View source for Transcript of Re SK (2013) MHLO 49

JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

MR JUSTICE BODEY:

1. This is the final hearing of proceedings under the Mental Capacity Act 2005 concerning Mr SK, a mentally incapacitated adult aged 56. Various questions and issues have arisen at this hearing, but in the end they have mostly been dealt with by agreement. This Judgment is concerned with the question of SK's residence and whether the order made should be a 'final' or 'interim' order.

2. The abbreviated facts are that, in 2008, SK suffered a severe head injury in a road traffic accident. He sustained serious physical injuries and catastrophic brain damage. It has affected virtually every aspect of his functioning, with hugely impaired cognitive capacity and executive functioning. He has profound impairment in his short-term memory and learning, being unable to retain information from one day to the next, or even during short conversations. He is disorientated in time, place and person and he confabulates. He lacks insight into his disabilities. He is not capable of purposeful mental activity. He has behavioural difficulties and is on occasions verbally, and sometimes physically, aggressive. However, he is sociable and enjoys going out, meeting with members of his family. He has good relationships with his support workers. It has been said that he has a life-long requirement for 24-hour a day care. Further information about him can be found usefully summarised in the Care Plan prepared by social worker [MK] dated 21st May 20013.

3. SK has been cared for within one specialist unit or another since 2008. He is presently in the W Hospital, but all agree that he cannot stay there. By 'all', I mean (a) the local authority; (b) the primary care trust; (c) SK's wife, JK (although a petition is shortly to be launched for a nullity on the ground of SK's having lack of the mental capacity to enter into marriage, which JK does not propose to defend); (d) CK, who is SK's brother; and (e) the Official Solicitor, who is SK's Litigation Friend. The fact is that great difficulty has been experienced by the parties in finding a specialist unit considered optimum for SK's various and complex needs. There has been much debate between the many experts who have been involved in these and in the paralleled Queen's Bench proceedings (which I will shortly mention) about the extent to which SK might be likely to benefit from (or else suffer detriment from) an intensive rehabilitation regime, as compared with a modest rehabilitation regime. The difficulties have been compounded by the need for the chosen unit to be accessible to SK's very elderly mother who visits him regularly, reliant mainly on public transport.

4. It is against this background and following a period of stabilisation and assessment at the W Hospital, that the three key experts have been instructed to consider those units which the Local Authority has identified within the last six months as being suitable to meet SK's needs. Those units I will refer to as Unit C, Unit S and Unit Y. The experts have come to the considered opinion that Unit C will best meet SK's needs, provided it is recognised that it will be providing him with what has been described as 'a slow stream rehabilitation programme, designed to optimise his care regime and minimise his difficult behaviours'. As one of the experts puts it: “…the most appropriate approach is around modifying SK's environment to enhance his behaviour and engagement, not changing him or his clinical condition”. The three experts have been influenced to some extent in reaching their view by the fact that both JK and CK (although disagreeing about most things) are of the joint view that Unit C is the best option for SK. It is also the outcome supported by the Official Solicitor and it is reasonably convenient for SK's elderly mother.

5. Towards the end of the hearing I was asked to indicate whether I was intending to find that SK's best interests would be served by his residing at Unit C and I stated my view in the affirmative. Arrangements will now therefore be being made for him to be moved there from the W Hospital.

6. The issue which still arises however, and upon which there have been conflicting submissions, is as to the nature of the order which I should make. Should it be (a) a final order, or (b) an interim order of about 12 months' duration, with a review hearing at the end of that period? The point arises in this way. Proceedings are on foot, brought by SK's brother CK (as Next Friend of SK) in the Queen's Bench Division, for damages against the employers of the driver of the vehicle which struck SK in 2008. Judgment has been given for SK on liability, with a 40% finding of contributory negligence by him. A 60% award will nevertheless be a substantial sum in his favour, as and when his damages come to be assessed in or about the Autumn of 2014.

7. The argument for there to be only an interim order at this hearing (rather than a final order) has been advanced by Mr Rose QC, Leading Counsel for SK in the Queen's Bench proceedings, supported by Mr Sharman, Counsel for JK in these proceedings. Their expressed concern is that a final declaration in these proceedings that it will be in SK's best interests for him to reside and be cared for at Unit C may be taken by those representing the Defendant in the Queen's Bench proceedings and/or by the Queen's Bench Judge, as an indication that the Court of Protection has ruled out any prospect of supported independent living for SK in the future. It is the strong wish of both JK and CK that, if at all possible, SK should in due course be able to move back into the community in his own adapted accommodation and with 24-hour care staff, if he progresses to a stage where that might be possible. Such community living would be much more expensive than living at a specialist home or unit and would require, or very probably require, top-up funding from the Defendants' insurers. It is said that the quantification of damages in the Queen's Bench Division would be prejudiced by any Court of Protection order implying that community living is not on this court's agenda of possibilities. Alternatively, it is suggested that the Defendant would be likely to put forward such a well-pitched Part 36 offer in the Queen's Bench proceedings, based on that interpretation of this Court's order, that CK, as SK's Next Friend, might well feel that it would be too risky to reject it.

8. This application, for the Court of Protection to retain judicial 'control' over the progress of SK's 'slow stream rehabilitation programme' at Unit C is opposed by the local authority and the Official Solicitor. They submit that it would be wrong for this court to keep a hold over the case, mainly in principle but also on the ground of cost. It is rightly said that this is the final hearing. It is submitted that it is high time that the proceedings came to an end, if the court feels it has sufficient information to achieve a resolution. As all parties are in agreement as to the best current arrangements for SK, there is no warrant, it is said, for keeping these proceedings alive by way of a speculative postponement.

9. I recognise the genuineness of the concerns of those representing JK and CK that nothing should be done which might be seen as implying that community living is ruled out. The very fact that Mr Rose has come to this court pro bono is testament to those concerns. I have heard him express them at this hearing, even though, to be frank, they are put forward on behalf of CK in his capacity as SK's Next Friend in the Queen's Bench Division proceedings, as to which (as distinct from CK's role simply as SK's brother) I earlier refused leave for CK to be joined into these proceedings. But no matter, that is a technical point of no importance. On the point of substance, I am clear that the concerns expressed on behalf of CK and JK are ill-founded.

10. The Court of Protection is, generally speaking, concerned (there are of course exceptions) with the incapacitated individual's present best interests, choosing between currently available or reasonably foreseeable options. That much appears both from common sense and from S.4(1) of the Act, which is stated in the present tense. Of course there will also be cases where the court looks forward to the future as part of deciding about present best interests and where it may wish to retain a measure of oversight and control; but such an approach has to be proportionate and adopted only where there is a reasonable foreseeability of the court being able to take a further decision at a subsequent hearing within a reasonably finite period of time. Here, as submitted by Miss Butler-Cole for the local authority and Mr O'Brien for the Official Solicitor, there is no knowing at present when it may be possible to take further decisions about SK's progress. The costs of these proceedings, which have covered many areas and issues over several years, have been colossal and the proceedings should be brought to an end for everyone's sake if possible. In so saying I am satisfied from what I have heard that court proceedings as to SK's future would be more expensive than Statutory Reviews under the Mental Capacity Act.

11. I trust that JK and CK and those representing SK's interests in the Queen's Bench proceedings will take comfort, given this conclusion, from what I said in my judgment dated 9th July 2012 about the interrelationship between the two sets of proceedings when I refused the Queen's Bench Defendant's application for joinder to these Court of Protection proceedings. This is what I said at paragraphs 37, 38 and 40, “…The key point in my view is that the underlying issue in the two sets of proceedings, however similar, is not the same. The jurisdiction of the Court of Protection is as to best interests and that of the Queen's Bench Division is compensatory. The tests to be applied, although very similar ('best interests' as against 'reasonable needs') are not the same…A defendant not having been a party to the Court of Protection process would not be bound at a Queen's Bench hearing as to quantum by any Court of Protection declaration as to the injured person's best interests…Whilst the judge or master would of course pay regard to the declaration of the Court of Protection, he would not be bound by it and would decide the issue before him according to the applicable principles relating to the assessment of damages [and I might have added 'and according to the evidence before him, which might well not be the same as the evidence which had previously been before the Court of Protection'.] The two decisions might or might not be the same…A Queen's Bench decision on quantum is essentially like a snapshot in its approach, even if by way only of an interim award. On the other hand, it is in the nature of the Court of Protection jurisdiction that it is ongoing and reviewable, according to how things are going on the ground.”

12. In case there should still, in the face of this citation, be any doubt about the status of what the Court of Protection is doing by its order made at this hearing (making, under S.16(2) of the Act, the choice which SK would have made for himself if he had had capacity) I shall adopt the form of words suggested by Mr O'Brien by way of a preamble to my order. That wording, although not strictly necessary, should put the matter beyond doubt, namely: “And upon the court recording, for the avoidance of doubt, (i) that the 'best interests' assessments at this hearing and the decision underlying the declaration at paragraph (2) below is a decision taken in circumstances where there are only two other options for SK (Unit S or Unit Y) and (ii) that community-based living is not an option for him at this time; and further recording (iii) that such direction is neither intended to nor does prejudice any decision on community-based living for SK in the future.”

IN THE COURT OF PROTECTION Case No: COP11950943

Teesside Combined Court Centre

Russell Street Middlesbrough

Cleveland TS1 2AE

Friday, 24th May 2013

Before:

THE HONOURABLE MR JUSTICE BODEY

Re SK

- - - - - -

Transcribed by Cater Walsh Transcription Limited

(Official Court Reporters and Tape Transcribers)

1st Floor, Paddington House, New Road, Kidderminster DY10 1AL

Tel. 01562 60921

- - - - - -

MISS V BUTLER-COLE appeared on behalf of the LOCAL AUTHORITY

MR P ROSE QC appeared on behalf of CK

MR R SHERMAN appeared on behalf of JK

MR J O'BRIEN appeared on behalf of the OFFICIAL SOLICITOR

- - - - - -

APPROVED JUDGMENT

MR JUSTICE BODEY:

1. Before parting with this case I would like to say a word in connection with the arrangements for SK's contact with JK and with members of his (SK's) family, essentially CK and SK's mother. Unfortunately, CK was unable to stay for the whole hearing because he had commitments at work. Nor was he represented throughout, because Mr Rose only represented him to make submissions in favour of an interim (not final) order. CK will not therefore be aware that Mr Sharman called JK into the witness box and that she gave brief evidence to me. In the course of that evidence, she was asked whether she had reflected on what she had done in February 2011, namely removing SK from the placement where he was then situate and taking him to her home. She told me that, on reflection, she realised that her heart had ruled her head and she apologised for her mistakes. She seemed to me to be in a better frame of mind than when I saw her last time, partly because she has now achieved that for which she has been pressing for a long time in that SK is now going to Unit C and partly because, as she told me, her daughter, [K], is expecting her first child.

2. Asked by Miss Butler-Cole in cross examination about the arrangements for her, JK, seeing SK at Unit C, JK very readily agreed to all the points which it was suggested would ensure that her contact with SK will go smoothly and without problems. Thus, she readily undertook not to remove him again from the home; not to make negative comments to him about the family; not to talk to him about his future residence and care; to leave the door ajar when she is in the room with him; and to let staff check up from time to time when she and he are outside in the grounds together. When asked some questions by Mr O'Brien, JK apologised for what she had done in respect of the marriage ceremony. She apologised for concealing the two letters which SK had written to his mother. She recognised that what she had done by removing SK from the placement had had the effect of removing control from SK's Queen's Bench solicitors over the personal injury litigation - perhaps not removing control, but impeding it. When I asked JK about her dealings with SK's mental incapacity advocate, she said that she realised she had conducted herself in her e-mails and generally in a way which had been unfair, causing him to have a bias against SK's family and compromising his objectivity. She spontaneously reminded me, which I had forgotten, that she told me at the last hearing in November 2011 that she recognised that her e-mails made “unpleasant reading”.

3. Obviously it is no part of this court's remit to try to broker better relationships between people. However, I would like to record for CK's information that JK gave every impression of having realised where she had gone wrong in the past (as discussed in my November 2011 Judgment about SK's lack of capacity to marry) by reason of her sympathy and affection for SK having caused her to overstep the mark. She came over as being genuinely contrite. I venture to suggest that any fair-minded person, as I am sure CK is, would have been impressed at her apparent insight.

4. Now, I do not know, and I suspect nobody may know, how much SK is truly affected by whether or not people close to him get on together. But there must be a reasonable possibility that he senses the dynamics around him, such that there may be some benefit to him if there could be some melting of the ice between, on the one hand, JK and, on the other hand, CK and SK's mother. Quite apart from that, there may well be occasions when SK's family do need to contact one another about events in SK's life and it would be much better if they could do so directly, without having to use some form of professional intermediary. In those circumstances, I simply express the hope that in some way the resolution of these proceedings may have enabled some form of melting of the ice between those who are interested in SK's welfare, because it does seem probable that, even in small ways, that would be for his benefit.