Alex RKThe case of Wareham v Betsi Cadwaladar University Health Board & Ors [2024] EWCOP 15 concerns a 36 year old autistic woman, Laura Wareham, who strongly asserted her own capacity to make decisions about the conduct of the proceedings, and in respect of her (i) residence; (ii) care and support; and (iii) contact with others. The judgment of John McKendrick KC, sitting as a Tier 3 Judge of the Court of Protection, is lengthy and detailed in its analysis of the evidence – including that (unusually) of rival expert reports, one prepared on a joint instruction basis, and one on a sole instruction basis, by Ms Wareham’s parents. For the reasons set out in the judgment, John McKendrick KC determined that Ms Wareham lacked capacity in the material domains in issue, not least because evidence of the sole expert had materially evolved under cross-examination:
She accepted she had not put all the relevant information to Laura. Her view was that this was for the treating team to do. She accepted she had overly relied on what Laura had told her and had not triangulated this with treating clinicians. She accepted her reports did not set out in writing the conversations she had had with Laura when discussing the functional tests in any detail. She also accepted that her conversations with treating clinicians had not been set out in any detail in her reports. As I have set out above, on each decision, she ultimately was not asserting that Laura had capacity (paragraph 87)
Of wider relevance are the following points.
First is the useful self-direction that the judge set himself as regards the determination of capacity:
a. A purpose of the MCA is to promote autonomy and this applies to both the concepts of capacity and best interests[5].
b. There is a statutory presumption Laura has capacity unless it is established otherwise.[6]
c. Laura is not to be treated as unable to make a decision unless all practicable steps have been taken to help her to do so without success[7].
d. Laura is not to be treated as unable to make a decision merely because she makes unwise decisions[8].
e. It is for the Health Board to prove on the balance of probabilities that it is more likely than not Laura lacks capacity in respect of each identified decision. Laura and her parents need not prove anything.[9] [note that in relation to situations outside court, the question for purposes of s.5 MCA 2005 is whether the person carrying out the act has a reasonable belief that the individual lacks capacity, and belief is different to proof: see by analogy Barnet Enfield And Haringey Mental Health NHS Trust & Anor v Mr K & Ors [2023] EWCOP 35 at paragraph 57]
f. Whilst two experts have opined, the decision is mine having regard to all the evidence, attaching what weight I consider appropriate[10].
g. I am assessing Laura’s capacity as against the identified decisions in February 2024[11].
h. The assessment of Laura’s capacity is decision specific which requires formulations of the matters to evaluate whether Laura is unable to make the decisions[12].
i. I should first identify the decisions which fall to be considered.
j. In respect of each decision it will generally be necessary to identify the relevant information[13].
k. The identification of relevant information must be made “within the specific factual context of the case.”[14]
l. The information relevant to the decision includes information about the “reasonably foreseeable consequences” of a decision, or of failing to make a decision[15]
m. I should not overlook Laura’s ‘values and outlook’ and the weight she attaches to relevant information in the decision making process, if I consider she is able to weigh and use the information[16]
n. The previous case law identifying relevant information is a useful guide but each case turns on its own facts and previous lists should be appropriately tailored to the decision in question on the facts of the case[17].
o. It is then necessary to consider whether Laura can make a decision in respect of the matter for the purposes of section 3 – by understanding, retaining and using and weighing the relevant information[18].
p. It is not necessary for Laura to understand and/or use and weigh all peripheral information but only the salient information[19].
q. If Laura is unable to make a decision in respect of the matter, it is necessary to consider whether Laura has an impairment and/or disturbance of the mind or brain[20].
r. Thereafter I must consider whether this impairment and/or disturbance causes Laura to be unable to make the decision[21].
s. It is not necessary for the court to have a formal diagnosis or to formulate precisely the underlying condition(s) to consider the causative question between the inability to make a decision and the impairment/disturbance. This it is a question of fact for the court to consider against all the evidence[22].
(footnotes in original)
Second is the reminder (at paragraph 69) for those concerned with DoLS that:
[t]he issue of residence is distinct from the decision in respect of the mental capacity qualifying requirement in Schedule A1 – namely whether the person has capacity “in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment” – see paragraph 15 of Schedule A1, MCA. In A Primary Care Trust v LDV & Ors [2013] EWHC 272 (Fam) Baker J (as he then was) indicated that the relevant information in answering the DoLS test includes – in essence – the core elements of the confinement to which the person is subject.
Third is John McKendrick’ KC’s observation in relation to the suggestion that the decision in relation to contact included Ms Wareham’s attempts to contact medical specialists, the Food Standards Agency, the Office of the Public Guardian and the Equality and Human Rights Commission. At paragraph 80, he noted that the evidence did not deal with these organisations, and that:
In any event, I would need some considerable persuasion that the Court of Protection should be making declarations that P lacks capacity to contact others to grant itself a best interests jurisdiction to make an order that it is not in P’s best interests to contact regulatory agencies. That issue seems very much a matter for the agencies to manage and not the court.
Fourth and finally is the detailed discussion of the reasons that a judicial visit to see Ms Wareham in advance of the hearing. As there is so little judicial discussion of this difficult area, I set out his reasoning in full:
6. At previous hearings, prior to the start of the hearings, I have had the pleasure of conducting remote judicial visits to Laura. Such visits have been conducted with the agreement of the parties, consistently with Laura’s wish to meet the judge, and have taken place in compliance with the Practice Note on Judicial Visits found at [2022] EWCOP 5, dated 10 February 2022. The previous hearings have largely determined case management and interim best interests decisions.
7. I have been asked to meet with Laura in advance of this hearing. Her solicitor set out a written plan for Laura’s participation in this hearing. It anticipated I would meet with Laura in advance of this contested three day capacity hearing. I indicated, in an email to the parties sent in advance of the hearing, that whilst I would welcome the parties’ submissions on the issue, my preliminary view was that I would meet with Laura at the conclusion of this stage of the decision making process to explain the outcome and to permit her to engage with the person (me) who is making decisions on her behalf.
8, I was concerned that there was no directly meaningful purpose to meeting with Laura in advance of the hearing. It would not be to elicit her wishes and feelings, in a section 4 MCA sense for obvious reasons and I am aware her view is that she has capacity to make the decisions with which this application is concerned. Nor am I carrying out an assessment, formally or informally, of Laura’s capacity. Instead I am required to read and hear the written and oral evidence on these issues and the apply the law to the evidence to reach determinations.
9. Not only was there no obvious reason to meet with Laura in advance, I was concerned a judicial visit with Laura may influence my decision making one way or another, based upon my own observations which could not necessarily be fully communicated in her solicitor’s written note of the meeting. The non-verbal communication and observation undertaken may have provided additional information that would be incapable of being communicated in a written note. Not only is there a risk of unconscious bias; a visit may cause an unfairness to the parties who are deprived of the context and non-verbal communication. Whilst judges are used to hearing evidence and then excluding it, my experience is that a judicial visit can leave a lasting impression.
10. In terms of the law, I note that section 4 (4) of the MCA places a duty on the court: “so far as reasonably practicable, [to]permit and encourage [Laura]to participate, or to improve her ability to participate, as fully as possible in any act done for her and any decision affecting her.” However this must be interpreted consistently with the language and purpose of the MCA. Section 4 (4) is set out within section 4 which is concerned with best interests. The heading to section 4 is ‘best Interests’. I consider the qualified duty on the court to ensure Laura’s participation in these proceedings is principally directed at best interests decision making. Sections 2 and 3 which deal with capacity do not provide for a similar qualified duty. Whilst I accept that the court’s determination of the capacity issues is a “decision affecting [Laura]” the common sense reading of this duty is that it relates to best interests. The Practice Note on Judicial Visits does not envisage judges conducting remote visits to P in respect of contested capacity. That is not to say such visits are prohibited. They are not. However, the decision whether or not, or how, and when, a judicial visit to P should be carried out is a case management decision which should be undertaken consistently with the Court of Protection Rules and in particular in compliance with Rule 1.1 (the over-riding objective) which requires decisions to be made inter alia ‘justly’ and by ‘having regard to the principles contained in the Act’ which of course includes the qualified section 4 (4) MCA duty). Regard must also be had to Rule 1.2 which deals with the participation of P in the proceedings. This issue was largely dealt with by Cobb J in the normal way at the outset of the proceedings, but I have kept that matter under review.
11. I also remind myself that in the context of the Family Court[3], there is an increasing focus on the concept that a meeting between a child and a judge is a visit for the child to meet the judge; and not for the judge to meet the child. There is something of a read-across of this concept into this adult welfare jurisdiction. For the avoidance of doubt, I did not meet Laura (or hear from her in open court) for the purposes of my need to meet her to consider her capacity, or otherwise.
12. I have not overlooked Laura’s participation in these proceedings which determine decisions affecting her. First, she is a party. Secondly, I have already met her on at least three occasions (each at her request to meet the judge). I have that background firmly in mind. Thirdly, she is represented in these proceeding by experienced solicitors and counsel. Fourthly, I have ensured there is a hybrid link so she is able to follow the hearing from her placement (and I delayed the start of the hearing for around an hour as various technical problems were worked through to ensure Laura could hear and see the proceedings). Fifthly, I determined to meet with Laura to explain my decision, although I emphasise this was for her to meet me to hear the outcome before others.
13. Lastly, I was persuaded to accede to Mr Brownhill’s suggestion that Laura address the court at the conclusion of the evidence. Laura wanted this opportunity and no party opposed it. She spoke in public with members of the public watching her. She was not daunted by this although I do harbour doubts about the appropriateness of an incapacitated person choosing to address the court from her hospital bed in respect of intimate aspects of her life. As was apparent, whilst she was mostly calm, she appeared distressed before the short adjournment on day three and I quickly rose to provide her with a break. As I communicated to the parties after the adjournment, I was giving active thought, of the court’s own motion, to making the case management decision to sit in private for the purposes of protecting Laura[4]. I indicated I would hear submissions from the parties and from any member of the public observing before making such a decision. Thankfully, this was unnecessary and Laura presented as calm and collected.
Fifth is the question of the extent to which it can really be right that (irrespective of the undoubted excellence of the representation) Ms Wareham was represented by the Official Solicitor required, ultimately, to argue a case directly contrary to what she wished.[1] The court undoubtedly benefited hugely from the expertise of Counsel (and the solicitors) instructed by the Official Solicitor, but on the face of it this might well be thought to be a paradigm case in which the truly right course of action would have been for P to be represented by a person charged with advancing her case. To the extent that the court required the assistance of experienced lawyers whose sole duty was to assist it, rather than juggle that duty with a duty to a client, the Official Solicitor could have been invited to act as Advocate to the Court.
[1] I should emphasise that it is entirely clear that this is what is required by the law as it stands. See, for a recent statement of this, Gloucestershire Health & Care NHS Foundation Trust v FD & Ors [2023] EWHC 2634 (Fam).
