This is a guest post written by Barbara Rich. Barbara is a barrister and mediator specialising in inheritance and trusts and Court of Protection property and affairs cases. She tweets as @BarbaraRich_law.
The Daily Mail’s 4 November 2016 front page describing the judges who heard the Article 50 case (R on application of Miller & Dos Santos v Secretary of State for Exiting the European Union  EWHC 2768) as “Enemies of the People” provoked a furore. The Bar Council called on the Lord Chancellor to condemn these “serious and unjustified attacks on the judiciary” in a public statement “as a matter of urgency”. Other newspapers published similar editorials and correspondence, discussing the relationship between the judiciary and the executive and deploring the dethronement of the rule of law by tabloid headline.
Lawyers who practise in the Court of Protection are familiar with the Daily Mail and other newspapers’ less extreme but nevertheless damaging distortion of the work of the Court and the rule of law in their specialised field. An article published in the Daily Mail under the headline “The grandmother secretly jailed for caring too much”, a week after the “Enemies of the People” front page, is an example of this. It presents the workings of the law of mental incapacity as menacing and opaque, and as operating harshly against the wishes and interests of blameless ordinary people.
The Daily Mail’s story follows that which was the subject of an earlier Transparency Project blog post about the same case: The terrifying tale of how Britain’s most secret court imprisoned a grandmother (AKA Court enforces its own orders and publishes judgment for the world to see).
That post focused on the Daily Telegraph’s account by Christopher Booker of the imprisonment for contempt of court of Teresa Kirk, a 71 year old woman who was a party to a case in the Court of Protection. The blog post rightly pointed out that the journalist had not kept up with developments in transparency in the Court of Protection, particularly in relation to committals for contempt of court. The original case in the Court of Protection which had given rise to the committal application was a dispute between Mrs Kirk and Devon County Council about whether an 80 year old man (“MM”) suffering from vascular dementia should live in a care home in the south west of England or one in Portugal, where he had been taken by Mrs Kirk. The only judgment in the case which is available to the public (for reasons discussed in the earlier blog post) is that dealing with the committal for contempt of court, a decision made at a hearing held in open court i.e. one which was clearly open to the public to attend, and which is reported as Re M  EWCOP 42 and publicly accessible on BAILII.
The 11 November article in the Daily Mail is about Mrs Kirk’s release from imprisonment, her sentence having been overturned on appeal against the committal a few days earlier. As there is no published report of the appellate decision yet available, I will not comment on the rights and wrongs of the sentence of imprisonment for contempt of court. It is only fair to say that the few quoted remarks of the Court of Appeal judges in various news reports support the view that it was indefensible for Mrs Kirk ever to have been imprisoned for contempt of court in this case, one quoting Lord Justice McFarlane as having said “No one at any stage of it has stood back and said: ‘What are we doing here sending this 71-year-old lady to a six-month prison sentence in order to achieve a welfare benefit for (this elderly man)?”
There would be absolutely nothing wrong with a news article which simply described and criticised the decision to imprison Mrs Kirk for contempt of court for six months, as the Court of Appeal judges have done. However, there are a number of other things said and suggested about the Court of Protection and the law of mental capacity in the Daily Mail article which are unquestionably wrong.
‘Crime’ and punishment
The headline describes Mrs Kirk as “the grandmother secretly jailed for caring too much”, and the article says
“Mrs Kirk’s ‘crime’ was putting an elderly man, whom she has known all her life, in a Portuguese care home instead of one in England which social workers (who had only met him fleetingly) had set their heart on.”
This is wrong. It was not Mrs Kirk’s placement of MM in the Portuguese care home which itself led directly to her imprisonment. The Court had decided that it was in MM’s best interests to leave that care home and instead live in a care home in the south-west of England. Mrs Kirk disobeyed a court order which required her to sign a written declaration of authority to enable Devon County Council to take charge of MM’s removal from the care home in Portugal and placement in England. As the reported judgment of Re M records, she disobeyed the order
“because of her strongly-held beliefs that the court was wrong, and she was right”.
Imprisonment for contempt which takes the form of disobeying a court order is not punishment for a crime, but both a punishment for a civil contempt of court and a means of securing compliance with the court order which has been disobeyed. General guidance on the approach a court should take to sentencing for contempt is summarised in the recent decision in Heathcliffe Properties v. Dodhia  EWHC 2628 (Ch). Imprisonment may seem disproportionate to whatever it is that the person sentenced has done or failed to do, because imprisonment is not a punishment merely (as in this case) for having and acting on a sincerely-held belief that it would be better for a person to be in one care home than another, but (as in all cases) for disobeying a court order. The judge said in Re M that the fact that a person disagrees with the decision of the court
“does not mean that they then can simply be permitted to proceed as though the order does not exist; it goes to the very root of our judicial system (my emphasis)”.
The Daily Mail article goes on to say:
“woe betide anyone who breaks the rules imposed by [the Court of Protection]. Plenty of people who have done so have been sent to prison for contempt of court, just like Mrs Kirk. Indeed, every year, up to 200 people are jailed by the family courts system for breaching its secrecy rules or disobeying diktats from social workers.”
This makes it sound as if imprisonment for contempt of court is something that only happens in courts which have control over private and family life, and which have “secrecy rules”. This is far from the case. All courts, both civil and criminal in England and Wales, and in many other jurisdictions, have power to punish behaviour which is contempt of court. The Court of Protection has the same powers to commit to prison as the High Court. And contempt does not consist of “disobeying diktats from social workers” but (in this case) disobeying an order of the court, or in other words, positively undermining the rule of law by preventing a judicial decision from taking effect.
“Every aspect of a citizen’s life . . . under the control of the court”
Secondly, the Daily Mail article appallingly mischaracterises the role and jurisdiction of the Court of Protection. It says
“The shadowy court has draconian powers to make far-reaching rulings about almost every aspect of a citizen’s life, and their relatives’ too. The judges presiding over it can compel people to undergo surgery, use contraception, or even decide if their life support system is switched off. Just as worryingly, the court can put someone in hospital, or a designated care home, if the State deems it to be in their “best interests”. In other words, the life of that person, who may be mentally impaired or simply elderly, is under the control of the court.”
This conjures up a sinister vision of the Court acting on behalf of “the State” in a “shadowy” and “worrying” way to stealthily withdraw feeding tubes, implant intra-uterine devices or thrust people (and their relatives too) into hospitals and care homes. It is true that the Court’s powers are far-reaching and encompass momentous decisions about many aspects both of people’s personal welfare and medical treatment, and their property and financial affairs. Some of the momentous decisions about medical treatment could lawfully be made without a court order, but come to the Court because they raise significant medical or ethical issues which doctors consider that the Court should decide, and because taking them to court gives family and carers a welcome opportunity to be heard about such important issues. But it’s completely wrong to suggest that that the Court can or does make any decisions about people “who may be mentally impaired or simply elderly”. Many elderly people do suffer from illnesses which progressively deprive them of mental capacity to make an increasing number of decisions, but being elderly in itself does not entitle the Court to have any dealings at all with, let alone “control” a person’s life. Nor does the vague suggestion that a person “may be mentally impaired” give the Court jurisdiction. The Court can only make a final, permanent, decision about a person who is proved on the balance of probabilities to lack mental capacity to make that specific decision at the specific time an application is made to the Court. The Court can only make an interim and not a final decision about a person who “may” but has not absolutely been proved to lack the required mental capacity for the decision. The Court does not have any free-standing right to make a decision about a relative of someone who lacks capacity, but can only do so incidentally to making a decision about the person who lacks capacity – for example by controlling contact between the person who lacks capacity and a relative, or making a decision about a lifetime gift or payment for care to the relative from the funds of the person who lacks capacity.
Proving a lack of mental capacity means a great deal more than random hearsay about whether they can remember the name of the Prime Minister – not in itself a reliable measure of capacity in 2016 in any case. The Mental Capacity Act 2005, which governs the Court of Protection’s entire jurisdiction, has a detailed definition of what it means to lack mental capacity. This has both a diagnostic threshold: a person must be unable to take a decision because of “an impairment of, or a disturbance in the functioning of, the mind or brain”, and a functional test: a person must be unable to understand and retain information which is relevant to the decision in question, use or weigh such information as part of the decision-making process, and communicate the decision once made.
Every application to the Court has to be supported by evidence, usually clinical evidence, that the person in question does lack capacity as defined in the Mental Capacity Act to take the decision in question. In many cases this evidence is brief and completely uncontroversial because it will be obvious to everyone that the person concerned cannot take the decision in question. In more borderline cases the evidence will be more detailed. There is an ever-increasing focus on the adequacy of assessments of capacity and the quality of this evidence, including the quality of the instructions to the assessor, because it is such an important threshold to the Court taking the responsibility of making a decision for a person who cannot make a decision for him or herself. Sometimes evidence of lack of capacity is contested, and the Court has to review and weigh it up before deciding whether or not the person lacks capacity. A striking example of this is D v. R  EWCOP 2405. The Court had to decide whether a Mr S had capacity to make decisions about continuing or compromising a civil claim of undue influence brought in his name by R as his deputy against a woman (D) who had befriended him and to whom he had made very generous gifts of money. This involved a three-day hearing, the evidence of several experts and a detailed judgment in which the High Court judge who heard the case acknowledged that he had thought “long and hard” before deciding that Mr S did lack capacity “to reason his way to a conclusion in a novel situation”.
“If the State deems it to be in their best interests”
One of the points made in much of the commentary about the “Enemies of the People” description of the Article 50 judges, was that it failed to recognise the important separation of powers between the executive and the judiciary, and the impartiality and the independence of the judiciary. A similar criticism can be made here. By using the words “the court can put someone in hospital or a designated care home, if the State deems it to be in their ‘best interests’” and by referring to penalties for “disobeying diktats from social workers”, the article suggests that the Court simply implements the arbitrary, capricious and unfair decisions of agents of “the State” in a way which brushes aside the wishes of ordinary people. The word “diktat” is, after all, never used to praise a decision or the way in which it was made, and is generally used to describe a decision which is imposed by the powerful on the weak. This caricature of the process of judicial decision-making about best interests is very far from the truth. The Court of Protection is a superior court of record. It is not a department or an agent of the State. Like all judges, its judges swear a judicial oath of office to do right to all manner of people in accordance with the law and without fear or favour, affection or ill will. Its best interests decisions are judicial decisions made on analysis of evidence from a number of witnesses and sources and in accordance with the principles of the Mental Capacity Act, in particular s4, which sets out matters which are to be taken into consideration in making best interests decisions. The only role of “the State” in the type of Court of Protection case Mrs Kirk was involved in is that a local authority, which has statutory social care duties towards adults in its area, has made an application to the Court, or been joined as a party to an existing application, in the course of discharging those duties. A local authority’s evidence of what is in a person’s best interests will not necessarily be determinative of the Court’s decision. Quite apart from the evidence of those who, like Mrs Kirk, oppose the local authority’s view, the incapacitated person may well be represented by the Official Solicitor as a disinterested litigation friend, and the Court will often direct that the evidence should include a report prepared by an entirely independent social worker as to what would be in the incapacitated person’s best interests. There clearly was such a report at an earlier stage in this case, before or at around the time MM was first taken to Portugal, as it is referred to in the reported decision in Re M. According to the published judgment, it was a report which recommended that it was then in MM’s best interests to live in a care home in the south-west of England, where he had lived for many years and had a large circle of friends and a cat of whom he was exceptionally fond, rather than in a care home in Sussex, where Mrs Kirk lived. A local authority’s view is also unlikely to confuse best interests with self-interest. The Daily Mail describes Devon’s social workers as having “set their heart on” a care home in England. but it seems improbable that any social worker would describe themselves as having been so personally emotionally engaged in a decision of this type.
As no judgments reviewing evidence relevant to where MM should live have been published, it is easy for journalists to ignore the fact that the Court will have heard and weighed up all the evidence and legal arguments based on it before reaching its best interests decision. An example of a case in which this process of evaluation could not have been more transparent was the decision in King’s College Hospital NHS Foundation Trust v C  EWCOP 80, a case about whether a woman (C) who had survived a failed suicide attempt had capacity to refuse further life-saving medical treatment. The decision was widely reported and intensely commented on – although some of the commentary was very inaccurate, despite the clarity and transparency of the judgment itself. The reason the case attracted attention was that the woman, who was 50, and, as the judge said “to whom the epithet ‘conventional’ will never be applied”, was pre-occupied with not getting old and had expressed a wish not to continue to live once her life had lost its ‘sparkle’. I don’t think the judge who later (in V v Associated Newspapers Ltd  EWCOP 21) refused an application to identify the woman in the media after her death, and who described the reporting as engaging “the ‘prurient’ interest of the public in the personal details of the lives of others” used the word ‘prurient’ entirely accurately, but a number of people professionally involved with mental capacity questioned whether it was right for the original published judgment to have contained so much detail about C’s life and wishes and feelings, beliefs and values. I think that such detail may be indispensable for the Court in making a best interests decision and that transparency and public understanding of the law is better served by making as much of the process and content of best interests decision-making public as possible.
Constitutional law cases of the importance of the Article 50 litigation are once in a lifetime events. Important decisions about the lives of people who lack mental capacity are everyday events. The Daily Mail has been one of a number of newspapers which has campaigned for greater transparency in the Court of Protection. It also addresses a middle-aged and older demographic in its readership – many will be people who have responsibilities for and contact with, or themselves be part of, an older generation in which there are many people with failing or lost capacity – and it frequently publishes articles about the effects of ageing and deals with fears associated with ageing. Misrepresentation of the work of the Court of Protection adds another strand to the understandable fears that many people have of old age and of what might happen to them if they can no longer make decisions for themselves. These distortions undermine people’s confidence in law which is designed to protect their best interests through judicial decision-making and judicial oversight of decision-making by attorneys and deputies for people who lack mental capacity. It is not only lawyers who specialise in this work who should protest at inaccuracies in the way in which it is portrayed in newspapers which are influential and widely read.
Feature pic : The Shadowy Court – (pic courtesy of Mark Hillary on Flickr – thanks)