Re RGS (No 3) [2014] EWHC B12 (COP) (District Judge Eldergill)

Best interests – residence – Media  

Summary

As District Judge Eldergill says in his introduction, “these proceedings have a long history.” They concern an elderly man (now 84 years old), RGS who suffers from vascular dementia and his son, RBS. They have involved a ‘seek and find’ order for RGS when RBS removed him from a care home, financial mismanagement, the sale of a Pissarro painting and issues related to the media reporting of COP cases.

We summarised the two previous cases here (November 2012 case) and here (July 2013).

This time the proceedings focused on the following issues:

  1. RGS’s residence at X Care Home;
  2. Contempt of court;
  3. Media attendance, reporting and publicity;
  4. Contact and Article 8.

RGS’s residence at X Care Home

In July 2013, District Judge Eldergill found that it was in RGS’s best interests to reside at the X Care Home. Shortly after the judgment, RGS was assaulted on three occasions over a period of three days by a fellow care home resident with dementia. RGS was hit on each occasion with a walking stick resulting in bruising, a skin tear and a broken tooth. Following these incidents Y was closely monitored and no further incidents occurred. Y was sectioned under the Mental Health Act 1983 on 22 August 2013. He did not return to the X Care Home and the court was informed that he would not be returning there.

The incidents were reported to RBS and the county council so that they could be investigated under the council’s safeguarding procedures. On 15 November 2013  the court commissioned  a report from the county council as to the circumstances which was produced on 29 November 2013. The report found that “there was a failure to ensure that RGS’s safety needs were met. An action plan was put in place to ensure that practice at the home was improved and further placements at the home were suspended”. On 13 December 2013 the court considered of its own motion that it was in RGS’s best interests for the court to review the existing arrangements.

The court commissioned a best interests report from one of its social work General Visitors who was asked to file a report reviewing whether it continues to be in his best interests to reside at X Care Home.

District Judge Eldergill held that it remained in RGS’s best interests to reside at X Care Home. That conclusion was based on clear evidence (from a large number of independent sources) that RGS was content at X Care Home and that transferring him to a different environment would add to his confusion and would be likely to make him more agitated.

District Judge Eldergill also added the following comment of more general application when P is to be placed in a residential setting:

Having spent almost 30 years in mental health, chaired inquiries and worked as a Coroner, I can say without qualification that it is a sad fact that assaults and other serious incidents do sometimes occur at well-run care homes, nursing homes and psychiatric units because of the mental ill-health of someone receiving care or treatment there. That is one important factor to consider when deciding whether it is in someone’s best interests to be at home or in a shared environment”.

Contempt of court issues

RBS was held to be in clear contempt of court – publishing court documents online (the Official Solicitor’s position statement had already been published online at the time of the hearing) and releasing information to the press. District Judge Eldergill held (as he had on previous occasions) that despite many and persistent breaches, he was not going to take action against RBS due to his significant mental health problems and the fact that his father, RGS, would (if he had capacity) have been likely to take a forgiving approach to his son’s actions as he had done in the past.

Media attendance, reporting and publicity

The judgment considers in detail the competing interests of privacy and transparency and makes reference to the President of the Court of Protection’s recent guidance.

The judge held that there were good reasons in this case to allow the press to attend the hearings, report what  was said in  court and publish the court’s judgments because the case involved important matters such as the rights of people incapacitated by dementia, the quality of their care, laws which permit the sale of private property to finance their care and the way in which the Court of Protection functions.

As well as the important issues which were aired, the judge also felt that there needed to be a balancing of RBS’s publishing of information which was inaccurate, unfair and one sided.

The judgment adopts a detailed balance sheet approach to assessing the arguments for and against broadening identification of those involved in the proceedings. District Judge Eldergill concluded that current reporting restrictions (which allowed the local authority and experts to be identified but no other party) struck the correct balance.

Contact and Article 8

The contact issues turn on the specific facts of this case. Since the seek and find order was made contact between RGS and RBS has been supervised and regulated by the local authority and/or the care home and temporarily suspended by them “if in their professional opinion it is necessary to do so.”

District Judge Eldergill emphasised that it continued to be important to restore normality but that RBS would have to demonstrate that he could be trusted before unsupervised contact could be authorised. The local authority was asked to file a short report in three months’ time setting out any ways in which a relaxation of the existing restrictions was possible.

The judge acknowledges that his decision interferes with the family’s Article 8 rights but that such an interference was lawful, necessary and proportionate and that the purpose for which the decisions are needed cannot be achieved in a way which is less restrictive of RGS’s freedoms.

Comment

The issues which this case raises are typical of many Court of Protection cases: disagreement between family members and professionals about P’s best interests; tensions within P’s family about financial and welfare issues; media interest and the balance between privacy and transparency. But in this case, these issues are heightened by the mental health problems of P’s son, RBS.

This third judgment (as previous judgments) resonates with both sympathy for and exasperation with RBS. In a previous hearing RBS was held not to have capacity to litigate and to a certain degree, the judgment seeks to consider his best interests whilst formally adjudicating on his father’s best interests. In our view, this case is a good illustration of the Court of Protection grappling pragmatically, sensitively and comprehensively with difficult and emotive issues. It is interesting in a broader sense for its comments in relation to decisions to place people in care homes. District Judge Eldergill makes clear that the fact that even in well run homes there is the possibility of serious incidents is an ‘important factor’ when assessing whether it is in someone’s best interests to be placed in a care home or cared for at home.

The judgment also deserves to be read in detail in relation to its assessment of the pros and cons of publically naming parties to the proceedings. This is an issue which will no doubt continue to be raised as the court grapples with the balance between privacy and transparency.