MA v A Local Authority & Ors

Eight grounds of appeal are advanced, each supported by extensive written argument. Mr Haddenand Miss Gourley have also helpfully set out the law and procedure applicable to appeals and remindme that the test for considering an appeal is set out in Part 20 of the court of protection rules.

An error in findings as to wishes and feelings – past, present or both, has potential to undermine thevalidity of the overall best interest’s analysis given the importance they are afforded in the statute andauthorities. However, the finding complained of cannot be said to be wrong rather, it somewhatdiminishes the strength of MA’s present wishes. I do not accept that the judge mischaracterisedMA’s wishes nor that he reduced them to such extent that, if more firmly found in terms of strengthand consistency and applied in the balance, it would have made any difference to his overall bestinterest’s assessment.

As for the contention that the court failed to place sufficient weight upon AA’s past and presentwishes and feelings, I reject that there is any basis for this. The conceptual desire to see MA asexpressed by AA in response to questions posed before the face-to-face contacts cannot be reliedupon nor should they be advanced devoid of overall context and the overwhelming evidence of therealities of the difficulties presented in practice in facilitation of the contact.

Of course, the first step is for the court is to ascertain wishes and feelings, both past and present,considering each protected party separately – parties to a marriage are autonomous human beingseach entitled to their separate wishes and feelings and that is no less the position when incapacitated.The District Judge certainly undertook that exercise, whether or not he drew up two separate balancesheets.

The failure to include the wishes and feelings in the balance sheet against the backdrop of lengthywritten analysis within the body of the judgment is of little or no consequence and, in terms of any diminution by the judge’s finding in terms of the strength of MAs wishes. Even if the judge made thestrongest possible finding as to MA’s wishes and feelings and consistency of expression, (whichwould not have been sufficiently nuanced or appropriate in any event) and found them to be the sameas her past wishes, I am not persuaded that such a finding would or should have tipped the balance interms of the balancing exercise under s4 Mental Capacity Act 2005.

In assessing and thus ascertaining MA’s wishes and feelings the judge was entitled to draw not only upon her expressed words but also her behaviours and conduct which, as he notes, seemed tocontradict her express wishes, and do not include any recognition or understanding of AA’s failure torecognise her or the consequent distress this causes her. The District Judge was certainly entitled toconclude on the evidence that MA’s requests to see AA were diminishing somewhat. Even if a morenuanced finding that MA’s wishes to have contact continue to be daily and sometimes evenvehemently and indignantly expressed, “people have pinched my husband”, they would have to beplaced in proper context. The judge expressly acknowledges the evidence that MA would bedevastated if told she could no longer have contact with AA and weighed it in the balance.

Mr Garlick makes the point on behalf of AA that AA’s established past views could have changed asset out in Aintree (para 45) – “in the light of the stresses and strains of his current predicament”. Allsources of evidence including that of the expert emphasised AA’s progress since living apart fromMA, her behaviour having caused AA harm. In my judgment it is a step too far for the appellant tocontend that the court should assume that if he had capacity and was able to weigh up the harm hehad suffered, that AA would choose to remain with MA or continue contact, particularly incircumstances where his inability to recognise and respond to MA as she would like him to causes herdistress

Furthermore, AA’s dementia makes him inconsistent, and the judge was entitled to consider and placeweight upon the evidence of contradictory statements made by AA only short moments apart.

The judge rightly, as in the case of MA, considered words and actions. He was entitled to examineAA’s better presentation, the fact he is settled and presenting more happily and does not ask to seeMA. His findings as to AA’s wishes and feelings were consistent with the evidence before him, and Iam not persuaded that any criticism can properly be advanced in terms of the weight the judgeafforded AA’s wishes and feelings – past or present in the circumstances of this case. It is clear thatthe judge fully engaged with the competing arguments advanced before him and undertook thenecessary evaluative process, in accordance with the evidence.

I have been unable to locate finding complained of that MA is no longer distressed at all about beingseparated from AA. The judge was entitled to accept the evidence that MA’s presentation isimproving, she is settling in at Placement 2 and becoming more accepting of the fact that she is notwith her husband. The evidence in this case was simply overwhelming in terms of the practicalitiesand AA’s lack of recognition of MA, even when reminded of who she is, his inability to engage inways which felt rewarding or comforting to MA with the attendant consequences of her distress interms of her emotional and physical responses.

The proposition as set out at para 67 of the appellant’s skeleton argument that MA’s wishes andfeelings can be characterised as rational and sensible is far from helpful in the context of this appeal. It is indeed entirely logical for a wife to wish to see her husband with whom she has spent most of herlife, but the difficulty facing the learned District Judge was that MA’s express wishes differconsiderably from her actions in declining video contact and that AA’s responses to MA caused herdistress and emotional pain which she is unable to approach rationally or logically or withunderstanding.

However often and strongly framed, express wishes cannot be determinative but must be“accommodated only within the court’s overall assessment of what is in MA’s best interests”. Therewas a great deal of evidence, which was accepted by the judge, which militated against MA’s wishesbeing accommodated.

Furthermore, I am not persuaded that the summary at paragraph 68 of the judgment is assailable. Icannot agree that the findings that she did not wish to engage in video contact and would not derivebenefit from exchange of letters and photographs were wrong or contrary to the evidence. Thosefindings, valid as they are, entirely support the conclusions he reached and were in line with theevidence. They cannot be characterised as “risk averse” as advanced by the appellant. Indeed, MissMahmood goes as far as to say that had the judge ordered anything different, this would have beencontrary to the weight of the evidence. The judge deals with this at para 73;

“It is put on behalf of MA that to stop all forms of contact is too risk-averse and paternalistic andgoes against MA’s Article 8 rights, expressed wishes and feelings and her dignity and autonomy as
an adult. Such a submission does not sit comfortably with the evidence which is that MA won’t
engage in video contact and does not derive any benefit from letters and photographs as she
becomes anxious actively avoids or removes photographs of AA”.

I agree with the written submissions of Mr Garlick at paras 14 and 15 of his skeleton argument;

“In the analysis section of the judgment, the Judge carries out such an analysis. At paragraph 69 the

Judge says that he needs to strike a balance between the certain and possible gains and the certainand possible losses. At paragraph 85 the Judge acknowledges that a decision of no contact willcause MA distress but concludes that ‘when weighed up with the distress she faces each time anyremote type of contact is imposed, that no contact is in her best interests at this time.’ This does notdemonstrate a risk averse approach, but a balancing of the emotional consequences of eitherdecision.

The Judge rightly highlights the fact that AA is not able to engage with contact, and that MA does
not currently want video contact. A decision that there should not be any contact at this stage is inthose circumstances not risk averse.”

All parties accepted that face to face contact was not an available option given the difficulties anddistress it caused MA and the consequential refusal on safeguarding grounds of both placements tofacilitate it. Video contact also made MA distressed because AA would wander off. Continuingattempts at video contact at the time the judge heard the case had not got off the ground because MAwas refusing it (and getting irritated by the requests which the court found could impact the goodrelationship between MA and the witness).

Telephone contact had served no purpose. The judge was entitled to accept the evidence, as he did,and to reach the conclusion, whatever MA’s wishes, that they could not and should not be tried againfor the time being. It was also reasonable of the judge to conclude from the evidence, which heaccepted, that indirect contact via photographs was not viable given AA does not recognise MA and because MA had removed some of the photographs of AA from her photo album and becomesanxious.

In terms of ground 3, I accept that beliefs and values are different from wishes and feelings and
should not be conflated. Mr Hadden and Miss Gourley also remind me that the Code of practice atpara 5.6 is devoted to beliefs and values.

However, I cannot agree that the District Judge merely afforded passing regard, rather than placedproper weight upon this separate statutory factor which demands separate evaluative consideration. I am not persuaded that the judge placed excessive weight on up to date wishes and feelings andminimised beliefs and values. Naturally, wishes and feelings are considered at some length in thejudgment – there was much exploration of those in the evidence, but it is clear that far from conflatingthem or running the two together, the length of the marriage weighed heavily with the judge.

It is difficult to think of more compelling evidence of long-lasting engrained beliefs underlying theway in which each of the protected parties conducted their entire lives than a marriage of this length.Although the duration of this marriage certainly represents powerful and compelling evidence ofwell-established values and beliefs of both MA and AA, he rightly identified the sad realities of thepresent situation in terms of options and practicalities and the compelling and overwhelming evidenceof distress and responses of both parties to this enduring marriage. He was also entitled to accept theevidence of the Social Worker that AA understands the concept of marriage rather than remembers hisown.

I am not persuaded by the submission that the District Judge failed to attach sufficient weight tobeliefs and values. Nor do I accept, given the totality of the judgment that the District Judge gaveconsideration only to AA’s lifelong choice to marry and remain married but ignored MA’s. Whentwo people marry they each make a commitment and the submission that in failing to state theobvious, the judge demonstrates a failure in the overall balancing exercise is entirely without merit.That there is no express equivalent assessment of MA’s values is of no consequence given he makes anumber of references to the length of the marriage and that MA’s past and present views were entirelyaligned with her commitment to it. Her views that her husband has been taken from her, complement,
if not underline the values she has always held and still currently adheres to.

In setting the stage under the heading “Issue 2: Contact” the District Judge briefly deals withavailable options and then, at paragraph 62 makes a powerful introduction to the difficult decision heis asked to make: “It is universally accepted that the starting point in this matter is that whereverpossible, a husband and wife should have contact with each other”. He expressly goes onto state“That would accord with M’s past and present wishes and feelings and to the beliefs and values thatwould likely influence her decision if she had capacity”. I see no conflation given, in MA’s case, thetwo s4 criteria complement each other.

My reading of the judgment is that the judge placed considerable weight on the values of the partiesto this marriage, not going quite as far as stating a rebuttable presumption but coming very close to it.It is plain from the entire tenor of the judgement that the court grappled with the issues on the basisthat contact was the starting point rather than discounting it lightly as contended by the appellant.

I am attracted by the submission that subsequent inability to recall pleasant, loving, and affectionatemoments should not be taken to demonstrate diminution in their intrinsic value or to negate the need

As for placing excessive weight upon risk of potential physical harm against certain emotional harm,this applied to face-to-face contact which was not an option on the evidence which was accepted by the DistrictJudge. The video contact did not present immediate physical risk but did present emotional risk interms of such distress. MA’s current rejection of video contact could not, on the evidence, have beenafforded anything other than considerable weight.

I agree with the submission of Miss Mahmood that it would have been wrong had the judge reached adifferent conclusion, given the weight of the evidence. In considering the various forms of contact the judge could not ignore the compelling evidence militating against giving effect to MA’s wishes. She wantsto see AA in person, which was not an option given the safeguarding risks, and the judge was entitledto find that remote video or photographs was not viable at that time. That evidence of the attemptsmade, particularly the distress to MA in terms of how it progressed in practice as opposed to thetheoretical desirability of contact was accepted by the judge and he afforded it appropriate weight. Inkeeping with the evidence, he was also careful to not to close the door, recognising that over timethings may change.

The submissions and criticism of the way in which the judge formulated theAintree question inrespect of telephone contact do not undermine the overall evaluation in respect of telephone contact,which the couple could not manage, in the context of not recognising each other’s voices. Thepreceding paragraphs of the judgment clearly demonstrate that the judge had fully engaged withbeliefs and values and past and present wishes and feelings. Even if the question had been moreaccurately framed as “if MA had capacity, would she choose to speak with her husband on the phoneand to maintain contact with him?” giving rise to an affirmative answer, the practicalities and realitiesagain militate against giving effect to such an answer.

It is also important and contextually proper in reviewing the judgment to note that the order expresslyseeks to accommodate inevitable change as dementia progresses as opined by the unchallenged
expert. Paragraph 9 of the order expressly states;“It is lawful and in AA and MA’s best interests for there to be no contact of any form, at this stage”.

In turning to Ground 4 “the judge’s analysis on the benefits/burdens of a move for AA to [Placement 3] was wrong in law” – this is advanced not because the appellant contends that the couple shouldlive together but rather that a move to the sister home of Placement 2 would, by mere means ofconvenience better facilitate contact, be in line with wishes and feelings and values and beliefs whichthe appellant says were not afforded sufficient weight and also have the advantage of removing AAfrom his friendship with J and reinforcement of any misapprehension held by AA that J is his wife orgirlfriend. Of all the points advanced by MA before the District Judge, this one was the leastattractive given the compelling evidence from numerous sources that AA is settled and happy wherehe is.

Nevertheless, in his careful and comprehensive judgment, the District Judge dealt with MA’ssuggested move for AA to the sister home, as if a bed were available expressly stating that heconsidered it would be useful in the broader sense of the case. He rightly accepted the contention thatthose acting for MA can properly make representations as to what MA would consider to be in AAsbest interests but goes on to reject the reasons advanced on MA’s behalf. He does so, having devoteda paragraph to the length of the marriage.

The Official Solicitor on behalf of AA was positively opposed to the move as being contrary to AA’sbest interests. It would remove the need for a taxi ride for direct contact, given the two homes sharegardens but the judge made clear finding that he saw no tangible benefits for AA to move. I rejectthe criticism that failure to include the advantage in his table that AA would be closer to his wifewhich would be in accordance with this wishes and feelings and also in accordance with his valuesand beliefs. I also reject that failure to include as a disadvantage that his being away would becontrary to these statutory factors. To an extent these criticisms are circular and repetitive and closescrutiny of tables do not do justice to the overall thrust of the judgment, given paragraphs 48 to 59and paras 56 and 57 in particular.

“I accept that when capacitous, AA had chosen to live with MA and remain married for 63 years. Iaccept this would likely influence his decision had he had capacity. I also accept that AA has madepositive reference that he would like to see his wife, that husband and wife should be together, andthat she knows he loves her. However, the social worker gave evidence that she does not believethat AA knows who MA is nor has much memory of his marriage, but she believes he holds ontothe concept of marriage. The social worker said that AA is settled and does not feel there is anybenefit of him moving placements.

The relevant circumstances appear to me to be that both parties have a dementia diagnosis, AA’sis more advanced than MA’s but her dementia has moved on since residing at placement 2.Moving AA to placement 3 will not at this stage have any impact upon his contact arrangementswith MA (which will be determined as part of Issue 2), and but for a change of residence which

would according to the social worker unsettle AA when he is settled and remove him from hisfriendship group there does not appear to be any real benefit to the move.

Even if, as contended, he failed to give consideration to the advantage that would be derived fromliving closer to his wife which would be in better alignment with his values and beliefs, I would notfor the compelling reasons advanced on behalf of AA, agree that this was wrong in law or wouldhave made material difference to the balancing exercise in terms of best interests given the evidenceof the Social Worker as to AA’s recognition of MA.

Bluntly, the appellant’s approach of minute scrutiny takes no account of the realities which faced the

I should also deal with the general criticism that the public bodies failed to persist or to work harder
in promoting contact. The judge sets out his assessment of professionals, being in the best position having heardfrom them, as to their approach and commitment. The suggestion that attempts atcontact were abandoned if not with alacrity, all too readily does not, Miss Mahmood contends, standup to scrutiny. The telephone call moved onto video, but AA’s lack of recognition led to MAbecoming upset and agitated. Two face to face meetings were tried and then attempts were made tomove back to video. The judge having accepted the evidence that the protected parties could notmanage telephone contact, was entitled to also accept the evidence of MA’s response to the memorybook, which the judge incorporated into his analysis. He was perfectly entitled to conclude that hehad sufficient evidence upon which to determine contact via means of letters and photographswithout calling for further evidence by way of further trying out such contact.

All respondents to the appeal have emphasised that the judge was careful to embrace possible, indeedlikely change as the course of dementia progresses. The judge secured promises of review and thisaspect also feeds directly into the Article 8 element of the appeal, which I will come to in a moment.

It follows that I am satisfied that the decision made by the judge was proportionate and necessary inthe circumstances of this case. This is particularly so, given the court explicitly sought assurance
that there would be regular review. I agree that a point is reached where the court should ceaseoversight and there is no continuing right to have party status in litigation. The overriding objectivehas clear application to this case, and I do not accept the criticism that the District Judge ended theproceedings precipitously or should have called for any further evidence.

The judge had delivered a careful judgement, which demonstrates that he was fully engaged with allcompeting arguments and reached a well-reasoned and sustainable decision in respect of the optionsavailable.

incurred by the representatives on behalf of AA and MA.