By Joanna Booth, 30th November 2022
The person at the centre of this case (PB) is a 65-old woman who had a brain haemorrhage in 2018. This was so severe that it left her with a lasting brain injury and significantly impaired cognitive functions and since leaving hospital she’s been looked after in a specialist care home. She’s been found to lack capacity to determine her own residence, care, and contact, and to conduct proceedings.
At an earlier hearing, her husband (MB) had been found to exhibit a pattern of controlling and coercive behaviour towards her. This had been a pattern of their marriage before her brain injury, and continued after she was admitted to full-time care – along with his overbearing and aggressive behaviour towards the care home staff.
The hearing I observed (via MS Team) on Wednesday 23rd November 2022 (COP 13615665) before Sir Jonathan Cohen sitting in the Royal Courts of Justice was to consider (again) matters of contact between husband and wife, and also how her financial affairs should be managed.
PB was represented in this hearing (via the Official Solicitor) by Mary-Rachel McCabe of Doughty Street Chambers. The Health Board was represented by Benjamin Tankel of 39 Essex Chambers. The local authority was represented by Rebecca Jayne Blackwood and MB (PB’s husband) was represented by James Holmes of Garden Court Chambers.
Background to the hearing
Since April 2019, when PB was discharged from hospital, she has lived in a specialist care home where she receives a significant package of care that she is likely to require for the rest of her life. She is subject to a standard authorisation depriving her of her liberty at the care home.
From the early days of P’s admission to hospital in 2018, safeguarding concerns have been raised in respect of her husband (MB’s) conduct towards her and there have been, throughout, significant concerns about his “combative approach” to the medical professionals involved in P’s care.
On 5 February 2020 it was alleged that MB had inappropriately touched PB in a sexual manner. Soon afterwards COVID-19 restrictions were imposed on contact with care home residents and from 3 April 2020 the decision was taken to restrict MB’s contact with PB to 2 video calls per week.
In June 2020 MB commenced proceedings seeking an order that it was in the best interests of his wife to return to the family home and reside with him and that the contact restrictions were not in her best interests.
There have been several hearings already in this case. In April 2021, Francis J made an order that contact between PB and her husband (MB) should be severely restricted. He made an injunction prohibiting MB from having direct contact with P and from entering or approaching the care home and severely restricting communication with any care home staff.
The last hearing was in February 2022 before Sir Jonathan Cohen, and the judgment was published on 15 March 2022, as MB v PB & Ors  EWCOP 14.
His judgment covers both the ‘fact finding’ element of the proceedings and also his decisions on best interests.
He found (§61 of the judgment)
i) That there was a pattern of controlling and coercive behaviour before P’s admission into full-time care.
ii) That there was a pattern of coercive and controlling behaviour that continued after her admission into full-time care.
iii) That MB has a controlling and overbearing attitude towards the care staff.
iv) That MB has sought to interfere in the provision of care by his refusal to accept what professionals tell him and his insistence that he knows best about what care P should be receiving.
v) That MB has sought to limit and control the contact that P has had with other members of the family particularly her children and her sister.
vi) That at times P has found contact with MB to be upsetting and unwelcome. Equally at other times she has derived pleasure from it.
The judge found that “the single most important factor in this case is to maintain P’s position in the care home. There is no other venue in Wales that is felt able to meet her needs. Nothing would be worse for her than for the home to feel that it could no longer keep her because of the pressures and disruption created by MB. If the choice is between MB’s contact with P and the maintenance of the home, the latter must prevail” (§66).
But he was “concerned that the loss or cessation of all contact between P and MB may not be in her best interests” (§67) and asked the parties to consider “a trial period of contact over a number of visits whereby P’s reaction to the resumption of contact could be assessed, along with MB’s ability to comply with the restrictions required and the contract of expectations which he must sign up to”. (§69)
The judge said he would “hold a further hearing when the parties have had the opportunity to consider this judgment”.
That was the hearing I observed.
Hearing on 23rd November 2022
The Health Board’s position was that two key issues needed to be determined: (1) Property and Financial Affairs Does PB have capacity to manage her own financial affairs? If not, what steps should be taken in respect of the management of PB’s finances; and (2) Contact between PB and her husband MB. I’ll address each in turn.
Issue 1: Property and financial affairs
PB’s husband believes that she has capacity to make her own decisions about property and finance. The Health Board’s position is that she does not have capacity to do so. Due to this disagreement, the court directed the Health Board to obtain an independent assessment, which was now before the court.
It was reported in court that the finding was that PB has limited abilities in relation to communication. She can utter single words but not always in an understandable order. She has severe word-finding issues.
She has trouble understanding where in time or place she is. She struggles with complex information. She can understand basic information about food choices or what clothes to wear.
During her assessment she struggled with recall. She has severe memory problems.
The clinical psychiatrist tried to discuss house and property issues with her.
She couldn’t tell him why she was at the care home or how long she had been there. She was asked about when she’d last been to her home and she said four months ago. It had actually been four years previously. She was unable to say where she was or why she was there. She did not know how her care was paid for.
The MCA sets out a 2-stage test of capacity:
…. a person is unable to make a decision for himself if he is unable—
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(s. 3(1) MCA)
Second: A person can only be found to lack capacity to make a decision if their inability to do so is “because of an impairment of, or a disturbance in the functioning of, the mind or brain” ( s.2(1) MCA)
The Health Board’s position is that PB is unable to make her own financial decisions .Due to her brain injury, she cannot understand or retain, use, and weigh the information she is given. She can communicate but her answers are so variable that they cannot be relied upon.
Therefore, the Health Board’s position is that a deputy be assigned to PB, to manage her financial matters.
Counsel for PB’s husband argued that a deputy is unnecessary because her husband is already her DWP-appointed appointee. The Mental Capacity Act code of practice, s.8.36 specified that when a person has benefits but no property or assets, then an appointee can be assigned to them, which is within the remit of the DWP.
The local authority lawyer, Rebecca Blackwood, stated that PB does have property. It was also relevant that in the Judge’s previous hearing, reported in March, MB was found to be coercive and controlling. It would therefore be entirely inappropriate for MB to be kept or put in control of PB’s finances, in line with that ruling.
The judge went on to state that it was plain that MB would not be an appropriate deputy for a wide number of reasons. There is also a conflict of interest: the funds that PB receives for her PIP are mixed in with MB’s finances and used to pay for utilities and the mortgage for the house they jointly own.
Also, said the judge, the court does not have the power to appoint appointees; that is only for the DWP. The court only has power to determine the appointment of deputies.
There were also issues with MB’s current control of PB’s finances. At the previous hearing, in February 2022, the court ordered MB to provide some money (a ‘fund’ or ‘float’ of £200 for PB so that additional items could be provided without having to rely on communicating with him. This system of having to ask MB for every payment required for PB was seen to be at one extreme a continuation of the coercive and controlling behaviour towards his wife, and at the other, unwieldy. He did not provide this fund until October of this year, seven months later.
Issue 2: Contact
PB has been in the nursing home for four years. While indirect contact (video-calls) had been organised with the nursing home, there was no direct contact face-to-face after an injunction had been issued against MB.
The indirect contact between the couple was to be facilitated once a week by a nursing assessor provided by the Health Board.
The nursing or caring staff at the nursing home could not be used to facilitate contact because the home had refused contact with MB after his abusive behaviour.
MB also requested through his team that when virtual meeting could not be held, that they were rearranged so they could still happen.
The Health Board said they would look into it but could not guarantee it.
The court was looking at facilitating direct contact in other ways. MB had requested
The judge felt it was important to at least attempt direct face-to-face contact. He suggested it was very worrying that a wife and husband had been separated for a long time and could not see each other.
“It doesn’t seem right that contact is forbidden if a suitable nurse can be found,” said Sir Jonathan Cohen.
The Health Board representative pointed out that there were huge obstacles in the way and they were mostly due to MB.
He said, if conditions can be met, there would still be residual concerns as to whether direct contact would be in PB’s best interests.
The meeting would be better in the garden of the nursing home where if she is fatigued or if there are concerns, she can leave quickly. In the community, where MB wants the meeting to be held, this would not be as easy.
Also, in the seven months since MB proposed the conditions to be met, he has not found or looked for a suitable care agency, and the Health Board have not been able to find one either.
There would be lots of stresses for this type of package, which would consist of an hour or half an hour a month. The carer would not have the knowledge of PB to understand, perhaps, when she was showing signs of distress and needed to be removed from the meeting.
The judge stated that he did not underestimate the difficulties to surmount the hurdles. But if the conditions can be met then some dates in March or later in the spring should be provided, where PB could be wrapped up in the garden on a sunny, dry day, for a meeting.
If a deputy is appointed, and the thresholds are met, then the care agency costs would be decided by the deputy.
A best interest declaration by the deputy would be required, claimed the Health Board.
The judge stated that contact would be a good use of funds.
The Health Board stated that the nurse assessor used for the virtual meetings would be available indefinitely subject to resource.
The judge asked whether the nurse assessor could be used for the direct contact.
The Health Board replied that they were not willing to make the nurse assessor available for direct contact. MB had been found to target members of staff with hostile behaviour. MB does not accept the findings of the previous hearing and insists that everyone is out to get him. The Health Board is not willing to expose the nurse assessor to his behaviour.
The judge found that PB does not have capacity to manage her own financial affairs and ordered that the local authority should appoint a panel deputy
In relation to contact, if MB can identify a suitable care agency, with Health Board approval, and if MB pays for it, then arrangements for contact will be made and a date found in spring, when there’s better weather, so that PB could meet with her husband MB in the garden of the nursing home.
For indirect contact, if virtual meetings can’t take place at the assigned time, then the meeting will be reorganised for another possible time.
There are no orders for these matters to come back to court unless circumstances change.
Joanna Booth is a freelance journalist who writes at joannab.substack.com. She studied law, politics, and social research methods, and worked for years as a social researcher in higher education organisations. She works as a journalist, and is studying towards a PhD by publication on local media and political participation. She tweets as @stillawake.