MW, Re [2014] EWCOP B27 (14 October 2014)

1. Deputy District Judge Mainwaring-Taylor :

3. These are the health and welfare proceedings in the Court of Protection concerning MW. They are a continuation of proceedings that started some three years ago, culminating in a final hearing in June 2012.

4. The background facts to the case are that Mrs W was being cared for by her son G, at home, and apparently successfully; cared for, as I recall the evidence of the social worker at the hearing two years ago was perfectly satisfied with the care provided, with the assistance of carers. That is despite GW’s chronic fatigue syndrome which leads him to be what he describes as ‘somewhat of a night owl’. Despite that things had been successful.

5. A point arose at Christmas before the last proceedings when his sister, Mrs D, and her husband visited and Mr W became convinced in his mind that when he and his mother, or his mother first and then he contracted a diarrhoea and sickness bug, that it was a consequence of his sister’s visit and that she had brought the bug and left it behind.

6. Mr W has apparently always been very keen on photography and videoing and, perhaps more latterly, recording, audio recording. And this is something which he had done, sometimes appropriately, and sometimes in ways which many people would think inappropriate, but something his family, again as I recall the oral evidence at the last hearing, had come to live with. But he took it to new heights, or perhaps depths is the correct expression, after that visit by his sister, by videoing his mother in an extremely distressed state. I do not need to go into the detail of it; most of the people in this courtroom today have seen it. It clearly was an extremely inappropriate thing to do, particularly since his mother can be heard objecting.

7. That video he put on YouTube, a private section of YouTube; it came to the attention of his family, they in turn contacted the local authority in this case and steps were taken to investigate and it was determined that Mrs W should be taken to a residential care home. It is quite clear that when that happened Mr W was clearly, because he too was not only debilitated by his chronic fatigue syndrome, but further seriously debilitated by the bug, and he clearly was not in a fit state to care for his mother.

8. My reason for going back to that is to try to bring some insight by Mr W, although perhaps I am being rather too hopeful, into the fact that had he never made that video and placed it on YouTube, the series of events that flowed from it, with two sets of proceedings, would probably never have happened. The reason why this matter is still before the court is a consequence of Mr W’s actions.

9. In the earlier proceedings it was concluded that Mrs W should remain at a care home that she was at. At that time, Mr W said, as he says again today, that his preferred options are firstly for there to be a suitable property purchased for him and his mother to live in and that with social services’ assistance he could care for her at home. His fallback position is that she should be moved to another care home, preferably near to where he lives, because then it makes his life easier. I place the emphasis on the fact that it makes his life easier.

10. The other parties to these proceedings, his sister and aunt and the local authority and, on this occasion as well, the Official Solicitor, who unfortunately was not engaged in the previous hearing, are firmly of the view that Mrs W’s best interests are served by staying where she is and that her best interests were to be served by staying at her previous care home, two years ago. The expert evidence that is before the court, in the shape of the reports firstly of Mr Wall, two years ago and now Mr Fowler, this time, also emphatically say that Mrs W should stay in the care home in which she is, for all the reasons that are set out in those reports and those that are well known to anybody with a practice in this field, that moving people who have dementia is a risky business and clearly should only be undertaken if there are extreme circumstances with very good reasons for doing so.

11. It is unfortunate that, for reasons which are not entirely clear, Mr W was unfortunately unable to engage with the professionals’ meeting, although I am pleased that he did at least have a meeting with Mr Fowler and put further questions which were replied to. It is particularly unfortunate that Mr W failed to engage with Dr Rawlings, who was commissioned to prepare a psychological report on him; it is clear that he did not exactly refuse, but he certainly put enough obstacles in the way to make it completely impractical.

12. The Official Solicitor invites the court to be robust; the issue now is does Mrs W stay at the care home, where she is now well settled, or does she move, as Mr W asks? The short answer to that of course is she stays. But the reason we are in this position again is simply because of Mr W’s actions and his practice of videoing. He is entirely convinced that in all the circumstances he is always right and he produces what he says are justifications. Unfortunately, Mr W’s justifications really centre on his needs, rather than on his mother’s needs. I quite accept and believe that Mr W is entirely genuine in thinking and having a perception that what he is doing and wants is in his mother’s best interests, but, sadly, that is simply not the case.

13. The evidence from the local authority, from the intervention by the accident and emergency staff at a local hospital, care home staff, is all clearly documented and is all clearly clear indication of the ways in which Mr W has tried to do everything he can to get his way. Mr Gatenby, on behalf of the Official Solicitor, talked about tragedy and about the distress that is brought to people through having relatives with dementia and the additional distress and trauma which is brought by court proceedings. It is a very sad state of affairs when there is a divided family, a vulnerable person, and lengthy proceedings. Mr W has criticised the length of time these proceedings have taken; sadly, maybe the final hearing might have been earlier, but it has not, because of the court’s resources, which are limited. One of the reasons, of course, why earlier today I agreed that I would do this matter on the basis of submissions. Had I not done so, there would have been another two or three days of hearing, at great expense to the council taxpayers of the East Riding, and much more significantly it would have been a far greater expense to the estate of Mrs W.

14. Perhaps in his future dealings and thoughts, Mr W might think that, every time he does something which provokes the need for court proceedings, he is directly diminishing his mother’s resources. Because it always seems to get to the stage where the matter has to come before the court and, as soon as that happens, Mrs W needs representation; that representation has to be through the Official Solicitor and it has to be funded. As long as Mrs W has financial resources, it will be she who funds it, rather than the monies being there for her care and comfort.

15. I have already said that of course I have read all the statements that have been filed, I have read the experts’ reports and I have seen, read in most cases, Mr W’s emails and I am entirely satisfied that it is in the best interests of Mrs W that she should remain at her current placement, or such other placement, if this one breaks down which I pray it will not, but equally I am satisfied that the restrictions on Mr W’s contact with his mother are proportionate and are justified in order to preserve Mrs W’s security at the placement. Without those, there would be a significant risk that that placement, too, would break down because of the actions of Mr W, as I am entirely satisfied, as the evidence clearly states, that the previous placement broke down because of his actions.

16. The order will be in the form of the yet further amended order which I think will be, in due course, printed; I understand there are some technical hitches at present. The only issue that I need to determine was in relation to paragraph 15 of the schedule to the order. This concerns the restriction on Mr W of exercising contact when Mrs D has made prior arrangement. That, as drafted, says:

‘Provided such prior arrangements do not cover more than two days in any seven day period.’

17. I am satisfied that that is too restrictive of Mrs D, in terms of the geography of where she lives and her need to travel and I will amend that paragraph so that it reads, ‘do not cover more than four days in any seven’ which still leaves three days out of seven for Mr W to exercise his two days of contact, should he be able to.

End of judgment

We hereby certify that this judgment has been approved by Deputy District Judge Mainwaring-Taylor.

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England and Wales Court of Protection Decisions