Re X,Y and Z (Minors)  EWHC 87 (COP) (Baker J)
Deputies – Property and Affairs
This case relates to the authorisation of payments made to facilitate the care of children from funds held in trust by their mother.
The mother, P (who was 36 at the time of the hearing before Baker J), married a man, F, in 1998 and had three children, X, Y and Z. The marriage was characterised by repeated acts of serious physical violence perpetrated by F upon P, resulting in divorce proceedings and a series of applications for injunctions and ultimately criminal proceedings as a result of which F was convicted and sentenced in July 2003 to a total of 42 months imprisonment. In the interim, P had been involved in a catastrophic road accident when P was one of three passengers in a motor car being driven by her sister. The other three occupants of the car were killed. P survived but sustained very serious injuries, including a spinal fracture resulting in complete paraplegia, a range of other fractures and internal injuries, and a significant and severe head injury which has affected her personality leading to very challenging behaviour over the years since the accident. P’s children were looked after by a team of nannies employed by the mother, of whom one, S, had formed a particular relationship with the children.
Personal injury proceedings brought on her behalf by a deputy appointed by the COP in 2009 resulted in a settlement of a lump sum totalling £4.25 million, together with periodical payments for care to age 60 in the sum of £175,000 per annum and thereafter in the sum of £215,000, such sums to be increased in line with inflation. The lump sum awarded included compensation for the cost of employing nannies to look after the children prior to the settlement in a sum of approximately £508,000 and future payments for employment of nannies capitalised at approximately £400,000. The terms of the settlement did not provide that this sum should be “ring fenced” for the exclusive use of meeting child care expenses. Whilst the cost of employing nannies had been very close to the estimated figure, P’s own care costs, however, were significantly greater than anticipated, leading to a shortfall in the periodical payments which in turn had obliged the deputy to make further drawings on the capital lump sum. It therefore appeared that P’s capital sum would be exhausted within (at the very most) 10 years, there being no suggestion that her life expectancy being significantly affected as a result of the accident.
As a result of P’s difficulties in caring for her children arising out of her injuries, the local authority brought care proceedings. It was clear that the best outcome for the children would be a care order placing the children with S as foster carer. S was, however, unwilling to taken on the responsibility unless she received a further payment from P over and above the fostering allowance which will be paid by the local authority under the care order. This insistence – described as perfectly understandable by Baker J – was supported by the local authority and the children’s guardian.
In the care proceedings, P’s deputy, however, argued (non-adversarially) that such payments might not be in P’s best interests, having regard to the fact that there was currently a shortfall between P’s income and expenditure on her own needs. Secondly, it was contended that there were insuperable legal difficulties militating against P continuing to employ S under a contract of employment. Baker J therefore invited the local authority to file an application in the Court of Protection seeking a declaration that the continued employment of S as the children’s nanny was appropriate expenditure from the funds held on the P’s behalf and administered by her deputy. That application was transferred to him and listed alongside the care proceedings.
Baker J endorsed the agreed position that P lacked the requisite decision-making capacity. Turning to the best interests analysis, he noted that, whilst the specific provisions relating (inter alia) to payments for benefits of the patient’s family in ss. 95 and 96 MHA 1983 (as it stood prior to 1 October 2007), no
- Relying upon observations of Munby J (as he then was) in Re M: ITW v Z  EWHC 2525 (Fam), Baker J held that is no hierarchy between the various factors that had to be borne in mind under the s.4 exercise, and the second is that “under s.4(6) P's wishes and feelings, and the beliefs and values that will be likely to influence her decision if she had capacity, must be considered by the court, so far as reasonably ascertainable. Although part of the relevant considerations, they are not, however, determinative of the matters but, rather, factors to be considered as part of the overall best interests analysis. Whilst P's wishes and feelings will always be a significant factor to which the court must have regard, the weight to be allocated to those wishes and feelings will, as with any other factor, always be case-specific and fact-specific” (paragraph 30);
- Relying upon observations made by Lewison J in Re P (Statutory Will)  EWHC 163 (Ch)  Ch 33, he noted that the best interests test is materially different to the test applied under the previous law of substituted judgment where by the court identified and adopted the decision that the incapacitated individual would have made if he had capacity;
- Relying upon observations of Morgan J in Re G (TJ)  EWHC 3005 (COP), he noted that the concept of ‘substituted judgment’ may have some relevance where it is possible to identify what decision P would have been likely to have made, such decision being a matter that can be taken into account.
We would respectfully suggest that these dicta – and in particular those of Munby J in Re ITW – require revisiting in light of the clear dicta of Baroness Hale in Aintree as to the purpose of the best interests test, namely “to consider matters from the patient’s point of view,” so as to make “the choice which is right for him as an individual human being” (paragraph 45). As discussed in more detail in an article by Alex, Tor and Vikram Sachdeva on the Aintree case forthcoming in the next issue of the Elder Law Journal, we would suggest that fidelity to the structure of the MCA 2005 and of the UN Convention on the Rights of Persons with Disabilities means that (1) there is, in fact, a hierarchy within the s.4 exercise; (2) where it is possible reliably to identify what choice P would have made between the options available to them, then that should give the answer as to what is in their best interests; and (3) in such a case the distinction between an objective best interests test and a substituted judgment all but collapses. In this case, the alignment between what could be identified as being P’s choice and what objectively appeared ‘right’ was – fortunately – exact. The much harder cases, and the ones that rightly challenge both practitioners and the judiciary, are where there is a mismatch.