Norfolk CC v PB  EWCOP 14,  MHLO 75
"The issue is whether PB has capacity to decide whether to live with TB, what contact to have with him, and what her care arrangements should be (that issue, it is common ground, includes where she is to live); and, if she is to be accommodated in local authority care, whether she is deprived of her liberty and if so whether this should be authorised by the Court. There is an interim declaration to that effect." The judge comments on the capacity test (causative nexus), the inherent jurisdiction, and case management in the Court of Protection.
39 Essex Street
39 Essex Street have kindly agreed for the following summary to be reproduced below. For the original newsletter see 39 Essex Street Mental Capacity Law Newsletter#August 2014
A true tangle – capacity, influence and the inherent jurisdiction
NCC v PB and TBB (Parker J)
Court of Protection jurisdiction and powers – assessing capacity Summary
This decision of Parker J was handed down in March, but only appeared on Bailii in the second week of July 2014. It contains an important analysis of the ‘causative nexus,’ some controversial obiter comments as to the scope of the inherent jurisdiction, and a robust discussion of case management before the CoP.
The issues before the court were whether PB had capacity to decide whether to live with her husband, TB, what contact to have with him, where and under what care arrangements she should live, and whether any deprivation of her liberty resulting from a placement in local authority care should be authorised by the court. They were complicated by the fact that TB also lacked the capacity to litigate, and was also represented by the Official Solicitor. Background facts The background facts are detailed and complex; they repay careful reading because they are –sadly – resonant of too many cases where self-neglect interacts with complex and unsatisfactory personal relationships. For present purposes, however, and to summarise wildly, the case concerns a married couple, both of whom had psychiatric conditions, and whose living circumstances (together and, on occasion separately), caused increasing concern to Norfolk County Council. The local authority ultimately brought proceedings in the Court of Protection in relation to the wife, PB (although, on the facts set out by Parker J, it is perhaps not immediately obvious that this was not, actually, a ‘two P’ situation). The proceedings The proceedings took a somewhat convoluted course, especially as regards the obtaining of expert evidence, and Parker J had some pithy comments about the management of the case that we set out in full below.
By the time of the final hearing, both PB and TB submitted that PB had capacity; TB played a full part in proceedings through Counsel and the cross-examination of experts. However: “39. No concrete proposals were put forward as to where PB and TB were to live together. In my view the issue was not just whether PB was able to take a decision that she wants to be with her husband, but as to where she should live, in what circumstances, and with what care package.
40. This case is a prime example of the need in Court of Protection cases to have regard to the factual matrix and evidence, and the actual rather than theoretical decisions to be made: both by the protected party, and by the Court.” Parker J was profoundly unhappy with the state of the expert evidence as to capacity. At the hearing, she had three reports from an independent psychiatrist, Dr Barker, and two from Dr Khalifa, neither of who had given a clear view of capacity. Although they had made and produced a schedule of agreement, their overall view on capacity was still unclear. Dr Barker’s final position in evidence was that the issue of PB’s capacity was finely balanced and should be decided by the court. He “lean[ed] to the conclusion that she has capacity to make decisions about residence, care and contact in optimal conditions.” He wavered somewhat as to whether he thought that PB lacked capacity when not with TB, and eventually concluded that he thought that she might do. Dr Khalifa’s consistent position in oral evidence was that PB’s mental illness, anxiety and influence from TB all contributed to her inability to weigh information, but that TB lacked capacity at all times, sometimes at a greater level than at others.
Parker J was asked (before, and at the hearing) to see PB and TB. She expressed the need for care to be taken as to how such a meeting should be treated; as she noted: “The protected party does not give an sworn/affirmed account, and in particular if the meeting takes place only in the presence of the judge, with no opportunity to test the evidence, then in my view no factual conclusions save those which relate to the meeting itself should be drawn, in particular with regard to capacity (see YLA v PM and AnotherM at .” Both PB and TB spoke to Parker J in the courtroom with representatives present. Parker J considered PB to be “likeable, highly intelligent, sophisticated and articulate, well-read and knowledgeable,” and that “it [was] obvious to me from all that I have read and heard as well as from the meeting that PB’s intellectual understanding is at a high level. She stated ‘I understand that this Act only came in in 2005. I wonder whether it’s working out as it should be.’” TB was also likeable, articulate and sincere. Parker J accepted that, whatever their respective problems, the couple had a long standing and committed relationship and that they loved one another dearly. There was no issue as to their capacity to marry, and Parker J accepted that the relevant public bodies were trying to preserve the quality of their relationship as a couple, while promoting PB’s physical and mental wellbeing.
The core issue of law that Parker J had to decide was whether TB’s incapacity (which it was common ground could only relate to her difficulties with using and weighing the relevant information) was caused by a material impairment or disturbance of the mind or brain, or whether it stemmed from the influence exercised over her by her husband.
Having heard submissions upon the proper meaning of “because of” in s.2 MCA 2005, Parker J concluded (at paragraph 86) that: “the true question is whether the impairment/disturbance of mind is an effective, material or operative cause. Does it cause the incapacity, even if other factors come into play? This is a purposive construction.” Parker J also rejected the submission advanced on behalf of both PB and TB that McFarlane LJ in PC v City of YorkM stated that the ‘diagnostic’ and ‘functional’ questions should be asked in the reverse order to that set out in the Code of Practice, holding that: “In my view MacFarlane LJ did not purport to lay down a different test: nor did he take the questions in the reverse order, but simply stressed that there must be a causative nexus between the impairment and the incapacity.” At paragraph 92, Parker J held that PB’s condition was the cause of her inability to use and weigh. “Her inability to challenge TB may at one time have stemmed from a belief in the ties of marriage: I do not know. But now she is unable to use and weigh the information because of the compromise in her executive functioning and her anxiety.”
Parker J, addressing specific submissions about the importance of the principle contained in s.1(4) MCA 2005 that a person is not to be treated as unable to make a decision merely because he makes an unwise decision, held that: “98. This decision [i.e. where to live] requires PB to factor in immediate and serious consequences. The principle of autonomy must have limits, or there would be no intervention under the MCA 2005.
99. Where a decision has consequences of a serious impairment of health or welfare, the court is not considering a decision which is merely unwise. Ms Street submits that the foreseeable consequences must be proximate and not remote. The foreseeable consequences here are all too proximate, and have been repeatedly demonstrated. PB is unable to use this information to take into account foreseeable proximate consequences.” In a section of the judgment entitled ‘Influence/overbearing of the will,’ Parker J returned to the question of whether the impairment or disturbance must be the sole cause of the inability to make a decision. Rejecting the submission made on behalf of PB (relying on dicta in R v CooperM, B) that the impairment or disturbance must be the sole cause of the inability, she held that “inability to exert the will against influence because of the impairment or disturbance is relevant” (paragraph 101). However, it should be noted that this conclusion (and the discussion of pre- and post-MCA 2005 case-law) was obiter because: “107 … by reason of her condition alone, even without the influence of TB, in my view PB lacks capacity to use and weigh. The history over March and April 2013 in particular demonstrates that PB was not able in reality to make any decision at all which related to TB, or to her care needs. And what she has said during the course of these proceedings demonstrates the same process. Her impairment /disturbance is the effective cause, the primary cause of her inability to make a decision” (emphasis in original)
Inherent jurisdiction In a section of her judgment that is also obiter, Parker J went on to discuss whether – if PB had the capacity to decide where to live – she could impose a ‘residence requirement’ upon her under the inherent jurisdiction. In brief terms, she held that she could, because: “113… The inherent jurisdiction exists to protect, liberate and enhance personal autonomy, but any orders must be both necessary and proportionate. Miss Burnham submits that what is proposed is protective and necessary and proportionate and is not a coercive restricting regime. I am inclined to the view that a regime could be imposed on PB if that is the only way in which her interests can be safeguarded. To be maintained in optimum health, safe, warm, free from physical indignity and cared for is in itself an enhancement of autonomy.
114. I see no indication that the inherent jurisdiction is limited to injunctive relief. Each case depends on the degree of protection required and the risks involved. And the court must always consider Article 8 rights and best interests when making a substantive order.”
Parker J further held that Article 5 ECHR would be complied with because:
1. Any order would be in accordance with a procedure prescribed by law because any order would be “imposed by a court of law through a legal process of which notice had been given and it would be perfectly possible for a person of sufficient capacity to understand its effect. That fulfils the “Purdy” criteria [i.e. those set down in R (Purdy) v DPPB];
2. PB’s diagnosed psychiatric condition would satisfy the requirement of “unsoundness of mind” in Article 5(1)(e) even if it had not sufficed to establish a lack of capacity. As Parker J noted, incapacity is not co-terminous with unsoundness of mind. The conclusion on best interests Parker J held that it was in PB’s best interests to remain at the care home where she had been placed by the Council, and that that it was lawful and proportionate for PB to be deprived of her liberty by the court with controlled contact to TB until a statutory authorisation can be obtained. Case management Parker J concluded with some robust comments upon case management which we reproduce in full because it is clear that they were intended for wide dissemination. “126. I stress that I do not wish to criticise the advocates in this case. But I take this opportunity to offer some general guidance derived from my experience in Court of Protection cases from the point of view of the decision maker. This is not a new stance: I have raised the same points in other cases. But over the years some effective steps have been taken to control and manage family cases from which lessons have been learnt. Even more progress is being made under the impetus of the family justice reforms.
127. Adoption of a practical approach does not detract from intellectual analysis and rigour. Lord Wilson of Culworth as a puisne judge described himself as “family lawyer of practical disposition”. The reality and practicality of the subject matter of the decision can in my experience sometimes get lost in Court of Protection cases. So can the focus on effective administration of justice. The quest to address arguments of increasing subtlety can, as in this case, paralyse effective decision making by a Local Authority and hamper the ability of the court to deliver a decision. All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources, and other court users. I do not accept that (i) every possible point must be put (ii) the belief of a protected party is relevant to the issue of capacity. As Lord Judge reminded the profession in R v Farooqi and OthersM, it is for counsel to decide what question to ask and not the client. The fact that a client may lack capacity is not a green light for unmeritorious or unrealistic arguments to be put forward.
128. Everything comes at a price. And every penny spent on litigation is in reality (because it all comes out of the public budget) a penny taken away from provision for care. There were many court hearings whether attended or not, at most of which almost nothing of any materiality was achieved. One of the problems may have been lack of judicial continuity. It took many months for a fact finding hearing to take place. The Court is still not in a position to determine best interests. I had to read and reread reams of material and law reports after my return from leave to conclude this judgement.
129. I recognise the importance of this field of litigation. I recognise the need to promote the Convention rights of as well as to protect the vulnerable and the incapacitated. But in cases under the Children Act 1989 equally important human, Convention and protective issues arise. As in the Court of Protection, the court has to have regard to the overriding objective. Experts are not routine and have to be “necessary”, and the necessary expertise may come from the social worker.
130. Baker J in CKK and KKM and Butler-Sloss J in Ms BS v An NHS Hospital Trust M  2 All ER 449 reminded clinicians that a close professional relationship with P might lead them to be drawn to a supportive or emotional rather than analytical approach to capacity. I do not read these comments as supporting the appointment of an “independent” expert as the first line approach before the treating clinician has even set out the reasons behind the certificate of incapacity. Second opinions must be justified: and not just ordered as a matter of routine until there is no reason to doubt the first.
131. I am told Moor J queried the need for further evidence and the time estimate but was assured by the Official Solicitor that this was “reasonable” in order to ensure that the matter could be “properly resolved” by the Court. I cannot imagine that Moor J envisaged that there would be five reports in all, a “schedule of agreement” which was in fact not truly agreed, all of which led to considerable confusion, muddle, and prolongation of the court process. It certainly led to a prolonged examination of the witnesses, as fine distinctions in use of language and formulation of ideas were pursued and analysed.
132. The social care evidence has been crucial. The assessment of capacity is in the end for the Judge on the basis of all the facts (see in particular Baker J in CC & KK & STCCM) echoed by me in YLA & PM MZ COP 1225464. After all a single expert can be challenged by the process of cross-examination.
133. Attempts have been made to encourage if not direct Court of Protection practitioners to comply with basic sensible rules of case management in order to assist the judge. Moor J’s attempt to bring some order to the proceedings failed. The most basic of requirements, to provide a witness time estimate template, was ignored. Thus at the commencement of the hearing I was met with an assertion that there was insufficient time available: particularly for lengthy cross-examination. I had to take counsel in detail through the list of potential witnesses, and the issues which they were to address, in order to create a plan for the hearing of the case. This took up time. All this should have been done beforehand and a late return was no excuse. Specialist counsel had been on board throughout. Ms Street submitted that Dr Barker’s evidence was still so unclear as to require two hours cross-examination by her alone. I managed to shorten this a little. Even so the case proceeded much more slowly than was necessary. In my view this should have been a two day case at most.
134. Before seeking a four day listing the advocates should have provided for Moor J a precise broken down time estimate of what time was required for each witness, submissions and judgment, focused on the actual issues, or likely issues. I insist on this at directions hearings, and I find that I can usually shorten the individual times required, and the overall time estimate, very considerably in the process. Time estimates must be adhered to.
135. A judge cannot easily understand the issues, or give an effective ex tempore judgment, without a chronology of essential dates. I asked for one at the outset. It was produced part of the way though the hearing, obviously in a hurry, and a number of important dates, particular court hearings, were not included. I had to trawl though the applications and orders in the bundle and the many lengthy statements in order to produce the analysis of the history above which I have found so essential here.
136. Fact finding schedules should be produced in a way which makes it easy for the Judge to utilise them as a tool for delivery of judgment. The contents of the document produced were in fact useful, but difficult to use. I hope it is not churlish to complain that it was created in landscape rather than portrait, that when answered the page references were omitted, and there was no space for the judge’s comments. It would have been even more useful if there had been a chronology.
137. The evidence could have been addressed much more shortly. The actual issues raised were:
i) The psychiatric evaluation of PB
ii) The extent to which TB’s influence or pressure affected capacity: the legal issue arising from that was a matter for the judge.
iii) The extent to which PB’s beliefs may have been causative of her decision making: the interpretation of the words “because of” was for the judge and not the witnesses.
iv) Whether any potential decisions were simply unwise: again as Dr Barker recognised this was really a matter for judicial evaluation.
138. The joint statement should have addressed starkly:
i) Is there impairment or disturbance, if so what is it and what is its effect?
ii) What is the decision to be made?
iii) What is the information necessary to make that decision?
iv) Is the person able to retain, use or weigh, that information and/or communicate that decision? v) Is there a lack of capacity and if so why?
139. And if the experts do not agree, they must make it clear. If they have not made it clear, they must be asked to do so. If their disagreement does not affect the outcome that is one thing. If they disagree on the fundamental issue, they must say so. The experts are not a jury considering whether they can give a unanimous verdict. There is no duty to “harmonise” views if in reality the experts do not agree. It simply makes the task of the judge more difficult.
140. Practitioners need to ask themselves:
i) What do I really need to challenge?
ii) What does the judge need to know?
iii) What is actually arguable and what is not?
141. Effective steps must be taken to reduce evidence to the essential. In Farooqi Lord Judge emphasised the requirement that cross-examination should proceed by short, focussed question rather than by comment, opinion and assertion. I also note that in The Law Commission lecture given last year Lord Judge stated (as I was taught) that in principle no question should be longer than one line of transcript. In any event, the judge is interested in the answer, not the question.
142. Advocates need to be able to control the witness by the form and structure of their questions and not permit discursive replies or to allow the witness to ramble (particularly if the witness has the tendency to be prolix). There is no necessity for a long introduction: apart from anything else it may distract and confuse the witness and the judge.
143. Examination must not proceed by way of “exploration” of the evidence: i.e. a debate, or by putting theory or speculation, rather than by properly directed questions which require an answer.
144. This is all the advocates’ responsibility. However hard a judge tries to speed the process, this takes up time and interrupts the flow, and often leads to a debate with the advocate. Also it can give the wrong impression to the lay client about the judge’s view of them or their case.
145. Where two parties have the same case to put, the same points must not be repeated.
146. Finally the advocate needs, if facts are challenged, to put the client’s case.
147. I note and am glad to see that in IM v LM the Court of Appeal approved Peter Jackson J’s decision to determine the issues in a 2 hour hearing. The second opinion psychiatrist was not cross–examined. I am sure that in that case it helped that there had been judicial continuity throughout.
148. I am certainly not suggesting that this case should not have been litigated. It may have been necessary to have two experts. I really cannot tell, because of the way their instruction progressed, which may have led to their lack of precision on paper. But more focus on case management and case progression is essential.” Comment It is unfortunate in some ways that the Official Solicitor did not seek permission to appeal this decision (on behalf of either PB or TB), because we have considerable concerns about two aspects of the judgment.
That having been said, the comments made in relation to case-management are ones that practitioners would do very well to heed because they are reflective of an increasingly robust approach to case management which is likely to be adopted by ever judges and (in due course) potentially to be reflected in amendments to the Court of Protection Rules and/or Practice Directions so as to align them with the position in respect of family proceedings.
With the greatest of respect to Parker J, her reasoning on this question is somewhat obscure. It is possible to read paragraph 86 as suggesting that the impairment or disturbance need be no more than a material cause of a person’s inability to decide; if so, this is plainly incorrect, and inconsistent with the decision of the Court of Appeal in PC.
If, however, as seems more likely from paragraph 107, Parker J was holding that s.2(1) MCA 2005 requires that the court identify whether the impairment/disturbance identified by the evidence was the material/effective/primary cause of the inability, then we would respectfully agree. It would appear, indeed, that this was, in fact, her conclusion because at paragraph 107 she was at pains to emphasise that she concluded that PB’s impairment/disturbance was the effective/primary cause of her inability to take a decision.
We are, though, troubled by Parker J’s (obiter) discussion of the role of influence. This is a very difficult area, not least because of the fact that two of the most important authorities (Re G (an adult) (Mental capacity: Court’s Jurisdiction)  EWHC 222 (Fam)Not on Bailii! and a Local Authority v SA and othersM pre-dated the coming into force of the MCA 2005 and the sharp distinction that fell to be drawn thereafter between those lacking capacity and those who were ‘merely’ vulnerable. Further, a decision upon which Parker J placed particular reliance, Re A (Capacity: Refusal of Contraception) B, was a decision that pre-dated that in PC and, we would suggest would be approached rather differently in light of the emphasis in PC upon the causative nexus (for our part, Re A looks a lot more like – as was submitted on PB’s behalf – an inherent jurisdiction case, rather than an MCA 2005 case).
It seems to us that there is a clear (and principled) distinction to be drawn between:
1. A person who because of their impairment/disturbance is unable to resist the influence of another; and
2. A person who is in some way vulnerable and is also subject to influence.
For a discussion of this difference which appears not to have been put before Parker J (it post-dated the hearing before her, but pre-dated her judgment) which makes the point very clearly indeed, see the judgment of Russell J in LB Redbridge v G, C and FB (COP).
For our part, therefore, we would counsel considerable caution in placing reliance upon these paragraphs in Parker J’s judgment and would reiterate that they are obiter because she was ultimately at pains to hold that the material cause of PB’s inability to decide as to residence was the impairment/disturbance from which she suffered.
We are even more troubled by Parker J’s observations as to the scope of the inherent jurisdiction; we presume that the reason that the Official Solicitor chose not to seek to appeal the decision (as was intimated might be the case at paragraph 109) was because they were obiter.
We are, for a start, troubled by the soundness of the observations as a matter of law. In particular, it is difficult to reconcile her decision with that of Macur J in LBL v RYJ and VJM, In that case, Macur J expressly rejected (at paragraph 62): “the initial contention of this local authority that the inherent jurisdiction of the court may be used in the case of a capacitous adult to impose a decision upon him/her whether as to welfare or finance. I adopt the arguments made on behalf of RYJ and VJ that the relevant case law establishes the ability of the court, via its inherent jurisdiction, to facilitate the process of unencumbered decision-making by those who they have determined have capacity free of external pressure or physical restraint in making those decisions” (emphasis added) In this regard, recall also that the Court of Appeal in Re DL expressly endorsed the approach adopted by Macur J (at paragraph 67, per McFarlane LJ): “Further, in terms of the manner in which the jurisdiction should be exercised, I would expressly commend the approach described by Macur J in LBL v RYJ and VJ M, paragraph 62, which I have set out at paragraph 33 above. The facilitative, rather than dictatorial, approach of the court that is described there would seem to me to be entirely on all fours with the re-establishment of the individual’s autonomy of decision making in a manner which enhances, rather than breaches, their ECHR Article 8 rights.” On a proper analysis, it seems to us that Parker J’s approach allows for decisions to be imposed upon a capacitous adult. Not only is this difficult to square with the two decisions set out above, but – more fundamentally – how is such an approach to be distinguished from taking a decision on behalf of such an adult? Or – where the decision that is dictatorially imposed upon the adult is different to that which they purported to wish to take – how is that to be distinguished from overriding their capacitous decision? And, if it cannot, what purpose does the MCA 2005 actually serve in identifying a distinction between two classes of individuals in circumstances where (as Parker J had herself previously recognised in XCC) “The Court of Appeal in DL stressed that in contrast to incapacitated adults, the decisions of adults with capacity cannot be overridden on the best interests test or welfare grounds”?
Further, whilst Parker J was at pains to identify the approach that she was suggesting as being supportive of PB’s autonomy, it is perhaps not impertinent to suggest that it is very unlikely (given the description of PB’s relationship with TB) that PB would regard this as being the case. There is a distinct flavour here of forcing an individual to be free.
That the balance may come down in an appropriate case under the MCA 2005 in favour of protection over autonomy may well be inevitable, but the MCA 2005 provides a framework within which this decision will be taken and principles against which it can be tested. There is no equivalent framework for the exercise of the inherent jurisdiction beyond the need to do what is necessary, proportionate and not incompatible with the ECHR. It is also worth recalling here that Parker J in XCC expressly held that when she was considering exercising the inherent jurisdiction that she was not bound by the provisions of s.4 MCA 2005 and could take into account – for instance – public policy considerations that the CoP could not. Her comments in XCC might be distinguished because she was concerned there with granting relief in respect of an incapacitated adult where the relief sought was outside the scope of s.15 MCA 2005, rather than granting relief in respect of an adult outside the scope of the MCA 2005. However, the decision in XCC is (perhaps inadvertently) revealing of some of the pitfalls that may lie ahead if judges go down the path identified in this more recent case.
Finally, and with specific regard to Article 5(1) ECHR, it is far from obvious that the making of an order under the inherent jurisdiction in relation to a person who may have the capacity to decide where to reside but (as may well be the case) not have the capacity to litigate would satisfy the Purdy requirements. And it is also worth noting, perhaps, that very much greater safeguards are enshrined in the powers contained in the Adult Support and Protection (Scotland) Act 2007 to order the temporary removal of a capacitous but vulnerable adult from their own home: see this discussion paper here.
A substantial irony here is that the approach suggested by Parker J which is, at heart, predicated upon risk, irrespective of the capacity of the individual concerned, could be seen to be less discriminatory than that contained in the MCA 2005 and therefore, arguably, more compatible with the CRPD. But it is an approach that – with respect – flies in the face of the clearly established current threshold for intervention set down in the MCA 2005. It is also an approach which, for our part, we would wish to be considered very carefully – and, ideally – addressed in statute, rather than developing incrementally. Meeting P
One final, very small point, it is perhaps worth noting that it is not instantly obvious that merely because PB and TB were P and a protected party respectively they could not give evidence (as Parker J appear to have held at paragraph 42). It may well have been that this section of Parker J’s judgment was compressed in its reasoning, but it should be recalled that (where evidence is to be given on oath or after an affirmation) the test for competence to give such evidence is distinct from the test for whether P has capacity to conduct the litigation. The test is whether the witness is capable of understanding the nature of an oath and of giving rational testimony.
Alex Ruck Keene, 'A true tangle - capacity, influence and the inherent jurisdiction' (Mental Capacity Law and Policy, 23/7/14)†. This article expresses concerns about Parker J's approach to capacity and influence, and the inherent jurisdiction.
Court of Protection Handbook Blog, 'A shot across the bows of practitioners' (17/7/14)†. This article focusses on Parker J's comments on the conduct of cases before the Court of Protection.