Case Summary: Re MM (A Patient) [2017] EWCA Civ 34 (Court of Appeal) following Re Martins [2016] EWCOP 45 (First Instance)

Case

Re MM (A Patient) [2017] EWCA Civ 34 (Court of Appeal) following Re Martins [2016] EWCOP 45 (First Instance)

Topics

• Capacity
• Dementia
• Best Interests
• Court of Protection's powers in relation to repatriation

Practical Impact

Public authorities engaged in contested best interest proceedings should give careful consideration to interim placement to ensure that P's wellbeing and safety is maintained. Should consider all of the relevant circumstances, including:

• Suggestions by family/friends of removing P from the jurisdiction – even just for a holiday;
• Connections abroad;
• Ability of and steps taken to dispose of property, limiting available options.

Public authorities should proceed with caution and consider whether preventative measures are required to prevent unlawful removal from England and Wales.

Where P has been removed from England and Wales, should consider how to effect repatriation:

• Where P is in a country that has signed up to the Hague Convention, it may be possible for "mirror" orders to be obtained from that country to effect repatriation
• Where P is in a non-Hague Convention country, consider obtaining orders from the Court of Protection to effect co-operation and assistance of the country concerned to achieve effective repatriation – consider using a Court appointed Deputy to sign an authority that is recognised in the other country.

It can be very difficult to effect repatriation.

Penal notices are only effective on people who are present in England and Wales (in this case, the family member lived in England, so the penal notice ordered against her could be effected).

There comes a point, where the Court will not make futile orders – and there are limits to how far the Court can go in seeking to coerce objecting parties. Sir James Munby did highlight that it should not be readily assumed that the Court of Protection would be as powerless in other cases.

The issue of whether a determination of best interests should be made if it can only be achieved by sending to prison someone whose interests P could be expected to have at heart (i.e. a family member) had he/she got capacity remains outstanding as it was not considered by the Court of Appeal. In the end, the Court of Appeal did not determine whether Mr Justice Baker's orders in June 2016 were lawful or unlawful.

Summary

Court of Protection proceedings concerning dispute between family and professionals about where P should live and the package of care he should receive; whereby P was removed to Portugal during the course of proceedings by a family member – who refused to return him to England and Wales.

Demonstrates the practical difficulties involved in returning someone to the jurisdiction if they have been removed pending final determinations on best interests.

Subsequently, with the agreement of all parties, the Court of Appeal discharged Mr Justice Baker's orders (both the initial order directing repatriation and the committal order) as they were unenforceable, not binding on the Portuguese authorities and the family member remained stubbornly incompliant in spite of a term in prison for contempt. 

The case has been sent back to the Court of first instance for a fresh review of best interests (due to the passage of time since Mr Justice Baker's decision in June 2016) on management of finances, final declarations on residence and the continuation (or otherwise) or reporting restriction orders.

Court of Appeal noted that it would be futile to make further orders requiring sister to return Mr Martins to Devon – and the Court of Protection would not be invited to do so.

Sir James Munby in the Court of Appeal (heard on 30 January 2017)  on discharging orders of Mr Justice Baker (made on 20 June 2016)

Mr Martins is 81 years old and suffers from dementia. He was born in Madeira but had lived in Devon for 50 years; until 2014 living in the property that he owned there. He was described as well-liked and respected with a network of friends. He was divorced and had a cat, Tuna.

The relevant chronology:

• 2012 – diagnosed with dementia;
• 2013 - LPAs in respect of both health and welfare and property and affairs, appointing his sister (TK) and a neighbour's brother as attorneys - concerns about whether he had capacity to do so at that time.
• 2014 - sister wants to take him 'on holiday' to Madeira, where they had family. Capacity assessment concludes that Mr Martins had capacity to decide to go on holiday, that he wanted to do so but was very clear in his wish to return home, especially to his cat Tuna.
• Sister moves Mr Martins into her house in Sussex without informing social services.
• Sister informs social services that she'd be taking Mr Martins on holiday for 3 weeks; to return by 8 July;
• Local Authority discovers sister has put Mr Martins' house up for auction.
• September 2014 Local Authority applies to Court of Protection:
• For an injunction to prevent the auction house from selling the property;
• To remove TK as an attorney; and
• For declarations as to Mr Martins' capacity to make decisions about where to live and his best interests on that (including authorisation of any deprivation of liberty).
• Sister had already cleared Mr Martins' house in Devon and (perhaps unwisely) Mr Martins was permitted to remain living with sister in Sussex pending final determination.
• March 2015 further capacity assessments conclude Mr Martins lacks capacity to make decisions about:
  • Financial affairs;
  • Where he should live;
  • Arrangements for his care and support;
  • Contact with others;
  • Whether to go abroad on holiday.
• Independent Consultant Psychiatrist = best interests to go on holiday to Portugal with his sister.
• Independent Social Worker = best interests to live in Devon area where he had his circle of friends, rather than with his sister in a different area.
• 30 April 2015 - Court hearing but it sister had already taken Mr Martins to Madeira without telling anyone or seeking the permission of the Court;
• 4 June 2015, High Court Judge ordered sister to return Mr Martins to England by 30 June (including a penal notice for failure to comply).
• Sister did not return Mr Martins and said the Court was wrong;
• September 2015 - sister attended a hearing (Mr Martins was still in Madeira) - Judge upheld the Order for her to return Mr Martins to England.
• Sister still failed to comply and instead placed him in a care home in Madeira; which subsequently refused to co-operate in his return.
• January 2016 hearing - Mr Martins had been in Portugal for 8 months and sister had failed to comply with two Orders directing she return him to England.
  • Judge directed that a best interest assessment was required to determine whether it was in Mr Martins' best interests to return to England or whether he should remain in Portugal. To be conducted by the Practice Manager of the Complex Care Team and the Community Matron for Dementia in Devon.
• April 2016 – assessors went to Portugal to assess Mr Martins.
  • Professionals concluded that it was in Mr Martins' best interests to return to Devon and be placed in a specified care home
  • Sister considered that it was in Mr Martins' best interests to remain in Portugal.

20 June 2016- Mr Justice Baker concluded that it is in Mr Martins' best interests to return to England and live in the identified care home and made relevant orders against the sister with a penal notice to facilitate that to happen (essentially requiring sister to sign a declaration of authority (as she was recognised by Portuguese law to have decision-making power) that would enable Mr Martins' release from the Portuguese care home and facilitate his return to Devon).

• June 2016 – sister applies for permission to appeal Mr Justice Baker's order.
• August 2016 - sister refused to comply with Mr Justice Baker's order and was imprisoned for 6 months for contempt (committal order); sister sought permission to appeal the contempt and mandatory orders.
• November 2016 – permission to appeal granted and sister released from prison – Court stated that the committal hearing (which sent sister to prison) should not have been heard pending her permission to appeal the Judge's initial decision – quashed the committal order.

January 2017 – sister's appeal heard in the Court of Appeal. Despite her imprisonment; sister maintained her position that a return to Devon was not in Mr Martins' best interests.

Appeal compromised (agreed by the parties) with a consent order for discharge of the original orders; the Official Solicitor agreeing that a further BI assessment was necessary and further orders against the sister futile.

Munby LJ commented that the Court of Protection should use all the inherent powers which might be used in a child abduction case to obtain the co-operation of the authorities in a non-Hague Convention 2000 country (such as Portugal). He referred to the case of  Re HM (Vulnerable Adult : Abduction ) [2010] EWHC 870 (Fam) as an example of a successful repatriation of an incapacitated adult who had been taken abroad for guidance on to the court's powers and the orders to be made in such cases.

Best Interests dependent on both emotional and physical well-being, when considering available options.

Injunctions and threats of prison against family members might be contrary to P's best interests.