Alex RKThe contours of the issue in A Local Authority v TA & Ors [2021] EWCOP 22 were sketched out economically in the opening paragraphs of Cohen J’s judgment:
1. This case concerns the health, welfare, and care of GA, an 87-year-old lady. She is a widow with six surviving children – three girls and three boys – and there are 10 grandchildren, by two of the girls. Since 2004, she has lived at an address in a city in West Yorkshire. She is the tenant of that property which is a housing association property. Of her six children, at all material times, two of the boys, TA and HA, have lived with her.
2. HA has some form of mental disability and is in receipt of a care package, the details of which are not known to me or, I think, to the social workers dealing with GA, but I have no reason to think that either (a) he presents any risk to GA or (b) he is able in any way to assist GA in her care.
3. TA is plainly an intelligent man and he presents himself as his mother’s sole carer and the proprietor and manager of a care home – an inappropriate description of his mother’s home but one which he says should entitle him to £1 million a week by way of salary, for the care that he says that he provides to GA and HA.
4. It is the case of the local authority that TA exercises abusive and controlling behaviour towards his mother and so dominates her life that she (i) is unable to enjoy personal dignity; (ii) has lost contact with her community and with her family, apart from HA and TA, and to some extent XA [one of GA’s daughters]; and (iii) is denied access to important healthcare and treatment.
The local authority sought to remove TA from GA’s home and bar him from returning so that a local authority care package could be put in to look after her.
TA had previously been the property and affairs attorney for his mother, but had been removed in 2018, having been convicted in February 2016 of five counts of fraud and abuse of position. Those five counts related to money that he had misappropriated, that money being due to or for the benefit of his mother, and she was the subject of three of the five counts. TA had been sentenced to a term of 45 months’ imprisonment. TA asserted that his conviction was wrong and that he should never have been charged but had not appealed, and blamed the local authority for wrongful prosecution of him.
There was an extensive procedural backstory to TA’s non-attendance before the court, notwithstanding the fact that he had been ordered to attend. The backstory included publication of meetings involving professionals on YouTube and this judgment from Cobb J addressing TA’s wish to record proceedings (and also his conduct towards court staff).
There being no doubt as to GA’s lack of capacity to make the material decisions, Cohen J was squarely confronted with determining what was in her best interests. Despite his non-attendance, TA’s case was squarely before the court, and the most economical way in which to outline how Cohen J reached his decision is to set out how he responded to that case:
71. I agree with the local authority that what is being sought is draconian and I have considered it very carefully. I should return to the concerns of the local authority and the Official Solicitor. I deal with them under these headings. First, they say that GA is at risk of immediate harm. TA goes out, as he agrees, leaving GA, and it is presumed HA, shut in the house. This happens most days for about an hour and they are there on their own. If there was a fire in the house, or GA suffered a stroke, the result could be fatal. TA says that he can tell what is going on in the home by looking at his mobile phone and by picking up the remote surveillance but that, of course, is no substitute for presence and is inherently dangerous.
72. Secondly, the local authority argue that GA is deprived of many of her basic rights by TA. She is isolated; she does not go out; and she remains in her own room. Neighbours report to the local authority that they have not seen GA since 2019 and that previously, she was a sociable woman. It is not known whether she is, in fact, able to go out and enjoy being outside and seeing other people. That simply does not happen and cannot be investigated at the present time.
73. Thirdly, she is deprived of medical attention. As I have already mentioned, there have been occasions when nursing teams have been prevented from entering the house and there is no record of any GP attendance either at the home or at a surgery, so far as the local authority has been able to find, since 2019. At aged 87 and having had a heart attack and been the subject of a whole series of heart medications, it is plain that she should be receiving medical attention.
74. Fourthly, there is no evidence that GA is receiving any form of medication. TA refused to provide any information. I do not know why. Maybe he feels information is power. However, the result is that, so far as the local authority and the court are concerned, there is no evidence that GA is receiving statins, blood thinners, and her heart medication and there is no evidence that there have been any of the necessary tests undertaken to ascertain if the medication previously prescribed is still appropriate.
75. Fifthly, she is cut off from at least three of her children and all of her grandchildren. Whatever TA may say about their failings, RA, MA, and DA all feel prevented from seeing their mother. MA and DA are the only ones with children. So GA does not see her grandchildren at all. GA wants to see them but they will not come and see her with TA running her home.
76. Sixthly, all her intimate care is carried out by TA, when she would much prefer a female to do that. It can only be degrading for her to be washed, bathed and have her pads changed and cleaned after using the toilet by her adult son. For a woman of her faith [i.e. Muslim], it must be particularly humiliating.
77. Seventhly, she is under video surveillance 24-hours a day. I accept, of course, that in some medical settings that happens, but it is degrading to anyone’s sense of privacy and cannot be justified for a lady who seems to spend nearly all of her hours in bed.
78. Finally, she is deprived of any form of professional assistance. Those who offer essential services simply will not go into the property because of TA’s dominating and controlling presence and his insistence on filming what goes on.
In the circumstances, Cohen J identified that in making the best interests decision on behalf of GA, it was common ground that:
81. […] above all GA would want to stay in the home in which she has lived for some time. I am sure she would want to receive appropriate medical treatment and medication. She would want to be able to see her doctor. She would want, for example, to receive treatment for the pain she demonstrated she was suffering on 26 and 27 January. She would want to see her children, all of them, and her grandchildren. That is what she said. She would want to be cared for by women. She would want care and stimulation. All these are very much in her interests. I am sure also that she would want to be cared for by those who know her and from whom she is used to receiving care.
Cohen J had to consider TA’s rights: TA lived in the property and no other home of which he was aware. Cohen J did not know where he would live if required to live – although observed that it was TA’s fault that he was without that information. He also observed that to deprive him of the company of his mother was a significant interference in his family life. In the circumstances, and had there been any way of enabling care to be shared to make good the deficits of the care GA was receiving from TA, Cohen J made clear (at paragraph 82) that he would have grasped it. The problem that he was satisfied that:
82. […] the history, from the evidence, and from the argument, that that is simply not possible. The video clips make it very clear why it is not possible. There is no suggestion from TA, even in the video clip that he sent today, that anything will change. He does not see a single deficit in the care that he provides and I come to the clear view that a different regime must be put into place in GA’s best interests.
Cohen J expressed the hope that, as time could go on, TA could be brought back into the fold and able to see his mother and spend time for her, as he was sure that would be to their mutual benefit, but:
83. […] a continuation of the current situation, where his mother is locked away by him from the world and the rest of her family without others being able to reach her, except occasionally with the most stringent court orders, is not a situation that is in her best interests. I accept that this is a draconian order. It should have been capable of being avoided but it is TA, and TA alone, who has brought this about. I therefore accept the local authority plan must be one that would be implemented.
Cohen J found that the interference with TA’s rights were necessary and proportionate because there was no other way of promoting his mother’s rights and interests (paragraph 85). He also accepted that the provisions within the care plan amounted to a (justified) deprivation of GA’s liberty.
The order sought by the local authority – and endorsed by Cohen J – provided for the immediate vacation of TA from the home (the tenancy being in his mother’s name, and TA being only a licensee there, Cohen J did not have to grapple with the complexities which would have arisen if he had his own rights in the property). The local authority had undertaken to provide TA with fully funded accommodation in a bed and breakfast for 14 days. As Cohen J had not heard from TA at all as to what his proposals might be and whether or not he can go and stay with other members of the family, he considered he could not nothing other than endorse the proposal for 14 days. The order also sought the removal of XA from GA’s home; Cohen J considered that XA would no doubt return to home in Greater Manchester.
The order also contained a cordon put around the property of about 100 yards by reference to six named streets in which TA was forbidden from entering. The local authority did not want him watching the house or monitoring who goes in and out. He was barred from removing the Motability car from the property which is there for his mother’s benefit. There was a further prohibition about him putting articles or other information in the public arena, including on a social platform, and Cohen J considered that was plainly needed in light of the history of the case. Cohen J also made an order limiting TA’s ability to correspond with the local authority and with the Official Solicitor.
Cohen J made a civil restraint order against TA for a period of two years, noting that: “there have been four occasions before this hearing began when applications have been dismissed as totally without merit, all of them within the last year. In addition, I have dismissed three applications as being totally without merit in the course of this hearing. There are another four recent occasions when applications have been dismissed as showing no reasonable grounds or no good reason. The threshold for the making of a civil restraint order is plainly crossed. I therefore will make a civil restraint order as the only way to restrict the level of applications. The local authority no longer pursues an extended civil restraint order and there will be a civil restraint order for a period of two years” (paragraph 91). Cohen J made provisions for a further hearing further to consider questions relating to deprivation of liberty, contact, and also committal proceedings which were on foot in relation to TA.
Comment
Whilst not establishing any new propositions of legal principle, the case serves as a reminder of the stark issues that arise when the Court of Protection is grappling with what (in effect) are adult care cases. As noted above, it made Cohen J’s life considerably easier that he did not have to consider how to navigate a position where TA had his own rights in the property, a feature of many such cases. Given the history of the case, it is overwhelmingly likely that Cohen J would have found some way in which to remove TA, but it would have made his (necessary) balancing of XA and TA’s rights even more challenging.
