Court of Protection Report - Elderly Client Adviser

Feature

posted 1 Apr 1998 in Volume 3 Issue 3

Court Of Protection Report

Denzil Lush, Master of the Court of Protection, considers the difference between a 'person without capacity' and a 'vulnerable person'.

On 10 December 1997 the Lord Chancellor's Department issued a consultation paper, Who Decides? Making Decisions on behalf of Mentally Incapacitated Adults (Cm 3803: The Stationery Office, £12.70). It accepts most of the proposals contained in the Law Commission's report on Mental Incapacity, published in

March 1995 (Law Com No 231: The Stationery Office, £21.85), and consults on the others.

The Law Commission has proposed two separate regimes. One is a private law regime, described in Part I of the draft Mental Incapacity Bill, which deals with 'persons without capacity' and will be overseen by a newly constituted Court of Protection.

The other, described in Part II of the draft Bill, is a public law regime whereby local authorities will be given powers in respect of 'vulnerable persons' similar to those they have under the Children Act 1989. If a local authority needs to obtain a court order, it will have to apply to a magistrates' court. A 'person without capacity' is not necessarily a 'vulnerable person', and a vulnerable person does not necessarily lack capacity.

A 'person without capacity' is defined in clause 2 of draft Mental Incapacity Bill as someone who 'is unable, by reason of mental disability, to make a decision for himself on the matter in question, or he is unable to communicate his decision because he is unconscious or for any other reason.'

A 'vulnerable person' is defined in clause 36 of the draft Bill as someone who 'is or may be in need of community care services by reason of mental or other disability, age or illness, and is or may be unable to take care of himself or protect himself against significant harm or serious exploitation.'

The disturbing case of Re A illustrates some of the differences between a 'person without capacity' and a 'vulnerable person'; how the law deals with each type of person; and how someone at risk can slip through the net.

Re A (10086607)

A is 90 and lives in South East London. In April 1997 the Director of Social Services for Greenwich Council applied to the Court of Protection for a First General Order appointing the Public Trustee as her receiver.

In support of his application he filed a medical certificate (Form CP3), completed by her GP, which said that:

(A's) cognitive functions have deteriorated. She is more paranoid than ever before; is unable to remember recent events, and furthermore weaves a web of fantasy around well-documented events. She is frequently disorientated, and is extremely labile in her emotions. She frequently denies events and invents others.

We are concerned that a tenant is exerting undue influence and is manipulating her daily financial affairs. He has rigged the entrance and phone system to only allow access under his direct control. Her niece was concerned that she complained that the tenant was controlling her, then retracted the statement over the phone whilst under the tenant's instruction".

A objected to the application. A consultant psychiatrist from St George's Hospital Medical School examined her on 31 July and reported as follows:

"I am happy to report that I found this lady in full possession of her faculties. I find it difficult to believe that anyone should suggest that her affairs should be put into the hands of the Court of Protection. Briefly, she scored 28/30 in the Mini Mental State Examination of Folstein, which is well within normal limits, and a surprisingly high score for a lady of this age. Tests of frontal lobe function, which on the whole covers the area of judgement, were also performed excellently. She could think of 16 animals in a minute; was able to complete tests of abstract reasoning, and follow a sequence to five.

Tests of recent knowledge were affected by her deafness and poor vision which made it difficult for her to keep up to date, but she recalled the return of Hong Kong to China, knew the name of the Prime Minister and the time since the election. As regards prices she thought that her house was worth £300,000, which certainly does not suggest that, like many old people, she had lost a measure of the current value of money. She was less accurate with simple items like a first class stamp, which she thought cost 5p.

I suspect that one of the reasons for the need to control her finances was to provide the support necessary for her to continue to live in her own home. She is largely immobile due to a deformed and ulcerated right foot, and her house is old fashioned. There is no doubt of her wish to stay there, which she explained was built by her brother, and of having sufficient wealth to do so."

Having considered the evidence from the specialist, I dismissed the application for the appointment of a receiver and directed that the costs of Greenwich Council be taxed on the indemnity basis and paid by A.

The parties were informed that, if anyone was aggrieved by this decision, they should apply immediately for the decision to be reviewed at an attended hearing in accordance with Rule 56 of the Court of Protection Rules 1994.

Greenwich Council thought about asking for a review, but decided against it. A considered requesting a review of the decision that she should pay the costs, but eventually conceded that the application had been made in good faith, for her benefit, and had been supported by a medical certificate completed by her GP.

Even though A may be capable of managing her property and affairs, she is probably a 'vulnerable person'. She may be in need of community care services by reason of age or illness, and she may be unable to take care of herself or to protect herself against significant harm or serious exploitation.

Greenwich Council are particularly concerned about her tenant, R, and the influence he seems to exert over her. For example, it is alleged that:

He operates a timer switch on the entryphone system to her house, which only allows access for a 30 minute period when the carers are expected. A is unable to enter or leave her own home without his consent.

He has changed the locks to the house and does not allow anyone else to have a key - including A herself.

He exerts complete control over A's wishes. He tells her what to eat, what to wear, and where to sit.

Somehow he has managed to assume control of her financial affairs.

He intercepts her mail.

At one stage A had no hot water or adequate heating despite the fact that Social Services had requested R to resolve the problem as soon as possible.

He has turned down the volume of her telephone bell, and disconnects the phone when she is alone in order to prevent her making contact with other people.

In June 1997 she alleged that he had struck her on the face. This incident was investigated by the police and Social Services.

He has actively prevented her from having an independent advocate.

He has threatened A's friends and members of her family.

Would the proposals in the Law Commission's report and the Government's consultation paper assist in resolving this sort of problem? Probably not.

Clause 37 of the draft Mental Incapacity Bill confers a duty on the council to investigate the situation. The council's powers in this respect will be as follows. Clause 38 provides that an authorised officer of the council could enter and inspect A's premises and interview her in private. Clause 39 enables an authorised officer to apply to a magistrates' court for an entry warrant, if necessary. Clause 40 empowers the magistrates' court to make an assessment order. And clause 41 allows the magistrates' court to make a temporary protection order.

However, there is one extremely important caveat. None of these powers can be exercised if the authorised officer knows or believes that the person objects or would object to their exercise, unless he has reasonable cause to believe that the person is or may be suffering from mental disability.

It has been established that A is not suffering from mental disability and - if her opposition to the Court of Protection proceedings is anything to go by - she would strongly object to the Council exercising its public law powers. Even though she is a 'vulnerable person', the Council could not intervene.

The Government is not convinced that there is a need for legislation providing public law protection for people at risk. On page 68 of the consultation paper it says:

"The Government considers that there may be merit in some of the recommendations made in this area, but is not convinced that there is a pressing need for reform. Whilst it is important to protect vulnerable adults, the Government also believes that regard should be had to the rights of individuals to live in isolation if they so chose, even if at some degree of risk to themselves."

The underlying philosophy is that, if A wishes to live in a particular way, and if she chooses to reject the help that is available, she should be allowed to do so. Her right to autonomy is superior in the hierarchy of rights to her right not to be exploited or abused.

Denzil Lush