Alex RKRe EOA [2021] EWCOP 20 is a complex case in relation to a 19 year old man, of wider interest for the way in which the experts and the court had to navigate the interaction between EOA’s autism and the extreme religious and anti-social indoctrination he had been subjected to by his parents. Along with his twin brother and two other siblings, EOA had been removed from their parents’ care in 2015, as a result of ongoing concerns about the parents’ treatment of the children, which included keeping them isolated from the rest of society, not allowing them to attend school or receive any medical treatment and subjecting them to extreme religious and anti-social indoctrination as well as emotional and physical abuse. Their parents played no part in the care proceedings and did not seek to have any contact with them; effectively they abandoned them.
In anticipation of EOA reaching the age of 18 on the 5 August 2019 on 23 July 2019 the local authority applied to the Family Division under the inherent jurisdiction and to the Court of Protection for a personal welfare order in respect of EOA. Following the commencement of proceedings various judges made interim orders in respect of EOA including interim declarations as to capacity. EOA case first came before Williams J on 16 October 2019. He attended and spoke of his very strong desire to be free of court proceedings and his wish to make his own choices in relation to where he lived and with whom he spent his time, in particular his brother but also his wider family. On that occasion Williams J decided that EOA should move to live from his foster placement in a residential placement. The nature of EOA’s life at that placement was such that it would amount to a deprivation of his liberty and Williams J made further interim declarations and a deprivation of liberty order.
Expert evidence having been sought, it had been agreed by the local authority and the Official Solicitor that EOA lacked capacity to: (1) conduct these proceedings; (2) make decisions about his care and support; (3) make decisions about where he should live; (4) make decisions about his property and affairs; (5) and make decisions as to his foreign travel.
The local authority sought final declarations that EOA lacked capacity to make decisions in relation to: (1) foreign travel and holding a passport; (2) use of social media and the internet; (3) contact. The local authority also sought authorisation for a care and support plan which would give rise to a deprivation of liberty.
Capacity – what operative mechanism was in play?
At paragraph 47, Williams J considered that:
Despite the difficulties in carrying out a comprehensive assessment of EOA that Dr Layton [a consultant psychiatrist], (as experienced by almost every other health professional) experienced as a result of the difficulties in securing EOA’s engagement I am satisfied on the balance of probabilities that the diagnosis of autism is an accurate one. Dr Layton surveyed a broad landscape encompassing historic assessments of EOA, the views of his current carer’s and EOA himself and given his degree of expertise in the area I accept his opinion. The particular feature of that condition which bears upon EOA’s ability to make decisions is his fixed thinking which prevents him using or weighing information which is different to his preconceived and fixed ideas. This at the moment dominates his thinking in relation to very many important decisions that have to be made. That is not to say that there are not areas where he does show an ability to weigh and use information and where is thinking is not rigid but for the purposes of the decisions which have been put before me for adjudication it is this aspect of his condition which also in some contexts renders EOA unable to understand relevant information but most importantly prevents him using or weighing it as part of the decision-making process. I am therefore satisfied that EOA has an impairment of, or a disturbance in the functioning of the mind or brain within section 2 (1) MCA.
Williams J also noted that, whilst he did not at this point need to decide the issue because he was satisfied that EOA’s lack of capacity in the material domains was caused by his autism spectrum disorder, an issue which “may at some stage need determining as to the role that other features of EOA’s psychological condition may be playing in relation to questions of capacity and jurisdiction” (paragraph 48). As he noted, there was clear evidence before him that:
48. [….] EOAs experiences had impacted on his psychological functioning or development. The definition of harm in the Children Act 1989 means ill-treatment or the impairment of health or development. Development means physical, intellectual, emotional, social or behavioural development and health means physical or mental health. District Judge Alderson [in the context of the care proceedings] accepted that EOA had suffered significant harm as a result of the abusive parenting he had experienced, and in particular the indoctrination into a way of life and belief system well beyond any norms in society; even giving due allowance for the very wide margins acceptable in a modern liberal society. It is well established that emotional abuse and neglect can have both physiological/neurological consequences in terms of brain development and psychological consequences. The absence of any specific diagnosis in relation to EOA of the effects of his neglectful and abusive childhood does not mean that they may not still be present and playing a part in his current functioning. In theory at least it seems to me possible that even if it were not possible to fit those consequences into any known diagnostic category that they would be capable of having caused an impairment of or a disturbance in the functioning of the mind or brain which would potentially bring them within the ambit of section 2(1) of the Mental Capacity Act. Of course, EOA’s case is as a I have said far beyond any broad societal norms and within the spectrum where it can properly be characterised as indoctrination. Thus, even where the causes of incapacity caused by autism resolved that might still leave issues to be determined as to whether the consequences of his abusive indoctrination had consequences in terms of his capacity. Self-evidently it might also engage the protective Jurisdiction of the court in relation to vulnerable adults even if the consequences did not sound in capacity issues. However, given the evidence of Dr Layton that the autism itself is either substantially or entirely the source of EOA’s inability to use or weigh information those are questions I do not need to resolve today. As Dr Layton said in evidence it is not possible to disentangle the effect of autism and the effects of the indoctrination in any way so as to quantify them but the fixed thinking which is a well-recognised aspect of autism, (but would also be consistent with indoctrination) establishes the causal nexus required by section 2(1) MCA.
Capacity – foreign travel
In relation to foreign travel and possession of his passport. Williams J was readily satisfied that EOA lacks capacity to make decisions as to his foreign travel “given his lack of understanding of various issues relating to the practicalities of arranging foreign travel including managing the funds and the risks associated with foreign travel and his inability to use and weigh relevant information” (paragraph 49).
Capacity – contact
Williams J identified in this context that it was necessary to break matters down to contact with: (1) family members who maintained the doctrine; (2) members who had left the doctrine; and (3) third parties or strangers. Williams J agreed that the third category raised different issues.
- In relation to family members who remained within the doctrine, “the evidence establishes that EOA understands the contact with family he does not understand the risk they pose to him and is unable to weigh that in any decisions about contact with him. This rigidity of thinking arises from his autism although may also be impacted by indoctrination. He thus lacks capacity to make decisions in relation to those family members” (paragraph 50);
- In relation to family members who were outside the doctrine EOA expressed no interest in seeing them. “This may be because to do so he sees them in large groups which she does not like because of his autism but it may also be because they call into question his beliefs about the family. When POA attended court with EOA, he expressed his reluctance to see EOA because EOA’s view of the family tended to undermine POA’s separation from them. It seems to me that EOA lacks capacity in relation to these family members principally because he does not understand the benefits of seeing those who are outside the doctrine and he might be able to help him to understand the harm is indoctrination has done to him. As Mr Brownhill put it, he would need to understand something about the family dynamics and the differences that exist in order to make a capacitor’s decision. Achieving this is part and parcel of the long-term three-pronged care and treatment plan. Thus, I am satisfied that EOA lacks capacity to make decisions in relation to contact with his family members” (paragraph 50). Williams J considered that it was appropriate to make a separate declaration in respect of this aspect of contact with others because it was a fact specific decision which arose and which had to be addressed;
- In relation to contact with strangers, Williams J noted that it was appropriate to “consider the established formulation of the relevant information” (paragraph 51). As he noted, “Dr Layton identified EOA’s lack of understanding of his own vulnerability arising from his lack of social awareness, social naïveté and autism which make him vulnerable to exploitation and abuse. His fixed thinking and unwillingness to consider these issues prevent him weighing issues relating to his vulnerability and he thus lacks capacity to make decisions about contact with strangers. There is an argument that in relation to contact with strangers that EOA might with the provision of information and support capacity to make decisions about contact with strangers in the way that he might with support regain be able to make capacitors decisions in relation to general social media and Internet use. However, I think there is a distinction. The issues of lack of understanding of his vulnerability and his susceptibility to exploitation by strangers in relation to contact our more profound than those which bear upon social media and Internet usage. There is some link in that one can lead to the other but the progress that EOA would need to make in understanding his vulnerability in face-to-face relationships with third parties or strangers are far more deep rooted and are likely only to be addressed through the three-pronged, long-term care and treatment plan. I am therefore satisfied that EOA lacks capacity in relation to making decisions about contact with strangers and that the final declaration should be made in this regard. I do not consider that an interim declaration is appropriate in this regard.”
Capacity – internet and social media use
Williams J identified that in relation to general issues of access to the Internet and social media that decisions such as Re A (Capacity: Social media and Internet use: best interests) [2019] EWCOP 2 provided a proper route map to a decision in relation to this issue. The evidence established that EOA’s capacity to use social media and the Internet is currently hampered by his lack of awareness of the possibility of deception and exploitation by third parties with interests adverse to his own. As Williams J noted at paragraph 52, this in Dr Layton’s view amounted to a lack of understanding which meant he lacked capacity. Dr Layton thought EOA might gain capacity relatively easily with appropriate support and information in this area. However, Williams J was satisfied that this general approach:
53. […] does not assist in relation to the particular decision which arises in relation to use of the Internet and social media for the purposes of searching for his family or contacting them. In this regard the issue is far more closely aligned with the approach to contact with other named individuals where the courts evaluation should be decision specific. The use of the Internet or social media is merely one vehicle by which EOA might seek or have contact with family members who pose a risk to him and in respect of whom he lacks capacity to make decisions as to contact. Social media and the Internet today are the modern equivalent of a telephone directory or a letter of a previous era; they are simply a means of gathering information or communicating and in this case where there are clearly identified individuals whom EOA lacks capacity to make decisions in relation to contact seems to me that this should be recognised. The danger of not dividing these domains into more specific identifiable decisions would be to either apply an approach which was too restrictive in that it would apply a high bar in relation to strangers which in fact was only relevant to family members or alternatively it would apply too low a bar relevant to strangers to issues of contact with high risk family. I am satisfied that the statutory scheme and the jurisprudence does not require such an approach but requires a tailored and decision specific approach where that is appropriate on the facts. Thus, the order in relation to general internet and social media use should be an interim order which reflects the fact that further practicable steps to enable EOA to make capacious decisions in this regard. In relation to social media and Internet usage in the context of contact with family members that should be incorporated in the declarations addressing contact.
Capacity and physical health
It appears possibly of William J’s own motion, questions of EOA’s capacity in this regard were considered, as he identified a long-standing reluctance to engage with GPs. At paragraph 54, Williams J noted that:
As with other aspects of EOA’s behaviour it seems probable that is refusal to engage with the GP is a complex interweaving of views derived from his upbringing and an inability to weigh information arising from that and from his autism. In relation to matters such as vaccination given to this. EOA is likely to refuse the vaccination as that has been his express position in relation to all forms of immunisation. It may be concluded at the relevant time that he lacks capacity in relation to vaccination but in welfare terms the issue of forcing a vaccination upon him would raise very sensitive issues of the balance between his physical health and the psychological impact which might be profound and would almost certainly have a significant impact on his trust in those around him and their ability to engage him in the sort of normalisation and desensitisation on work as well as any autism related work.
Best interests
Williams J was clear that in the highly unusual case before him, the care and treatment of EOA needs to be bespoke:
55. […] The complex interplay between the psychological consequences of EOA’s upbringing and the impact of autism requires a bespoke approach which has now been identified. Approaches which might be well established for individuals with autism have to be re-evaluated in the light of the indoctrination elements of EOA’s psychological make up. It is clear that ABA is inappropriate, and that PBS needs to be tailored specifically to EOA as an individual; dynamic PBS as suggested by the Official Solicitor. The care and support plan drafted by the Local Authority subject to the amendments outlined by Ms Hendrick provides an appropriate for EOA’s medium to long term care. He has settled into that placement and has begun to develop relationships with some of the staff. It is important that the stability and security that brings EOA continues and that he is able to regard it as a home. The proposals that have been made in relation to the treatment plan with its three psychological components now provides an appropriate foundation for the treatment element of EOA’s future care.
56. Taken in combination I am satisfied that the care support and treatment plans provide solid foundations on which EOA’s medium to long-term future can be built.
However, as Williams J noted, “[t]he two factors which weigh in the scales against the adoption of that care support and treatment plan as being in EOA’s best interests are his own strongly held wishes to be reunited with his family and the prognosis” (paragraph 56). As he accepted, “[t]he long held and firmly expressed wishes of a 19 year old young man warrant considerable attention,” but
57. […] those strongly held wishes remain very much a product of the indoctrination that led to EOA’s removal into care and given that EOA lacks capacity to make decisions as to where he lives, his care and his contact with his family I am satisfied that those wishes must give way to the general welfare benefits that the care, support and treatment plan provide. I wonder whether EOA himself recognises or has some awareness of the benefits to him of his current living arrangements but is unable to express those because of the his indoctrination which have a firmer hold on him than they have for instance on POA or TOA. The other issue which bears upon the decision as to whether it is in EOA’s best interests to approve the care support and treatment plan is whether it is likely to achieve its goals and thus whether it is necessary and proportionate for the court to make the order is sought. EOA has been in care for five years and there is only modest evidence of change. Thus, is it proportionate to keep EOA from his family against his wishes if there is only modest prospects of success. For reasons which have not been fully explored it seems that EOA has not been able to access the sort of treatment that is envisaged under the three-pronged treatment plan now proposed. It seems from reading about EOA as he was in 2016 and now that there have been modest changes in his presentation and that his experience of life with his foster carer and in his placement have had some beneficial impact. It therefore seems probable that the bespoke care support and treatment plan proposed is likely to have a beneficial impact albeit over an extended period measured in years not months. Given the length of time EOA was exposed to indoctrination and the length of time that his autism has been untreated it may be that the changes that will be affected may be hard to predict and modest in extent but it is clear that the prognosis is positive if uncertain. That being so I am satisfied that and that it is a necessary and proportionate response to his situation. No lesser measure could be put in place to achieve the same ends.
Deprivation of liberty
It was clear that EOA was subject to arrangements giving rise to a deprivation of liberty, and Williams J had little difficulty in holding that they were necessary and proportionate in the circumstances (paragraph 58). He agreed that it was unnecessary within the order to make expression provision authorising EOA’s restraint:
59. Although he expresses a firm wish to be reunited with his family so far as anyone is aware, he has not made any attempt to leave TOA or even to search for his family. When he has left the GP surgery unaccompanied, he returned to the house and did not abscond. Nor is his behaviour in the home such as to have required the staff to use any form of restraint. Although he may be assertive in expressing himself, he is not violent and is generally compliant with the rules of the placement. It is therefore neither necessary or proportionate to authorise the use of physical restraint. Given the difficulties that have been encountered during the course of these proceedings in tracking down EOA’s mother and father for the purposes of notifying them of these proceedings it seems clear that were EOA to locate them and to that if he were successful it might prove impossible to find him again. The frequency with which the family move and their ability to evade detection would mean that the consequences were EOA to abscond would be likely long term and thus serious. The placement needs to be aware of this, as I’m sure they are, and to be vigilant to any sign that EOA might be seeking to locate them or even more seriously that he might have located them and was seeking to leave to Join them. However, as Mr Brownhill submits the statutory framework would permit the staff to take steps to prevent EOA absconding even without express to restrain him.
Best interests – contact
Williams J identified that there were concerns in relation to EOA continuing to see his brother JOA, who remained aligned with the family. However, there were clear benefits to the contact, and there was a concern that “terminating would be perceived by EOA as punitive and confirming his negative perception of the Local Authority thus further undermining efforts to normalise and stabilise EOA.” So long as the contact, which was monitored by JOA’s foster carers, continued to be ‘innocuous,’ Williams J was satisfied (at paragraph 60) that it continued to be in EOA’s best interests.
Litigation friend for ongoing review
On the facts of the case, the Official Solicitor remained in place as EOA’s litigation friend for purposes of the review of the deprivation of liberty order scheduled for the 12 month point.
Pathway plan
An issue emerged as to EOA’s pathway plan:
62. The statutory scheme provides for the provision of a pathway plan to promote education and training for a care leaver. It emerged that unknown to EOA’s current team that the children’s team had in fact developed a pathway plan via his children social worker and they had monitored it. Although for a period of in excess of six months the pathway plan had not been reviewed as a result of the absence of the social worker seems to me that in reality this almost certainly had no impact on the ground. At present the benefit of a pathway plan is that if as a consequence of the treatment plan EOA expresses an interest in education or training that a pathway plan will mean there is a vehicle by which steps can be taken very rapidly to implement such a willingness to access education or training. Historically the evidence makes clear that EOA had almost no formal education. When he was received into care the educational psychologist suggested a special school for children with severe learning disabilities. I have not been able to unpick precisely what happened in relation to EOA’s education between the making of the care order and his reaching his 18th birthday although it seems clear that home-schooling was attempted but was withdrawn when EOA did not engage. I entirely accept that for an individual in EOA’s position nonengagement (as for autism itself) should not lead to the immediate conclusion that nothing can be done, and services be withdrawn. However, in EOA’s case is nonengagement is not an aspect of his behaviour that is readily addressed; it permeates his whole personality and relates to far more than just education, but extends to health, engagement with almost any authority figure whether a social worker, a pathway adviser, his legal representatives or any other emanation of authority. Those who EOA engages with tend to be those he knows and has developed some trust in. A pathway plan and pathway adviser whether actively promoted or desultory promoted over the last 18 months would have gained no traction but would have represented another individual who EOA would have declined to engage with. I very much hope that the tripartite approach contained within the proposed care and treatment plan will open a window in EOA’s mind to the potential benefits of education or training. Thus, the existence of a pathway plan which will allow rapid advantage to be taken of any such opening that the care and treatment plan creates in EOA’s attitudes to society and normative behaviours. Although the issue has been rumbling along in the orders and position statements and it is right that the official Solicitor has identified the issue I do not think in practice in this case it is of real significance in the way it was in Re ND where Mr Justice Keehan did feel it appropriate to make a Declaration that the Local Authority had failed to fulfil their statutory duty. It is of peripheral relevance in this case and I declined to make any declaration. I accept that those involved in these proceedings and on the ground have done their best (with occasional shortcomings) to deal with a situation and individual that does not fit into any readily recognised categories and that has taxed even the minds of experts in their fields such as Dr Layton and Miss Meehan.
Letter to EOA
In passing at the end of the judgment, but of likely real importance in practice, Williams J noted that he would write a short letter to EOA explaining why he had reached the conclusions that he had done.
Comment
All cases before the Court of Protection are fact-specific, and this is no exception. The complex nature of those facts meant that the judgment inevitably had to be lengthy, to reflect the detailed, granular, analysis of EOA’s capacity and best interests in the different domains. As noted at the outset, of wider potential relevance is the way in which Williams J had (with the benefit of the expert evidence) to seek to identify precisely why EOA was unable to understand, use and weigh the information relevant to the decisions in question. In this regard, paragraph 48 is of particular interest, even if Williams J did not on the facts of the case as they stood have to reach a definitive conclusion as to the potential operation of the effects of indoctrination. The discussion of EOA’s capacity to make decisions in relation to contact is also of particular importance in reinforcing that capacity is decision-specific, that (as the Court of Appeal made clear in PC & Anor v City of York Council [2013] EWCA Civ 478) focus needs to be placed upon the actual decision to be made rather than a notional or generic decision, and, in consequence, it will often be necessary to determine questions of capacity to contact by either reference to specific individuals or categories of individuals. Finally, Williams J’s approach to the question of capacity in relation to the use of internet and social media is of wider interest for the way in which he (rightly) dug into the different reasons why EOA might be seeking to use it as relevant to the question of his capacity to make decisions and, especially, for identifying that, in reality, when it came to using the internet/social media for purposes of searching for his family, EOA was really making decisions about contact.
