Alex RKThe case name – Re RK (Capacity; Contact; Inherent Jurisdiction) [2023] EWCOP 37 – helpfully captures what this difficult case was about. It concerned RK (identified in the body of the judgment as ‘R’), a 30 year old woman with Down’s Syndrome, a moderate to severe learning disability (described in the documents as a significant cognitive impairment), who was partially sighted. She had a full-scale IQ of 60, and had some expressive and receptive communication difficulties. She was also an accomplished swimmer, having competed in national and European championships and actor (she had been on national TV in a well-known series). R lived in supported living accommodation called (for purposes of the judgment) ‘Castle Hill,’ her care needs being provided by a provider identified for purposes of the judgment as ‘Signia,’ contracted by the relevant local authority, XCC.
Cobb J had previously made determinations that R lacked capacity to litigate, and to manage her property and affairs, but that she had capacity to engage in sexual relations, to make the decision to remain at Castle Hill, and to make decisions about what support she needs on a day-to-day basis with an adequately supported environment. He was now asked by R’s family to declare that she lacked capacity to make decisions about contact, that she was susceptible to undue influence, and measures need to be put into place to protect her from this; and that she lacked capacity to revoke the LPA created in respect of property and affairs and health and welfare. In the alternative, if he found that R had capacity to make decisions about contact, he was asked to make an order under the inherent jurisdiction in relation to supporting contact between her and her family. R’s family, in essence, wanted to have implemented a supportive framework to encourage R to repair and maintain her relationship with her immediate and wider family and friends.
In support of their application, R’s family sought unsuccessfully to persuade Cobb J to embark on a fact-finding inquiry, but ‘inevitably’ had regard to some of the factual issues set out in a 73-page schedule of proposed facts which they argued required determination. The length of the schedule gives a clue to the long and difficult pre-history of the case, set out in considerable detail in the judgment. To summarise very crudely, R had lived at Castle Hill since 2015 and, between 2015-2020, arrangements had run smoothly and the family were able to work reasonably well with Signia. Matters became problematic when at some point in 2018 or 2019 R formed a relationship with a male resident at Castle Hill, SA (a relationship which was now said to be at an end). As Cobb J noted at paragraph 18:
The relationship generated no small amount of anguish for R’s family, and their concerns about it led to dispute with Signia. R was clear that SA made her feel happy; whilst she may not have been able to articulate the intricacies of this relationship, she recognised and responded to the emotional value this relationship brought her. Those supporting them believed them to have a loving and nurturing relationship from which they both equally benefited. The anguish focused on whether R had capacity to engage in sexual relations with him.
The relationship between the family and Signia then broke down entirely during the lockdown, when R could not be persuaded to leave Castle Hill in the face of her family’s desire for her to return home to live with them, having spent some time there at the start of lockdown. Matters went from bad to worse, as detailed by Cobb J, but crucially (at paragraph 22):
From about this time, R ceased contact with her parents; she left the family WhatsApp group (something which the family do not believe she could have done without help), and rarely (if ever) responded to text or e-mail messages. She initiated no contact with her family, and made herself unavailable if family members or friends called in at Castle Hill unannounced; she cancelled pre-arranged visits. The family say that she missed all of the family birthdays, something which she would generally not have done.
Contact was never resumed, despite mediation, and – as is sadly often the case – allegation followed allegation about the care provider, as well as R’s family raising a safeguarding alert with the police including alleged financial abuse and concerns about sexual abuse, leading to a visit by two police officers to speak to R and SA (a step that it is clear that R’s family had not anticipated, and were troubled by). In Autumn 2020, R also stopped the range of activities that she used to enjoy, including 1:1 piano lessons, swimming, a drama group and attending a project which offers a range of activities including drama (the latter two had continued online during lockdowns); the family believed that this – again – was the result of pressure from Signia.
Cobb J identified that he was satisfied that from all that he had read that R “fundamentally loves her family, and wishes to be a part of the family” (paragraph 75), but:
76. That said, she has for some time (probably since the late summer of 2020) been steadfast – at least in her discussions with Signia staff with whom she has her most regular relationship – that she does not want to see her parents. I find that she is currently highly conflicted in this regard. Dr McKay described her as “ambivalent”. R’s independent advocate for the Talking Project advanced a similar perspective in an e-mail to PB in October 2022:
“I sense that there are deep rooted issues that the family has with [Signia] that remain unresolved. However, this is an issue they have with [Signia] and not with their daughter although she senses it and I believe this is what holds her back from reaching out to the family.” (Emphasis by underlining added).
Dr McKay [the jointly instructed expert psychologist] went on in her evidence, to demonstrate R’s ability to ‘use or weigh’ the relevant information, to remark that:
“R did not have polarised views of her family. We see many people who only see good or bad but this is not the case with her… she suggested lots of positive attributes in the family”.
77. I find, having heard all of the evidence, that R feels great empathy towards her family but she is also angry with them because she believes inter aliathat they are trying to control her. Ironically, R’s parents are firmly of the view that it is the Signia staff who are controlling and coercing R. She senses their anger with Signia, and she does not like being caught in the middle of that.
78. The origins of R’s anger with her parents and sister, and her strong sense that the family are controlling her or trying to do so, is not entirely clear, but they may well lie in the time when they applied pressure on her in relation to losing weight. This, at least, is what she told the previous social worker, and this was associated in time with the family’s stated wish to remove her from Castle Hill (where she was/is happy and has friends) to live at home. Her relatively recent experience of living at home during the early phase of the COVID-19 lockdown in the spring 2020 may have a bearing on this too.
79. I am satisfied that her current antipathy towards her family is real; the feelings are, in my judgment, neither confected nor are they the result of pressure (improper or otherwise) from those who currently support and care for R. It is R’s view that the family exercise inappropriate control of her in relation to:
i) The proceedings, which they initiated and about which she is unhappy; within the proceedings, R has been assessed, questioned and interviewed repeatedly over the same issues. It is possible that her answers in interview for the court have been affected by her unhappiness with the process. The fact that she has been repeatedly questioned may have left her wondering whether her views count for nothing, and this may well have made matters worse;
ii) Her money; she wishes them not to know about her spending;
iii) Her weight; she senses that they are trying to control what she eats and impose rules around her diet (I was directly aware of her sensitivity about this when I visited her, from comments which she made while we stood together in the kitchen);
iv) Her relationship with SA.
By contrast, Cobb J was not persuaded that Signia had exerted undue pressure on R:
81. I have seen no evidence which suggests that the Signia staff have acted in such a way as to sap R of her free-choice to meet with them; on the contrary, I was impressed by Ms TB [the managing director of Signia] and accept PB’s assessment of the quality of care which they offer to R. I accept Dr McKay’s persuasive view that if the staff had conveyed to R deeply negative views about R’s family, R herself would not hold or communicate positive thoughts about her family. Dr McKay is of the view that R has a desire to reconcile with her family, but lacks confidence that it will be a positive experience; the recent attempt would confirm this. I am satisfied that PB [R’s social worker] in particular has made concerted efforts to persuade R to see her family, but those efforts have been in vain. In the current circumstances, I am not surprised.
Importantly – and unusually – Cobb J had before him very clear evidence from R herself as to what she wished from the litigation, set out in a letter that she had sent to him. As Cobb J noted, he found comfort in the letter because it signaled ways in which the situation could improve:
i) The disclaimer of the LPA [a matter which Cobb J had identified earlier in the judgment had been agreed to by her parents] will signal the moment when her parents cannot “make decisions” about her life, particularly money;
ii) R can and should be told that her parents had good reason for referring their concerns to the police about SA and genuinely did not expect the police to visit Castle Hill; R should be told that the mother described to me how she recognised R’s upset and distress;
iii) It would be possible for R’s parents to apologise (again) to SA [R’s former partner]. If they feel that they have already done this, they could repeat it in such a way that R knows and understands that the apology has been issued;
As Cobb J noted:
84. There is no doubt in my mind that R desperately wants the proceedings to be over. PB expressed it well thus:
“This independent spirit, this determination to set her own store has been continuously undermined and undervalued time and time again. R has been assessed, questioned and interviewed repeatedly over the same issues which have left her feeling that her words and feelings count for little. That her views have been ignored or diminished, her experiences, her feelings and more importantly her own decisions, disregarded”.
85. It is against this backdrop that Ms TB expressed herself to be “… optimistic that when the Court case is concluded and if [R]’s wishes are respected, that she will feel able to reunite with her family”. I cautiously share that optimism.
Against this context, Cobb J had to decide whether R had capacity to make decisions about contact. He had the benefit of expert reports from Dr Claudia Camden-Smith, a jointly instructed consultant psychiatrist with a particular interest in Neurodevelopmental Disability Psychiatry, and Dr Katherine McKay, a Consultant Clinical Psychologist with a specialism in learning disabilities. Dr Camden-Smith was clear that R lacked capacity; Dr McKay considered that she did. Cobb J preferred the evidence of Dr McKay, noting – amongst other matters – that she had met R on a number of occasions previously, which was a great advantage: she was able to begin her assessment with some pre-existing knowledge and experience of R’s abilities and limitations.
Cobb J declared himself satisfied that R:
103. […] understands the issues, and has been able to use or weigh the information relevant to the decision on contact. She knows her family well and she loves them, but has been hurt by them (for the many reasons which I have discussed above) and deeply so; she feels it very keenly. I do not think that the family see how badly they have hurt R and this is perhaps in part why they cannot accept that she can make a capacitous decision in this regard. R has been clear in saying that she would like to see her family on Zoom initially; this is perfectly understandable. I further sense that she is not saying that she will not want to see her family ever again; she is very clear that a number of impediments to contact need to be cleared first – the disclaimer of the LPAs, and the end of these proceedings being the most important.
104. The fact that R has vacillated in recent times (reference 17 November 2022 and June 2023) over seeing the family (or members of them) is perfectly understandable, and utterly predictable; it is not evidence of inappropriate pressure being applied on her to change her mind. Nor is that that she does not understand the information relevant to a decision on whether to see her family. She does understand that information; she can use and weigh that information; she can retain it, and can communicate her views. But – and this is the key – I find that she is deeply conflicted, very aware that she is caught in the crossfire of the dispute between her family (which fundamentally she loves) and Signia (in whose care she lives, and whose relationship she values). She may say to people that which she thinks they want to hear. That of itself is not an indicator of a lack of capacity; many fully capacitous people do exactly that. Her vacillation is not, or not necessarily, an indicator that she is coming under pressure, let alone undue pressure, from external sources.
That was not the end of the matter, though, because Cobb J had then to go on to consider whether to make orders under the inherent jurisdiction. He conducted a detailed review of the authorities, “to demonstrate that while the inherent jurisdiction is available in the right case, it is not ‘all-encompassing’ and there are clear limits to its applicability” (paragraph 120). Importantly, he further noted that:
119. The burden falls on the Applicant and Third Respondent to prove in this case that R’s will has been and/or is being overborne by those who are caring for her, and that she is the subject of constraint, coercion, undue influence or other vitiating factors. It is a serious allegation to make; the more so, it may be thought, when the accusation is made against professional care providers. I have considered the allegations on the balance of probabilities; and I approach my task on the basis that if the party who bears the burden of proof fails to discharge it, the fact is treated as not having happened. If he does discharge it, the fact is treated as having happened (Re B[2008] UKSC 35). I found it useful to reconnect with what Lord Nicholls said in re H (Minors)(Sexual Abuse: Standard of Proof)[1996] AC 563, at 586D-H:
“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability”.
Having reviewed the material before him Cobb J reached the following conclusions:
133. […] As I mentioned above, in Re SA, Munby J declined to define the categories of person for whom the inherent jurisdiction may be invoked, but it is nonetheless clear from his judgment (and from DL which followed) that those for whom it would apply are those who are under constraint, subject to coercion or undue influence or otherwise (for some other reason) deprived of the capacity to make a relevant decision, or disabled from making a free choice (see above). In my judgment, this has not been R’s experience in her placement.
134. I reject the suggestion by the Applicant that there has been any deliberate attempt at, or actual, alienation of R against her family by members of the Signia staff; I further reject the allegation of ‘environmental alienation’ – i.e. Signia creating an environment or eco-system in which R is not able to speak positively about her family and/or where all conversation about her family is negative. In my judgment it is likely that, once R’s family started making allegations about Signia and the care it was offering R, Signia staff will have found it difficult actively to encourage R to engage with her family; it may well be that R picked up on Signia’s sense of unhappiness at being on the receiving end of a wide range of allegations.
135. It is clear that R has recently made free choices, and these are choices which have brought her into contact with her family – i.e., she agreed to take part in the Talking Project ; she agreed to a meeting with her family in November (albeit that this did not happen), and agreed again to the café meeting on 9 December 2022.
136. I view with some sympathy the ‘supportive framework’ proposals advanced by the parties; indeed in the next section of the judgment I discuss them and actively encourage those with responsibility for R’s care closely to consider them. But it is not ‘necessary’ for me to make orders in relation to them in order to liberate R to make decisions freely, nor is it ‘proportionate’ ([66] and [76] of DL) that I should. I am conscious of the need to guard against adopting an overly paternalistic attitude to a vulnerable adult who is the subject of the proceedings, and to make orders in (what McFarlane LJ referred to as) the “hinterland” of the MCA 2005 which undermine the very concepts of the MCA 2005 itself.
As presaged above, this left Cobb J with no “jurisdictional peg” upon which to hang any ruling about R’s care arrangements going forward. However, not least because the parties jointly urged him to do so, he gave a number of observations about future arrangements, including an observation that Signia should remain in place providing care for R, and identified some key features of an “impressive” 21 point supportive framework plan put forward by the family as having “particular merit” for incorporation in any plan going forward.
In his conclusions, Cobb J identified that
151. […] , there is at least one conclusion which it has not been difficult to reach in this case. And that is that these proceedings should now come to an end. R has repeatedly said that she is unhappy by the court’s involvement; I am sure that she blames her parents for having initiated the litigation, and that this very issue in itself undermines the efforts which have been made to promote reconciliation. I accept the evidence that R has regularly lost sleep with worry about the court’s involvement in her life, and that for a time she was “struggling… crying every night” because of them.
152. I agree with PB and Ms TB that R does show a good level of interest in, and empathy for, her family, but she is clearly conflicted; she has feelings of love and obligation towards them, but a strong desire to pursue her own interests and be free from what she sees as their ‘control’. I find that she has been relatively steadfast in the last three years in her view on the issue of reconciliation; she has attempted to meet the many demands placed upon her by professionals, and has been frustrated by having to answer repeatedly many similar questions, when she has already made clear her position. I share the optimism of Ms TB that when the litigation has ended, and particularly if R’s wishes are respected and hostilities cease between Signia and the family, R will feel freer to explore the options around seeing her family. I also agree that this may take time, and perhaps some third-party help from a personal counsellor for R.
153. Other issues raised by the parties at this hearing have not yielded answers with the same ease. While the Court of Protection is accustomed to making important decisions about an individual’s capacity to make decisions, and declarations about their best interests, it is not able to order or declare how people should think, or what they should do to get on better with each other. And that, in large part, is what needs to change in this case for the situation to move on.
Cobb J also proposed to write a short letter to R to explain that the proceedings have ended, and to set out some key outcomes, and also to give R an opportunity to meet with him again, should she wish to do so.
Comment
The summary above does not do full justice to the detail and nuance of the judgment, which is noteworthy even by the high standards of Cobb J. Above all, and to sadly still perhaps unusual extent, one gets a sense of the person at the heart of the proceedings, and the deep sense of conflict that troubled her.
As with all decisions, it is fact-specific, but there are undoubtedly patterns which are depressingly familiar to those who work (in whatever capacity) in this area. And Cobb J’s observation at paragraph 153 about the inability of the court to declare how people should think or what they should do to get on better with each other is one made with a perhaps weary sense of familiarity with cases of this nature.
Two points of broader relevance perhaps arise from the judgment. The first related to Cobb J’s observation about the mediation that took place during the course of the proceedings:
50. Although the mediation showed some signs of promise, it was not in fact a success. Signia did not play a significant part in the mediation, having been given a clear expectation (it is said) that they would be expected to participate in the mediation on the basis of full disclosure and open communication. Signia felt that it could not in good faith sign up to this, give the status of R’s capacity and her views. R had been very clear with Signia (so it was reported) that she did not wish any information about her service or her personal circumstances to be shared with her family. Signia had understood at that time (from XCC) that R was assumed to have the capacity to make that decision following a capacity assessment undertaken by the previous social worker. A further concern to Ms TB, and a deterrent to successful engagement in the mediation, was that during this period in which mediation was being attempted, the family ignited fresh allegations of fraud which on no account would be amenable to mediation, and which would inevitably complicate the relationships further.
As important as mediation is, the observation about the position where the subject of the proceedings is understood to have capacity to make decisions about information-sharing is a very important reminder that mediation cannot either lead to a process or a result which might suit everyone else except for that person.
The second is in relation to the inherent jurisdiction, as this case adds to the body of case-law (and, importantly, this time, as an actual decision, rather than ‘obiter’ comments) pointing towards the limits of the inherent jurisdiction as a tool to coerce – however benignly – a capacitous individual to take steps that they resist.
