CASE NUMBER: 12969363
Neutral Citation Number: [2018] EWCOP 36

IN THE COURT OF PROTECTION 
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF: SR
6th June 2018

Before:
H.H.Judge Kate Buckingham

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B E T W E E N:

SR
(by her litigation friend, JG)
Applicant

-and-

A LOCAL AUTHORITY
First Respondent 

-and-

JR
Second Respondent 

-and-

ShR
Third Respondent

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JUDGMENT
1.	These proceedings relate to SR, who is aged 83 years. She acts by her paid relevant person’s representative and Litigation Friend, JG, who is represented in court by Miss Gardner. SR currently resides at the current placement, a residential care home. SR is the subject of a standard authorisation granted by the supervisory body, A Local Authority, under Schedule A1 of the Mental Capacity Act 2005 on 23rd January 2018. It is due to expire on 22nd January 2019. Previous authorisations came into force on 23rd November 2016, 23rd March 2017 and 23rd September 2017.
2.	The First Respondent is A Local Authority, which is represented by Mr. Copnall. The Second Respondent is the husband of SR, JR who represents himself. The Third Respondent is ShR, who is the daughter of SR and also represents herself. At times during the hearing, two sons of the couple were also in attendance at court.
3.	The proceedings were initially before the court on 9th April 2018 for directions in relation to a substantive application pursuant to the Mental Capacity Act 2005
4.	SR has a diagnosis of late onset Alzheimer’s disease of moderate to severe intensity, dating back to January 2015. On 9th April 2018, the court made final declarations that SR lacks capacity to (a) conduct these proceedings and (b) make decisions as to where she should reside and (c) make decisions as to the care she should receive. An interim declaration was made that SR lacks capacity to make decisions as to her contact with others and A Local Authority was directed to file and serve an assessment of SR’s capacity to make decisions as to the contact which takes place with her husband JR. An assessment was conducted on 3rd May 2018 by a social worker which concluded that SR lacks the mental capacity to decide with whom she has contact and any arrangements for such contact (C80). The capacity assessment is not in dispute.
5.	 At the hearing on 9th April 2018, A Local Authority applied orally for orders restricting SR’s contact with her husband JR. A Local Authority sought orders preventing JR from taking SR out of the care home unless accompanied by a member of staff or a relative in the light of concerns on the part of A Local Authority about JR’s expressed views in relation to euthanasia and other comments made by him from time to time. A Local Authority expressed concerns that SR may be at risk of harm in her husband’s sole care.  In addition, A Local Authority sought orders that JR should not take SR out in a car without the support of a member of staff or a family member due to the risk that SR may become agitated and present challenging behaviour, which would be difficult for JR to manage if driving. In a Position Statement dated 14th May 2018, A Local Authority modified its position and no longer seeks an order in relation to travel arrangements in the car, since it considers that the risk can be appropriately managed by SR travelling in the rear, wearing a seat belt and with child locks engaged. 
6.	A Local Authority were directed to file a schedule of findings and supporting evidence relied upon to justify the imposition of the restriction sought in relation to SR’s contact with JR.
7.	I have read the bundle and heard oral evidence from JR and his daughter ShR. I was invited by A Local Authority to rely on two redacted anonymous statements, which contained alleged details of comments made by JR. I made the decision that such material should be admitted into the proceedings albeit that the witnesses would not be available for cross-examination and the evidence would neither be tested nor further contextualised.
8.	There is a Reamended Draft Schedule of Findings Sought, which was subject to further amendment on 16th May 2018. The schedule particularises the details of comments made by JR to a number of professionals. In closing submissions, Mr. Copnall stated that it may not be necessary for the Court to consider each and every particular comment alleged, if the Court is satisfied that JR has made a series of such comments over time to different professionals and lay persons. It is A Local Authority who raise the allegations and so it is for A Local Authority to prove the findings as alleged on the balance of probabilities. 
9.	SR and JR have been together as a couple for decades. JR told me they were married 58 years ago, having been together for 61 years. They lived as husband and wife until SR was moved to reside at the current placement.  They raised three children and had active involvement with grandchildren. JR is aged 81 years and remains living in the family home. He retired at the age of 63 years and until the onset of his wife’s dementia, the couple spent most of their time in each other’s company.  They had planned to renew their wedding vows on their 60th wedding anniversary. ShR confirmed that her parents were a very close and happy couple, dedicated to each other. Professionals recognise the strong relationship between SR and JR (G45) and there is no dispute that JR is a devoted husband. He currently visits his wife twice daily at the current placement and keeps her company for up to three hours on each visit. 
10.	SR has been known to A Local Authority since July 2016 when she was taken to the Accident and Emergency Department at the local hospital by her family. A needs assessment was undertaken and a decision made to offer SR respite care, which would also enable a capacity assessment and best interests decisions to be made in relation to SR’s residence and care arrangements.  SR went into respite care at the previous placement on 27th July 2016 and returned to the family home on 22nd August 2016. Provision was made for twice daily calls and a day per week attendance at a day care facility. As SR displayed anxiety at the day centre, that provision ceased in September 2016.
11.	On 9th November 2016, SR was taken to the current placement for day care services but became distressed. SR contacted the police for assistance as she stated that JR was attacking her. It was considered that SR mistook her husband for some-one else and was experiencing paranoid ideation.  A decision was made that SR would remain at the current placement for respite care for a period of a week with immediate effect. On 17th November 2016, a best interests decision was made that SR should remain at the current placement.  This decision was reaffirmed on 10th February 2017 that SR should remain at the current placement in part because of the risks perceived by professionals arising from JR’s expressed view on euthanasia. 
12.	 SR’s family objected to her continuing placement at the current placement and wished for SR to return home.  SR is reported to have frequently expressed a wish to be with her husband and has been reported at times to become distressed when JR leaves at the end of each of his twice daily visits to see her. I have been provided with a schedule of references to objections voiced by family members in respect of the continued placement of SR at the current placement, between January 2017 and April 2018.
13.	 Three attempts at mediation in October and November 2017 with the family proved abortive. The family declined an opportunity of further mediation in January 2018. The process of seeking to resolve issues surrounding SR’s residence and contact, without recourse to the court, has been elongated.  Relations between A Local Authority and health/care professionals and the family members have become increasingly strained. I note that notwithstanding the recurrent objections by family members and intermittent expressions of distress at separation from her husband from SR herself, no proceedings were initiated. The Assessor from the Deprivation of Liberty team expressed the view in her assessment dated 19th January 2018 that SR had been displaying behaviours which indicated that she wants to leave the care home and were suggestive of an objection to the placement (D12/D22). She recommended that the paid Relevant Person’s Representative may wish to seek legal advice in relation to both SR and her family objecting to the decision for her to remain at the current placement (D22) An application was subsequently issued pursuant to s21A of the Mental Capacity Act 2005 on 19th February 2018 to challenge the standard Deprivation of Liberty authorisation in force dated 23rd January 2018.
14.	A Local Authority imposed a restriction on JR’s ability to take SR away from the placement unaccompanied on 27th May 2017. This decision was communicated to JR by a member of staff at the current placement. JR asked that the instruction written in the day book at the home be written out for him. He provided a copy of a note given to him which reads ‘From registered manager informed [a team leader]  that [JR] is not to take [SR] out until protection plan is signed’’. The document is signed by the team leader.
15.	A Local Authority seeks findings that JR has expressed support for euthanasia to professionals involved with SR and to members of the public and has not taken the opportunity to deny or disown such views. Although I make due allowance for the difference in approach between professionals trained to record discussions and with notes available to refresh memory and a lay person not so trained, it is the case that JR did not give consistent accounts in his evidence as to what he has said at any point in time. 
16.	I have no doubt from the evidence that I have read and from some concessions made by JR that he has indeed expressed his support for euthanasia at different times to different professionals and others and has declined the opportunity to deny expressing such views. He has also made other comments which have generated concern. The key issue for me to determine is what, if any risk, arises from JR’s expressed views. 
17.	The first recorded occasion when JR was heard to express comments that gave rise to concern amongst the professionals about SR’s safety was on 16th August 2016 at hospital during SR’s first admission to respite care. A Community Psychiatric Nurse recorded that JR stated, ‘he had thought about throwing himself in the river’. His daughter ShR told the meeting that JR was ‘at his wit’s end’ (C1/G7). The psychiatric nurse also reported that JR had stated in the same best interests meeting on 16th August that he was going to take them both to the river and throw them both in but his wife had told him to count her out as she could not swim’ (C1/G7b). In his oral evidence, JR said that he had told his wife they were going to jump into the car and go down to the river and his wife had commented ‘count her out as she could not swim’. JR made light of these comments during his evidence, suggesting that it was a reference to when he and his wife and family regularly made trips to the River banks for days out. He commented that his wife still retained flashes of humour as demonstrated by her response.
18.	 I find that JR did indeed make remarks as reported by two psychiatric nurses since a similar remark is recorded as being made to SR’s advocate some months later in February 2017. Although A Local Authority cite these remarks as examples of JR expressing an intent to end SR’s life (as per paragraph 3 of the Schedule), for the avoidance of doubt, the schedule makes clear that no finding is sought in relation to whether or not JR possessed such ‘intent’ and if so, the nature of that ‘intent’. A Local Authority do not therefore allege that any remarks made by JR signify a settled intention at the time of the remarks to pursue a course of harmful conduct or euthanasia in relation to his wife. In essence, the Local Authority allege that JR has exhibited distorted and grotesque thinking, which may give rise in the future to harmful conduct towards SR. 
19.	Given ShR’s description of her father being ‘at his wit’s end’, I do not consider it likely that the comments about the River Trent were made in jest but rather in the context of stress, exasperation and frustration experienced by JR as a result of the escalating crisis on 27th July 2016 and the emerging challenges in caring for his wife at home. Professionals had observed on 27th July 2016 that carer stress was building up due to the nature of SR’s deteriorating and progressive illness (G14) and noted that JR was tired and run down.  In addition, not long after SR was moved into respite care, JR wished for SR to be able to return home as soon as possible.  He said in evidence that the couple had never previously been parted during their marriage.
20.	In any event, the unanimous decision of the meeting on 16th August 2016 was that SR should return home with a package of care in situ and that steps needed to be taken to avoid the situation escalating to any further crisis. SR left the previous placement on 22nd August 2016 and remained living at home with JR until 9th November 2016 when a further period of respite care was initiated.   	 	
21.	Further concerns about views expressed by JR in relation to euthanasia arose as a result of a report by a member of the public on 30th January 2017. The statement provided by the witness records a conversation at the current placement in which it is reported that JR said that the current placement wasn’t the right sort of place for SR, that she needed to be at home with him and that he and his family were fighting for her to go home. It is alleged that he also said he believed in euthanasia and if he could get pills, he would give his wife and himself some. This is the first of two conversations alleged to have occurred with other individuals visiting residents at the home. A further referral was made on 25th April 2017 when a member of the public reported that JR had stated he understood ‘why people do silly things and take lives’ (G55). Although JR says he was merely discussing things generally with others in a similar situation, he failed to appreciate that other individuals were liable to be sensitive to and alarmed or upset by such remarks.
22.	A visit was made by two social workers to see JR at his home on 6th February 2017. During that meeting one social worker asserts that JR did not deny making the alleged comments. Indeed, the social worker noted that JR expressed the view that people were living too long and compared his wife’s situation with an animal that was ill and stated ‘you would put the animal down, out of its misery ‘(G9-11). The latter comment is plainly capable of being viewed as grotesque and unpalatable. The social worker recorded her view that JR was understandably struggling with separation from JR and loneliness consequent from that separation.
23.	The expression of similar views from JR continued. On 8th February 2017, JR told SR’s advocates that he was a firm believer in euthanasia and that people were living too long. He also stated on that occasion that bereavement would have been easier for him to deal with and that SR becomes upset when he leaves her asking him ‘What have I done wrong to be locked up here’ (G42). In relation to the latter comment, it is not uncommon for family members to experience and articulate a range of emotions when witnessing and coming to terms with a loved one’s progressive and deteriorating condition. It does not however lead to the inevitable conclusion that JR will act in a manner to harm SR, which will result in bereavement. I wonder at this stage to what extent any form of counselling or support was offered to JR to deal with the sense of loss he was experiencing for his wife, himself and their plans for the future, as a result of witnessing his wife’s deterioration.
24.	 On 8th February 2017, JR also repeated to SR’s advocate about how funny SR could be in reference to previously having said to SR in front of the three children at home ‘[SR] right that’s it, let’s go jump in the Trent ‘to which SR had said no because she couldn’t swim.’ (G43)
25.	It was initially thought in February 2017 that JR retained a surplus of medication at home. Ultimately, the medication retrieved from the family home by the social worker was not a ‘stockpile’ but consisted of 6 boxes of Warfarin (3 each in two different doses) and 14 Lorazepam, which JR gave to the social worker on 16th February 2017 for its proper disposal (G55). On 16th February, it is further alleged that JR did not deny comments made earlier in February about euthanasia.       
26.	A Local Authority sought to put a risk management plan in place from 9th February 2017 to ensure the safety of SR and to remove any opportunity for tablets to be administered to SR by her husband. JR declined to agree to chaperoned visits. I heard evidence from ShR that her parents spend extensive periods of time alone, albeit within the care home. She told me that as residents can become more agitated during the early evening period, JR has been regularly allowed to sit in SR’s bedroom unaccompanied between 6pm and 8pm. During part of that period, JR told me that the door is closed (as encouraged by staff members) as SR is getting changed and ready for bed.
27.	 It does not appear to be the case that the restriction relating to chaperoned visits out of the home was implemented as intended by the social worker in February 2017 since JR has produced the handwritten note dated 27th May 2017, written by the team leader. JR maintains that was the date on which the requirement for a chaperone was notified to him and implemented. In a mediation meeting dated 5th October 2017 (G66), it was acknowledged that this form of notification was not the most appropriate method.
28.	The timing of the note appears to coincide with it coming to the social worker’s attention on 25th May 2017 that JR had in fact taken SR out for lunch on his own (G57), when it was reported that SR had returned without challenging behaviours and settled well. I am therefore satisfied that despite the recurrence of comments made by JR about euthanasia and comments about ending SR’s life or his own life, no harmful conduct has ensued when there has been opportunity. 
29.	A Local Authority submit that any stresses which might impact upon JR and lead him to act to SR’s detriment are contained within the boundaries of the care home. However, other stresses and frustrations inevitably arise for JR from the restrictions imposed upon his wife’s contact with him and she has nevertheless remained safe in his company.
30.	I note at this juncture that A Local Authority knew that the family objected to restrictive contact arrangements and that there was no court authorisation of such a restriction. JR has subsequently complied with the restriction imposed save for 19th October 2017, when he is criticised for taking SR out of the home without a chaperone. JR told me that no-one had sought to obtain an explanation for his actions. He described how on the date in question, there had been a bereavement at the home and a good deal of upset amongst residents (and some staff).  This led JR to decide to take SR out for the day away from the atmosphere of the home. JR told the team leader what he was intending to do and was advised, in turn, what the team leader would have to do (namely report the incident).
31.	JR drove to his son’s house initially. The care home alerted the police and JR described how four armed officers arrived at his son’s address. After explanation, JR was then allowed by the police to drive his wife to his daughter’s house before he was then allowed to drive SR back to the current placement. JR said that this was the only occasion on which he had not complied with the rules laid down by Social Services. This incident was isolated and arose in circumstances where JR was acting to avoid his wife becoming upset and agitated. He notified the team leader of his plans. I do not consider that this incident indicates a risk to the welfare of SR.
JR’s views on euthanasia and other comments
32.	JR said that in respect of comments about people living too long, he had read an article in the Daily Mirror. He subsequently produced an article from the Daily Mirror dated 16th January 2017 which bears the headline ‘We’re living longer than ever – but that’s not necessarily a good thing report warns’. The article discusses a report compiled for the Intergenerational Commission by the Resolution Foundation. JR accepts that the article did not state that people are living too long but said that was how he had interpreted the discussion, which highlighted the ‘economic pressures’ arising from an ageing population. He made reference to the strain upon the NHS. He denied however that his solution is to shorten lives.
33.	 JR is a man who holds and expresses forthright views about matters. He restated his support for euthanasia at a best interests meeting in April 2018 and in court. He is unapologetic that he supports euthanasia and has commented that it is not a crime to hold such views. He made the point that on a number of occasions, professionals have raised his earlier comments (which he has not disowned) rather than him volunteering them afresh and I consider that is likely to be the case in some instances. He has stated that the nature of other comments made by him were not intended to be taken literally.  
34.	 When his views on euthanasia were explored in evidence, JR equated euthanasia with the right of a person to determine his or her own destiny and future. He stated that if he reached the condition whereby he could not do anything, he would not want to carry on living.   
35.	JR articulated his understanding that his wife does not have the capacity to make a decision as to whether she would wish to carry on living or not and stated that he would not help her to die. 
36.	JR contends that other comments have been made out of frustration and upset and his sense of powerlessness at the decisions being made about his wife’s residence and care arrangements. He asserted that he would not give his wife any tablets or ever harm a hair on her head. Both he and his daughter confirmed that there have never been any incidents of domestic violence within the couple’s relationship. JR told me that has no intention to carry out any act of euthanasia against his wife and realises that such an act would be murder. He told me that he had no idea about the number of tablets required for such a purpose. His daughter confirmed from her discussion that JR understood that assisting SR to die would be murder and that he is fully aware that the family would never forgive any such action. She expressed her belief that JR would never harm SR.  When asked by the court what guarantees and reassurance JR could give the court about his wife’s safety, he said the only thing he could express was that he would never hurt his wife at any time.
37.	JR also spoke with some emotion of his deceased younger brother’s recent terminal illness with cancer. He recounted how his brother had wanted someone to end his suffering and JR had told his brother he could not help him to do this. JR in evidence seemed to support a change in the law relating to assisted suicide but was unclear whether he supported any change in the law relating to euthanasia.
38.	JR set out in his statement that he wishes to enjoy time with his wife in a more natural way and believes that is what SR would want. They used to spend time together in their garden and conservatory. He spoke about his wish to walk into the village, go out for lunch or drive to the coast with SR without a chaperone and to be able to enjoy each other’s company as a couple.  
39.	JR said that as his wife’s condition has progressed, he has learnt a lot about Alzheimer’s disease and how to cope with her presentation and calm her down.  If he was faced with challenging behaviours, he said he would call his children, as he did before or would return his wife or take her for medical attention, as he had taken her to the hospital previously. 
40.	ShR told me that her father has been very frustrated by arrangements concerning SR not being able to return home and has not felt listened to by the professionals. She suggested that there was a lack of contact on the part of the professionals to find out why her father had made comments. It is regrettable that tensions and dispute between professionals and the family have been building up since at least January 2017 over the care and contact arrangements for SR. When it became clear that the family did not support the care or contact arrangements, the matter should have been referred to the court. 
41.	In closing submissions, A Local Authority submitted that although there is a low risk that JR would act out any of the comments made, any such act would have catastrophic consequences for SR. I accept that argument. It is not alleged that JR is motivated by any desire to harm his wife but that there is a risk that his emotions may drive him to take a harmful act, if he perceives her to be in a hopeless or unbearable condition or is himself experiencing stress and pressure.
42.	Mr. Copnall further submitted that the safeguard of requiring a chaperone out of the home for contact between JR and SR was proportionate and was not intrusive and was not necessarily something which in any way impacted on SR. He differentiated the lack of supervision within the care home since staff are on hand if SR’s presentation became agitated or unsettled and therefore JR is said to be less likely to become stressed and emotional. 
43.	Miss Gardner on behalf of the Applicant submitted that the restriction on SR’s contact was neither justifiable, proportionate or necessary. The Litigation Friend submits that in effect A Local Authority has catalogued comments by JR at face value without taking time to explore the context of JR’s frustration or to explore with him what he meant by supporting euthanasia. 
44.	Whilst I accept that JR’s comments have given rise to legitimate anxiety on the part of the professionals, I do not consider that there was adequate investigation into the reasons why JR has made such comments and what he understands by the notion of supporting euthanasia, which from his evidence related to the right to self-determination and dignity. I consider that JR’s intransigence at times as relations with professionals became increasingly strained may also not have assisted constructive enquiry and resolution of issues.
45.	At times JR’s evidence was contradictory. He lacks insight to appreciate fully the reasons why his remarks cause such consternation. However, he was consistent that he would never dream of hurting his wife. Is it safe for the court to take that assertion at face value in the light of his expressed views and comments, some of which have been unpalatable? I take note of the fact that following the first comments in August 2016, SR returned home to live with JR until 9th November 2016. Between 9th November 2016 and 27th May 2017, extensive unsupervised contact took place within the care home and outside the care home. To date, JR remains alone with SR for approximately two hours per evening in a closed room. SR has remained safe and subject of devoted affection and attention from her husband.
46.	I have reached the conclusion that the restriction sought by A Local Authority is neither justifiable, proportionate or necessary. JR will need to have regard to his wife’s settled routines and what is in her best interests when considering how he would wish to revert to more relaxed contact with his wife. He will need to communicate openly with the professionals about proposed contact arrangements and contingency plans, should SR become upset or agitated or behave in an unpredictable way in his sole care. JR and professionals will need to ensure that he is alert to what situations may arise and how best to deal with them. JR will also need to have continuing regard to his own health and how that impacts upon his ability to provide safe care for SR as well as his driving competence.

H.H.Judge Kate Buckingham
6th June 2018