Re GW; LB Haringey v CM  EWCOP B23 Senior Judge Lush
Deputies – Financial and property affairs
This case concerns an objection by a family member to the appointment of a local authority as property and affairs deputy. It is of note for being the first time in which the General Comment on Article 12 to the Convention on the Rights of Persons with Disabilities (‘CRPD’) has been prayed in aid in a judgment. In short terms, GW, who had served in the RAF in the Second World War, and then worked as a bricklayer, had been diagnosed with late onset Alzheimer’s dementia in 2009. He was sectioned under the MHA 1983 before ultimately being placed in a residential care home. Whilst still in hospital, a safeguarding alert was raised on the basis of disclosures made by GW about his finances, which suggested that his niece, CM, was withdrawing monies from his bank account without his consent. In June 2013, GW purported to make a will, CW being the sole beneficiary; at that point he was unaware that he had made a previous will, shortly after receiving a formal diagnosis that he had Alzheimer’s, in which he had left his estate to all his nephews and nieces in equal shares. In October 2013, the LB Haringey applied to be appointed GW’s property and affairs deputy. CM objected, and sought herself to be appointed as the deputy. Directions were made for the listing of a hearing and, in advance, the preparation of a report by a Special Visitor, who confirmed (inter alia) that GM had not had testamentary capacity in June 2013, lacked capacity to make decisions as to his property and affairs, did not wish his niece to act as deputy because he did not trust her, but was also opposed to the idea of the Court of Protection appointing an independent deputy. The Special Visitor concluded, however, that GW would be likely to be reconciled gradually to the idea of the appointment of an independent deputy should the court decide this course of action, especially if matters are explained to him clearly and where he is given the assurance that he can have ready cash at his disposal. The matter came on for determination by Senior Judge Lush. He did not reiterate the law relating to the appointment of a deputy, that he had recently set out in Re BM, but noted that
“29. There is, however, one matter I did not mention in Re BM, and this regards the need to ensure that P is not subjected to undue influence.
30. On 13 December 2006 the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities (‘CRPD’). This convention came into force on 3 May 2008 and it was ratified by the United Kingdom on 8 June 2009. Although it does not form part of our domestic law, it may have an interpretative influence, particularly in cases affecting the rights of a person with a disability. Any application for the appointment of a deputy affects P’s rights.
31. Article 12.4 of the CRPD requires that:
‘States Parties … shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, [and] are free of conflict of interest and undue influence.’
32. In its General Comment No 1 (2014), published on 11 April 2014, the Committee on the Rights of Persons with Disabilities stated, at paragraph 18, that:
‘All people risk being subject to ‘undue influence’ yet this may be exacerbated for those who rely on the supports of others to make decisions. Undue influence is characterized where the quality of the interaction between the support person and the person being supported includes signs of fear, aggression, threat, deception or manipulation. Safeguards for the exercise of legal capacity must include protection against undue influence – however the protection must also respect the rights, will and preferences of the person, including the right to take risks and make mistakes.’”
Senior Judge Lush held that the factor of magnetic importance was GW’s statement that he did not want CM to manage his property and financial affairs. Senior Judge Lush quoted a number of extracts from the interview with the Special Visitor, including one where GW described her as being “like a witch to [him]” Senior Judge acknowledged that “GW’s views are neither reliable nor consistent, but having regard to the strength of feeling he displayed in his interview with Dr Fagin, I would be reluctant, unless it were absolutely necessary (which it is not), to override his rights and his expressed will and preference that CM should not be appointed as his deputy” (paragraph 42). Further, quite apart from GW’s present wishes and feelings, or his rights, will and preferences, Senior Judge Lush noted that he “would be wary of appointing CM as his deputy in circumstances which by no stretch of the imagination can be described as free of conflict of interest and undue influence, whereas I have no such reservations about appointing Haringey Council.”
Importantly, in line with the recommendation of the Special Visitor, Senior Judge Lush granted the deputyship order on the understanding that it was in GW’s best interests, and less restrictive of his rights and freedom of action, for him to retain control over his own expenditure to a limit of £200 a week.
As to costs, whilst Senior Judge Lush expressed his surprise that CM persisted with her application to manage her uncle’s property and finances after he had expressed such trenchant opposition to her in his interview with the Special Visitor, noting that “[m]ost people would have thrown in the towel at that stage.” However, he noted that GW’s views had not always been consistent and this matter was listed for an attended hearing on 22 May 2014, anyway. In the circumstances, he saw no reason to depart from the usual order for costs in property and affairs cases as set out in rule 156 of the Court of Protection Rules 2007, i.e. that the costs should be paid by P or charged to his estate.
Even though the CRPD is not incorporated into English law, it is nonetheless being referred to with increasing frequency in decisions up to and including that of the Supreme Court (in Cheshire West). The weight placed upon GW’s wishes in this case determining the application is also undoubtedly ‘CPRD-friendly.’ This, though, is the first time that the General Comment upon Article 12 to the Convention has been relied upon in a judgment, and it is of particular interest to note in this context that Senior Judge Lush alighted upon the discussion in the General Comment in relation to undue influence as opposed to the (relatively) more familiar ground of the importance of the promotion of the individual’s will and preferences. It is, in this context, a useful reminder that the CRPD seeks to balance a number of rights including (under Article 16) the right to be free (inter alia) from exploitation and abuse. The Government’s response to the House of Lords Select Committee’s post-legislative scrutiny report under the MCA 2005 notes “the work that Government is undertaking as it continues to assess the compatibility of the Mental Capacity Act with the Convention. The Committee on the Rights of Persons with Disabilities will be reviewing the compatibility of both the MCA 2005 and the Adults with Incapacity (Scotland) Act 2000 with the CRPD next year, and it is fair to say that there are very significant grounds to doubt whether the MCA 2005 is compliant with the CPRD, especially given the interpretation given to Article 12 in the General Comment issued by the Committee (see this detailed and extremely helpful discussion paper).