[2012] EWHC 4162 (COP)

Mental capacity – Litigation

Summary

RGS was being cared for in a residential home. RBS removed him from the home unilaterally on the grounds that he was not being adequately cared for and was deprived of his liberty. In the complex Court of Protection proceedings that followed, the Court appointed, inter alia, a deputy to manage RGS‟s affairs having concluded that it would not be appropriate for continue to have access to RGS‟s assets as it had been shown that RBS had previously used his father‟s assets to his own advantage. The financial deputy appointed by the court reached the conclusion that a number of RGS‟s paintings and artworks should be sold to meet his on-going financial liabilities and the escalating costs of his care. RBS resisted this and reported the deputy‟s decision (and the proceedings more generally) to the media, who then wished to report on the case. He also reported the proceedings himself via Facebook and other social and local media outlets.

At this stage of the proceedings, there were two applications for determination, the second of which was an application by the media to lift the reporting restrictions on the case.

As RBS had a history of psychiatric illness and given his flagrant breaches of the Court order imposing reporting restrictions and his general conduct of the litigation, questions were raised as to whether he had litigation capacity. This was the issue that fell to be determined in the first application. RBS did not consent to a medical examination and maintained that he had capacity to litigate.

District Judge Eldergill set out in some detail the principles one has to apply when determining whether an individual lacks capacity in a relevant regard. Although there was no medical report, in light of a social worker report, the fact that RBS was receiving ongoing psychiatric treatment and his conduct, the Judge concluded that, on the balance of probabilities, RBS did suffer from "an impairment or, or a disturbance in the functioning of, the mind or brain." The Judge then proceeded to consider the evidence which indicates that RBS is unable to understand the information relevant to the litigation decisions, or is unable to retain that information, or is unable to use or weigh that information as part of the process of making the litigation decision(s), or is unable to communicate his decision(s). That evidence came from RBS‟s unconventional approach to the litigation itself, including the fact that he had made three applications for a writ of habeas corpus ad subjiciendum, an application to the European Court of Human Rights on the mistaken belief that the Strasbourg Court could suspend the ongoing proceedings and that he showed a complete unwillingness to make applications as appropriate to the Court of Protection in relation to RGS. The Judge further noted that RBS had "bombarded" the court with "emails, requests, demands and snippets of information, that he did not appear to understand the rights of other parties and that he had made repeated allegations against the deputy, the county council and the Court using social media. The Judge considered whether these breaches of the reporting restrictions could themselves be the consequence of the consequence of an impaired or disturbed mind or brain, as opposed to mere defiance.

RBS submitted witness evidence in support of his position (that he had capacity) but the Judge concluded that the weight that could be attached to that evidence was affected by the fact that the witnesses in question were unaware of recent events and developments in the proceedings. District Judge Eldergill concluded that on the evidence available, RBS lacked the capacity to conduct the particular litigation. He emphasised that his decision was not premised on the fact that a few of RBS‟s litigation decisions „would not be made by a person of ordinary prudence‟, but rather because of the link between RBS‟s mental illness and his conduct. The order was made on an interim basis, allowing RBS the opportunity to consent to a medical report, with the Judge indicating that if medical opinion concluded he had litigation capacity, the matter could be reviewed. The Judge also appointed his solicitor (who had been de-instructed) as his litigation friend (albeit acknowledging that this was unusual).

The application to lift the reporting restrictions was refused. The Judge acknowledged the importance of not restricting RBS‟s freedom of speech but noted that this could have a detrimental impact on his father. He concluded that anonymity is in RGS‟s best interests. D istrict Judge Eldergill emphasised the difference between secrecy and privacy, albeit acknowledging the "high public interest in seeing that hearings which determine the rights of incapacitated people, and their families, are fair and properly administered.?

Comment

This decision highlights (albeit in an extreme factual scenario) the types of issues which can arise where a financial deputy is appointed in circumstances where family members are unwilling to cede control over P‟s assets or negotiate as to the appropriate way forward. On the facts, this was particularly complicated as a number of family members were shown to have been misappropriating P‟s assets. Nevertheless, some issues touched upon, such as the escalation of the costs of the legal proceedings themselves and the implications for being able to provide for P‟s welfare, are likely to be of more general application and serve to underscore the importance of trying to negotiate settlements where possible.

The case is also of interest in so far as it reinforces the primacy of P‟s right to anonymity where this is found to be in P‟s best interests. This is a case where one might say that the reporting restrictions had been totally undermined by virtue of the conduct of one of the parties and their use of social and local media to publicise details of the proceedings, and yet the press were not granted their application to lift reporting restrictions.