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Case notes of Claire Wills-Goldingham QC: Declaratory Orders in the Court of Protection

COP case MASAM  v MMAM , MM LB of Hackney and Homerton University NHS Foundation Trust [2015] EWCOP 3  – ( 29.01.15)

This case considers the issue of the legal status of declaratory orders made in the Court of Protection and can a party who acts in deliberate defiance of such declarations be in contempt of court? It is a paradigm judgment by Hayhen J for anyone who finds themselves in a case where there are breaches of Court of Protection orders / declarations. It analyses all the relevant law on contempt, such civil contempts as may arise through the publication of material in the press, the powers of the court emanating from wardship, the impast of ECHR jurisprudence and the new rules in the Court of Protection – Court of Protection Rules 2007 (“COPR 2007”) – Rule 192 (1) and (2) and Practice Direction 21A (Contempt of Court) together with the substantive legislation afforded by the Mental Capacity Act 2005 (“MCA 2005”).

Note paragraph 52 of the judgment where Hayden J recognises that the Court of Protection is still a “fledgling court” as the case law shows and “the importance to a family being heard in decisions of this magnitude matters almost as much as the outcome itself”.

The judgment cautions the use of penal notices in this jurisdiction – para 53 “Frequently, these issues resolve themselves but it would to my mind be disproportionate and indeed corrosive of the cooperation ultimately required, for the shadow of potential contempt proceedings to fall too darkly over cases such as this”.

Background

A 76 year old woman believed to have originated from Saudi Arabia but who had lived in the UK since 1963.  She owned a property in Stoke Newington which had become over the years in a state of complete disrepair.  She was considered to be severely self neglecting.  The plan was that she would live temporarily in a residential home whilst she underwent a certain level of physical rehabilitation and also that her house be put back in an appropriately habitable state. On arrival at the residential home she was assessed by a Consultant Geriatric Nutritionist and assessed to be lacking capacity ”for all significant decisions aound her healthcare to date”.  It was noted that MMAM had been admitted to hospital under Mental Health Act 1983 (“MHA 1987”) in 2007 with a mental health diagnosis and personality disorder.  She had also been assessed on a number of occasions prior to this admission in 2007.  The Consultant found that she was unable to consider and weigh her personal needs and how they may be met in the future.  She was considered to lack litigation capapcity.The Consultant noted that she seemed to understand the cultural impact of moving to Saudi Arabia away from the UK where she had lived for the last 40 years and she actively wanted to be near her or with her family provided her welfare is managed for her.  The consultant believed that MMAM dismissed information about her future plans “through abnormal belief”.

The son wished to take MMAM across countries between family members who would provide care for her.  The court noted the expert advice that MMAM required 24/7 skilled care without which she would be likely to self neglect.  The expert did not rule out a move to Saudi Arabia provided her needs could be met and it was clear that MMAM‘s wishes were to be near or with her family.

A consent order was made on 20.2.14  whereby a declaration was made by the court pursuant to section 48 MCA 2005 that it was lawful for MMAM – the 1st Respondent- to reside and receive care at X residential home and that any deprivation of liberty was lawful – pursuant to section 4 A16  MCA 2005.

On 1.4.14 MMAM left the jurisdiction- having been removed by the 2nd Respondent – MM (grandson) from X home and taken to the Saudi Arabian Embassy.  The care home manager believed that he had no legal basis to prevent this happening. She was left at the Embassy in circumstances described by MM that the judge found to be “self serving and disingenuous” and a “complete fabrication“.  The court found that MM and MASM (the 1st Respondent’s son) “plainly colluded to defeat the declaration made by this court.  Mr MASM has done so notwithstanding that he acquiesced to the declaration made by this court”.  The court found that “he has acted with cynical disregard to the objectives of this process, and in the light of the declarations drawn, it must follow that his actions are entirely inconsistent with the best interests of this vulnerable and incapacitous woman, who is of course his own mother”

The court considered the powers of enforcement – the High Court (COPR 2007, R 89) – fine, commit to prison for contempt of court, grant injunctions, summons witnesses when needed and order the production of evidence.

COPR 2007 Pt 21 and practice direction PD21A also deals with contempt of court.  The MCA 2005 jurisdiction is limited to promotion of “the purposes of the Act” and other proceedings may be taken in other jurisdictions where the objectives fall outside the MCA 2005.  Penal notices can be attached to any order- that is to warn a person of the consequences of disobedience to the order (contempt of court punishable by imprisonment or fine or where relevant sequestration of assets.

In MCA 2005 proceedings an application of a person for contempt can be made to any judge of the Court of Protection by issuing an Application Notice stating the grounds of the application supported by affidavit in accordance with practice directions (COPR 2007 has additional provisions). The court can also of its own motion make a committal order against a contempt of court which may include “misbehaviour in the face of the court”.

Claire Wills-Goldingham QC

Colleton Chambers


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