This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No 12744015
Neutral Citation Number: [2016] EWCOP (tbc)

In the Court of Protection					 
In the Matter of section 21A of the Mental Capacity Act 2005

Sitting at Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ

Date: 18 July 2016

Before:

District Judge Matharu

Between:

	Mrs P
(by her litigation friend, the Official Solicitor)

-and-	Applicant	
	Rochdale Borough Council

-and-	First 
Respondent	
	NHS North, Central and South Manchester Clinical Commissioning Groups	Second Respondent	

Representation:
Mr Neil Allen (instructed by Switalskis Solicitors) for the Applicant
Mr Roger Hillman (instructed by Head of Legal Services) for the First Respondent
Mr Simon Burrows (instructed by Hill Dickinson Solicitors) for the Second Respondent

Hearing date: 18 July 2016

Judgment:

1.	Today was a final hearing in relation to matters concerning the deprivation of liberty of Mrs P and her care arrangements. In this particular case the issues of her welfare and residence are inextricably linked with the appointment of a deputy that is managing her property and finances.

2.	Mrs P is a lady who has worked all of her life and has the benefit of her own home, it is believed a number of pensions, and investments in bonds. 

3.	It has already been adjudicated upon, that she lacks capacity to make decisions as to where to reside, this being provided for in a number of interim orders by District Judge Harrison.

4.	Her care, at present, is fully funded by the Clinical Commissioning Group. However, as a consequence of the various orders of District Judge Harrison, the first substantive order in this respect being made on 4th December 2015, and investigations by the authorities it has been able to be established that a number of her challenging behaviours could be improved by increasing the standard and quality of her living arrangements. That is something that could be funded by her own various resources by monies theoretically at “her” disposal. 

5.	A financial Deputy for her Property and Affairs has been appointed, according to the court file on 22nd March of this year.

6.	It is appropriate at this juncture to set out a brief chronology.

7.	A property and financial affairs application was lodged in London dated 26 August 2015 by Mr Alan Cryne, the basis of which appeared to be that his firm, Temperley Taylor, a solicitor’s practice, was well placed to manage her property and financial affairs because she had been “a long standing client and they held her will”. 

8.	It has today been established that an interim order was made, sealed and sent out on 16 September 2015 to this firm, authorising Mr Cryne to investigate assets, income and liabilities of Mrs P and report back to the Court. And, the terms of such Order appear to be a standard order whereby the applicant is entitled to notify any person, including any bank and other financial institutions which concern her financial affairs to provide such information to Mr Cryne. It gave Mr Cryne interim authority to investigate the income, assets and liabilities OF Mr P. The applicant Mr Cryne was by such Order entitled to notify the appropriate institutions, to limit withdrawals and even freeze the dealings on any accounts. Further, he is entitled to execute or sign any necessary deeds or documents.

9.	This order was made in September 2015 and dispatched by the Court, as I have said on 16th September 2015.

10.	However, it would appear that the issues concerning welfare, residence and deprivation of liberty overtook everything else.  The proposed Deputy’s firm, submitted documents for Judge Harrison’s consideration in February 2016 in respect of Mrs P’s finances. District Judge Harrison considered this and through a court officer, advised that the documentation was incomplete and requested that the deputyship application be progressed. This notification was on 23rd February 2016.

11.	As a consequence of an order of 24 November 2015 not having being perfected in the residence and care application on a timely basis, District Judge Harrison looked into the entirety of matters concerning Mrs P’s welfare and, when the order was eventually perfected and issued on 22nd March 2016 clause (8) specifically referred to 

“A copy of this Order shall be served on those representing Mrs P in the application for deputyship… and that legal representative shall, by 30th April 2016, serve a statement containing such details as are available regarding Mrs P’s financial affairs. That statement shall be filed with the court by the Applicant in these proceedings.”

12. The order appointing the Deputy for Property and financial affairs order was made on 22 March 16. These dates are important.

13. In the context of the Deputy having been appointed, being the individual that controlled “the purse-strings”, there have been various care plans and assessments taking place in relation to the welfare of Mrs P that have repeatedly raised the need to reappraise her needs and to financially provide for her in relation to her diet, weight loss, and new clothes. She is a coeliac sufferer and, therefore, required gluten-free food which is better for her health and she could afford to purchase privately.

14. Further, assessments made clear that the only living being with whom she shares any love or devotion is her dog, Bobby. The court is told that her “face lights up” when she sees other dogs. These are all matters which are affecting the quality of her life. They are again provided for and addressed in her most recent care plan. They are extremely important to and for her. 

15. These issues and their remedy have been rehearsed with the Deputy. They hold the purse strings to enable the purchase of clothes that fit Mrs P to be bought. A sum of £500 was sought from the Deputy; funding to purchase more varied food was requested; and a request was made that the dog be brought to her. I have been taken to communications between the Official Solicitor’s representative and the Deputy. In particular, a letter dated 6th June 2016 clearly identified what is required and why. 

16. It appears to have prompted no response, as a consequence of which the Official Solicitor’s representative emailed Temperley Taylor LLP on 5 July 2016. They had not responded to earlier communications and the solicitors were advised that the financial deputy was required to attend at court. A letter was then received from the Deputy’s practice, not from the Deputy, on 7th July. The letter is brief and contains “curious” information in respect of Mrs P’s financial affairs, referring to a Nil balance on one account that in October 2015 had nearly £7000 in it.
17.	Solicitors for the Official Solicitor again wrote to the Deputy, Mr Cryne on 7th July fully setting out what was required of the Deputy and why.

18	The court has seen as an exhibit the record of an attendance by Elspeth Winny upon Mrs P, the contents of which cause very real concern. It states 

“[Mrs P] has no money, the bank account is empty, the credit card is in the red, the only asset is her house, and unable to trace pension.” 

19. This is a number of months after the order of 16 September 2015 gave Temperley Taylor  LLP investigative powers. 

20. Such exhibit also states that it is:-
       
                  “unrealistic to expect the lady to bring the dog to [the Nursing Home]” 

21. The court is equally troubled to note that it is recorded that “she has spoken with the Court of Protection regarding Caroline Hurst’s involvement with [Mrs P’s] affairs and said the lady has no legal standing to be acting on [Mrs P’s] behalf”.  Caroline Hurst is the solicitor of Switalskis, acting on behalf of the Official Solicitor in respect of the issue of residence and care. She had legal standing. 

22. A further email of 13 July 2016 at 12.14pm was sent by Mr Cryne’s secretary to Switalskis, stating, quite unilaterally “It transpires our attendance is not necessary”. This e mail was also copied to the Court. It is a lengthy e mail which is enlightening as to the view of the Deputy of their remit or involvement in these proceedings. 

23. Amongst a number of other matters, there is mention of “having taken advice from the Office of the Public Guardian” which advice was that that “their duties should not be intruded upon by demands from unrelated parties”. The letter states that the Deputy had complied with the Order of 22nd March. 

24. Further, and perhaps most blunt was the following response in relation to Mrs P’s dog
      “In such a case we would say that possession of Bobby has passed to his new owner…………in the absence of any factual information about Bobby, his owner or the home’s policy on animals, it would seem irresponsible in the extreme to suggest that a dog visits a care home for elderly and frail people”

25. The e mail continued that they had been advised by Caroline Hurst of Switalskis not to attend, and that the Deputy was not a party to the action. This prompted Switalskis to apply to remove the Deputy, by application dated 13th July

26. Let me make this clear. Under Rule 74 of the Court of Protection Rules, any order made binds this firm because “any person who has been served with or notified of an application form” shall be bound as if they were a party. Temperley Taylor LLP knew there was a hearing date. They were served with the application and informed of it. The Deputy has a solicitor a court today so is represented and will be bound by the order I make.

27. So what order is to be made? The court is particularly troubled about how Mrs P, and the things that she needs, are to be provided for. What is known is that her wishes and feelings before her second stroke were very clear. She enjoyed a good quality of life, she loved her dog, likes to be made to feel glamourous. Now she is wearing ill-fitting clothes, and financially unable to pay to have her feminine needs attended to, such as having her hair and nails done. I refer to the social worker Joanne Webster’s witness statement in that regard.

28. My decision is that this deputy is to be removed. Their appointment is revoked for the following reasons. This court has such authority under MCA 2005 s.20(6) in that any deputy is to apply the principles of the MCA and, under s.4, best interests. Based on what the court has seen and heard, the court is satisfied that they are not acting in her best interests. The delay in establishing Mrs P’s financial position is inexplicable. In fact, it is entirely unclear on what basis they consider the steps they have taken to be in her interests. Their sole focus should and can only be Mrs P, yet they appear to be working against the Litigation Friend and not with them

29. It may seem to those not well rehearsed in the needs of a person who owns a pet, in this case a person who no longer has capacity to make decisions about various matters, what the importance of a pet is in their life. The deputy only has to read any single reference in reports, assessments or statements of Mrs P of how important Bobby is to her. Her Social Worker says in her witness statement to the court that:-

“I would recommend that of single most importance in her life is her dog and having some form of contact with her dog in the future if possible

   By comparison, the comments of Temperley Taylor solicitors in the e mail of 13th July are “brutal” and insensitive. When enquiries were made of them, they appeared to reject such questioning or consider themselves challenged in some inappropriate way. That is not the case. The questions being put to them were a line of reasonable enquiry by the Litigation Friend as to Mrs P’s best interests.

30. I have had regard to the financial information at C67-8. In around October 2015 the money in her NatWest account was around £7000. Now there is a nil balance. That is all the court is told.  “Troubling” is the term that I would use and this is an understatement. 

31. When I consider the Act and Code of Practice, the authorities show I should deal with as many matters as possible. I am making this order today because the deputy having been served with the application was aware of its content and implications. I have used every endeavour to resolve matters in the least restrictive way possible to Mrs P. However, this is the only way to deal with matters. I commend counsel for bringing it to court in this way. The Deputyship cannot continue to operate in “a prism” of its own.

32. The care plan makes it clear what additional matters need to be dealt with and these can only be dealt with by the appointment of a new deputy. Any authority this deputy had by way of the order of 22 March 2016 is revoked.

33. The alternative order is approved and a panel deputy is to be appointed. That is the decision of  this court.