NCC v PB and TB  EWCOP 14
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 (and I would suggest plainly incorrect) 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 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.
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 (to professional) 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, TB (although, on the facts set out by Parker J, it is perhaps not immediately obvious that this was not, actually, a ‘two P’ situation, a matter to which I return).
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 I set out in 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 that 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 Another  EWHC 4020 (COP) 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 York  EWCA Civ 478 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 Cooper  UKHL 42,  1 WLR 1786) 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)
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.”
Parker J further held that Article 5 ECHR would be complied with because:
- 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 DPP  1 AC 345;”
- 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.
Parker J concluded with some robust comments upon case management which are reproduced here.
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 I, for one, have considerable concerns about two aspects of the judgment.
Before I address those concerns, I note in relation to the comments about case management that it is very easy to pick holes or identify wrong turnings in retrospect, and based upon the transcript of the judgment alone I would certainly not for one second dream of criticising the individual Counsel involved (or their solicitors). However, the comments made 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; if so, this is plainly incorrect, and inconsistent with the decision of the Court of Appeal in PC.
If, however, Parker J was holding that s.2(1) requires that the court identify whether the impairment/disturbance identified by the evidence was the material/effective/primary cause of the inability to make the decision, then I would respectfully agree. It would appear, indeed, that this was, in fact, her conclusion – 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.
I am, 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) and a Local Authority v SA and others  EWHC 2942 (Fam) 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)  Fam 61, was a decision that pre-dated that in PC and, I would suggest would be approached rather differently in light of the emphasis in PC upon the causative nexus (for my 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 me 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;
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 F  EWCOP 485 (COP).
For my part, therefore, I 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.
I am even more troubled by Parker J’s observations as to the scope of the inherent jurisdiction; I 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.
I am, 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 VJ  EWHC 2665 (COP), 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 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  EWHC 2665 (COP), 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 me 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 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 in a 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 act compatibly 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 my part, I would wish to be considered very carefully – and, ideally – addressed in statute, rather than developing incrementally.
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 this section of Parker J’s judgment was compressed in its reasoning, but it should be recalled that the test for competence to give 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.