Alex RKRe ZK (No 2) [2021] EWCOP 61 is the sequel to one reported upon earlier here, and contains some important observations in relation to assessment of capacity and the revisiting of best interests decisions. In summary, the case concerned a man, ZK, who had as a child, developed Landau-Kleffner Syndrome (also known as acquired aphasia with epilepsy). ZK was not deaf but not unable to understand aural language. Until September 2020, he lived with his mother. In 2017, concerns had been expressed about whether he was to be married, leading to a Forced Marriage Protection Order application. This led to proceedings before the Court of Protection, during which it became clear that, despite ZK’s profound communication difficulties, it was possible for him to make progress in language development. By September 2020, ZK was consistently expressing a wish to leave the home he shared with his mother. He expressed the wish to leave quickly. He did not wish his mother or family to have notice of his move. The Local Authority conducted a best interests meeting on 11 September 2020, having assessed ZK as lacking the capacity to make the decision. The decision was to move him out. In January 2021, the Court of Protection had to decide whether his best interests were served by him remaining where he was and then moving to another Placement 2, enjoying a consistent package of care from the local authority that enabled him to continue to benefit from immersion in British sign-language (BSL), or whether he should return to his mother’s home, where the consistency and availability of such a package and support was far from certain. At that point, HHJ Burrows decided that it was vital for his best interests that he remained at the placement in which he was residing, with a view to moving to another, better placement within a short period of time.
At this second hearing, listed as a pre-trial review/early final hearing, there was agreement as to most aspects of ZK’s decision-making capacity, except for the issue of contact. HHJ Burrows was also asked on behalf of ZK’s mother and some of his family to consider re-opening the issue of residence and to schedule another final hearing to decide whether ZK’s best interests would be served by him moving home.
Capacity
In relation to ZK’s capacity, HHJ Burrows made two observations of particular interest.
In relation to residence, ZK was given two options to consider: placement 2 and his family home (in line with LBX v K & Others [2013] EWHC 3230 (Fam)). As HHJ Burrows identified at paragraph 19:
He was able to understand the characteristics of each place, and that he would have access to his family at Placement 2, as well as the support workers using BSL. ZK has no apparent memory difficulties, although he may appear to have when he has not properly understood something. The “most complex aspect” of the assessment is “weighing up”. Dr O’Rourke says: “We attempted ‘weighing up’ as described above and ZK demonstrated he could do this to an extent. In particular, he was ‘weighing’ the fact that his family would be upset if he went to Placement 2 and [MD][1] would be ‘upset’ if he goes to the family home. He was also able to indicate a greater level of stress in the family home”. This led her to conclude that ZK “almost has capacity in this area” but that his cognitive and developmental limitations mean that he is unable to make a decision for himself where he is “in the middle”. Her use of the term “almost has the capacity” was naturally picked up by the parties and resulted in questions. The expert recognises in her answers that the MCA test is binary. However, and significantly, she identifies what she considers the real issue to be for ZK in the following answer to the question whether she is mistaking lack of capacity with the effects of undue influence (emphasis added):
I am not suggesting that he is currently subject to undue influence or pressure, although he is aware of being in the middle of a dispute about where he should live. My comments reflect that, in order to make a decision, first one needs to be aware that one is in a position to make a decision. [ZK] has only recently begun to make very small decisions and assert his needs and is used to others telling him what to do. He does not experience himself as having agency and my concern is any ‘decision’ made by him would be a response to what he perceives others to want, rather than a consideration of what he himself would prefer.
As HHJ Burrows identified at paragraph 20:
It seems to me this is the crux of the matter. ZK is having to learn that he can choose, as well as how to choose. If and when he develops that “skill”, he will almost certainly have capacity to make the decision.
That led HHJ Burrows onto his third comment, relating to the issue in dispute – contact. The family and (it appears) the local authority sought to persuade him to make a declaration that ZK lacked capacity to make decisions around contact with those outside his family, but had capacity in relation to those within his family. HHJ Burrows noted that the case of A Local Authority in Yorkshire v SF [2020] EWCOP 15, Mr Justice Cobb declared that SF possessed capacity to decide on contact with her husband but not with others. However, HHJ Burrows identified that there was, in that case, “a very firm evidential basis for distinguishing between decision making capacity with ‘her husband’ and ‘other people’ on the basis of the evidence and circumstances in that case” (paragraph 26). However, on the fact of ZK’s case, HHJ Burrows could see “no such justification in this case having considered all the expert’s evidence. ZK is unable to assess risk in relation to anyone. He is also unable to appreciate he can make a decision as to contact with anyone. I see no logical basis for the expert to express her conclusion as she did.” HHJ Burrows asked himself whether he should adjourn, direct further questions of the expert and (if necessary) for her to attend for questioning at a further hearing? However, at paragraph 27, he decided that the answer was “no”:
Although the evidence given by experts, particularly those who are single jointly instructed experts carry much weight, the decision on the question of capacity rests with the Court. In my judgment, the expert’s conclusion on this one issue does not follow from its evidential premises. It is unnecessary and would be disproportionate to direct further questions or to list a further hearing. I am also conscious that my finding on the issue of capacity for contact will have no real adverse consequences for family members or ZK since he is already able to have contact with members of his family as he wishes.
HHJ Burrows therefore declared that ZK lacked capacity to make decisions on each of the issues before the court, and (at paragraph 29), that:
It is in his best interests for him to continue to receive instruction and education, particularly in respect of sexual relations and relationships (including marriage/civil partnership). I say this because unlike the other areas of the decision making, whether the decision can be made for ZK, and he can enjoy the consequences of that decision, the same does not apply to sex and marriage. These issues should be kept under close scrutiny.
Revisiting the earlier decision
HHJ Burrows accepted that working relationships had improved, and that it was entirely legitimate for the family to focus on the failure of Placement 2 to materialise in the way anticipated at the time of the earlier decision. However, he made clear (at paragraph 35) that:
in my judgment in January my focus was on how immersion in BSL had enabled ZK to become more autonomous and happier. I had hoped that the damage caused by conflict in the past would be mended, and the family and the carers would learn to work together. It seems that has happened. It seems ZK has benefitted from it happening. At para [33] of my judgment I was concerned that if an order was made that ZK should return to his home the prospects of maintaining any package of care that may be available would be reduced by the “suspicion and hostility” towards those providing it. However, and importantly, I was concerned about the apparent inability of ZK’s family to understand what has happened and is happening to him. That is the product of a long history during which the prospects of ZK ever becoming autonomous have been written off by professionals.
HHJ Burrows had reached the conclusion that the proceedings should come to an end:
36 […] This litigation began in 2017, when there was concern that a forced marriage was imminent. The Court of Protection proceedings have been ongoing since February 2018- not far off four years. It is impossible to know what levels of uncertainty and insecurity litigation has had on everyone in this case: on ZK’s family, his carers, the professionals involved and, of course, on ZK himself, but it is likely to be considerable. I am also mindful of the effect it has on the deployment of resources- the local authority’s, the family’s, the carers’ and the Court’s. I am reminded of the words of Mr Justice Peter Jackson (as he then was) in Cases A & B (Court of Protection: Delay and Costs)[2014] EWCOP 48 at [12]:
“Just as the meter in a taxi keeps running even when not much is happening, so there is a direct correlation between delay and expense. As noted above, the great majority of the cost of these cases fell on the state. Public money is in short supply, not least in the area of legal aid, and must be focussed on where it is most needed: there are currently cases in the Family Court that cannot be fairly tried for lack of paid legal representation. Likewise, Court of Protection cases like these are of real importance and undoubtedly need proper public funding, but they are almost all capable of being decided quickly and efficiently, as the Rules require.”
I will also quote another part of that judgment that is equally relevant here (at [14]):
“Another common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” calls for a sensible decision, not the pursuit of perfection.”
37. It seems to me that these comments by Peter Jackson, J. must also be read with those of Poole, J [in An NHS Trust v AF and another [2020] EWCOP 55], when I come to consider whether to re-open a clear determination on best interests, and thereby prolong litigation.
38. My conclusion is that I have already determined best interests on the basis of evidence that remains essentially the same, save that Placement 2 has not yet materialised, but the plan still is that it will, and where the family and ZK’s carers are getting on better than they were (which was always part of the hope behind that judgment). In the context of this litigation, its prolonged nature, and the cost it must have had on all those concerned, it is not appropriate, necessary or proportionate for me to prolong matters further.
HHJ Burrows therefore dismissed the application to reconsider, as well as the local authority’s application to adduce further evidence that ZK’s family were trying to exert pressure on him to move back to his family home, making clear that, although he had read the material, he did not take it into account in any way in reaching his decision.
Comment
This judgment is of very considerable interest for a number of reasons, not least because, given the trajectory identified in the first judgment, it might have appeared that ZK would be found to have capacity to make the relevant decisions by the time of the second. It appears that the trajectory continues to be upwards, and hence HHJ Burrows’ observations about the possible future direction of travel.
The other point of particular interest is in relation to the importance identified by the expert of the importance of a person having to learn that they can choose – an issue which very comes up very often, but has rarely been captured with such clarity as was done by the expert, Dr O’Rourke.
The case, finally, is of interest for containing something, again, which happens not infrequently, but is not often recorded: i.e. the court saying “enough is enough,” and bringing a halt to proceedings. It serves as a useful reminder of the observations made by Peter Jackson J (as he then was) in the A & B cases about – in essence – the perfect sometimes being the enemy of the good, and the application of those principles (and those from AF) to a not uncommon scenario.
