On 14 February 2017, the Daily Mail reported on developments in a Court of Protection case that it has been following for some time:

“an astonishing story that has come to represent all that is wrong with Britain’s shadowy Court of Protection.” 

The story is that of Teresa Kirk (“Mrs Kirk”), the 71 year old grandmother “jailed by a secret court” because she refused to comply with the court’s order to return her elderly and mentally incapacitated brother, Manuel Martins (“Mr Martins”), to England from a care home in Portugal in which she had placed him in August 2015. Mr Martins died in early February 2017.  Before his death he was identified in published judgments only as “MM” and the relationship between him and his sister was not publicly explained. Following his death, reporting restrictions on the case have been lifted.  A fuller and clearer story of the case has now emerged than has been reflected in media coverage of the case to date.

The Transparency Project has also followed this case, and has posted commentary on previously-published judgments and the media reporting of the case:

On October 15 2016.

On October 21 2016.

On November 13 2016.

On December 7 2016.

On January 31 2017.

What are the facts and history of the case as they now appear from all the judgments which have been published?  I have put together a timeline, with links to the series of published judgments in 2016 and 2017 (separate pdf document as too bulky to include here).

I have not been professionally involved in the case at all, or discussed it with any of the professionals who were involved, so everything in this article is taken from material which is in the public domain, and from my knowledge of the law.  But there is no substitute for reading the judgments themselves, and it isn’t particularly daunting to do so, as they mostly consist of narrative and discussion of facts which are not difficult to follow, rather than long technical analyses of law and procedure.

 

Overview of the courts and decisions involved

A number of different judges have heard and made rulings in the case, which started in September 2014 and ended in February 2017, but there have only been two courts involved: the Court of Protection and the Court of Appeal.

The Court of Protection – best interests decisions and publication of judgments

The Court of Protection was created in its present form by the Mental Capacity Act 2005 and has power to make decisions on behalf of adults who lack mental capacity to make decisions for themselves.  Like Mr Martins, many adults about whom the Court makes decisions are people who have led full and independent lives, but suffer from dementia or other illnesses which progressively deprive them of their mental capacity in old age.

Whenever the Court makes a decision, it must do so in the best interests of the person concerned.  There is no legal definition of what are “best interests”.  The judge has to make a value judgment in each case[1], weighing up the evidence and taking account of aspects of best interests which are set out in s4 of the Mental Capacity Act 2005[2].   In the Court of Protection some decisions are made by specialist judges and district judges of the Court, and others by circuit judges and judges of the Family Division and Chancery Division of the High Court who have been nominated to decide Court of Protection cases.

At the heart of this case is the decision of a High Court judge (Mr Justice Baker) in the Court of Protection in June 2016.  He decided that it was in Mr Martins’ best interests not to remain in the care home in Portugal where Mrs Kirk had placed him in August 2015, but that he should return to England and be placed in a care home in Sidmouth, Devon, the seaside town where he had lived and worked and had a circle of friends for decades of his life.  The judgment which sets out the background and evidence and explains why the judge made this decision was only published in February 2017.  If it had been published earlier, the background to Mrs Kirk’s imprisonment for contempt of court would have been much more widely known and understood.  See the Transparency Project post after Mrs Kirk was freed on appeal, commenting on this then-unpublished judgment:

“the June 2016 Baker J judgment that is still under appeal has still not been published (the reason for this is not given in the judgment, but it seems likely it might be because a search is still on for a possible subsidiary judgment relating to the question of whether or not the court should seek to achieve the desired result by forcing Mrs Kirk to act against her conscience at risk of imprisonment, and whether there was any alternative route (although we don’t think this would be a very good reason for the existing transcript not to be published). This is particularly so since we have been contacted separately by two “camps” associated with M or his family, asserting variously that the Court of Protection has got it terribly wrong (as have we), and that a great injustice has been done to Mrs Kirk, or that the Court of Protection was absolutely right to try and achieve M’s return, that the public doesn’t yet know the half of it and that the reporting of the case in the mainstream press has been a travesty (we paraphrase). Of course we can’t say which of those perspectives is right without the Baker J judgment or indeed the appellate decision on it, and we don’t think it would be appropriate to publish the details of the unsolicited comments we have received, we do think it worth noting that there are evidently opposing but genuinely held views on what is right by M, and how the Court of Protection ought to be exercising its responsibility towards him, although one would not know that from the press coverage of the case.”

Why was the June 2016 judgment not published earlier?

As a rule, following practice guidance which came into force in February 2014, a Court of Protection judgment delivered by a High Court judge, which includes an application for an order that an incapacitated adult should be moved into or out of a residential establishment or other institution, and where a written judgment exists in a publishable form or the judge has ordered it to be transcribed, should ordinarily be published “unless there are compelling reasons why [it] should not be published”. The hearing also took place after the beginning of the Court of Protection transparency pilot in January 2016, under which hearings are ordinarily open to the public and the media, but with restrictions on identifying the incapacitated adult concerned and publishing information about their or family members’ identity. It isn’t clear whether this hearing was open to the public, but if it was, even without specific reporting restrictions, no-one attending would have been permitted to identify Mr Martins or Mrs Kirk. It is clear from the final order in the case[3] which directs this judgment to be made public as from 13 February 2017 that there were reporting restrictions in place in Mr Martins’ lifetime which did prevent publication of this judgment then, but no judgment explaining the reason for these has been published. This is a missing piece of the jigsaw which it would be helpful to see and understand. The reporting restrictions were not observed outside England, as articles identifying Mr Martins and Mrs Kirk, with photographs of them in Portugal, were published on an English-language news site in Portugal during the autumn of 2016.

The Court of Protection – enforcement of its orders

The Court of Protection has the same powers as the High Court to enforce its own orders against people who disobey them.  One of these powers is the power to fine or imprison someone for contempt of court.  Contempt of court, which includes disobeying a court order made by a civil court, is a defiance of the rule of law, which is why it can have such serious consequences.  References to “committal” in the judgments are to the application to the court to use these powers of punishment for contempt of court.  A litigant can apply for committal of someone who has disobeyed the court’s order if the order has been endorsed with a “penal notice” spelling out the threat of imprisonment.  Committal hearings are always held in public and judgments published – as the Transparency Project has emphasised in its previous posts on the case.  The committal proceedings here were long drawn-out, as the Court hoped that Mrs Kirk would comply with an order it first made in June 2015 to return her brother to England, but the committal proceedings in relation to that order were inconclusive, and she was eventually – and with great reluctance expressed by the judge – sentenced at a hearing, at which she was legally represented, to six months in prison in August 2016 for breach of an order made in June 2016, actually imprisoned in September 2016 and then freed on appeal in November 2016.

The Court of Appeal

The Court of Appeal has dealt with two appeals from the Court of Protection in this case: a successful appeal in November 2016 against Mrs Kirk’s imprisonment for contempt of court, discussed by the Transparency Project here, and an appeal in January 2017 against the orders that Mrs Kirk had to comply with following the decision that it was in Mr Martins’ best interests to return from Portugal to a care home in Sidmouth.  This appeal was effectively a compromise between Devon County Council, Mrs Kirk, and the Official Solicitor who acted as Mr Martins’ litigation friend, and was discussed in detail by the Transparency Project here.

 

The June 2016 best interests decision about where Mr Martins was to live

The judgment can be found here : Devon County Council v. Martins [2016] EWCOP 45.

In its most recent article the Daily Mail described Mrs Kirk as having been punished for

“defying British social workers who had decreed that her brother, who had dementia, must spend his twilight years in a Devon care home rather than the Portuguese idyll that she wanted for him in the country of his birth.”

This description completely omits the fact that it was the Court and not social workers who made the decision about where Mr Martins should live, and that the Court weighed up the advantages and disadvantages of the “Portuguese idyll” and the Devon care home carefully and in accordance with the law.  The Court does not simply make an order agreeing with or rubber-stamping a proposal which “the State deems is in their ‘best interests’” as the Daily Mail describes it.  Mrs Kirk filed evidence in support of her position, and appeared at the hearing, although she wasn’t legally represented.  The article only mentions in passing that the social workers argued that Mr Martins would be happier in the UK “staying close to old friends” and the fact that he had a cat there.  It says nothing about the full range and depth of the social workers’ – and the old friends’ – evidence, or about events that led up to Mr Martins being taken to Portugal – which was not the country of his birth, or a country where he had ever lived – and placed in the care home there.

Colin Challenger, the barrister who represented Mrs Kirk in her successful appeal against imprisonment is quoted in the Daily Mail’s 14 February article as saying “When Manuel had incipient dementia and was increasingly unable to look after himself at his derelict house in Devon, she stepped in to help him as a good sister and found the perfect care home in the Algarve.”  But this is how the judge in June 2016 described what led up to Mr Martins being taken to Portugal in April 2015 and placed in a care home there later that year (my emphasis):

5. In 2014, Mr Martins disclosed to one of his carers that Mrs Kirk intended to take him on holiday to Madeira to see his other sister, who lives on that island. … A capacity assessment was undertaken by the social worker then involved in the case dated 12 June 2014 and concluded that he had the capacity to make a decision about whether to go on holiday. At the same time, his wishes and feelings about that issue were recorded and he made it clear that he did wish to go on holiday with Mrs Kirk, but was also clear in stating that he wanted to return home to Sidmouth to be back with his cat.

6. In the event, Mrs Kirk took Mr Martins away from his Sidmouth home without, it seems, giving notice to anybody. It was not for several weeks that social services were notified that he was in fact living at Mrs Kirk’s address, following an intervention by the police. Mrs Kirk then informed the local authority that she would be taking Mr Martins on holiday, would be returning him no later than 8 July, and would be away for three weeks. However, concern was raised because the neighbours observed items of property being removed from Mr Martins’ home, including furniture and possessions. As a result, the local authority made contact with the police. It then emerged that Mr Martins’ house was up for auction. A request made by the local authority to the auctioneer to remove the property from the sale was refused. That left the local authority with no alternative but to start proceedings in the Court of Protection. On 9 September 2014, an injunction was obtained against the auction house barring them from selling the property.

7. As Mr Martins’ house had been cleared, it was agreed that he should remain living with Mrs Kirk for the time being, until the next court hearing. A further mental capacity assessment was then conducted and concluded that he lacked capacity in all regards, including the ability to manage his property and affairs. This led to a full application being made to the Court of Protection for the revocation of Mrs Kirk’s appointment as his attorney. Mr Martins remained living with Mrs Kirk in her home notwithstanding the concerns raised by the local authority.

8. By a court order of 16 March 2015, a district judge ordered a mental capacity assessment to include an assessment as to his capacity to consent to travelling to Madeira on holiday at the end of March 2015, as was now proposed. The assessment was carried out by a consultant psychiatrist specialising in old age who confirmed that Mr Martins suffered from at least moderately severe dementia and that, on the balance of probabilities, he lacked capacity to manage his financial affairs, or the capacity to make decisions about where he should live or as to the arrangements for his care or contact with others. The report also concluded that he lacked capacity to make the decision as to whether to go on a short holiday to Madeira. The assessment concluded:

“Mr Martins is in my view vulnerable to influence. He has a very significant cognitive impairment, communication difficulties and is dependent on others for his care needs. There are concerns that Mrs Kirk is adversely influencing Mr Martins against his best interests. If this were the conclusion of the court, then it may be that he would need to live away from Mrs Kirk and without regular visits from her in order that his views, without that influence, could be determined.”

9. The psychiatrist was asked as to whether it was in his interests to go on holiday to Madeira. He took into account the fact that he had been born on that island, that he had family members still living there, including another sister, that there seemed to be no medical reasons why he should not go and that he managed a trip to Portugal in the previous year without any adverse consequences. The doctor therefore concluded that it was in Mr Martins’ best interests to go on this holiday to Madeira with Mrs Kirk.
10. The court also ordered an independent social work report, which was produced on 20 April 2015. She concluded that it was not in Mr Martins’ best interests to remain living with Mrs Kirk but, rather, that it was in his best interests to return to live in the Sidmouth area, where he had lived for the previous 50 years and had, as the social worker found, a large circle of friends built up over many years. The independent social worker observed:

“As Mr Martins’ dementia progresses and his memory deteriorates, he will benefit more and more from being in the environment he has lived in for the majority of his adult life and having contact with people his past. If Mr Martins’ returns to live in Sidmouth, it is my opinion that he will benefit from having significantly more terms of reference than in the place where Mrs Kirk lives and, as his memory worsens, these will become increasingly important to ensure his emotional wellbeing. I recognise that a further move at this stage in Mr Martins’ life is not ideal. However, I am not aware of any reason why this should not take place.”

In view of the uncertainties as to Mr Martins’ property, the independent social worker recommended that he be provided with a period of rehabilitation in residential care, pending a decision as to whether or not it was feasible for him to return home, given the practical difficulties and also his particular needs.

11. Following the production of this assessment report, the matter was due to return to court on 30 April 2015. However, on the morning of the hearing before the district judge, it emerged that Mrs Kirk had in fact taken Mr Martins out of the jurisdiction without notice to any professionals in the case. It is recorded that she had informed her solicitor that she was unhappy with the recommendations of the independent social worker. It is important to note that these travel arrangements were made without notice to the Official Solicitor, the local authority or the court and certainly without the permission of the court then entrusted with the decision-making responsibilities in respect of Mr Martins.”

Throughout the summer and early autumn of 2015 the Court made attempts to make Mrs Kirk return Mr Martins to England, but

“Mrs Kirk failed to facilitate the return of Mr Martins to this country. Instead, she arranged for Mr Martins to be placed in a residential care home in Portugal” (paragraph 15)

 

This was the care home where in the event he lived for the rest of his life.  Despite Mrs Kirk’s “flagrant breaches” of at least two court orders, in January 2016 Mr Justice Baker ordered a further assessment of whether it was in Mr Martins’ best interests to remain in Portugal or return to England, and directed the hearing which took place in June 2016.  He said that this issue “was a simple but important one” and that he had “all those [best interests having regard to s4 Mental Capacity Act] principles firmly in mind when making this decision”.

The key elements in the evidence which led to his decision included:

• The report and assessment prepared by Devon’s complex care team practice manager (“NS”) and community matron for Devon (“SP”), who visited the care home in Portugal in April 2015 and talked to Mr Martins and to staff there.  The two visitors reported that the staff were kind but “appeared to have no awareness or understanding of Mr Martins’ history and life before he arrived [at the care home]” and “they showed limited insight into the importance of encouraging reminiscence and memory in order to maintain a sense of emotional wellbeing” and lacked “the necessary knowledge or experience to recognise the importance of ensuring that he was able to maintain important links with the person that he once was”.
• The evidence of past wishes and feelings of Mr Martins himself, who in 2014 had been very clear in saying that although he wished to go on holiday to Portugal, he wanted to return home to Sidmouth. Mr Martins’ ex-wife told one of the assessors that Mr Martins was devoted to his cat, Tuna, “and would never have made the decision to move away or be parted from the cat”. Evidence of past wishes and feelings and of what is known or might be inferred about present wishes and feelings plays a very important part in all best interests decisions.  This was vividly illustrated in the recent case of Paul Briggs, a man in a minimally conscious state whose wife, Lindsey Briggs, gave persuasive evidence of his wish not to be kept alive in that state[4]. The judgment gives an impression of Mr Martins’ more recent wishes and feelings in describing his “visibly pleased” and “quite overwhelmed” reaction to presents and pictures brought from friends in Sidmouth, including a picture of his cat, which prompted him to become “a little tearful”. There is no record in the judgment of him articulating any views about a preference to be in Portugal or in Sidmouth – unsurprisingly, perhaps, in view of the cognitive impairment and communication difficulties the psychiatrist in England had found. But published interviews with Mrs Kirk record her as saying that he did not agree with the Court’s orders[5] and she is also reported to have sent an email to the Portuguese embassy in August 2016 stating that “Manuel has said to me on several occasions that he does not want to return to the UK”[6]
• The evidence of the views of friends and family members interested in Mr Martins’ welfare.  The “preponderance of view clearly expressed by Mr Martins’ family and friends, except for Mrs Kirk, was that he should return to Sidmouth.”  The judge said that he was struck by what one couple said:

“Mr Martins has been for many years a recognised figure of the town and we had quite taken it for granted that he would continue living in Sidmouth with his cat, perhaps eventually moving into an immediately local care home where his many Sidmouth friends and acquaintances will be able to visit him in his declining years”.

• The judge summarised Mrs Kirk’s opposition to the move from Portugal as follows:

33. Mrs Kirk feels very strongly that Mr Martins would be better off remaining in S House in Portugal. She believes that it would cause him distress and harm to be uprooted from that environment and brought back to this country. She says he is settled and happy there and is well cared for by kind and considerate staff. Although he has not lived in Portugal before, he was born and brought up in Madeira and speaks Portuguese as well as English. The staff at [the care home in Portugal] speak Portuguese and some of them speak English. Mrs Kirk therefore feels that it would be to Mr Martins’ advantage to be cared for by people who share the same languages as he. In contrast, she is critical about the care offered at [the care home] in England. She notes that, for some years, it was the subject of criticism by regulatory authorities. On this point, NS assures the court that [the care home] is now regarded as of a high standard, under new management and has been passed appropriately by the CQC. NS herself has arranged for other adults to be placed in [the care home] and has no concerns about the prospect of Mr Martins moving to that accommodation. Mrs Kirk does not share that view and she is also critical of the staff at [the Sidmouth care home], although she has not visited that property. She suggests that a number of the staff at least will be from Eastern Europe and, unlike those at [the care home in Portugal], would not share the same linguistic skills or languages as Mr Martins.

34. Mrs Kirk does not believe that the fact that Mr Martins has had friends in the Sidmouth area should be a significant factor in the decision that the court has to make. She believes that the various people identified in NS’s report are acquaintances rather than close friends and that Mr Martins’ relationship with them is not a crucial factor. She believes that the deterioration in his mental state means that he is no longer able to recognise people to the extent that he was before. In any event, Mrs Kirk says there is no reason why friends from Sidmouth should not go out to visit him in Portugal. She is particularly critical, as I have already said, of Mr Martins’ friend JF who she believes to have become obsessed with Mr Martins and who she describes as having stalked Mr Martins for many years. Mrs Kirk believes that the social workers and other family members and friends who all support Mr Martins’ return to the UK are doing so under the influence of the views expressed by JF. Of the other family members, she does not believe that any of them have a relationship that is as close or significant to Mr Martins as hers. If Mr Martins remains in Portugal, she will spend more time in that country herself so that he will have regular contact with her. In short, she does not accept that Mr Martins’ links with Sidmouth are of such a strength to be a decisive factor in the decision that this court has to make, even though he has lived there for 50 years. She says that he has no interest in visiting the hotel where he worked for many years. She accepts that he is fond of his cat, but points out that the cat is now 15 years old and therefore unlikely to be a feature in Mr Martins’ life for very much longer. She summed up her case by saying that, if Mr Martins were returned to this country, he would be devastated. She contends that NS’s report is a false account of what happened during the visit to Portugal.

The judge then reviewed a summary of the advantages and disadvantages of each option prepared by the barrister acting for the Official Solicitor, which he accepted as accurate, and concluded

40. Of particular importance, it seems to me, is that [the Official Solicitor’s summary] identifies a number of positive features of Mr Martins’ life in Sidmouth which he would be able to enjoy again, should he return to this country. Mrs Kirk does not agree that these factors carry weight, but I find that they do. I prefer and accept the evidence of NS and the assessment she has carried out in that regard. I also accept the analysis of NS and SP as to the comparison between the two environments in [Portuguese care home] and [Sidmouth care home] respectively. I accept in particular that the environment in [Sidmouth] appears to offer a type of care better attuned to the needs of persons suffering from dementia, in particular providing an emotionally warm environment which contrasts with the clinical environment of [Portugal], as described by NS and SP.

41. In reaching that view, I stress I am not in any way criticising those who run [care home in Portugal] which, on any view, is a professional establishment. It is certainly not for this court to criticise the social care arrangements that arise in other countries. It is however my responsibility to decide what option meets the best interests of M. I consider the environment offered by [Sidmouth] to be better attuned to his particular types of problems. I accept that the environment at [Sidmouth] is better attuned to his particular needs. I accept that a move back to this country will cause disruption but this disadvantage is, in my judgment, outweighed by the advantages identified above.

42. I take into consideration all the matters required of me under s.4 of the Mental Capacity Act in assessing where Mr Martins’ best interests lie. I conclude that the balance plainly comes down in favour of a return to this country and a placement at [Sidmouth]. The advantages identified by the local authority and the Official Solicitor in their analyses, which I accept, manifestly outweigh the disadvantages.

43. I shall therefore make whatever order is required to facilitate the speedy return of Mr Martins to this jurisdiction.

Mrs Kirk was eventually sent to prison for failing to comply with the order made following this judgment, which required her to authorise a discharge from the care home in Portugal and which was intended to facilitate Mr Martins’ return to England.

 

The committal for contempt of court, imprisonment and the failure of the system

These earlier judgments are discussed in the earlier posts linked above.  The most important points that come out of them are:

• When the Court of Appeal ruled that Mrs Kirk should not have been imprisoned for contempt of court, Lord Justice Munby, the President of the Family Division said that Mrs Kirk “had been failed by the system”.  In his judgment, he explained that this system failure related particularly to the period after 18 August 2016, the date of the contempt judgment.  He was critical of (1) the delay in obtaining a transcript of the June 2016 judgment, (2) the penal system which allowed Mrs Kirk to “languish” in prison for seven weeks without access to legal representation, and (3) the fact that, following ministerial revocation of a Lord Chancellor’s Direction in 2012, the Official Solicitor no longer had the duty of reviewing and reporting regularly on the cases of people sent to prison for contempt of court.  But the Court of Appeal did not criticise the substance of the decision made by the Court of Protection in June 2016 that Mr Martins should return to England, and it did not permit Mrs Kirk to pursue an appeal against this decision.  The Court of Appeal only gave Mrs Kirk permission to appeal against the orders made specifically against her in relation to facilitating her brother’s return to England.
• The Court of Appeal’s decision on the sentence of imprisonment for contempt may well make it less likely that relatives of people who lack capacity and who are involved in Court of Protection litigation will be sent to prison for contempt of court in the future.  The appeal was allowed on the narrow ground that committal should not have proceeded whilst she had an outstanding appeal against the underlying order itself.  But the judgment raises a question as to whether it could ever be right to make an order in a person’s best interests which put  someone genuinely concerned with that person’s welfare, at risk of a prison sentence.  As Lord Justice McFarlane put it when discussing permission to appeal the June 2016 judgment:

“In short terms, that question might be ‘is the move to Devon still in MM’s best interests if it may only be achieved by sending to prison someone whose interests he could be expected to have at heart, had he the capacity?”

This and the eventual outcome of the appeal suggest that the Court of Protection may in future ask itself this question before making  orders for compulsory compliance ancillary to best interests decisions and directed to people in a similar position to Mrs Kirk.

 

The most recent reported developments

The January Court of Appeal judgment envisaged that there would be a further Court of Protection hearing to deal with Mr Martins’ welfare and property and affairs in the light of the changed position it was asked to accept.  This hearing will not now take place.  The jurisdiction of the Court of Protection ends with Mr Martins’ death, although the Court can deal with any outstanding issues of litigation costs or other steps necessary to bring a case to an end.

Mrs Kirk’s barrister, Colin Challenger, has provided Mental Health Law Online with a copy of the final order in the case. This shows that there are still outstanding questions which either Devon County Council or Mrs Kirk may pursue in relation to their respective costs, but that Mr Martins’ own costs (of representation by the Official Solicitor) will be paid out his estate.  Mrs Kirk has also said in media interviews that she intends to seek compensation for her imprisonment[7].

 

How the media have told the story

The story as told by the Daily Mail and other publications, which appears to be based directly on interviews with Mrs Kirk herself, is one of appealing heroism, with Mrs Kirk appearing as the “village Hampden” [8] standing up to “the little tyrant” of social services and what the Daily Mail describes as the “shadowy Court” and entirely vindicated in her appeal against imprisonment.  Vehement and mostly anonymous public opinion as expressed in online comments on the Daily Mail’s story and other social media strongly supports this editorial line.  Other members of Mr Martins’ family, and his friends in Sidmouth, however, have chosen not to make their views public outside the courtroom.  And in general there is little positive and much negative to say about the history of the case as a whole: the Court made a best interests order in June 2016 which was not complied with, Mrs Kirk had the very unpleasant experience of an imprisonment which should not have been ordered, and no doubt large costs have been spent on legal representation – out of Mr Martins’ estate and/or by the council tax payers of Devon – to little ultimate effect.   But this is not what the Daily Mail means when it says that the case represents “all that is wrong” with the Court of Protection, as its editorial line appears to be that the Court has been an instrument of injustice in all the orders that it has made.

As a more neutral account of the history shows, the case is not just about Mrs Kirk’s imprisonment and successful appeal against that. It is also an illustration of the Court making a best interests decision for a man who could not do so for himself, and that decision being pre-empted and undermined by the “obduracy” of a woman who believed that hers and not the court’s decision was in her brother’s best interests, and who acted on that belief by taking him away from a long-standing home, then taking him abroad before the Court made its decision and refusing to return him afterwards. It’s true that Mrs Kirk had lasting powers of attorney for Mr Martins which allowed her to make decisions about where he should live, and about his property and finances.  However, she wasn’t the sole attorney (the published judgments don’t make it clear whether she and the other attorney had to make joint decisions or not).  Also, powers of attorney aren’t unlimited, and a decision of the Court of Protection can override the decision of an attorney.  In April 2015, when Mrs Kirk took her brother to Portugal, there was a pending application to the Court of Protection to revoke her power of attorney.  It also looks as if the Court was preparing to make a decision itself about where he should live, as it had directed capacity assessments and an independent social workers’ report and listed a hearing of the issue of where he was to live, which was then overtaken by the attempt to order Mr Martins’ return to England.  It’s quite likely that in or after September 2014 the Court had suspended Mrs Kirk’s powers of attorney pending a final decision about revocation and about where he should live, and without power of attorney she had no right to make decisions for Mr Martins that he could not take for himself.

If the personal story is put to one side, and the question asked in the abstract: “if you could not make an important decision for yourself, would you prefer the decision to be made by:

• someone who was related to you or knew you, who had their own personal interest in the outcome of the decision and did and said only what they thought was right, and who was even prepared to disobey a court order to do so, or
• by an impartial judge who listens to and weighs up all the evidence and applies the law?” the answer might well be rather different.

And a greater number of better-informed people might well disagree with the Daily Mail’s sweeping condemnation of the Court of Protection and “all that is wrong” with it.

 

[1]                 See Re P [2009] EWCOP 163, Mr Justice Lewison, in one of the very first cases to consider best interests decision-making by the Court under the Mental Capacity Act 2005

[2]

4.  Best interests

(1)             In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—

(a)             the person’s age or appearance, or

(b)             a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)             The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)             He must consider—

(a)             whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)             if it appears likely that he will, when that is likely to be.

(4)             He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)             Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)             He must consider, so far as is reasonably ascertainable—

(a)             the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)             the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)              the other factors that he would be likely to consider if he were able to do so.

(7)             He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)             anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)              anyone engaged in caring for the person or interested in his welfare,

(c)             any donee of a lasting power of attorney granted by the person, and

(d)             any deputy appointed for the person by the court,

as to what would be in the person’s best interests and, in particular, as to the matters mentioned in subsection (6).

[3]           http://www.mentalhealthlaw.co.uk/media/Consent_order_-_Devon_County_Council_v_Manuel_Martins_and_Teresa_Kirk_%282016%29_EWCOP_45%2C_%282016%29_MHLO_60.pdf

[4]           http://www.bailii.org/ew/cases/EWCOP/2016/53.html

[5]           http://portugalresident.com/portuguese-grandmother-%E2%80%9Cjailed%E2%80%9D-by-secret-british-court-faces-new-battle

[6]           http://portugalresident.com/portuguese-grandmother-jailed-by-secret-british-courts-has-%E2%80%9Cdone-nothing-wrong%E2%80%9D-says-ex

[7]           http://portugalresident.com/portuguese-grandmother-%E2%80%9Cjailed%E2%80%9D-by-secret-british-court-faces-new-battle

[8]                 “Some village Hampden, that with dauntless breast/The little tyrant of his fields withstood” – Gray’s Elegy Written in a Country Churchyard, referring to John Hampden, MP at the time of the English civil war who challenged the authority of King Charles I

 

 

Feature pic : courtesy of Melanie Innis on Flickr – thanks!