In A Local Authority v PS & HS  EWCOP 60, the court had to decide upon an 80 year-old woman’s capacity and best interests in relation to contact with her former husband, whom she had divorced some 25 years previously. The woman, HS, had had some limited contact with her former husband, PS, over the subsequent years until the autumn of 2016, when she developed what became clear was dementia. Thereafter, HS spent more and more time with PS; her daughter became more anxious about the amount of time that HS was spending with PS, especially as a consequence of comments that PS was making about him getting into bed with her. DB stated that PS was telling her that she did not want “that man” to be there at her home.
In February 2019, the local authority received a safeguarding referral with concerns that PS was being sexually abused by HS, and also that he had a key to her home and had opened a joint bank account with her. In order to assess PS’s care and support needs she was moved from her home to a care home, where she stayed for three weeks before moving to I Care Home where she remained at the time that the matter was heard in November 2019. HS had not seen PS since February, although the police closed their investigation into whether or not he sexually assaulted her in March 2019. The local authority’s plan was for PS to remain at I Care Home permanently, and she saw her daughter, DB, approximately three times a week.
The medical evidence adduced by the local authority was that PS did not have insight into her dementia and the impact it had on her memory, orientation and visual perception. She was said to be very disorientated with respect to time and intermittently with respect to space. She had comparatively well-preserved social skills and language but she had significant cognitive impairment, which markedly fluctuated during the day and from day to day. The local authority’s case was that PS did not know who HS was, did not realise that he was her ex-husband, and that when she was seeing him in 2018 and early 2019 she exhibited anxiety about this ‘man’ being in her house. The Official Solicitor, as PS’s litigation friend, supported the local authority application on very much the same grounds; the Official Solicitor noted that PS had been pleased at times to see HS, but this was without cognisance of who he was, and was not consistent.
Judd J noted that HS appeared to accept PS’s diagnosis, but because he had not been able to see her since February he found it difficult to appreciate her current state and did not readily accept the evidence of others who had seen her. He stated that when he was still seeing her in February and before, she was capable of conversing lucidly for extended periods of time. He said that she was pleased to see him when he went around to her house, and when he saw her by chance in Waitrose in March 2019. He found it very difficult to accept evidence that contact with him either did, or would distress her. He believed that she certainly did recognise him and know who he was. He wished to see her again, and felt that he would know then whether or not she wished to see him. He therefore opposed the making of any declaration as to capacity.
Judd J found that PS lacked capacity to make the decision as to contact with HS:
16. I am clear after hearing the social worker and DB that PS does not have capacity to make the decision as to contact with HS. She does not know who he is, and she is not able to appreciate the negative and positive effects that contact with him has upon her. She is not able to weigh up and retain information about what type of contact she could have and in what circumstances. There is no prospect that her capacity to make this decision will improve, and nor is there any way in which she could be assisted with this.
This therefore meant that Judd J had:
24. […] to make the decision as to whether it is in PS’s best interests to have contact with HS. I have come to the clear conclusion that it is not and that I should make a order to that effect. When she had capacity she did not want to see him other than very occasionally, and it seems impossible to believe that the values she held then would have changed now. I suspect that HS feels that the death of DS would have drawn them closer together, but that is very speculative. The fact that PS can demonstrate some superficial pleasure upon seeing HS is not achieved because of who he is but because she does not realise who he is. Also, the contact can cause her anxiety, as was demonstrated during 2018, 2019 and also after the chance encounter in Waitrose. PS’s important relationships for the last 25 years have been with DB and DS when she was alive, and also with her son in law and her grandchildren. DB has been very close to PS for years, and her views about her mother’s wishes, feelings and best interests deserve the greatest of respect.
This is a clear example of a court seeking to work through systematically and carefully questions of capacity and best interests in the context of what could either have been a very significant interference with PS’s rights under Article 8 ECHR, or a significant step towards upholding those rights. Another way of framing this in the language of the Convention on the Rights of Persons with Disabilities would be as a way of seeking to balance PS’s will and preferences.
It is not quite clear from the judgment when the application was brought, in particular, whether it was before or after PS was moved to the care home. As to whether and when such a move absent a court order would be lawful, see further here.
Finally, and perhaps unfairly, it is perhaps worth flagging up some of the language within the judgment relating to capacity. The medical evidence referred to PS’s lack of insight into her dementia, and her disorientation with respect to time and space; Judd J referred to the fact that PS did not know who HS was and that she was not able to appreciate the negative and positive effects that contact with him has upon her. None of these aspects are, in fact, part of the functional test in s.3 MCA 2005 (to which Judd J then referred in her judgment, so there is no suggestion that she reached an unlawful determination). The ‘translation gap’ between the language of the Act and the language of (and phenomena encountered in) every day practice is striking, and is driving much of the current work of the Mental Health and Justice project.