Re L (A Child) [2013] EWCA Civ 1557, [2013] MHLO 133
Mother unsuccessfully sought permission to appeal against Court of Protection order (a) that her son lacked capacity in relation to welfare matters, and (b) that it was in his best interests to remain at his current placement for at least a year and finish at the existing school (as opposed to living with the mother and attending a school near her, or moving to a residential home near the mother and have some education in her area).
Transcript
B4/2013/2663
Neutral Citation Number: [2013] EWCA Civ 1557
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Wednesday, 6 November 2013
B e f o r e:
LADY JUSTICE BLACK
Between:
IN THE MATTER OF L (A CHILD)
DAR Transcript of
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The Appellant appeared in person, assisted by a Mckenzie Friend
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J U D G M E N T
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1. LADY JUSTICE BLACK: This is an application for permission to appeal made
by the mother of a young man, T, who is 18 years old now. The mother wishes to
appeal against orders made by Her Honour Judge Hughes, sitting in the Court of
Protection. The exact date of the judge's order is not entirely clear from the
papers; it was either 28 or 29 August, but nothing turns on that.
2. The order has a long preamble which deals with various matters. The
order is then a declaration that T lacks capacity to make his own decisions on,
to summarise, welfare matters and that it was in his best interests to continue
to reside at a particular placement to attend a particular school and to have
contact with his family by agreement between the local authority and the mother.
That he is having contact I can see, because I have seen a photograph that the
mother has produced today showing T having a happy contact with his family, I
think last weekend. The order set out the arrangements for contact and other
directions were given by the judge. The directions included provision for the
instruction of an independent social worker to comment on alternative
residential placements for T and educational provision for him. A further
hearing was arranged for March 2014 and a final hearing in June 2014.
3. The mother wants to appeal against the judge's declaration that T does
not have capacity and also against her order that it is in his best interests to
remain in his current placement so that he may attend the school that he has
been attending now for some time. The mother wishes to advance her appeal on
various grounds: firstly, she argues that the judge misinterpreted the
provisions of the Mental Capacity Act and expected too much from T before he
could be thought to have capacity to make his own decisions in relation to the
issues that arose in the proceedings; secondly, the mother wishes to argue that
the judge accepted Dr Essex's evidence, rather than that of Dr Thompson, about
the question of capacity when, for a number of reasons, Dr Essex's approach was
flawed; thirdly, she argues that the judge placed too much emphasis on T
attending school when he is now past the compulsory school attendance age; and,
fourthly, she argues that she did not have a fair hearing.
4. I have already said that T is 18. He had the misfortune to have had
spastic cerebral palsy from birth and that has resulted in significant physical
and developmental disabilities. He cannot speak but ways have been found to
ascertain what his responses are in various situations. The mother considers
that he has capacity under the Mental Capacity Act to make decisions for himself
and her view was supported by Dr Thompson, who is a clinical psychologist. Dr
Essex is a consultant neurodevelopmental paediatrician. He disagreed with the
assessment of the mother and Dr Thompson and considered that T did not have
capacity to make his own decisions.
5. The judge, as we can see from the judgment, directed herself in
accordance with sections 1, 2 and 3 of the Mental Capacity Act. In particular,
she set out what is expected before someone can be said to be unable to make a
decision for themselves. I will not go through the whole of section 3 but I
will mention, for the purposes of this judgment, section 3(1). That reads:
"For the purposes of section 2, a person is unable to make a decision for
himself if he is unable:
(a) To understand the information relevant to the decision
(b) To retain that information
(c) To use or weigh that information as part of the process of making the
decision, or
(d) To communicate his decision (whether by talking, using sign language or any
other means)."
I will also mention section 3(4) because that provides that the information
relevant to a decision includes information about the reasonably foreseeable
consequences of deciding one way or the other or failing to make a decision.
The judge carefully cautioned herself against requiring too great a level of
understanding of T.
6. Neither Dr Thompson nor Dr Essex actually asked T where he wanted to
live. Dr Thompson thought that T was bound to say that he wanted to live with
his mother. Dr Essex thought that T functioned at the level of a young child
and that he simply did not have the capacity to decide such a matter as that,
though he could decide. In contrast, Dr Essex accepted, simple everyday life
issues, such as which T‑shirt he wanted to wear of two. It seems that the
Official Solicitor's representative had asked T what he wanted about where he
should live. It appears that he may have been thought to signify that he did
not want to live with his mother but the mother says to me today that the
Official Solicitor's representative had not properly understood T's
communication system and I do not think she would want me to rely in any way on
that piece of evidence.
7. Dr Thompson's expertise was in assessing people who have suffered a
trauma, rather than those who have been mentally impaired from birth. Dr Essex
had, in contrast, done very considerable work with people who had been mentally
impaired from birth. Dr Essex was clear in his view with regard to T's lack of
capacity. The judge recorded in her judgment that Dr Thompson did not know
whether T could make complex decisions; that I think must have been the result
of the oral evidence that was given. In relation to where T would live, that of
course incorporated a number of different possibilities and they were in
combinations. So there was, it seems to me, a degree of complexity about the
decision that T had to make in that regard.
8. The judge much preferred the evidence of Dr Essex over that of Dr
Thompson. She did so by virtue of the greater relevant experience that the
doctor had and she therefore, accordingly, accepted his evidence and found that
T lacked capacity. The mother argues that the judge was wrong in accepting Dr
Essex's evidence and should have preferred Dr Thompson's. She has explained to
me today that she considers that Dr Essex had predetermined the matter. He had
already been involved in 2011 and he had a predetermined view about things. He
conducted his assessment in T's room and she was not part of the assessment.
She argues that the judge gave too much emphasis to the experience that each of
the doctors had in preferring Dr Essex. She argues that Dr Thompson was the
only one who imposed any testing on T and that Dr Essex had not even asked the
central question of T and that that undermined his evidence. She argues that Dr
Thompson had collected information in the course of his interview about what T
could retain by way of information and what decisions he could make. One
example of that is that Dr Thompson had hidden some items and T remembered where
they were over a period of time; another the mother gave me today was that T
knew when there came a knock on the door that it was going to be her coming to
see him because Dr Thompson had said about ten minutes earlier in the interview
that that was going to happen and that shows that T had retained that
information. She argues that the judge was expecting too much of T by requiring
him to deal with complexities where she feels that is not necessary for someone
to have capacity. She argues that the judge failed to give weight to the
evidence of those who work with T daily who would say that he can make choices.
She argues that Dr Essex had not taken all practical steps that could be taken
to help T to understand the information that was relevant to the decision to
encourage him to participate in making that decision because he stopped short of
having asked the relevant question.
9. The assessment of witnesses, including expert witnesses is very much a
matter for the judge who conducts the hearing. These particular experts had
very different expertise. The judge concluded that Dr Essex's expertise was
more relevant. It seems that neither of the experts had asked T the central
question. The mother complains that Dr Essex had not, but neither had Dr
Thompson. He had tested T's recall of matters in the ways that I have given
examples of but he did not have evidence of T having processed questions such as
those involved in the decision as to where he would live and what he would do
about school any more than Dr Essex did. Dr Essex explained why he had
concluded what he concluded about T's level of functioning in his addendum
report.
10. It seems to me that the judge was entitled, given the evidence of each
of the experts, to prefer the evidence of Dr Essex and that there is no prospect
of a successful appeal against that conclusion. It follows that T must be
treated as not having capacity to make his own decisions.
11. That takes one to the next stage of the mother's proposed appeal, which
is in relation to the decision the judge made about T's best interests. She was
considering three options: to stay in the current placement for at least a year
and finish at the existing school; secondly, to live with the mother and attend
a school near her; or, thirdly, to move to a residential home near the mother
and have some education in her area.
12. The independent social worker who was called at the hearing and the
local authority social worker favoured the first option, that is the status quo.
The mother obviously sought the second, which was for T to come and live with
her. The disadvantages that the judge saw over that were that there was a
question mark over whether the mother would enable T to have education and also
that he would lose the benefit of a period of that education whilst he
acclimatised to his new school. The judge found that the mother does not really
support schooling and she had no confidence that the mother would ensure that T
had his last year at school. The judge also did not see the point of changing
T's school when most of the evidence was that he was happy at the one that he
was attending and the judge found that it provided him with good and suitable
education. To attend the current school he had to live nearby it and that
meant, of the options available, that he had to stay at the current placement,
even though the judge recognised that there were shortcomings to that placement.
She made provision for T to stay with the mother from time to time by way of
contact and for there to be a review in 2014, which would be when T would be
ceasing his education.
13. The mother argues that the judge was wrong in the decision that she made
about best interests. She argues that it was wrong to force T to attend school,
now that he is over compulsory school age. That argument, I am afraid, rather
underlines the correctness of the judge's view that the mother does not really
support schooling for T. She argues that he was being deprived of his liberty
by being required to attend school and that the judge should have considered the
school in that light and concluded that it was not in his best interests to
attend it or necessary for him to do so to keep him from harm. It is clear from
the judgment that the judge was in fact of the view that the education that T
was receiving was good for him and was in his best interests and, as I have
said, that he was happy at school. One can see from the judgment that the judge
had evidence underpinning her view about that. The independent social worker
had reported that T's time at school was extremely important, educationally and
socially, and that that was so to the point where the independent social worker
considered that the benefits of the schooling to T outweighed the deficits of
the placement in the current home.
14. The judge is criticised by the mother in the written documents, although
she has not pursued this matter today, for not finding that living in the
current placement is causing a deterioration in T's visible condition. The
judge explained, however, why she did not make that finding. It was to do with
a reduction in T's physical mobility. There was evidence before the judge that
there could be an increase in contracture over time, particularly during periods
of growth, and that it was not therefore necessarily the result of a failure to
maintain regular stretching. That is why the judge did not make the finding
that the mother sought in that regard and I do not consider that she can be
criticised with regard to her failure so to find.
15. Accordingly, I have considered all of the matters that the mother has
put before me, both in writing and today, and I am afraid that I cannot identify
any reasonable prospect of success in those submissions. Therefore, I must
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