As demonstrated by the shocking but misleading headlines of the last few days, the Court of Protection regularly gets a bad press. It does, however, have to deal with some of the most difficult matters ever to go before the courts.
Take, for example, the recent case RGB v Cwm Taf Health Board & Others, in which a husband was excluded from the life and care of his wife, who is suffering from Alzheimer’s disease.
The husband and the wife married in 1994. The wife is now aged 70 and the husband 66. They had both been married before and the wife has two children by her first marriage.
In 2007 the wife was diagnosed with Alzheimer’s. Initially, the husband looked after her, although for the first few years it appears she needed little or no special care, as in September 2010 she was still able to drive.
In November 2010 the wife left the matrimonial home, to go to live with her son. The police were involved and the husband alleged that she had been kidnapped by her children. On the following day the wife was interviewed by two social workers, who concluded that she had capacity to decide where she wanted to live.
It was at this point that the Court of Protection became involved. In January 2011 a consultant in the psychiatry of old age reported that the wife had told him that the husband had been “horrible” to her family and that she wanted to get out of the marriage.
In March 2011 the wife issued divorce proceedings. These were defended by the husband, who maintained that the marriage had not irretrievably broken down and claimed that the children had conspired to end the marriage.
Critically, as it would turn out, in December 2011 an ‘advance statement’ of the wife’s wishes was prepared by a social worker. In it, the wife said that if she should become unwell she did not want her husband contacted at all and that if she should be discharged from hospital she would not want to return to live with him.
The wife’s condition deteriorated and she was admitted to hospital in June 2012, and has remained there ever since. The husband did visit her once in August 2012, but after that the hospital prevented him from seeing her, on the basis that when she had capacity she had expressed the wish not to see him, and any further visits might be distressing for her.
In September 2012 the court stopped the divorce proceedings, on the basis that the wife no longer had capacity to deal with them, and in December a psychiatrist assessed her as lacking capacity as to any aspect of her care or circumstances. Accordingly, the Court of Protection had jurisdiction to deal with her welfare.
Unhappy with being ‘shut out’ of his wife’s life in this way, in March this year the husband issued proceedings seeking declarations against the Health Board that he had been denied the right to family life and that he should be afforded access to her. He claimed that she had never really wanted to leave him and that she had been unduly influenced by the children.
The Health Board defended the proceedings, claiming that it was acting on the basis of the wife’s wishes expressed when she had capacity, or that it was acting in accordance with her best interests, given her wishes.
The matter was dealt with by Mr Justice Moor. He examined all of the evidence and found that this overwhelmingly supported the view that the wife genuinely did not want anything more to do with the husband and had not been subject to undue influence. The evidence included statements from social workers, the psychiatrist, medical staff, the son and a friend.
In particular, Mr Justice Moor was satisfied that the wife had capacity to set out her wishes in the advance statement in December 2011. The court should therefore recognise those wishes unless there was some ‘extremely compelling reason’ to go against them, which there was not.
Accordingly, the husband was not entitled to the declarations that he sought.
John Bolch is a family law commentator