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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Wareham v Betsi Cadwaladar University Health Board & Ors [2024] EWCOP 15 (05 March 2024) URL: http://www.bailii.org/ew/cases/EWCOP/2024/15.html Cite as: [2024] EWCOP 15 |
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Strand London |
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B e f o r e :
(Sitting as a Tier 3 Judge of the Court)
SITTING IN PUBLIC
____________________
| LAURA WAREHAM (By her litigation friend the Official Solicitor) |
Applicant |
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| - and - |
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| (1) BETSI CADWALADAR UNIVERSITY HEALTH BOARD (2) CONRAD WAREHAM (3) ERICA WAREHAM (4) ANGELSEY COUNTY COUNCIL |
Respondents |
____________________
Ms Eloise Power (instructed by Browne Jacobson) for the first respondent
Mr Abid Mahmood (instructed by Lanyon Bowdler) for the second and third respondents
The fourth respondent neither attended nor was represented.
Hearing Dates 19-21 February 2024
____________________
Crown Copyright ©
John McKendrick KC:
Introduction
Judicial Visit
Brief Background
"Dr and Mrs Wareham's …[…] behaviours are potentially causing Laura to be confused or very anxious about her state of health to the extent that she appears to have developed a false self-view of being sick and this is now driving her own erroneous beliefs of her own sickness along with the role of unhelpful own peer groups on social media which can potentially encourage each other to remain ill.
…
There is a complete agreement on the continuing need for de-medicalization including reducing /stopping unnecessary medication (which has already been done with full oversight of the MDT) and offering graded physical rehabilitation.
….
In terms of the current contact arrangements; these are in place to ensure that the clinical approach to deal with the issues as outlined above i.e. de-medicalisation plan is successful Our ongoing concern is that Dr and Mrs Wareham continue to believe that Laura requires medical treatment and support, which is not made out in her presentation."
Outline of the Proceedings To Date
The Evidence
Dr Camden-Smith
"Ms Wareham's verbal skills are greatly at odds with her other skills. She has marked executive dysfunction (often a feature of those with autism). This can mean that her vocabulary and expressive language skills mask a poor level of understanding, poor memory, poor retention of information and difficulty with manipulating information. Her autism makes her thinking linear and extraordinarily rigid. She has great difficulty holding opposing viewpoints in mind and in thinking hypothetically."
"Ms Wareham has a diagnosis of autism made based on the administration of a validated assessment by a trained professional. I have not seen the reports of this assessment, however Ms Wareham's presentation is entirely in keeping with that of someone with autism, and it is my opinion that her primary diagnosis is one of autism."
"We are in agreement, that we believe, on the basis of the available evidence, that Laura's functional capacity (to conduct these proceedings, make decisions regarding her residence, her care and support arrangements and her contact with others) has not been optimised. We understand that Laura has not been definitively informed of her team's working diagnosis, prognosis, specific care plan and treatment goals relating to this, nor reasons for restricted access to others, the telephone, the internet or social media. If this has been explicitly discussed with Laura, what information was she told and was it accessible? If this has not been discussed with Laura explicitly what are the plans to do so? We do not consider it appropriate for us to divulge this information to Laura as we do not have clinical responsibility and are not in a position to manage the clinical consequences.
As a consequence we do not believe that Laura is able to weigh information in the balance in any of these domains as she does not have access to all the information at hand. We believe as such any assessment of capacity is currently imperfect."
"I accept his (and the court's) conclusion that Ms Wareham had capacity in November 2023 to make this decision. However, this was a single concrete decision with a binary choice and a limited (albeit complex) amount of medical information for Ms Wareham to consider. These are the kinds of decisions that people with autism, and Ms Wareham in particular, can find more readily accessible. The information is concrete and scientific, there is no nuance, what uncertainty there is can be quantified, and there is a single decision to be made. When it comes to more nebulous decisions with multiple viewpoints and information to be taken into consideration, and where Ms Wareham is required to make decisions about what weight to place on the different components and aspects of the relevant information, it remains my opinion that Ms Wareham lacks capacity. Decisions of this kind are those such as conducting proceedings and making decisions about residence, contact with others, and her medical care and treatment taken as a whole."
Dr Eccles
"13) With regard to each area in respect of which capacity has been assessed can you please confirm the following:
i) The relevant background information you provided to Laura including any perceived advantages and disadvantages of the available options.
ii) The questions you asked Laura in respect of each relevant area.
iii) Laura's responses to those questions and why these indicated to you that
Laura was able to a) understand the relevant information; b) retain the
information; c) use/weigh the information; and d) communicate a decision.
This question requires a particularly lengthy answer. I apologise to the court and parties but I will have to furnish my response at a later date. Since receiving my instructions to report on these questions I have suffered a bereavement and
making appropriate arrangements, organizing and attending the funeral have had a considerable impact on the time I have available to furnish this report."
The DOLS Assessor Evidence
I have been able to read all of the medical and nursing notes and gain the views of the professionals currently looking after Miss Wareham. I have also been able to meet with Miss Wareham on the 08/01/2024. From this, I have concluded on the balance of probability that Miss Wareham lacks the capacity to make an informed decision regarding her accommodation in hospital and her treatment. This meets the 'functional test'. Miss Wareham's inability to understand, use or weigh up the relevant information is because of her cognitive impairment secondary to episodes of Mania and traits of autistic spectrum disorder. This is considered to meet the 'causative nexus' of any Mental Capacity Assessment.
Dr Conrad Wareham
Laura
The Law On Capacity
"The importance of P's ability under section 3(1)(a) MCA to understand information relevant to a decision is also specifically affected by whether there could be "serious grave consequences" flowing from the decision. Paragraph 4.19 of the Mental Capacity Act 2005 Code of Practice provides: "If a decision could have serious or grave consequences, it is even more important that a person understands the information relevant to that decision." This again illustrates the importance of "the specific factual context of the case."
"The foregoing authorities now fall to be read in light of the judgment of the Supreme Court in A Local Authority v JB [2022] AC 1322. The Supreme Court held that in order to determine whether a person lacks capacity in relation to "a matter" for the purposes of s. 2(1) of the Mental Capacity Act 2005, the court must first identify the correct formulation of "the matter" in respect of which it is required to evaluate whether P is unable to make a decision. Once the correct formulation of "the matter" has been arrived at, it is then that the court moves to identify the "information relevant to the decision" under section 3(1) of the 2005 Act. That latter task falls, as recognised by Cobb J in Re DD, to be undertaken on the specific facts of the case. Once the information relevant to the decision has been identified, the question for the court is whether P is unable to make a decision in relation to the matter and, if so, whether that inability is because of an impairment of, or a disturbance, in the functioning of the mind or brain.
In A Local Authority v JB at [65], the Supreme Court described s.2(1) as the core determinative provision within the statutory scheme for the assessment of whether P lacks capacity. The remaining provisions of ss 2 and 3, including the specific decision making elements within the decision making process described by s.3(1), were characterised as statutory descriptions and explanations in support of the core provision in s.2(1), which requires any inability to make a decision in relation to the matter to be because of an impairment of, or a disturbance in the functioning of, the mind or brain. Within this context, the Supreme Court noted that s.2(1) constitutes the single test for capacity, albeit that the test falls to be interpreted by applying the more detailed provisions around it in ss 2 and 3 of the Act. Again, once the matter has been formulated and the information relevant to the decision identified, the question for the court is whether P is unable to make a decision in relation to the matter and, if so, whether that inability is because of an impairment of, or a disturbance, in the functioning of the mind or brain."
"The current rules and guidance are clear and contain an element of flexibility. The question of whether a proposed expert is entitled to be regarded as an expert remains one for the individual court, applying, as it must, the principles reiterated by the Supreme Court in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 (adopting the approach in Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579) that
"if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."
This is not, however, an open house and there is a need for caution."
The Submissions
a. First, Dr Eccles' non-attendance in person could not be ignored as it was 'part and parcel' of the lack of seriousness and the lack of rigour she had demonstrated in carrying out her role reporting to the court. The issue was not a narrow procedural matter.
b. Secondly, she had a limited understanding of what it means to be an expert in the Court of Protection specifically and more generally. Reliance was placed on the answers to Ms Power's cross-examination which demonstrated Dr Eccles was giving expert evidence for the first time.
c. Thirdly, she submitted the specific context matters in the assessment of capacity and Dr Eccles had failed to undertake a detailed capacity assessment. She was asked specific questions (see question 13 to the addendum report and the some applies to question 19) and Dr Eccles had failed answer then or in the four weeks since and before the hearing. This was not acceptable.
d. Fourthly, Dr Eccles lacked familiarity with key MCA concepts. Ms Power recalled when Dr Eccles asked her to explain what was meant by 'relevant information'. Whilst she was expert in Ehlers Danlos syndrome this was of limited relevance to the issues before the court.
e. Fifthly, Dr Eccles had changed her position on key issues. She accepted there can be sound reasons why an expert changes position but submitted sound reasons were not given. Dr Eccles' opinions changed or evolved in each key matter.
f. Lastly, Dr Eccles placed great weight on facts reported by Laura but failed to carry out an inquiry to obtain sufficient information from those treating Laura.
Analysis
The Applicable Principles
a. A purpose of the MCA is to promote autonomy and this applies to both the concepts of capacity and best interests[5].
b. There is a statutory presumption Laura has capacity unless it is established otherwise.[6]
c. Laura is not to be treated as unable to make a decision unless all practicable steps have been taken to help her to do so without success[7].
d. Laura is not to be treated as unable to make a decision merely because she makes unwise decisions[8].
e. It is for the Health Board to prove on the balance of probabilities that it is more likely than not Laura lacks capacity in respect of each identified decision. Laura and her parents need not prove anything.[9]
f. Whilst two experts have opined, the decision is mine having regard to all the evidence, attaching what weight I consider appropriate[10].
g. I am assessing Laura's capacity as against the identified decisions in February 2024[11].
h. The assessment of Laura's capacity is decision specific which requires formulations of the matters to evaluate whether Laura is unable to make the decisions[12].
i. I should first identify the decisions which fall to be considered.
j. In respect of each decision it will generally be necessary to identify the relevant information[13].
k. The identification of relevant information must be made "within the specific factual context of the case."[14]
l. The information relevant to the decision includes information about the "reasonably foreseeable consequences" of a decision, or of failing to make a decision[15]
m. I should not overlook Laura's 'values and outlook' and the weight she attaches to relevant information in the decision making process, if I consider she is able to weigh and use the information[16]
n. The previous case law identifying relevant information is a useful guide but each case turns on its own facts and previous lists should be appropriately tailored to the decision in question on the facts of the case[17].
o. It is then necessary to consider whether Laura can make a decision in respect of the matter for the purposes of section 3 – by understanding, retaining and using and weighing the relevant information[18].
p. It is not necessary for Laura to understand and/or use and weigh all peripheral information but only the salient information[19].
q. If Laura is unable to make a decision in respect of the matter, it is necessary to consider whether Laura has an impairment and/or disturbance of the mind or brain[20].
r. Thereafter I must consider whether this impairment and/or disturbance causes Laura to be unable to make the decision[21].
s. It is not necessary for the court to have a formal diagnosis or to formulate precisely the underlying condition(s) to consider the causative question between the inability to make a decision and the impairment/disturbance. This it is a question of fact for the court to consider against all the evidence[22].
Diagnoses
The Decisions
a. whether she can conduct these proceedings;
b. whether she can decide whether to live in her current placement or live at her parents' home without a care package;
c. whether she can consent to receive care and treatment generally (other than specific medical procedures);
d. whether she can consent to be accommodated in her current placement for the purpose of being given the relevant care or treatment;
e. whether she can decide whether to have contact with her parents.
The Relevant Information
(a) The two (or more) options for living (Laura's current placement or her parents' home).
(b) Broad information about the areas.
(c) The difference between living somewhere and just visiting.
(d) The activities that the person being assessed would be able to do if she lived in each place.
(e) Whether and how the person being assessed would be able to see friends and family if she lived in each place.
(f) Who they would be living with at each placement.
(g) The sort of care they would receive in each placement.
(a) With what areas the person under assessment needs support;
(b) What sort of support they need;
(c) Who will provide such support;
(d) What would happen without support, or if support was refused;
(e) That carers may not always treat the person being cared for properly, and the possibility and mechanics of making a complaint if they are not happy.
(a) Whom the contact will be with.
(b) In broad terms, the nature of the relationship between the person under assessment and the contact in question;
(c) What sort of contact the person under assessment could have with each of the individuals with whom they may have contact.
(d) The positive or negative aspects of having contact with each person.
(e) What a family relationship is and that it is in a different category to other categories of contact
(f) Whether the person with whom contact is being considered a risk to the protected party.
In the context of the deprivation of liberty safeguards, the capacity is specifically the capacity to decide whether or not to consent to care or treatment which involves being kept in a hospital or care home in circumstances that amount to a deprivation of liberty, at the time that decision needs to be made.
The Functional, Diagnostic And Causative Tests
"It remains my opinion that Ms Wareham lacks capacity to make decisions about residence due to her inability to recognise and understand the realities and practicalities of her circumstances and her inability to use and/or weigh the relevant information to come to a realistic decision. This is fundamentally due to the impairments of her mind associated with her autism."
"She [Laura] was adamant that there are many highly qualified professional nurses ready and willing to move to whatever area in the country to provide
her with care despite multiple failures of care packages, and no objective evidence that this is the case. Additionally, she believes that her parents would provide her with adequate care (whilst recognising that this would take a big toll on them) without recognising that her parents' fragile physical and mental health would make this impossible."
"It remains my opinion that Ms Wareham lacks capacity to make decisions about care and support due to her inability to recognise and understand the realities and practicalities of her circumstances and her inability to use and/or weigh the relevant information to come to a realistic decision."
Interim Social Media Use
Interim Best Interests
Conclusion
a. conduct these proceedings;
b. make a decision where to reside;
c. decide whether or not to consent to be accommodated in her current placement for the purposes of being given care and treatment;
d. consent to her care and support regime;
e. decide whether to have contact with her parents;
Note 1 I checked with Laura how she wished to be addressed and her preference was to be addressed by her Christian name. (The family are practising Christians) [Back] Note 2 The second and third respondents’ counsel’s position statement served on the morning of day one of the hearing sought to vary the reporting restrictions to provide for no reporting restrictions, which would have permitted the naming of treating staff and the address where Laura resides. I refused to hear such an application without an application supported by evidence properly filed and served. Mr Mahmood accepted this. [Back] Note 3 See the learning of Peter Jackson LJ (with the agreement of William Davis and Elisabeth Laing LJJ) at paragraph 59 of Re C (Child: Ability to Instruct Solicitor) [2023] EWCA Civ 889.
[Back] Note 4 See CoP Rules Practice Direction 4C at paragraph 2.5 where the “need to protect P” is listed as a good reason to sit in private (amongst others). [Back] Note 5 A Local Authority v JB paragraph 51 [Back] Note 8 MCA s. 1 (4) and as expanded upon by Peter Jackson J in Heart of England NHS Foundation Trust v JB [2014] EWHC 342 (COP) at paragraph 7. Particularly relevant in the context of Laura’s disagreement with medical opinion and reliance on other ‘experts’. [Back] Note 10 See Baker J (as he then was) in PH v A Local Authority at paragraph 16. [Back] Note 12 MCA s. 2 (1) and JB at paragraphs 67 and 68. [Back] Note 13 MCA section 3 and JB at paragraph 69.
[Back] Note 14 JB at paragraph 70 applying York City Council v C [20 ] EWCA Civ [Back] Note 15 MCA s. 3 (4) and JB at paragraph 73. [Back] Note 16 See MacDonald J in King’s College Hospital NHS Trust v C and V [2015] EWCOP 80; [2016] COPLR 50 at paragraph 38. [Back] Note 17 See Cobb J in Re DD [2014] EWCOP 11 [Back] Note 18 JB at paragraphs 76 and 77. [Back] Note 19 LBL v RJY [2010] EWHC 26665 (COP); [2010] COPLR Con Vol 795 at paragraphs 24 and 58. [Back] Note 20 MCA section 2 (1) [Back] Note 21 JB at paragraph 78. [Back] Note 22 MacDonald J in R supra at paragraphs 47 and 48. [Back]