Alex RKRe CVF [2020] EWCOP 65 concerned the capacity and best interests of a 29 year old woman, CVF, with diagnoses of diabetes, learning disability, emotionally unstable personality disorder, low self-esteem and feelings of abandonment. Her mother had made a personal personal welfare application in January 2018. The application stated that “CVF is a vulnerable women whose capacity to consent to sex, to make decisions in respect of contact with unknown men and to make decisions in respect of her care is in dispute” and that it “would benefit CVF for there to be clarity in relation to her capacity and whether any best interest decisions need to be made. At present … there is a high level of police intervention and numerous safeguarding referrals due to there being no agreed position on CVF’s capacity“. The local authority had, by order of the court, substituted as applicant, and the proceedings transferred to a Tier 3 (i.e. High Court) judge.
As so often, the proceedings had had a long backstory, and they had also taken a considerable number of twists and turns before their final resolution. Before Lieven J at the final hearing, questions of capacity in the relevant domains having been resolved, there were three issues, addressed in turn below.
Level of care
JF, representing herself, submitted that her daughter required 24/7 care. Lieven J observed that CVF did not wish such care, considering it to be intrusive and stopping her being independent. As Lieven J observed at paragraph 20, “[s]he wants more autonomy, and, in my view, she has a right to more autonomy.” Lieven J, however, “fully appreciated,” her mother’s concerns:
20. […] I suspect that CVF’s history of cyclical behaviour has something to do with relationships, often with boyfriends. In my assessment, JF is both a protective factor for CVF, the ultimate safety net, but also has not managed to allow CVF to gain greater independence and autonomy. This is a tension in many parent-child relationships, but it is magnified enormously in CVF’s case because of her diagnosis, behaviour and the family history. It is very important to make clear that when I say 8 hours of care a day is appropriate, that does not fix that level forever and is completely subject to review and CVF’s behaviour. The care plan unusually builds in a 3 month review process, due to CVF’s fluctuations and also and an automatic review if CVF’s relationship with J [a former carer] should fail, as that is clearly a risk factor. Those review provisions support a reduction of care and provide for a safety net now and in the future.
Lieven J’s reasons for holding that the reduction in care was in CVF’s best interests were crisp:
21. In summary, firstly, the reduction in care accords with CVF’s wishes and feelings under section 4(6) MCA 2005. Secondly, it is the least restrictive option under section 1(6) MCA 2005. Thirdly it is proportionate under Article 8 ECHR. Fourthly, it accords with CVF’s best interests as in my view it is positively detrimental for CVF to have 24/7 care at the moment as all it serves to do is to make her feel undermined, triggers disruptive behaviours and reduces her motivation to become more independent and to improve functional abilities. Fifthly, to reduce the care in this way reflects the reality what CVF is currently receiving.
She also referred to the well-known passage from the decision of Munby J in Local Authority X v MM & Anor [2007] EWHC 2003 (Fam) and the importance of understanding that those who lack capacity, must, to a proportionate degree, be allowed to take risks and to test out their own capabilities. It is not the function of the Court of Protection to remove all possible risk and protect the individual at the expense of a proportionate balance. As Munby J identified, “[w]hat good is it making someone safer if it merely makes them miserable?”
Whether the local authority should be substituted for JF as CVF’s deputy for property and affairs
Lieven J had little hesitation in acceding to this position:
26. CVF’s wishes are very clear. She does not wish for her mother to continue as her deputy. She feels that her mother is using this as a way to control her via the money. In my view, this is a very clear-cut situation because JF’s role is leading to conflict between CVF and JF and is undermining the prospects of them having a better relationship. I can see no disadvantage to the Local Authority becoming property and affairs deputy and so clearing the way so that JF and CVF can try in the near future to regain a relationship. Such a change is plainly in CVF’s best interests and accords with her wishes and feelings. I have no hesitation in making the order sought by the Local Authority.
Whether JF should be appointed as CVF’s personal welfare deputy
JF’s application was made on the basis that she considered “that the Local Authority and NHS Trust have failed to keep CVF safe, that they have underestimated the risks she is facing and are too amenable to accepting what she says despite the history of behavioural risks. JF feels that the Local Authority and the Trust have allowed CVF to be exploited over the last few months” (paragraph 27).
Lieven J directed herself by reference to the decision of Hayden J in Re Lawson, Mottram and Hopton (Appointment of Personal Welfare Deputies) [2019] EWCOP 22, and in particular his observation that the structure of the MCA 2005 and, in particular, the factors which fall to be considered pursuant to the best interests test in s.4 may well mean that the most likely conclusion in the majority of cases will be that it is not in the best interests of P for the court to appoint a personal welfare deputy.
Lieven J agreed with the local authority that, on the facts of the case, it was not in CVF’s best interests for her mother to be appointed as her personal welfare deputy:
31. Firstly, the application is not limited in scope and would give very wide-ranging power to JF over CVF’s life. That could be remedied in an order being limited, but (secondly) CVF is strongly opposed to her mother having a deputyship order over her so such an order would be contrary to CVF’s wishes and feelings. As I hope is clear from the earlier part of this judgment, although lacking capacity, CVF is very articulate and able to express her views. I therefore place a great deal of weight on her wishes and feelings and I would consider this to be the critical factor. That leads to the third point. Given her strong opposition to her mother having this power, it would be highly contrary to CVF’s best interests for this application to be allowed. CVF has made exceptional progress over the last 9 months, largely because she has been able to exercise more independence and autonomy, in part because of lockdown, and the pandemic has forced a situation where she has had less contact with her family.
32. I do appreciate the risks, but the reality is that there has been a positive experience for CVF over the last 9 months. If I were to appoint JF as a personal welfare deputy, that would be deeply upsetting and contrary to CVF’s emotional well-being. It also appears to be the case that over the last 9 months many of the things that have gone so well for CVF and enhanced her independence (travelling to Spain, work, engaging in relationships) are precisely the things her mother would think she should not allow as they are too risky. Therefore, the third reason is that such an order would be contrary to CVF’s best interests. Fourthly, to grant the application would be an unnecessary and disproportionate interference in her Article 8 ECHR rights and there is no justification for such an interference on the facts of this case. CVF must be allowed to retain and develop autonomy and take risks within the safety net from the Local Authority. I therefore refuse JF’s application.
Comment
Lieven J’s judgments in this domain are often marked by a particular and close attention to the requirements of the ECHR alongside those of the MCA (see, for instance, Re KR [2019] EWHC 2498 (Fam)). This is no exception. This case shows why it is both necessary (as the Court of Appeal has previously held) and helpful to stress-test matters not just by the best interests criteria set down in s.4 MCA but the ECHR requirement to consider the necessity and proportionality of the relevant interference with the right to autonomy enshrined as an aspect of the right to respect to private life protected by Article 8(1) ECHR). Looking at matters through this prism, and in particular having close regard to the autonomy right of CVF, made clear the correct outcome of both the decisions in relation to the level of care she required and in relation to both deputyship applications.
