A London Borough v G (by her litigation friend the Official Solicitor) and C and F [2014] EWHC 485 (COP)

G was a 94 year old woman who suffered from arthritis, rheumatism, a dislocation of her left knee and carpal tunnel syndrome. She also had high blood pressure and double incontinence. She rarely left her home, except for hospital appointments and had no family living in the UK.  G had a lodger (“C”) whom she had met at her church and who had moved in with her to provide night care in return for free accommodation.  C’s husband (“F”) also lived with them.

Multiple sources made complaints about the conduct of C and the influence that she had over G.  Complaints also came from G herself; although she later retracted them.  G first came to the attention of the local authority when her GP contacted them and following this a care support package was put in place.  Following a safeguarding referral G’s case was allocated to a social worker.  It had been reported by the carers that C was refusing to leave the room when they were attending to G’s personal care and there were also concerns that C was intimidating G.  The local authority visited G on a number of occasions and attempted to see her on her own.  The social worker regularly met with obstruction and the attendance of the police was required on more than one occasion.

The local authority became concerned that G would often change her mind about things that she had said and there were concerns that this was as a result of manipulation by C.  This change of view often occurred when C was in the room.  The local authority also became concerned about the management of G’s financial affairs.  At the time of the first visit by the social worker G was being regularly visited by members of her church and supported by them.  These visits declined and by the time of the hearing G had little or nothing to do with them.  Members of the church had become concerned that G was under the influence of C.

The local authority originally issued proceedings under the inherent jurisdiction as they took the view that G was a vulnerable adult who did not lack capacity.  The Circuit Judge (sitting as a Deputy High Court judge) in the first instance was satisfied that G was a vulnerable adult and injunction orders were made forbidding C and F from intimidating or harassing G, or damaging or disposing of her possessions.  The court also ordered an assessment of G’s litigation capacity and her capacity to manage her property and affairs.  Orders were made that C and F had to allow full access to G for the assessment to be carried out.  In the event that G was found to lack litigation capacity the Official Solicitor was invited to act as litigation friend.

C had instructed an educational and clinical psychologist.  This expert’s evidence was permitted despite the fact that he had not received formal instructions, his report had not been approved by the court, and the court had not permitted disclosure to him of documents produced and filed within the proceedings.  Russell J agreed to allow the evidence, as long as it could be challenged by cross-examination, because G was aware of it (having been taken to see him by C).

The matter then came before the High Court, who had to consider two applications.  The first was an application for relief under the inherent jurisdiction and the second was a proposed application under the Mental Capacity Act 2005 (“MCA”).

The two expert reports ordered by the court were a psychiatric report and an independent social work report. The psychiatrist concluded that G could not maintain attention and concentration, was unable to retain information and that she was worried about being taken out of her own house.  She wanted to live in her own house and the court to leave her alone.

Mr G, the independent social worker (“ISW”) was instructed to carry out an assessment of capacity and the nature of any lack of capacity.  He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA, or because of undue influence. An order had been made prior to his instruction that C and F leave the property to allow the assessments to be carried out.

The ISW stated that G was not “content” with C caring for her and that he saw G as passively accepting the current arrangements and feeling dependent on C. G was fearful that should the caring by C cease, either F would undertake personal tasks which she did not want, or she would be made to leave her home. The ISW was also of the view that G was unduly influenced by C and had developed a dependency on her.

Mrs Justice Russell accepted the ISW’s evidence that G was unduly influenced by C but she did not share the ISW’s view that G lacked capacity solely due to being unduly influenced by C.

Mrs Justice Russell also accepted that this dependency and influence inhibited G’s ability to reach decisions and undermined her capacity to do, but she preferred the evidence of the psychiatrist “…given his speciality, expertise and knowledge of the functioning of the mind and brain. The differences in their views reflect the difference in their disciplines and field of expertise” (para 62) over that of the independent social worker.

Mrs Justice Russell applied the two-stage diagnostic and functional test to decide whether G had capacity.  She found that on the balance of probabilities, G lacked capacity under sections 2 and 3 of the MCA 2005 and accordingly the case fell under the jurisdiction of the Court of Protection.

G had executed two Lasting Power of Attorney’s (LPA) in favour of C.  There was a defect on the instrument for the property and affairs LPA which meant that it could not be registered.  Russell J did not therefore need to take any steps in relation to this LPA but could proceed immediately to appoint an independent panel deputy.

The health and welfare LPA was registered in compliance with the provisions of schedule 1.  The Public Guardian submitted that the objectives of the court could be achieved by directing the attorney not to exercise any powers under the LPA pending determination of the applications before the court. The Public Guardian asked that the court vary the order of the 15th November 2013 directing C not to exercise any of the powers conferred on her under the LPA in respect of G in relation to her health and welfare.   Russell J consented to this proposal.

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