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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Minister for Health and Social Services v B and Ors (Capacity) 22-Jan-2021 [2021] JCA 011 (22 January 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_011.html Cite as: [2021] JCA 011, [2021] JCA 11 |
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Before : |
T. J. Le Cocq, Bailiff of Jersey, President; James McNeill, Q.C., and Jeremy Storey, Q.C. |
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Between |
The Minister for Health and Social Services |
Appellant |
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And |
B (through Advocate Rebecca Morley-Kirk) |
First Respondent |
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And |
C (the father) and D (the mother) |
Second Respondents |
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Advocate H. J. Heath for the Appellant.
Advocate R. C. L. Morley-Kirk for the First Respondent.
Advocate J. Heywood for the Second Respondents.
judgment
McNeill J. A:
1. This is the judgment of the Court, to which all have contributed. In this matter, the Minister sought a specific health and welfare decision in accordance with Article 27(1)(a) of the Capacity and Self-Determination (Jersey) Law 2016 (the "2016 Law"). In addition, the Minister sought an authorisation for the imposition of a significant restriction on liberty under Article 57 of the 2016 Law. The subject of those requests is the First Respondent. The Second Respondents are the parents of the First Respondent and will be referred to, as they were below, as the father and the mother respectively or, together, as the parents. The father has made a separate application for appointment of himself as a delegate under Part 4 of the 2016 Law. An Independent Capacity Advocate for the First Respondent has been appointed earlier.
2. The background to the circumstances surrounding the First Respondent are set out by the Royal Court in the judgment of 3rd August 2020, now appealed by the Minister. For present purposes it will be sufficient to note the following.
3. The First Respondent is aged 30 and is currently resident at a care establishment in Jersey. He has developed significant developmental regression, is non-verbal and has a spastic tetraparesis.
4. Following various hospital admissions in the last few years, the need to receive nutrition and hydration both orally and via a naso-gastric tube and, latterly, a percutaneous endoscopic gastrostomy feeding tube, it appeared, in the autumn of 2019, that he should no longer be in hospital. The alternative options were:
(i) a return to the flat which he had occupied previously,
(ii) a new home placement in different accommodation,
(iii) a residential care home in Jersey or
(iv) a residential care home off island. This last-mentioned option was not deemed appropriate.
5. On 27th September 2019, a best interests meeting took place, attended by a number of professionals but not by the parents for reasons which were understandable. The conclusion of those who met as to the potential place of residence was communicated to the parents who did not agree with it. Accordingly, on 10th December 2019 the Minister applied for a best interests decision from the Royal Court. Permission to bring that application was granted and appropriate directions given. For various reasons set out in the judgment below, the various applications were adjourned to a final hearing on 30th June, 1st and 2nd July. At that hearing a significant body of evidence was considered by the court.
6. In its judgment the Royal Court dealt thoroughly and carefully with the evidence before it and, for the purposes of this appeal, it is not necessary to give any further detail.
7. The Royal Court duly found that the First Respondent was unable to leave the care establishment unassisted by reason of his physical impairment and/or mental disorder. The court also noted that he was subject to continuous supervision. It therefore followed, for the purposes of Article 39(2) of the 2016 Law that there was a significant restriction on his liberty.
8. Before the Royal Court, the Minister sought authorisation of the imposition of restrictions on the liberty of the First Respondent for a period of up to twelve months pursuant to Article 57 of the 2016 Law. It was contended that this need arose as a result of the First Respondent being under constant supervision and control and not free to leave his placement. In these circumstances the Minister argued that an Order was necessary under Article 57 as, otherwise, it might be contended that there was a breach of Article 5 of the European Convention on Human Rights (the "ECHR"), part of the domestic law of the Island under the Human Rights (Jersey) Law 2000. Article 5 provides that no one should be deprived of his liberty except in cases stipulated in paragraph 5.1 and in accordance with procedures prescribed by law. For the Minister it was suggested that although none of the exceptions naturally fitted the conditions applicable to the First Respondent, the Royal Court ought to treat the First Respondent as falling within the description of "persons of unsound mind".
9. After a clear and detailed consideration of relevant authorities and the circumstances of the First Respondent, the Royal Court reached the view at [95] that no breach of Article 5 was engaged by the arrangements made for the First Respondent. The court was not authorising restrictions on his liberty but making a decision as to a place of residence in his best interests. Such restrictions as came into force as a result of his being there were as a result of his own personal circumstances and would apply whether he had taken up residence by agreement or through a best interest's decision. Were any restrictions to arise from the actions of the Manager of the care establishment, the 2016 Law provided for processes by which standard authorisations could be granted by the Minister and reviewed. Those provisions were adequate to ensure the ability in the Minister to authorise the taking of relevant steps which might otherwise amount to the imposition of a significant restriction on liberty and, in addition, provide such safeguards and protections for the First Respondent and the parents if the Minister should choose to do so.
10. In this appeal, the Minister no longer contends that an Article 5 issue arises because the lack of freedom arose out of the physical impairment of the First Respondent. The Minister therefore accepts that, in the specific circumstances here, the Royal Court was not required to make an order under Article 57. The Minister contends, however, that an Article 57 order should have been made.
11. The Royal Court then turned to consider the father's application for appointment as a delegate.
12. The court noted that the Minister's position was that there was no need for any health and welfare delegate to be appointed; but there was no objection to the appointment of the father as a property and affairs delegate. References hereafter to "delegate" are to a health and welfare delegate. In proceeding to consider the father's application, the court noted that Article 24(4) of the 2016 Law provided that if the Court resolved to make an Order appointing a delegate, it could do so on such terms as it considered were in the best interests of the individual; and, in particular, had power to make such further Orders or give such directions and confer such powers or impose such duties as the court considered necessary or expedient.
13. The court then considered the father's reasons to be appointed as a delegate and considered the position of the then appointed Independent Capacity Advocate. In the view of the court, at [102], whatever might be the position under the terms of appointment, the status of the Independent Capacity Advocate would not end if the Act of Court appointing the delegate expressly preserved the jurisdiction of the Independent Capacity Advocate to act.
14. In its further reasoning, the court indicated that it saw a number of advantages in the appointment of the father as delegate; that these might be characterised as an advantage in giving a formal status to the parent in consultations by the Minister and in discussions with third parties and that, whilst needing to cooperate with the Minister, the appointment enabled the father to be satisfied that the door was open for discussions.
15. The court then noted certain difficulties which had existed between the parents and the Minister and reached the following views. First, the Independent Capacity Advocate should remain in post notwithstanding the appointment of a delegate. Second, any Order appointing the father as the delegate should contain necessary restrictions and those were identified.
16. For all those reasons the Court indicated that it:
17. The Minister, essentially supported by Advocate Morley-Kirk for the First Respondent, submitted the following grounds:
(1) The Royal Court erred in appointing the Father as health and welfare delegate for the First Respondent without the restrictions it itself had identified as being in the First Respondent's best interests.
(2) The Royal Court erred in law by placing a restriction on the appointment of the Father as delegate that the Independent Capacity Advocate be involved in material matters.
(3) The Royal Court erred in not identifying the test to apply to determine whether a delegate should be appointed at all and/or applied the wrong test of whether there were 'advantages' in appointment.
(4) The Royal Court was wrong not to make an order under Article 57 of the 2016 Law authorising the imposition of a significant restriction on the First Respondent's liberty (alternatively to hold that the Applicant was required to undertake the assessment process for authorisation under Article 48 of the 2016 Law).
18. The Minister accepted that, in making the orders of 3 August 2020, the Royal Court had to exercise its discretion having regard to the best interests of the person lacking capacity. To that end, the decision of this court in United Capital Corporation Limited v Bender [2006 JLR 269] provided the current guidance for the approach of the Appellate Court. We agree. From UCC v Bender at [25] - [26] it is clear that this Court will interfere in the exercise of judicial discretion only in cases where -
(1) There has been misdirection with regard to the principles in accordance with which the direction has to be exercised;
(2) Matters have been taken into account which ought not to have been, or there has been a failure to take into account matters which ought to have been considered;
(3) The decision was plainly wrong, in the sense that no reasonable judge properly directed could reasonably have reached the same decision.
19. As to Ground 1, the Minister observed that at [106] and [107], the Royal Court had identified that restrictions upon the appointment of the father as delegate were necessary but had erred in failing to include those restrictions in the Act giving effect to its judgment. For the Second Respondents, it was disputed that there had been an error of law on the part of the Royal Court in making the appointment without imposing the restrictions which had been identified but proposed that the Schedule could be amended to reflect the intention of the Royal Court at [105] - [107].
20. In our judgment this is an obvious error which could have been corrected without the necessity of an appeal. However, as the matter is before us and as Rule 12(2) of the Court of Appeal (Civil) Rules 1964 empowers us to make any order which ought to have been given or made, we are prepared to correct the Schedule to reflect the intention of the Royal Court. The Second Respondents have proposed revisals which were acceptable to the Minister and the First Respondent subject to one issue.
21. In respect of certain potential decisions open to the father, Advocate Heywood for the father proposed that the wording should provide "He may not, as delegate without having the consent of the Independent Capacity Advocate....." Essentially on behalf of the Independent Capacity Advocate, Advocate Morley-Kirk submitted that this should provide "...may not, as delegate, without considering the views of the Independent Capacity Advocate..." In our judgment Advocate Heywood's proposal is that which is in line with the views of the Royal Court. At [107] the Royal Court stated "The nature of the restrictions will be such that any disagreement between the Minister and the father will be referred forthwith to the Independent Capacity Advocate. If as a result of her engagement the disagreement between the father and the Minister is mediated and resolved, all well and good. If it is not so successful, the matter can be referred to Court for a best interests decision." The effect of those views is to require consent of the Independent Capacity Advocate or a return to court. This does not place the Independent Capacity Advocate in the formal position of an evaluative mediator; but it does allow her a role to discuss issues with the father and the Minister and, if necessary, to refuse consent. This order provides the Independent Capacity Advocate with the power to grant or refuse consent.
22. Turning to Ground 2, as we have already noted the Minister agrees that the 2016 Law allows for the dual appointment of a health and welfare delegate and an Independent Capacity Advocate. Upon that basis, it seems to us that the only issue which arises is as to whether the Royal Court had power to continue the appointment of the ICA in the circumstances which are present. In our judgment it did. The Royal Court noted at [97] that Article 24 of the 2016 Law permitted the court to make an appointment on such terms as it considered to be in the best interests of the relevant individual. In particular, Article 24(5) empowers the court to make such further Orders, give such directions and confer such powers or impose such duties as it considers necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment under Article 24.
23. The issues before the Royal Court, as set out at [104] - [107], cogently identify circumstances, the general nature of which are unlikely to be unique, in which there is considerable sense in having both appointments. Where an Independent Capacity Advocate is already in post and where any potential conflict between the two appointments can be regulated in the terms of the appointment of the health and welfare delegate, there would seem to be no reason in principle why the wide powers of the Royal Court should not encompass the power to confirm that the Independent Capacity Advocate should remain in post notwithstanding the appointment of a delegate.
24. However, the parties before us were in dispute as to whether there would be a power for the Minister to make such an appointment in the circumstances which now exist. For the Minister and the First Respondent it was contended that, absent such a power, the Royal Court could not have continued the appointment. They contended that the appointment must relate to the specific situations set out in Articles 51, 64 and 65 of the 2016 Law. Article 51 dealt with the situation where there was authorisation for a significant restriction on liberty; and here there was none. Article 64 covered proposed serious medical treatment; earlier an issue for the First Respondent but now resolved. Article 65 made provision where there were issues as to the provision or change of accommodation; a matter no longer live.
25. For the Second Respondent, Advocate Heywood pointed to Articles 61 and 63. Article 61 provides:
Thus, Article 61(1)(b) provided a free-standing power to appoint if there was a relevant and applicable function under Article 63.
26. Article 63 provides, among other matters:
27. In Advocate Heywood's submissions, Article 63 was free-standing from Articles 64 and 65. Whilst the latter two Articles made mandatory the appointment of an Independent Capacity Advocate in specified circumstances, Article 61, read with Article 63, granted a discretion, for a wide range of matters. We agree there is nothing in Articles 61 and 63, either specifically or by reference to their underlying nature to require a construction that Article 63 be in some way ancillary to Articles 64 and 65 and their circumstances; a construction which would be somewhat strange given that Article 63 is the first set out. To the contrary, it makes manifest sense for there to be a general power to cover the multitude of circumstances in which it might be beneficial to the individual to have this support. This ground, therefore, is dismissed.
28. Turning to Ground 3, we do not consider there to be any material substance in the contentions for the Minister. At [97], [101] and [110] the Royal Court made it clear that its approach was by reference to the best interests of the First Respondent. What is set out at [103] to [107], whilst open to construction as addressing the issue by reference to advantages to the father or to the parents, is equally open to construction as a discussion of what, ultimately, would be in the best interests of the First Respondent. The conclusion in [107] is instructive in dealing with arrangements for the involvement of the ICA in disagreements between the father and the Minister. The Royal Court said:
29. This seems to make clear that the driving factor for the Royal Court, and accordingly the test being applied, was that of the best interests of the First Respondent. Whilst there were to be advantages for the father, those were in the context of a more formally connected matrix within which the best interests of the First Respondent would be achieved. This ground is therefore dismissed.
30. Turning to Ground 4, as we have already indicated, the arrangements for the First Respondent at the care establishment include continuous supervision of him but, as found by the Royal Court, this did not amount to a significant restriction on his liberty [92]. The Minister contends, however, that the consequence of not making an order under Article 57 is to leave the First Respondent in a position where he is subject to a de facto significant restriction upon his liberty which cannot properly be subject to an authorisation by the Minister.
31. The Minister accepts that Article 57 is permissive and not mandatory and, in addition, that no deprivation of liberty for the purposes of the Law arises because the restrictions which the First Respondent must endure arise because of his personal physical impairment. The Minister suggests, however, that the Article 57(2) conditions are met because the Royal Court should have found that continuous supervision amounted to a significant restriction on liberty. As presented to us, this ground appears to proceed by reference to the first possible argument under UCC v Bender, namely, a misdirection with regard to the principles in accordance with which the direction has to be exercised.
32. The Minister and the First Respondent referred us to the second requirement of Article 57(2), that it is both necessary in the interests of P's health or safety, and in P's best interests, to impose significant restrictions on P's liberty. The general arrangements currently in place for the First Respondent at the care establishment were necessary in the interests of either his health or safety (or both) and in his best interests. The Royal Court had been wrong not to hold that the element of continuous supervision was a significant restriction. On a proper analysis it was and, accordingly, the conditions for authorisation were made out.
33. The Minister made it clear that he was not contending that the First Respondent was being deprived of his liberty for purposes of Article 5 ECHR. However, the construction of Article 39(2)(e), which provides that regular continuous supervision will amount to a significant restriction on liberty, had to be read within the context of English case-law (not binding) relating to Article 5 ECHR. The Royal Court's construction was at odds with certain key cases.
34. First was the decision of the European Court of Human Rights in HL v United Kingdom (2004) 40 EHRR 761. There, the Court had made it clear at [90] that:
35. However, the circumstances set out at [91] show that the circumstances in HL were somewhat different to those of the present. The Court said:
Accordingly, there was complete and effective control as a result of compulsory detention.
36. The second was the decision of the UK Supreme Court in P (by his litigation friend, the Official Solicitor) v Cheshire West and Chester Council and another and P&Q (by their litigation friend, the Official Solicitor) v Surrey County Council [2014] UKSC 19 ("Cheshire West"), a judgment which the Royal Court applied in its own reasoning regarding the position of the First Respondent at [71] - [88]. Advocate Heath for the Minister specifically drew our attention to paragraphs [49] and [50] where Baroness Hale, for the majority, stated:
37. In the first place it may be noteworthy that Baroness Hale specifically identifies the possible situation of a person who might be under constant supervision and control but still be free to leave should he express the desire so to do. As the Royal Court indicated here at [90], it would be wonderful if the First Respondent were to wake up one morning and find that he was able to get out of bed and leave the care establishment. If he did then no one could prevent him from doing so. But the circumstances in Cheshire West were, again, far removed from the present. As is clear from [14], Q -
The position of P was set out at [17]. He -
38. As we have said, such circumstances are far removed from those of the First Respondent and we see no reason not to apply in its ordinary wording the provisions of Article 39 (4) which state:
39. In our judgment this ground of appeal cannot be sustained. Article 57(2) specifically requires that there be a necessity to impose significant restrictions upon the individual. Here, for the reasons set out by the Royal Court, no such imposition is necessary because the restriction in fact arises wholly as a result of the First Respondent's individual physical impairment and not because of the supervision. In these circumstances, the discretionary power did not arise for the Royal Court and it was not merely entirely entitled to proceed as it did but precluded from making an Article 57 order.
40. In all these circumstances, the appeal is dismissed but the Schedule will be amended to the terms set out below.
SCHEDULE
The father is appointed as both health and welfare and property and affairs delegate for the First Respondent ("P") with all the powers of a delegate under the Capacity and Self-Determination (Jersey) Law 2016 save that -
"(a) He may not, as delegate without having the consent of the Independent Capacity Advocate:
(i) Make a decision as to where P should live; and
(ii) Refuse consent to the carrying out or continuation of medical treatment on behalf of P (save for the refusal of life-sustaining treatment in respect of which the delegate has no power to make a decision even with the consent of the ICA).
(b) It is further recorded that the father may not as delegate pursuant to Article 27(2):
(i) Prohibit a named person from having contact with P (including members of staff at [the care establishment] as well as professionals and medical staff that the manager of [the care establishment] decides that it is in P's best interests to have contact with);
(ii) Direct a person providing health care for P to allow a different person to take over that responsibility; and
(ii) Refuse consent to the continuation of life-sustaining treatment.
(c) Without prejudice to all the powers of the Royal Court under Article 24 of the 2016 Law, this appointment shall terminate 18 months from the date of the appointment unless renewed by the court on the application of either the father or the Independent Capacity Advocate.
(d) No transaction in Jersey real estate may take place without the approval of the Court".
