Court of Protection update

The court considered whether the liberty of
two sisters, known as MIG and MEG, and the
liberty of P had been deprived as a result of arrangements put in place in a residential setting. All three individuals lacked capacity to make decisions as to their living arrangements.

Challenging behaviour

Both MIG and MEG had learning difficulties. At the time of the original Court of Protection hearing, MIG lived with a foster mother and, even though she had never tried to leave the foster home, she would have been prevented from doing so had
she tried.

MEG was living in residential care development at the time of the original hearing and was occasionally subjected to physical restraint and tranquilising medication. The court at first instance found that the arrangements were in MIG and MEG’s best interests and were not a deprivation of their liberty. This decision was upheld by the Court of Appeal.

P had cerebral palsy and Down’s syndrome. He required 24-hour care and lived in shared accommodation arranged by the local authority. He was provided with one-to-one support, which enabled him to leave the accommodation for visits into the community. When he exhibited challenging behaviour, he was subject to interventions.

The judge in the Court of Protection found that the arrangements were a deprivation of P’s liberty but were in his best interests. The Court of Appeal declared that the arrangements were not, in fact, a deprivation of his liberty.

The Supreme Court found unanimously in the case of P that he had been deprived of his liberty, and by a majority of four to three that MIG and MEG had been deprived of their liberty.

Lady Hale, giving the leading judgment, asked whether the concept of physical liberty is the same for everyone, regardless of whether they are physically or mentally disabled. She concluded that it was, stating that “it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race”. She went on to comment that “a gilded cage is still a cage”.

The list of factors developed by charities Mind and the National Autistic Society used to indicate that a person may have been deprived of their liberty were referenced in the case. However, rather than suggesting that the court set down a prescriptive list of factors, the organisations thought the court should specify the test and those factors that were not relevant.

Lady Hale agreed with this approach, and with the charities’ view that the person’s compliance or lack of objection, the relative normality of the placement and the purposes behind a particular placement were irrelevant.

The difference between whether liberty was being deprived or simply restricted was a matter of degree or intensity, rather than nature or substance, with the key factor being whether the person was free to leave. This could be tested by establishing whether the carer exercised complete and effective control over the person’s care and movements.

Applying this test to MIG, MEG and P, she concluded that all three were being deprived of their liberty.

Lords Carnwarth and Hodge, in a dissenting judgment with regard to MIG and MEG, were of the view that Lady Hale’s universal test, applicable to all, regardless of any physical or mental disabilities, was not a concept that could be seen in ECtHR cases. That court remained wedded to a case-specific test.

Following the judgment, the Court of Protection is bracing itself for a deluge of applications to authorise the living arrangements of people residing in a variety of care settings.

In early June, LJ Munby held a directions hearing to consider a large number of applications which have already been brought, with the aim of examining the procedural measures that may be adopted by the court to deal with the number of cases which are anticipated.

Statutory will

The decision of SJ Lush in Re GM [2013] COPLR 290, namely the ‘handbags and season tickets’ case, is fairly well known.

Janet Miller and Margaret Johnson, who had been appointed as deputies for Gladys Meeks, had used Meeks’ money to make gifts to charities and also to buy cars, computers, jewellery, watches, designer handbags and football season tickets
for themselves.

SJ Lush had found that they were personally liable to repay money to Meeks and, further, revoked their appointment as deputies and appointed a panel deputy to act in their place. The new deputy then brought this application (Re GM [2014] EWCOP1) for a statutory will for Meeks, and for an order that the former deputies’ security bond be called in.

A statutory will application must be decided in accordance with the incapacitous person’s best interests and, in considering that question, HHJ Hodge QC reiterated the usefulness of applying a balance sheet approach. He rejected the claims of the family members who would have inherited on Meeks’ intestacy, on the basis that she had fallen
out with them.

The former deputies claimed to be entitled to take half the estate on the basis that they were the only two people who had shown any interest in Meeks’ welfare in recent years. However, the judge found that Meeks would have been horrified by the spending and conduct of her two former deputies and they should not take a benefit
under the will.

Meeks’ estate would, accordingly, be divided between a friend of her predeceased daughter
and various charities with which Meeks would
have sympathised.

As for the application to call in the security
bond, in HHJ Hodge QC’s view, this decision also fell to be decided in accordance with the best interests principle. He noted that a replacement deputy would have the option of suing the defaulting deputies to recover the loss suffered, but that calling in the security bond would short-circuit that process and save the costs associated with the litigation.

He commented that the whole purpose of the security bond was to provide a speedy method
of remedying default by a deputy, and the enforcement of the security bond in such circumstances should be viewed almost as a
matter of course.

Given the lack of case law on security bonds,
this decision provides useful guidance on when the bond should be called in.

Gift applications

Re AK (gift application) [2014] EWCOP B11 is an interesting case demonstrating the court’s ability
to solve a difficult problem using a solution that neither of the parties had put forward.

AK, a boy aged 11, suffered from cerebral palsy because of clinical negligence at his birth. At the time this application came before the court, he had significant surplus income, largely because his mother cared for him at a much lower cost than
that envisaged in the compensation award.

The deputy for AK applied for a gift of £150,000 to be made to his parents so that they could contribute towards building a property in Pakistan that was suitable for AK’s needs. AK and his family were originally from Pakistan and he benefitted from
the climate there.

SJ Lush applied a balance sheet approach
in considering AK’s best interests, and took
into account factors such as the possibility
of AK’s parents becoming incapable of caring
for him, in which case his care needs would increase considerably.

SJ Lush concluded that it was indeed in AK’s best interests to allow his parents to have the funds requested but not as a gift. Instead, he ordered an interest-free loan of £150,000 repayable at the rate of £15,000 a year. At the same time, he authorised the deputy to make annual gifts of £15,000 to AK’s parents to meet those payments if there was sufficient income surplus to AK’s requirements
in each accounting period.

Appointing deputies

Another decision of SJ Lush, Re BM [2014] EWCOP B20, is a useful illustration of the way in which the court will approach a dispute between two willing applicants as to who should be appointed as a property and affairs deputy.

One applicant was a Pentecostal preacher (JB) who claimed that BM had no other close friends and that he had become part of her family. However, the other applicant (AG) was part of a network of friends and neighbours who had already been supporting BM before the appearance of JB on the scene.

Significantly, BM’s will, which had been made before the onset of his incapacity, appointed a friend who was firmly of the view that AG should
be appointed as deputy. BM had not altered his
will to appoint JB as his executor instead.

This decision clarifies the importance of the incapacitated person’s established relationships (including the identity of an executor appointed
in a will) when assessing who is best appointed
as a deputy. SJ

Karen Bayley is a solicitor at Barlow Robbins

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