These are a series of 3 judgments relating to TP.
The first judgment made findings of fact and the second considered capacity, concluding that TP lacked capacity in respect of decisions as to the conduct of this case, as to residence, care and contact.
The third judgment focused on the question of TP’s best interests and is the main focus here.
TP (62) was born with cerebral palsy causing weakness in her right arm and leg; she had epilepsy controlled by medication, was also partially sighted and had a learning disability.
TP had lived with her parents in their home until the house was sold following their deaths. She had then moved to a rented flat owned by Riverside Housing who were part of the support services to maintain TP’s safety and welfare.
TP also accepted support from the local authority with managing her finances, a care worker to take her into the community, counselling from the voluntary sector and monitoring of her health through regular appointments with her GP.
Her 2 sisters, who lived abroad, remained in regular contact with TP by phone and she reportedly developed a supportive circle of friends in the local community who looked out for her.
Up until 2011, TP was accepting of appropriate services and there was no reluctance to accept such services.
From 2011 onwards, TP became friendly with FW. Concerns were repeatedly raised over the next 5 years, as TP gradually cancelled services, missed medical appointments and distanced herself from others. There were also concerns that FW appeared to be financially exploiting TP; behaving in a manner that was controlling and coercive towards her; inappropriately carrying out intimate caring tasks for her, such as helping her out of the bath, and providing her with inadequate privacy in his home (where she was now living). The judgment containing findings of fact in this case concluded:
“I am satisfied that FW influenced TP to discontinue any previous relationships, either personal or professional, and prevailed upon TP so that she no longer had any assistance, or support, or relationship with anyone other than himself. She became completely reliant upon him in every regard. He exerted complete control over her. It was a gradual process from 2011 until 2016 but by 2016 it was complete.” [para. 59]
The issue of determining TP’s best interests, however, was more problematic. Throughout the case TP remained “clear, consistent and unambiguous” in stating that she wished to return to live with FW.
The view of both the local authority and an Independent Social Worker was that it would be in TP’s best interests to prevent her from returning to live with FW. This posed the dilemma of weighing the need to protect TP against the negative consequences of such a huge interference with her private and family life and against her expressed wishes.
Moir J highlighted that
“TP’s wishes and feelings may not necessarily determine the outcome of the case but are a factor of significant importance, particularly when so clearly and consistently expressed.” [para.12]
In a careful analysis, she considered whether TP’s expressed wish to return to live with FW was merely an unwise decision (in which case the court should respect TP’s decision in line with MCA principles) or whether TP was truly unable to understand or to use or weigh relevant information.
Social workers had attempted to work with TP, but she remained unable to recognise the potential harm which FW presented. Rather she saw FW as protecting her from harm and saw no reason why she should not return to him. TP was unwilling to consider any option other than returning to live with FW and the independent social worker concluded that TP was unable to accept that FW had gone out of her life whilst any possibility of returning to him remained.
The court considered evidence that TP’s mood did deteriorate when she was removed from FW’s home and she became depressed. However, there was also evidence that her mood had improved as time had gone on and she had begun to participate in activities and appeared more relaxed and confident.
The patterns of the previous five years suggested that, if TP were to return to FW, she would not engage with any outside support or activities (including medical care, accessing college and her relationships with her sisters), but would resume complete dependence on him and comply with his influence in isolating her from all other contact. TP did not see any harm in this.
From her point of view, FW relieved her of the pressure of decision-making and cared for her. However, TP’s physical, emotional and educational needs could not be met by FW. A return to FW would likely lead toa gradual erosion of her psychological welfare because TP would function to meet the needs of FW rather than her own needs, and this would ultimately have a negative effect on her mood and self-esteem.
Moir J was extremely mindful of the crucial importance of autonomy and self-determination and that adults with learning disabilities should not be treated in a paternalistic manner as if they were children. However
“FW is doing the opposite of what one would expect a supportive family member or concerned person to do on behalf of TP. In fact he is undermining her so that she is dependent upon him in a very negative way. Chris Wall highlighted that TP may be in fear of losing FW who had replaced what was the benign control of her parents and replaced it with a very different sort of control, the intricacies of which were not apparent to TP.” [para. 35]
Consequently, she concluded TP’s expressed wishes were not merely an unwise decision, but that TP lacked understanding of the relevant information of the harm to her from FW’s behaviour. She explained:
“I have considered not just TP’s expressed wishes but, as far as I can, with the help of the professionals the reasons behind those wishes. I have taken account of the evidence of the social workers, Dr Hughes and the independent social worker, Chris Wall, as to the harm to TP if she returned and the fact that her needs would not be met but subsumed in those of FW. She would lose her identity.” [para. 43]
In considering TP’s best interests, the court considered the option of a trial return to FW but concluded that TP would immediately be isolated and under FW’s complete control and the harm to her would continue. The option of a return to TP’s flat was also considered, but rejected as inevitably resulting in a return to FW. Moir J reached the very clear view that it was in TP’s best interests for her contact with FW to continue to be restricted to, at most, indirect contact, and that the court would not countenance her return to living with him.
Consequently, the court reluctantly concluded that TP’s best interests lay in remaining in her current placement with a review by the court in six months with the longer term aim of a move to an independent supported living placement at a point when TP was able to engage positively with that process.
This case illustrates that, while the Court of Protection has been placing increasing emphasis on the importance of P’s wishes and feelings in determining their best interests (as in Wye Valley NHS Trust v B ), there will still be occasions where respect for P’s wishes and feelings can be outweighed by other factors in determining P’s best interests. Here the court came to the difficult conclusion that the need to protect P from harm outweighed the harm caused by the protection. It is also important to note that the proposed placement for TP was not the least restrictive placement available, but was the only placement able to achieve the goal of protecting her from FW. The harm from which TP needed to be protected was a harm which restricted and curtailed her autonomy. Consequently, the huge interference in her life and restrictions on her immediate choices in the face of her expressed wishes and feelings were justified in order to prevent harm which curtailed her independence and choices and instead promote her autonomy and freedom of choice in the longer term.
Full transcript of third judgment available at: http://www.bailii.org/ew/cases/EWCOP/2016/B5.html
Full transcript of first judgment containing background and facts available at: http://www.bailii.org/ew/cases/EWCOP/2016/B3.html