AG [2015] EWCOP 78

The facts

DG appealed a decision made in the Court of Protection regarding her daughter, AG.

AG was a young woman who had a learning disability, autistic spectrum disorder and had suffered from depression. She lived partly with her mother, and partly in her own property.

There were numerous reports and allegations about tensions between DG and AG, which resulted in a safeguarding investigation. This ended with an ‘inconclusive’ determination, but resulted in AG returning to her own property with 24 hour care put in place by the Local Authority.

A few months later, further allegations and counter-allegations were between AG, DG and the care home, that AG was being physically and emotionally abused by DG, that Local Authority care staff were providing inadequate care to AG, that DG was mismanaging AG’s medication and that DG and AG had verbally abused and assaulted care workers. 

The Local Authority applied to the CoP where Judge Rogers made orders that AG lacked capacity to litigate or make decisions about her residence and care, and that it was in her best interests to live at the accommodation identified in the Local Authority care plan (supported living accommodation).  He also stated that it was in AG’s best interests to have contact with DG in accordance the Local Authority’s contact plan (supervised).

DG appealed the decision on four grounds. The major thrust of her argument was that Judge Rogers failed to make findings of fact in relation to the allegations that had triggered the proceedings.

What was found

The appeal was dismissed.

Sir James Munby, President of the CoP, set out five reasons for why he dismissed DG’s main ground for appeal.

1. There is no requirement to establish any ‘threshold’ of wrongdoing in proceedings relating to an adult.  (Re S (Adult’s Lack of Capacity: Care and Residence) [2003] EWHC 1909 (Fam))

Sir James Munby went on to endorse Wall J’s analysis:

“the absence of any threshold criteria equivalent to those contained in section 31 of the Children Act 1989, “raises the question as to the extent to which (if at all) it is necessary, for the purposes of exercising the jurisdiction and deciding which course of action is in the best interests of S, to make findings of fact relating in particular to disputed historical issues.” His answer was as follows (paras 18, 21):

“18 … I agree that there must be good reason for local authority intervention in a case such as the present. Equally, if there are disputed issues of fact which go to the question of Mr S’s capacity and suitability to care for S, the court may need to resolve them if their resolution is necessary to the decision as to what is in S’s best interests. Findings of fact against Mr S on the two issues identified would plainly reflect upon his capacity properly to care for S. But it does not follow, in my judgment, that the proceedings must be dismissed simply because the factual basis upon which the local authority instituted them turns out to be mistaken, or because it cannot be established on the balance of probabilities. What matters (assuming always that mental incapacity is made out) is which outcome will be in S’s best interests. There will plainly be cases which are very fact specific. There will be others in which the principal concern is the future, and the relative suitability of the plans which each party can put forward for both the short and long-term care of the mentally incapable adult. The instant case, in my judgment, is one of the cases in the latter category.

Whilst I acknowledge that in a relatively untried jurisdiction there are dangers in too relaxed an approach to historical issues, I am unable to accept the proposition that the approach to best interests is fettered in any way beyond that which applies to any judicial decision, namely that it has to be evidence based; that it excludes irrelevant material; and that it includes a consideration of all relevant material. In a field as complex as care for the mentally disabled, a high degree of pragmatism seems to me inevitable. But in each case it seems to me that the four essential building blocks are the same. First, is mental incapacity established? Secondly, is there a serious, justiciable issue relating to welfare? Thirdly, what is it? Fourthly, with the welfare of the incapable adult as the court’s paramount consideration, what are the balance sheet factors which must be drawn up to decide which course of action is in his or her best interests?”

2. Judge Rogers had carefully and accurately weighed the legal consequences of not having a fact-finding enquiry.

Judge Rogers stated, “I bear in mind, however, that those allegations … are strongly denied by DG and, applying a normal approach to the forensic fact finding enquiry, in the absence of the specific findings. I do not hold them in the background, as it were, by way of a suspicion lurking over DG.”

3. The factual context had progressed since proceedings were issued and the Judge was concerned with “future planning”;

Sir James Munby stated that “although the proceedings had been issued against the background of the safeguarding concerns arising out of the various allegations, matters had progressed and the court was faced with a different landscape. Judge Rogers correctly recognised that he was looking at the present position and looking to the future. Given how matters then stood, the degree of enquiry undertaken by Judge Rogers was … entirely sufficient to inform the decisions in respect of future planning for AG that the court was tasked with making. A lengthy and costly finding of fact hearing would have been entirely disproportionate.”

4. There was no suggestion that the independent social worker’s analysis had been adversely influenced by the allegations;

5. DG had not sought to challenge the decision not to hold a fact-finding at earlier hearings, so it was too late.

This case underlines that Safeguarding processes (whatever stage of a quick enquiry, a pre-enquiry conversation or a full blown independent investigator forensic exercise might have been thought appropriate) need not get hung up over the making of ‘findings’ if the person in charge of it keeps in mind that not even the Court will find it necessary to do so in most cases.

The essence of safeguarding, at least where the solution will be found in a change to a public body’s care plan (rather than the suspension, disciplining or professional regulation of a person, or criminal proceedings) is that the commissioning council or CCG doing the paying for the care, IS the decision maker as to what happens next. That legal authority is subject only to the law of mental capacity and public law principles about the adequacy of teh care package in light of all relevant considerations, regarding the Care Act or the framework for CHC. So the hundreds of families who see a decision to start proceedings in the Court of Protection in which they are the defendant, as a personal slight to them, and their care, could perhaps be less anxious and better off understanding that the Administrative Court offers them and their loved ones the means to attack inadequacies in the care plan or the budget at a much earlier point, before things become entrenched and soured by everyone taking offence or gossiping behind the scenes about alleged ‘perpetrators’.

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The full report can be found here:

https://www.bailii.org/cgibin/format.cgi?doc=/ew/cases/EWCOP/2015/78.html&query=(tenancy)+AND+(%22Mental+Capacity+Act%22)

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