communicate.” [E23 para 8.3] She clearly described the limitations of MB’s ability to communicate:

“..he is dependent on being presented options by the listener which he can then endorse or refute. It is therefore very difficult for [MB] to communicate concepts and ideas of which the listener has no knowledge, and therefore very difficult for him to demonstrate independence of thought.” [E24 para 8.3]

Dr. Poz identified [E24] two distinct ways in which MB’s communication may be enhanced:

Dr Poz concluded on the basis of neuropsychological testing, that

Answering a question about psychological care needs (as distinct from capacity) [E24 para 8.4], Dr Poz referred to descriptions of MB’s key family relationships as “enmeshed …and over-protected.” She noted “high levels of anxiety” and advised that the process of reducing anxiety and developing emotional independence

Specifically addressing questions of capacity:

capacity to decide whether meetings with therapists and professionals should be undertaken in the absence of family members [E27 para 8.7]: Dr Poz noted that MB:

capacity to make decisions regarding adaptations to equipment or arrangements for care and ongoing therapies: Dr Poz concluded that :

capacity to decide what activities outside the family home he should participate in: Dr Poz concluded that MB retains capacity. [E31]

Capacity to decide with whom he should have contact, Dr Poz noted that:

For her second report (almost two years later) Dr Poz spent a further 7 hours with MB. She was asked to address broadly similar questions, with the addition of a question about capacity to decide whether to have a case manager and who that person should be. Again MB was unable to use the switch and iPad to aid communication [E227 para 3.4] but he did have an eye-gaze card showing a question mark to indicate “I don’t know/I’m not sure/Tell me more information.” [E227 para 3.5].

Capacity to make decisions about care and health services: Dr Poz’s conclusions were exactly the same as in her first report [E240]. Additionally she asserted that MB “should be supported in healthcare appointments by someone who is able to moderate his level of emotional arousal and model calmness in the face of uncertainty.”

Capacity to decide about meetings with professionals in the absence of family members: MB was this time noted to understand only “some information”, and he was considered unable to communicate retention of relevant information. The overall conclusion remained the same, that MB lacks the relevant capacity, but Dr Poz went further and opined that “this is underpinned by both inherent and situational factors; a combination of MB’s impaired cognitive skills and his enmeshed maternal relationship.” [E241] She went on to repeat that opinion which Mr Lamb quotes.

Capacity to make decisions about adaptations and care arrangements, this time Dr. Poz concluded that MB appeared to understand only some of the relevant information but otherwise her conclusions were exactly as before. In respect of her previous suggestion of scope for maturation, she found no noticeable improvement over the preceding two years. She suggested that the wheelchair may be an example of an issue where “MB has become globally negative… and is therefore answering ‘no’ to any question put to him about it.” [E243].

Capacity to make decisions about activities, Dr Poz maintained her view that MB retains capacity but expressed concerns that he “is not being provided with sufficient, if any, information regarding social activities in his area that are appropriate and accessible to a young man of his age and skills….His capacity to make decisions about what activities he could participate in is therefore reliant on the provision of information by others.” [E244]

Capacity to make decisions about contact with others, Dr. Poz’s opinion was unchanged. [E246]

Capacity to make decisions concerning a case manager: Dr Poz concluded that MB was not able to demonstrate an awareness of the reasonably foreseeable consequences of making a decision one way or another or of failing to make a decision. She noted that his opinion changed rapidly and considered that he was vulnerable to the influence of others in making his decisions. [E247]

MB’s cognitive function is not likely to improve, but the emotional enmeshment could;

if there was such improvement, MB “may weigh up slightly better” but it’s “not going to affect his underlying cognitive difficulties.”

She was not impressed by the anecdotal evidence put to her which others suggest may indicate no lack of capacity, and she distinguished “expressing a preference” from making a capacitous decision.

She did not accept that MB’s advocates may be better placed than her to draw conclusions about his capacity – “not unless they’ve done a capacity assessment, no.”

She confirmed that, in reaching her conclusions, she had “looked at all the information available at the time, including family and staff…it has to be taken together and looked at in totality.”

the basis of Dr Poz’s assessment was fundamentally flawed on causation. (He made “no specific challenge to her functional test conclusions” (Footnote: ⁹) but invited the Court to consider them through the evidence relied on in support of his causation argument); and

without having completed the psychological therapy recommended by Dr. Poz, it could not be said that all reasonably practicable steps have been taken to help MB make the specific decision.

The first of these is a Care Plan Updating Report from the Local Authority. It reports the views of LS and another advocate that MB “has capacity to make decisions for himself” but it does not seem to me to provide the evidence which Mr. Lamb suggests.

The second is a Case Management Update by DY dated 20^th March 2017. It reports the views of the college physiotherapist that MB “is an adult and he has good decision-making abilities” but again I do not consider that it provides the evidence which Mr. Lamb suggests.

The third is a letter from the independent advocate LS to the social worker KC dated 12^th May 2016. It describes discussions with MB but on each occasion MB called upon assistance from his mother and SA. I do not consider that it provides the evidence which Mr. Lamb suggests.

The last is the report by Professor Murphy dated 5^th June 2017. On this occasion MB was seen without his mother because she did not attend. By the end of the session Professor Murphy “anticipated that [MB] would be ready to plan a visit [to a rehabilitation placement] at the next session.” MB was brought to the next session by NB, and was vehemently opposed to rehabilitation placement at all. It seems to me that this report is evidence of MB’s wishes and feelings in respect of rehabilitation placement being more amenable to suggestion when away from NB, but not of his decision-making capacity/insight being any more complete.

When asked about Dr. Poz’s assertion in oral evidence that the causation quote had to be seen in context, Mr Lamb said that he could not disagree that the written context was limited to consideration of capacity to decide whether to see therapists and professionals in the absence of family members but he did not accept that the overall tenor of her evidence was so limited. He submitted that, on the question of residential rehabilitative placement, it was in fact difficult to distinguish between the first two domains of capacity which Dr Poz was specifically asked to address. He regarded this a “a conceptual difficulty for the report”, leaving the way open for a broader understanding of Dr. Poz’s concerns about enmeshment: “ I have to accept that her conclusions are more detailed [but] when reading them together, and taking the evidence as a whole, the enmeshment theory is the more persuasive.”

Miss Gannon on behalf of the Local Authority refuted the suggestion that the causation quote made in the context of decisions to see therapists and professionals in the absence of family members could somehow be merged into the clear conclusion of incapacity to make decisions as to care. She pointed out that rehabilitation is “all about physiotherapy, hydrotherapy” and the kinds of treatments which fall squarely into what is meant by “care.” The first area of capacity addressed by Dr Poz “deals head on with what the Court has to make a decision about”; and her conclusion in that respect has “nothing to do with enmeshment.” Enmeshment, she says, emerges in Dr Poz’s considerations “only when [MB] has to decide whether his family is involved.” She submitted that this reading of Dr. Poz’s report “wasn’t undermined in cross-examination – Dr Poz is clear – [MB] doesn’t have capacity to make this sort of decision, at this time, because of impairment” to his brain.

Miss Gannon further asserted that the second limb of Mr, Lamb’s assertions was wrong because of impracticability: resolving any enmeshment is not practicable, certainly in the short-term.

Mr. Bagchi adopted all of Miss Gannon’s submissions. Reviewing the oral evidence of Dr Poz, he said she had “identified two things: a cognitive impairment from acquired brain injury giving a learning disability, overlaid by emotional enmeshment in certain areas.” Considering all of Dr. Poz’s evidence he said that “no where…does she seem in any doubt as to whether, in respect of complex decisions, MB was even near to the point of capacity.”

Discussion

On the occasions when I have met MB, I have been left in no doubt about the enormous difficulties of achieving communication. I was impressed by the way in which both JW and MB’s solicitor were able to assist MB to communicate with me directly but the limitations which Dr Poz described were always apparent

MB himself gave every impression of wanting to communicate with me, at least for the length of time which he chose. He demonstrated a degree of humour when he might have felt frustration at the slow speed of identifying the picture he wanted. Given his apparent will to communicate, it is difficult to understand why technology has not been employed much more extensively to assist him; and where technological assistance has been obtained, why it is not actually made available to him in working order. My impression is that there must be a significant possibility that MB could be enabled to communicate better if those closest to MB have the will to support assistive technology and those in a position to effect it are not impeded.

Regrettable though the current situation as to communication aids may be, I am satisfied that Dr. Poz has taken all practicable steps to do as thorough as possible an assessment of MB’s capacity to decide the issues in question. Her assessments have been conducted over time and across different settings. In so far as it may be theoretically possible to improve MB’s communication by the employment of assistive technology, I am satisfied – sadly – that it has not been practicable for her to employ such aids to date. This very impracticability sits at the heart of the substantive application – one of the goals of the proposed rehabilitation placement is to provide consistent opportunity to use the tablet and chin switch (point 8 in the G Recommendations document.)

The questions posed by LS as advocate provide a useful cross-check on the adequacy of the assessment process. LS is right, and within the remit of her advocacy role, to insist on the need to provide MB with adequate information in an appropriate format; and to insist on adequacy of communication with him. Her assistance with the difficulties particularly in respect of hydroptherapy and the new wheelchair is to be welcomed but I consider that LS fails to distinguish between expressions of wishes and feelings, and a decision-making process. Her statement does not amount to an assessment of MB’s capacity within the terms of the Mental Capacity Act 2005. In contrast, asking the very questions which LS poses leads me to conclude that Dr. Poz has appropriately addressed each element of the statutory test. I am satisfied that Dr. Poz is fully aware of the complexity of capacity considerations and, if LS intended to imply otherwise with her ‘black and white’ comment, she undermines her own credibility.

Dr. Poz’s assessments show nuanced appreciation of MB’s situation and the issue-specific nature of capacity. I consider that her explicit consideration of MB’s capacity “to make decisions on the care he requires, including medical treatment and surgery” fully encompasses the question in issue, namely residential placement at a rehabilitation unit. I accept her conclusion as to functionality – that MB is presently unable to make such decisions for himself within the meaning of section 3 of the Mental Capacity Act 2005.

As to causation, although I accept the correctness of Mr. Lamb’s submissions in law, I do not consider that they are made out in the evidence. Dr. Poz was clear about the limited context of the causation quote, and clearly irritated by Mr. Lamb’s attempts to stretch it further. I do not accept that in oral evidence Dr Poz in any way widened her written concerns about enmeshment so as to alter her written conclusions in respect of MB’s incapacity to make decisions as to his care. On the contrary, I consider that she firmly refuted Mr. Lamb’s attempts to get her to do so. The submissions of Miss Gannon and Mr Bagchi more accurately reflect the totality of her evidence. I accept the conclusions of Dr. Poz (as set out in paragraph 70 above) that MB’s inability to make decisions on the care he requires arises because of the identified mental impairment, and not ‘because of’ his enmeshed relationships.

The only “evidence” from a medical professional which contradicts Dr Poz’s conclusions is the lately-produced letter from MB’s GP. In so far as the author states that “it appeared clear to me that [MB] had capacity to make this decision,” I note the express concession just a few lines later that the author had made no formal capacity assessment. Moreover, such conclusion is not supported by any of the parties – Mr. Lamb does not challenge Dr. Poz’s functional conclusions of incapacity. In any event the letter is unsigned, and lacks even a typed named of authorship. I place no weight at all on it.

MB’s parents assert that MB can make decisions for himself. As a litigant in person, and one for whom English is not her first language, it is of course understandable that NB has not addressed Dr Poz’s report directly but in failing to attend key parts of the hearing, and in particular not giving oral evidence, NB has given up the opportunity to explain to the court her position as to MB’s cognitive abilities. I acknowledge the emotional intensity of her feelings for MB but I am left with the impression that NB does not distinguish on any level between an expression of wishes and feelings, and capacity to make a decision. In his keenness to give consent to certain medical procedures on his son’s behalf, I conclude that SB too fails to make that distinction. I prefer the evidence of Dr. Poz. I note that other family members (SA and AD) do too.

Mr. Lamb submits that insufficient has been done to help MB make the decision in issue because the psychological therapy has not been completed. (Footnote: ¹¹) I remind myself that s1(3) of the Mental Capacity Act refers to “all practicable steps” (emphasis added). It is truly a source of frustration that MB’s access to technological communication aids has been so limited but I am satisfied that this is in significant part due to the complicated dynamic between MB and NB; and that it has not been practicable for any of MB’s professional carers, for Dr. Poz or for Professor Murphy to take further steps in this regard until that dynamic is addressed. It is further frustrating that the psychological therapy took such a long time to source. However, now it has started I accept Professor Murphy’s evidence that it will take a long time, if it is possible at all. It is clear that serious attempts have been made to give MB an opportunity to visit proposed placements, so as to inform his decision-making process. They have failed but not for want of trying on the part of those parties who bear the burden of establishing incapacity.

I am satisfied that, in the current circumstances, all practicable steps to help MB make a decision as to residential rehabilitative placement have been taken; and it is appropriate for the Court to determine the question of MB’s capacity to make the decision in issue at this point. (A determination now will of course not preclude the Court from considering the question afresh if and when there is reason to consider that circumstances have changed.)

Conclusion: Considering all the evidence, I am satisfied that MB is presently unable, because of mental impairment from acquired brain injury and learning disability, to make a decision about whether he should attend a 12 week rehabilitation placement. The Court’s jurisdiction to determine that question is therefore engaged.

The Concerns:

There has been no suggestion in these proceedings that NB’s care of MB as a child was anything other than appropriate. SA has said that his sister “gave up a lot” to care for MB, and it seems that she did it well. The family’s account is that NB was largely left alone to manage as she saw fit (Footnote: ¹²) but AD points out [A68] that NB was able to accept (and give consent to) medical advice and intervention for MB when appropriate, as demonstrated in 2010 or 2011, when he was seriously ill for some 3 months and was surgically fitted with a PEG feed.

However, concerns have arisen as MB reached adulthood. In December 2013, MB’s headmaster raised concerns [A4], and shortly afterwards in early 2014 the then property and affairs deputy RC felt it necessary to make an application for appointment of a welfare deputy [A2]. At that stage, the immediate problems appeared to be:

Through court proceedings, financial arguments were settled and a ‘fresh start’ put in place, with a new property and affairs deputy, PTC, and a new case manager, JW. Unfortunately by April 2015, both of these independent persons were raising concerns, “all related in some way to NB’s wish to control MB’s access to support and services and seemingly reflecting her own anxieties” [A41]. JW referred to the Local Authority worries that NB was preventing MB from spending time with his uncle SA, was preventing MB’s use of the appropriate wheelchair, and was otherwise inhibiting his independence. (Footnote: ¹³)

Once NB’s failure to co-operate with necessary arrangements for assessment by the Independent Social Worker had been overcome, Ms. Bairstow concluded that

In broadly the same timescale as the ISW report, the Local Authority conducted a full safeguarding investigation concluding in November 2015 that

In November 2015, a plan was made, apparently with the agreement of all parties, to address these concerns by introducing paid carers, and extending MB’s independence gradually. One year later, that plan had got no further than 1 hour of personal care in the morning and 1 hour in the evening. In the process, such had been the resistance of the family that .JW had to leave her post as case manager. When the matter came back for hearing, the Official Solicitor identified a pattern of

“apparent acceptance of the need for change; formal agreement to plans and proposals in the context of proceedings followed soon after by resistance, and disputes with professionals…MB being left without services recommended by professionals and stalemate until the Court intervenes with expert advice, when thecycle begins again.”

Nonetheless, at the hearing on 8^th November 2016, there was substantial agreement (Footnote: ¹⁴) between the parties. The order made was effectively a carefully constructed routemap for progress on the basis of co-operation. That approach was not entirely unsuccessful. A new case manager was appointed (DY), and he was able to begin the involvement of support workers. However the psychological and family therapy services were not secured, and as early as 13^th January 2017 DY concluded that he did not feel confident that the overall plan was attainable [E276]. He reported concerns that:

In broadly In broadly the same timespan (by 24^th January 2017), the Local Authority provided a risk assessment and risk management plan which highlighted elevated (amber) risks to MB in three areas: physical abuse (Footnote: ¹⁵), emotional abuse and neglect.

The Proposal

DY concluded that the many ‘loose ends’ in having a robust consistent and therapeutic regime at home made it unworkable. He sought instead the period of intensive residential rehabilitation which has been the issue of this hearing. DY’s proposal was always, in many ways, a very limited one:

At the outset of the hearing, an assessment of MB by the R Centre was available [E463]. It concluded that “a period of time receiving rehabilitation …. [was] absolutely essential…. MB’s mother should be involved in this process but from the start there will be a clear expectation that each week she takes time away from MB.” NB’s involvement was envisaged to last for 6 days. The report confirmed a vacancy for admission in approximately 4 weeks’ time, and offered accommodation for NB to use.

The Law:

Fundamental to the Court’s consideration of DY’s proposal is the principle set out at section 1(5) of the Mental Capacity Act 2005: an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done or made, in his best interests.

Section 4 of the Act provides that

In seeking to apply the provisions of section 1 and section 4 of the Act, I derive some assistance from the judgment of Munby J (as he then was) in the matter of ITW v. Z, M & Ors [2009] EWHC 2525 at paragraphs 32 – 36:

“[32] i)….the statute lays down no hierarchy as between the various factors which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P’s “best interests”.

ii)…the weight to be attached to the various factors will, inevitably, differ depending upon the individual circumstances of the particular case. A feature of factor which in one case may carry great, possibly even preponderant, weight may in another, superficially similar, case carry much less, or even very little, weight.

iii)….there may, in the particular case, be one or more features of factors which….are of “magnetic importance” in influencing or even determining the outcome….

[35] i).. P’s wishes and feelings will always be a significant factor to which the court must pay close regard:

ii)

…the weight to be attached to P’s wishes and feelings will always be case-specific and fact-specific… One cannot, as it were, attribute any particular a piori weight or importance to P’s wishes and feelings: it all depends, it must depend, upon the individual circumstances of the particular case. And even if one is dealing with a particular individual, the weight to be attached to their wishes and feelings must depend upon the particular context; in relation to one topic P’s wishes and feelings may carry great weight whilst at the same time carrying much less weight in relation to another topic.

iii)…in considering the weight and importance to be attached to P’s wishes and feelings the court must of course, and as required by section 4(2) of the 2005 Act, have regard to all the relevant circumstances. In this context the relevant circumstances will include, though I emphasis that they are by no means limited to, such matters as:

a)

The degree of P’s incapacity, for the nearer to the borderline the more weight must in principle be attached to P’s wishes and feelings…

b)

The strength and consistency of the views being expressed by P;

c)

The possible impact on P of knowledge that her wishes and feelings are not being given effect to…

d)

The extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and

e)

Crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in her best interests.

I also have regard to the decision of the Supreme Court in Aintree University Hospitals NHS Foundation Trust v. James [2013] UKSC 67. Baroness Hale noted that the Act gives limited guidance about best interests. At [39] she said:

“The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”

Where the protected person is able to express wishes and feelings about the decision in issue, the Court must decide what weight to give them. I have regard to the decision of Jackson J in X NHS Trust v. B (by his Litigation Friend, the Official Solicitor [2015] EWCOP 60. He concluded that Mr. B lacked capacity to make a decision concerning surgery, and went on to consider the weight to be given to his expressed wishes, in particular at paragraph 10:

“…there is no theoretical limit to the weight or lack of weight that should be given to the person’s wishes and feelings, beliefs and values. In some cases, the conclusion will be that little weight or no weight can be given; in others, very significant weight will be due.

This is not an academic issue, but a necessary protection for the rights of people with disabilities. As the Act and the European Convention make clear, a conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important…. For people with disabilities, the removal of such freedom of action as they have to control their own lives may be experienced as an even greater affront than it would be to others who are more fortunate.”

I have considered also the decision of the Court of Appeal in K v. A Local Authority [2012] EWCA Civ 79. The circumstances of that case included a concern that P was in an environment in which he could not articulate his own wishes, as opposed to what he believed to be the wishes of his father; and the proposal in issue was a move to supported living on a trial basis. The first instance judge had cited with approval the following passage from another case: (Footnote: ¹⁶)

The Evidence:

The Independent Social Worker: Amanda Bairstowis an independent social worker with 13 years of experience of care management within both the public and private sector. In her first report she advises that MB “needs to receive treatment and therapy from a team of various professionals working together as a cohesive, multi-disciplinary team.” [E64] She noted the relationship between NB and MB to be “close and loving” but that MB “presented as reluctant to give me answers to all my questions and looked to his mother for a response…despite MB being encouraged to reply, NB regularly provided an answer on [his] behalf.” [E65] After wide-ranging consultation with many people involved in MB’s life, she observed that “their relationship has failed to develop from that of parent/child to that which naturally forms when a person reaches adulthood.” [E67]

Ms. Bairstow considers that NB’s “inherent wish to protect MB and her strong beliefs around his care, treatment and therapy needs will more often than not lead her to oppose clinical decisions.“ She was “not clear whether NB’s reactions to recommendations for treatment, equipment and therapy result purely from her overwhelming wish for him to avoid pain, her mistrust of professionals, or a need to have control. Either way, the outcome to date is that MB is prevented from receiving the intervention he requires.” [E68] She gave examples :

By the time of her third report, Ms Bairstow confirmed her belief that MB’s relationships with his family were “essential to MB’s continued emotional wellbeing but ... there is far more that could be done to help MB explore the opportunities life can offer him.” [E201] Nonetheless, she made clear that she was “not in any way saying that [MB] should not continue living with [NB] or for her to be excluded from his care. Nor am I advocating any ‘draconian’ type measure which would prevent MB from remaining with his family or destabilising him as suggested in the position statement of LBB…” [E208] She continued to believe “that it would be beneficial for MB if he were to remain living with his family while accepting external, paid support with all activities of daily living” [E209] She identified the risk that “if MB continues to allow only his mother to support him with personal care tasks, when the time comes whereby she is unable to care for him through illness, old age etc, he will have increased difficulty accepting external intervention… it would be in MB’s best interests to begin accepting assistance with personal care now, in a measured and planned way, rather than this having to be introduced in a crisis situation in the future.” [E212]

When asked to consider the situation again in the light of DY’s proposal, Ms. Bairstow supported the 12 week placement [E318]. Furthermore, she considered it in MB’s best interests that he move to the placement as soon as possible: “To date, a great deal of time has been spent arranging for therapists, clinicians, and other professionals to work with [MB] at home and I am of the opinion that this course of action has, for now, been exhausted.” [E320] She agreed the need for “staged and planned transition” but recommended that this “doesn’t takeplace over too long a period to reduce the risk of NB’s response to the move influencing or distressing MB.” [E338] As to how long, she deferred to the treating psychologist.

By the time of her final report, Ms Bairstow acknowledged that the proposed placement “presents as a risk to MB’s emotional wellbeing and he will undoubtedly be distressed, however, I believe this risk should be taken, as to not will certainly leave him in a position where his treatment, care and control of his life are extremely limited.” [E386] She supported the planned transition recommended by Dr Poz, including an opportunity for NB to visit prior to a move but continued to recommend that this be achieved in the shortest timescale possible.

In oral evidence, Ms Bairstow confirmed that recent developments lead her to “put increased emphasis” on the need for rehabilitation placement: “Over almost 2 years, we haven’t moved on. We are still in the same position.” She acknowledged small improvements but felt they “hadn’t resulted in any meaningful improvement to MB’s quality of life or access to services.”

When asked about the distress MB may experience, she acknowledged that the transition is “clearly going to be a difficult experience” but she did not think that those difficulties outweighed the benefits. She pointed to evidence that MB has been resilient in the past, has been open to discussion, and presents at college with his peers very differently to how he presents with his family. She considered that NB should have an opportunity to visit the placement but she should not do so with MB. As to speed of transition, she said “if [NB] can find it in herself to be positive when they are together, it can not be rushed. If professionals believe that her involvement will cause [MB] to be distressed, then transition should be swifter.” In practice she considered it “unrealistic” to think that NB would accept a decision of the court in favour of the placement proposal, so it would be better to follow the latter course: “better to go without having been upset by his mother, as difficult as that is.”

When asked by Mr Lamb about MB’s cultural heritage she accepted that it “might well be the case” that Lebanese families’ cultural way is care within the family. However she pointed out “someone without disability would have opportunity and be able to make a choice to remain in cultural norms or do something different. It’s about being given the opportunity to understand what’s available.”

Dr. Poz: In her second report, Dr. Poz explained that:

“Within the context of being born with multiple disabilities and complex needs whereby one is entirely dependent on others for survival, the development of an enmeshed relationship with the primary caregiver can be understood as a functional survival strategy….Existing within an enmeshed relationship provides those within the relationship with a sense of safety, and therefore any challenge to this will initially be experienced as distressing and even threatening. I am of the opinion that MB will gain long-term benefit from the enmeshment reducing and increasing his autonomy. However I am of the opinion that any change must be conducted in a mindful and planned way, within a psychologically informed therapy, for example that his independence is fostered gently and not forced upon him. The enmeshment will take some time to loosen and could be experienced as traumatic if there was a rapidly forced separation.” [E248]

For her third report [E326] Dr Poz was asked to consider specifically DY’s proposal of rehabilitation placement. She took a clear position that it would be in MB’s best interests to develop his sense of independence but “whether a respite intervention is in MB’s best interests hinges on the manner in which it is facilitated.” [E329 para 3.2.1] She advised that “any transitions from the status quo will need to be conducted in a mindful and planned way” and noted “a risk that a rapidly enforced separation will be experienced as traumatic.” She expressly disagreed with DY’s suggestion that a rehabilitation placement could be implement in a “clean break process” but proposed a graded approach – “taking place on more than one occasion, with an increasing level of independence for MB being achieved on each occasion” and NB accompanying MB during his first residential stay [E328 para 3.1.4] She emphasised that “the next step of the respite plan should not be implemented until a psychological formulation is in place to guide the work.”[E330 para 3.3.2]

In her fourth report [E344] Dr. Poz provided a balance sheet of advantages and disadvantages of the proposed rehabilitation placement, and restated her opinion that “preparatory psychological work is essential to the family experiencing this as something positive and not traumatic.” [E349 para 3.1.3] She also made an observation about how NB would perceive the proposal:

“I believe that she does not currently have the emotional ability to allow practices to continue …. when she perceives that MB is suffering in the short term even if it is beneficial to him in the longer term. The hope is that she would achieve this emotional resilience and skill by receiving psychological input.” [E350]

In her final written report [E380] Dr Poz stuck to her insistence on the importance of psychological input for MB and his family before any rehabilitation placement but yielded to the “more strongly” held opinion of DY and Ms. Bairstow as to starting such placement with a ‘clean break.’ Even so, she restated her view that it is important for NB and MB to visit the rehabilitation unit before any placement started. [E381 para 6]

In oral evidence Dr Poz was asked how reliable an indicator of MB’s interests his presently expressed views could be. She considered that they were “not necessarily a good indicator…he struggles weighing short term and long term…he doesn’t have skill for long term best interests “ She interpreted Mr. Gibson’s final report about spinal surgery as “reassuring… [[the situation is] not life-threatening; so [the move to rehabilitation placement] could be done in a slow way to address mental health at the same time.” She said the duration of transition was “a difficult question…[she preferred] MB and his family to have psychological therapy so their fears can be heard and take reassurance…how long is dependent on how successful therapy is. For that to happen, people have to attend the meetings.”

When asked about cultural influences, Dr. Poz distinguished between “high expressed emotion” and “highly passionate cultural ways of expression which are normal” She confirmed that her concerns were “about unhealthy over enmeshment” and that the kind of conduct from NB which had caused the court to rise earlier in the day “falls into the ‘need to protect from’ side” of that distinction.

Karen Carter: Ms. Carter is the Safeguarding Adults Manager of the applicant local authority. In her written statement [C45] she outlined two safeguarding concerns:

In oral evidence, Ms. Carter confirmed that she supported the proposal for rehabilitation placement as in MB’s best interests. She did “not feel very optimistic about [NB] engaging” in therapy or support of such placement.

Fiona Firman: Ms. Firman is a social worker, involved with MB since November 2015. Her written evidence [C42] provided an update of MB’s current situation and in respect of the proposed residential placement confirmed that “Whilst we cannot 100% declare that MB’s health conditions will be improved, we can be sure that there will be a chance for MB’s needs to be properly and holistically assessed across health and social care professionals. Once there is a proper assessment in place then a treatment/management plan can be put in place for all to follow.”

In oral evidence, responding to questions from Mr. Lamb Ms. Firman confirmed her view that a period of residential rehabilitation “could significantly change the position at home.” If it was not attempted she considered that “We’re stuck in a situation where MB is not allowed to develop and the enmeshed relationship remains.” Ms. Firman followed Dr. Poz as to preparatory work before moving to placement: “I’d consider it important for NB and MB to have enough preparation about how they’re feeling emotionally – if NB can do that, I would advocate slower. If not, I’d advocate swift move to rehabilitation.”

JW: JW worked as a case manager for MB from August 2013 until 31^st May 2016. Her appointment ended because she was “informed that MB decided that he no longer wanted to work with me. I was not given an opportunity to directly to MB about this decision.” [C52] In her written evidence she described how MB “was extremely protective of his mother and there were many occasions when I believe he made a decision based on not wanting to upset his mother rather than his own needs and wishes.” [C54] She described spending “a significant amount of time trying to get [NB] to agree with recommendations that were made for [MB] rather than working with [MB] himself.” By the time her own involvement ended, JW noted that NB “had been allowed to end the involvement of one private physiotherapist, one speech and language therapist and an occupational therapist…and had also refused to work with a physiotherapist at college.” JW also reported that “there were many incidents where NB adjusted equipment herself without professional advice.” [C55]

In oral evidence JW explained that “at first, I’d hoped we’d get to a position where [MB] would be allowed to achieve independence whilst living with his mother. By the end I was sceptical about the likelihood of that being achieved.” When asked about MB’s resilience and ability to cope with change, she said “If Mum is able to say ‘let’s do this’, then absolutely…you can see him physically relax when he knows his mum supports him – he needs her permission. If mum supported him [to go to a residential rehabilitation placement] he’d still be scared but he’d go.” On the other hand, she was “pessimistic” about the prospects of success with the therapy to resolve enmeshment.

When asked by me about MB’s request to meet her at court, JW expressed real pleasure: “it was just like nothing had happened – lovely.”

Professor Murphy: Professor Murphy gave a written account of her (then) two meetings with MB. At the first, MB attended without NB. Initially he was vehement that there were ”no good things, only bad things” about going to a rehabilitation centre but by the end of the session he agreed that it would be a good idea to visit. Professor Murphy “anticipated that he would be ready to plan a visit at the next session.”

On the next occasion, NB again did not attend at the appointed time. She did however “turn up, very late,…with MB in his (old) wheelchair.” This time when asked, MB told Professor Murphy that he had decided not to visit a rehabilitation centre.

DY: having made the rehabilitation proposal in his first report, DY’s second report provided an update. He “continue[d] to have serious concern in the management of MB’s physical status.” He gave an account of NB’s failure to discuss with MB’s GP the problem of his vomiting, despite DY’s referral for such discussion [E355], and her requests that the carers be stopped from attending and replaced [E356]. Having spoken to AD and SA, he accepted that “some of the concerns of NB had credence” and took steps to change procedures and replace two carers. He considered that these difficulties “reinforce the benefits in having ‘a clean break’ from the family environment in order to establish routines and for MB to gain new insights and experiences to help inform his future choices in life.”[E358] He asked, “what is the alternative?”

In his third written report, DY described raising a safeguarding alert in respecto f NB’s conduct towards on of the replacement care workers and “doubt[ed] that any attempt at promoting, regularising and maintaining a home-based rehabilitation regime would succeed.” [E405] He continued to believe that a short term period of rehabilitative placement was “the best means …to establish routines, clearly identify longer term support needs and for NB to gain new insights and experiences.” [E405]

In his oral evidence, DY wanted to “be clear that I don’t see any malice from [NB]. She clearly cares and loves [MB] very deeply… [but] as a consequence she can’t emotionally separate herself tosee the practical benefits of assisting [MB] improve his general health and wellbeing.” He doubted whether therapeutic intervention would make a great deal of difference to how NB feels emotionally and felt “on balance, the sooner the move the better.”

DY visited one of the potential placements during the course of the hearing. He was recalled to give oral evidence of his views. He proposed to invite both facilities under consideration to produce a care plan and decide his final preference “against what can practically be delivered.” He hoped that college staff would help MB visit and transition but noted that up to this point they had been reluctant to become so involved. He said he would “dearly like to think we can get [NB] to visit and continue to engage her in the plans” but he said that on all the occasion he had tried to explain how he would help her, he had found “a very harsh reluctance to want to engage.”

The college staff: ZS and HD confirmed in writing and in oral evidence MB’s enjoyment of and participation in college activities and his potential for further development.

NB: NB’s opposition to the proposal of residential rehabilitative placement was always clear, but the basis of it less so. The first written statement she submitted said:

“I ... am more than happy to try and reassure [MB] and try to help settle [MB] into residential…care for the period of 12 weeks only. I would like reassurance before [MB] goes that at the end of his 12 weeks the final decision will be {MB]’s. I would like [MB] to have his wish on what he may want as his own choice, and if he is not happy to stay at residential care then I feel he should be given the right to decide and make future improvement in his home and look for a more appropriate care assistance in and around his…home. So is it possible I could have something in writing to reassure myself and [MB] that what I have stated in this letter will be taken into account and acknowledged before I make my decision.”

In a subsequent written submission, NB stated that “fact of the matter is [MB] and I were happy before all professionals and family members [SA] and [AD] got involved. There seems to be so much people involved. Please take into account before all this involvement and how Iwas [MB]’s only carer for 22 years without respite or cause for concern…I do believe I can give the best care to [MB]”

NB chose not to attend large parts of the hearing and did not give oral evidence.

SB: In his written statement, SB opposed the proposal of residential placement but considered that “intensive rehabilitation at home could begin almost immediately” [A201] In his oral evidence he confirmed that his view had changed: “I say MB should stay at home and his mum should take care of him.” He gave his view that, if MB was to be placed anywhere else “within 10 – 15 days he will pass away.” This appeared to be on the basis of a concern that professional carers “won’t be able to feed him.” In contrast, when asked if he had any worries about NB’s care, he said : “he’ll be safe with her. Nothing at all.”

SA and AD: For most of the proceedings, SA and AD have spoken jointly. Their written evidence for most of the proceedings has been firmly supportive, and quite defensive, of NB. SA was clear that MB “needs his mother, and NB would be lost without him. I don’t want my sister to feel her life sacrifices for that boy have not been recognised.” [A64] However AD attended more of the hearing than SA, and only she gave oral evidence. She explained how the deterioration in NB’s relationship with them since early 2017 had left her “so I don’t feel I can strongly defend or support her position.” Having heard most of the evidence, she told the Court that DY’s proposal “seems to me a really great opportunity… [MB] Is not keen on it so it’s difficult to give 100% support but there is so much disharmony, confusion, resistance, too much concentration on NB’s concerns…I now support the move to rehabilitation. This is a big change.”

A little later she explained her change on the basis of now having a lot more information: “actually this place looks pretty great.” She expressed some frustration with NB’s refusal to visit it. She asked rhetorically “What’s the worst that will happen? I have confidence that professionals would pull him out. The best case is that he has a wonderful kick start.” She likened the short-term placement to “an off-site MOT.” She explained that when she and SA had seen MB on the previous Saturday “he was not vehemently opposed to it. He trusts SA [who says] if the court decides, we’ll help you through it, and we’ll look after your mum too.”

As to timing of a move, AD “originally thought slow…now I think we should get on with it. It’s sink or swim. I don’t agree with the stress of waiting first, or of going one or two days a week.“ She was clear though that contact between NB and MB whilst he was in any placement would be “absolutely important – it would be going in the wrong direction if she was prohibited from seeing MB.”

AD preferred not to comment on SB’s involvement at all but her responses to questions from Mr Bagchi made clear that relations with him and his son are extremely difficult.

Subsequently, SA confirmed (Footnote: ¹⁷) that he agreed with AD’s change of position.

The adjournment period: The J Centre assessed MB in the presence of NB and SB. The report by Wendy Stuttle [E470] confirmed that “The assessment was difficult to complete as [MB] became extremely anxious, non-compliant at times and agitated on 2 occasions within the time that we were with him, resulting on one occasion being removed by his mother from the room.” MB was using his ‘old’ wheelchair, with no communication aids attached. The assessment concluded that admission to the J Centre “would be extremely distressing for [MB] and it would take him more than 12 weeks to settle and adapt … and would not be in his best interests.”

Although there had been no direction for it, Professor Murphy prepared a further report which gave a detailed account of the (lack of) progress made in the adjournment period. She had seen MB twice more and reported that MB now “hated” people : “he very specifically chose this word and got quite agitated and vociferous. We asked who he hated and he replied that he hated [DY], .…and the judge ‘a little bit’ and his own solicitor ‘a little bit’, because [DY] and the court were making him do what he did not want to do ie go to the rehabilitation centre.” MB agreed for Professor Murphy to meet his father and brothers but did not want her to see SA. Professor Murphy “could not understand why and he could not explain this.” He later said that his father and uncle argued.

A fourth meeting was scheduled for 4^th July but DY rang Professor Murphy to explain that MB was “refusing to leave the house and refusing to get into the taxi.” Professor Murphy therefore went to see MB at his home. She recounted a brief discussion with NB:

“[NB] added ‘I’m not stopping him. Not stopping him doing anything. He is a grown man.’ I said there was a difference between not stopping someone doing something and encouraging them. I asked if she encouraged [MB] to visit the rehabilitation centre. [NB] did not answer for a while and then repeated that she was not stopping him.”

Professor Murphy also reported the explanation of MB’s carer, Maria, as to his refusal to attend the meeting with her:

“She explained that [MB] was very stressed earlier on and had flung his arms out to prevent them getting him through the door and to prevent them getting him into the car that had come to collect him.”

MB himself told Professor Murphy that he felt “angry, sad, ill,” because of the rehabilitation centre. He said that he “did not want to visit, no, no,no.” He said he would refuse to go the following day, like he had refused to visit her that day. He wanted to go back to college. When asked about how he would feel about a different college, he “was enthusiastic, making it clear that his refusal to visit the rehabilitation centre is not about refusing all new activities.”

Professor Murphy concluded:

“… neither [MB] nor any of his family members, think [MB] should go to a rehabilitation centre, even temporarily….It is difficult to be certain whether it was originally MB’s view or whether he is being influenced by his family, and it seems pretty clear that none of his family members are encouraging him to give it a try….he is now so completely and implacably opposed to the idea that he would be totally unco-operative and consequently unable to benefit from the stay.”

Professor Murphy recommended that

The resumed hearing: when the hearing resumed on 12^th July DY’s position had changed and he was recalled. He confirmed that he had been “surprised” by the view of Dr. Nyein of the J Centre that any clinical input from his team would not bring about changes in MB’s posture, and that residential placement would secure no benefit. He confirmed that he had ‘put on hold’ MB’s proposed visit in the light of information from Professor Murphy. Taking all together, he no longer believed that residential rehabilitation placement was in MB’s best interests. He acknowledged that moving MB would involve severe physical resistance “and that would be untenable.”

In order to move forwards, DY explained that he has submitted a number of options to MB’s property and affairs deputy to consider funding, and he had embarked on discussions with the social worker. He proposed to “recruit a team” and not use agency staff. He considered that his new approach “the lesser of the options, but it’s got to be the realistic one.” He expected that there will be periods of crisis, and that he would then need to raise safeguarding alerts. He agreed that it would be a particular cause for concern if NB agitated for the removal of key workers in MB’s care arrangements. He confirmed his intention to “remain as case manager in the long term.”

Submissions

The Applicant Local Authority: At the beginning of the hearing the Applicant’s position was that the proposed rehabilitation placement was in the best interests of MB [A231]. In the light of events during the adjourned period, on 12^th July it then “doubt[ed]” that proposition [A287]. It sought “further detailed reports” from Dr Nyein and Professor Murphy, whilst at the same time urging that proceedings “reach a timely conclusion”. Ultimately, the Local Authority accepted that there should be no order on the issue of residential respite placement and Miss Gannon’s oral submissions were limited to capacity. She agreed the need for a reasoned judgment, and confirmed that the Local Authority accepted and was very conscious of its safeguarding obligations to MB in the future.

SA and AD submitted a joint written submission for the resumed hearing. They described being “extremely disappointed” that MB had refused to visit a placement; and “convinced that a new approach to MB’s care such as [DY]’s proposal is desperately needed.” Neither of them attended on 12^th July to make oral submissions.

On behalf of SB, Mr. Lamb’s written submissions on 12^th July urged that “thesubstantive proceedings need to end now.” He referred to the decision of Re ITW and submitted that “MB meets each consideration head on.” Ultimately, he limited his oral submissions to the remaining issue of capacity.

The Official Solicitor began the hearing seeking orders to achieve MB’s placement for 12 of residential rehabilitation as soon as Professor Murphy assessed him as ready to attend. [A239] Mr. Bagchi pointed out “the lengths to which the court, the other parties and public authorities have been prepared to go to avoid the prospect of MB’s removal from the care of his mother…. Generally all such measures have failed” [A258] He sketched the consequences of not putting into effect DY’s proposal in the following terms:

“.. in very simple terms, nothing will change and MB would be consigned to a life of enmeshed dependency upon his mother without any prospect of him developing his potential to make his own decisions and live with much more independence than his current circumstances presently allow…..he is likely to be in increased pain and his quality of life will be significantly reduced.” [A259]

After the adjourned period, Mr. Bagchi’s written position statement for the 12^th July noted that “it seems sensible for the court to take stock as to the way forward for the litigation.” He identified three potential options: proceedings with DY’s proposal, creating a care package for MB in his home, or giving active consideration to a long term educational residential placement. He accepted that the second “may be the least worst “ option but urged that “no party should be under any illusion that this remains a risky option for MB and may well result in further safeguarding referrals, high turnover of staff and, ultimately, more litigation” [A283] He considered it necessary for the key clinicians and experts to prepare further reports, exchange them and discuss options at a professionals meeting, with a further hearing thereafter.

Ultimately, at the hearing Mr Bagchi did not oppose the notion that proceedings should end immediately. He accepted that, for the steps necessary to put into effect residential placement to be in the best interests of MB, “a different balance of risk” would need to exist. He urged instead the imperative of vigilance on the part of the Local Authority to ensure that MB’s needs are met in the future. In this “extraordinary case”, he considered that this should include the Local Authority taking “a broad view of funding now”, in case a need for emergency placement arose.

Discussion

Findings: In the course of proceedings, the Local Authority drew up s “sample schedule of facts” [A169] which made clear the basis of its position in respect of DY’s proposal; and the Official Solicitor subsequently added an additional list making clear the basis of his position [A208]. SA, AD and SB gave their response but NB never did. Those documents are of some assistance now in setting out my conclusions at the end of the hearing..

Considering all the evidence, I am satisfied that:

Balance sheet: The Local Authority also drew up a balance sheet of “positives” and “possible risks” of DY’s proposal [A181]. Considering all the evidence, it seems to me that the balance sheet is as follows: