Capacity for Litigation, Residence and Care: Hunger-Striker (WA) back in court

By Jo Beswick, 28th July 2021

On Friday 9th July I observed the third in a series of hearings we’ve covered before Mr Justice Hayden concerning WA (COP 13617268). 

The first time, a year ago on 9th July 2020,  I was one of a number of observers who co-authored a blog about the case (here): there is also a published judgment.

A subsequent hearing, on Tuesday 25th May 2021, was blogged about by Gillian Loomes-Quinn (here).

The man at the centre of the case, WA, claimed asylum in the UK in 2009 and was granted indefinite leave to remain on 23rd July 2009.  According to the published judgment:

 “WA had escaped from his native Palestine where he reports having suffered sustained physical abuse by members of Hamas in consequence of his refusal to act as a suicide bomber. It is said that his Grandmother had been able to provide a bribe to a Hamas soldier to facilitate WA’s escape. His Grandmother was also able to finance and arrange for WA to leave the country. He travelled to Italy, where he initially claimed asylum. In Italy, WA and one other boy were allocated a foster carer. That proved to be a disastrous placement, both boys were physically and sexually abused and the other boy was ultimately killed, having been kicked to death by the foster carer. There is a good deal of corroborative material to support these accounts, not least evidence of extensive injury, including stab wounds and a crudely amputated index finger. WA has suffered post-traumatic stress disorder and depression“. (https://www.bailii.org/ew/cases/EWCOP/2020/37.html)

WA was placed with foster carers in the UK.  They have a close relationship with him and he refers to them as “Mum and Dad”.

WA had been told by his Grandmother before he left Palestine that his date of birth was 29th December 1994. The subsequent age assessments concluded that WA was five years older than he believed himself to be. The Home Office determined that WA’s date of birth should be 19th April 1989. It is this date that now appears on WA’s biometric records.  As Hayden J reports in the earlier published judgment: “For WA the removal of his date of birth is perceived as a fundamental violation of his own rights and an assault on his identity.

In September 2020 WA’s application to have his biometric age changed to the age he believes himself to be was refused by Upper Tribunal Judge Pitt. His appeal against that decision was dismissed by the Court of Appeal on 12 January 2021 (here). WA is currently awaiting a decision from the Supreme Court as to whether or not he has leave to appeal. 

As we reported in the first blog, WA launched a hunger strike somewhat over a year ago to seek to persuade the Home Office to change his date of birth to the one that he believes to be accurate. This led to the first Court of Protection hearing, since doctors wanted to administer clinically assisted nutrition and hydration to preserve WA’s life.  

At the July 2020 hearing, Mr Justice Hayden determined that WA did not have the mental capacity to decide to refuse clinically assisted nutrition and hydration (his hunger strike is “a maladapted response – an attempt to regain control as a result of the trauma he has suffered”) so it was for the Court to make decisions on his behalf.  However, it was very important not to coerce him.  So, despite the fact that he lacks capacity to decide for himself about clinically assisted nutrition and hydration, it should not be forced upon him.  

Hayden J also found that WA did have litigation capacity and is therefore able to instruct his legal team (rather than being represented by the Official Solicitor or an Accredited Legal Representative).  

The issue before the court today was: given the poor state of WA’s health (due to his hunger strike) where should he be cared for? Should he remain with his parents at their home with appropriate home carers and respite care, or should he move into a specialist residential care home? (No capacity assessment has been undertaken regarding decisions concerning his residence or care.)

The issue today – care at home or a nursing home

Mr Justice Hayden said early on that the issue today was centred on the place of care for WA. 

At the previous hearing, WA was in hospital following a suicide attempt (described by Hayden J as a “cry for help”) but was medically fit for discharge and he has since been discharged to his parents’ home.  

The hearing had initially been triggered by a request for a package of home care and for respite care for WA, to support his parents – described in the last hearing as “visibly exhausted and emotionally drained.

But it was made clear at the beginning of the hearing that WA has said that he wants to go into a nursing home, and has specified locations distant from his home town. He believes that his parents have done enough for him, and he no longer wishes to remain living with them.  

Hayden J read out part of WA’s note to him: “I would rather choose to go into a nursing home until God takes my soul”.  According to Mr Justice Hayden, “Speaking with absolute candour, I have the sense that he is letting go – that he doesn’t want any more treatment.”

WA was represented by Arianna Kelly of 39 Essex Chambers. As noted, he has previously been found to have litigation capacity and so is able to instruct his legal team directly (instead of via the Official Solicitor or an Accredited Legal Representative).   She did not represent WA’s current position on residence and care (his wish to go to a care home) but instead argued for a home care package. 

Miss Kelly: “Today seems to be a day where he’s taking a view like that.  In the last 24 hours he has been feeling quite low, and a bit hopeless. But most days that’s not the case.  Last week he was quite clear he wanted to remain living with his parents at home, and was open to the idea of having some carers come in.  I do not think he is letting go of his life.  His mood is not the same from day to day”.  

WA’s evidence

When the question arose about WA giving evidence, the judge asked if WA would prefer to do so without members of the public present, but his counsel said that WA was happy to speak in front of everyone because he “was hoping to draw more attention to his cause”. 

He was seated on a sofa with his mother and was visibly very distressed.  He talked about how hard it had been for him in the hospital, and how badly he felt he had been treated.  At various points he was crying and it was sometimes difficult to work out what he was saying.  “All I want is to get my identity back and live my life” he said at one point, “They have taken my identity and my soul”.  He talked about his pain: “Pain, in my heart, pain in my leg, pain in my arm, pain in my stomach –  I cannot deal with the pain anymore”.  

Sobbing, he said: “It’s better for me to give up, I am in pain. It would be best to die far away from Mum and Dad. I don’t want them to see me suffering any more.  They are suffering along with me.  I want to go far away and die in peace.  There is no other way but to die.  I cannot do this anymore, really I can’t.  They can collect my body when I’m dead”. (WA)

It was very hard to watch.  His mother, too, was crying – wiping his tears, holding his hand, trying to calm him. Afterwards the judge said, “That took a lot of effort and energy to tell me. I think we’ll just have a few minutes break.”

Mother’s evidence

After a few minutes break, Mr Justice Hayden said to WA’s mother:  “one of the reasons WA wants to go into a care home, is because he think you and his dad are exhausted by having to deal with his physical pain and emotional distress.  I know this is very difficult for you, but what do you say about that?

She replied by re-emphasising her absolute commitment to WA:

It’s a big responsibility to have children.  If they become ill or distressed in any way, most parents step up to the plate.  While WA is not our child by birth, he came to us 12 years ago.  We recognised the pain he was in.  We stepped up to the plate. We’ve looked after him. We’ve protected him.  And there is no stepping back on this.  We really truly believe that his life is worth something.  I’ve had to say, ‘it’s me that’s looking after you, not you that’s looking after us’.  I do not want to step away from my responsibilities.  You take children into your home and create an environment where you hope they will be able to recover.  I’ve worked so hard. I’ve turned myself inside out for him, and it’s so distressing that that Home Office won’t help.  This young lad doesn’t want very much.  Just his date of birth, his identity.”

She worries that in a nursing home, the medical procedures risk triggering memories of the abuse in Italy, and re-traumatising him.  One example mentioned earlier in the hearing was the use of suppositories for pain release – his refusal of this method of pain relief is directly associated with the sexual abuse he suffered.  

So it was clear that although WA was now saying that he wanted to go into a care home, neither his mother nor (apparently) his own legal team, supported him in that position. 

Questions of capacity – including litigation capacity

Mr Justice Hayden earlier ruled that WA does not have subject matter capacity in relation to decisions about clinically assisted nutrition and hydration.  The significance he gives to his date of birth (an “over-valued idea”) obscures his capacity to make a decision about tube feeding. 

There has been no assessment of WA’s capacity to make decisions about residence and care, but my understanding of WA’s counsel’s position is that WA does have capacity to make these decisions – and that, like anyone else, his decisions may change from day to day (without this necessarily being evidence of ‘fluctuating capacity’).  

A key issue was WA’s capacity to conduct this litigation.  Having ruled a year ago that WA did have capacity to conduct litigation, Hayden J asked for this to be reassessed. 

The problem was that WA’s counsel,  Arianna Kelly, was taking the position that WA should have a home care package, whereas WA himself, in court today and in a note sent earlier to the judge, said he did not want a home care package but wanted to move to a nursing home. 

The note included these sentences, read out in court by Hayden J: “I’ve chosen this path because I don’t want my home to become a care home. I don’t want to be forced to have care at home”. 

At the moment, that’s his own filed position”, said Hayden J.  “I’m suffused with sympathy for your position, Miss Kelly, but I can’t allow the court to be in a position where the advocate is saying, ‘well this is what he says today, but what he really means is something different’”

Mr Justice Hayden continued:

The oral evidence he gave today is consistent with his written statement, and not with your position.  You are trying to present what he says as part of a wider picture, but that conflates the role of lawyer with that of other professionals.”

Later he said: “There is a difference between the case advanced by WA’s advocate and the case advanced by her client in writing.  I am profoundly uncomfortable with Miss Kelly’s view of what WA’s position is and what WA tells me it is.” According to Hayden J, “The trouble is that Miss Kelly has found herself in an invidious position.  She finds herself submitting very lucidly that what WA says today and in his statement on the last occasion, expressly, is not in fact his wishes.”

It is fairly common in the Court of Protection for counsel for the protected party (P) to take a position that is distinct from – and may be opposed to – the position adopted by P themselves.  (See “Litigation Friends or Foes: Representation of ‘P’ before the Court of Protection“, by Alex Ruck Keene, Peter Bartlett and Neil Allen.) But this situation, if it occurs, is when P has been found to lack litigation capacity and is represented via the Official Solicitor.  That is not the case here.  This P (WA) has been found to have  litigation capacity and is instructing his own legal team.  

Noting the manifest discrepancy between what counsel for WA was saying and what WA himself was saying, there was some discussion about whether in fact WA has litigation capacity and it was agreed that this should be looked at again.  

Hayden J also noted that WA “doesn’t want to be in court proceedings”, that there is “a crushing weight of litigation distress that I would like to minimise if we can” and asked “whether we actually need to litigate at all”. 

At some point another barrister, Emma Sutton appeared in court (“parachuted in” is how Hayden J put it) and it was agreed that she would act as “advocate to the court” for the next hearing on 28th July 2021 – and it was also decided that there should be an expert report available for the next hearing about whether WA has capacity to make his own decisions about residence and care, and whether he has litigation capacity.  

 Jo Beswick is a Senior Lecturer in the School of Law, Policing and Forensics at Staffordshire University. She tweets @DrJoBeswick

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