The law is open to interpretation

Family Law|August 16th 2016

I suspect that a non-lawyer would imagine that, as there is one ‘set’ of laws that all must follow, all lawyers view those laws in the same, uniform, way. However, one thing I learned when I was practising is that lawyers most certainly do not all view the law in the same way. In fact, there were times when I wondered whether the lawyer on the other side of my case was following the same law as I was.

The fact of the matter is that the law is open to interpretation. Accordingly, one lawyer’s view of the law may differ from another’s view, and thus each may deal with a particular legal issue in a quite different way. This is not a problem, until the lawyer’s view strays too far from the basic ‘intention’ of the law.

Now, I don’t know if the above provides some sort of explanation of the actions of the solicitor deputy in the Court of Protection case Mrs P v Rochdale Borough Council & Another, but certainly there was a worrying issue with the way they conducted their deputyship.

The case concerned Mrs P, a lady who no longer has capacity to make decisions about various matters, having suffered two strokes. Mrs P lives in a nursing home and a solicitor was appointed to be her Deputy for her Property and Affairs. As the District Judge in the case explained, the Deputy for Property and Affairs controls the “purse strings” of the incapacitated person’s finances, authorising the use of those finances for their benefit. In this case, it had been established that a number of Mrs P’s “challenging behaviours” could be improved by increasing the standard and quality of her living arrangements, something that could be funded by her own various resources, by monies theoretically at “her” disposal.

The judgment in the case relates to an application by Mrs P’s ‘Litigation Friend’, the Official Solicitor, for the Deputy to be removed. There were a number of reasons for the application, including the following:

In September 2015 the Court made an order requiring the Deputy to investigate the assets, income and liabilities of Mrs P and report back to the Court.  By March 2016 this had not happened, and the Deputy was ordered to file a statement containing such details as are available regarding Mrs P’s financial affairs, by the 30th of April. At the hearing of the application for the Deputy to be removed the District Judge described the Deputy’s delay in establishing Mrs P’s financial position as “inexplicable”.

Evidence came to light that in October 2015 Mrs P had the sum of £7000 in a bank account. However, a letter from the deputy in July 2016 stated that the account had a nil balance. The court was given no explanation for this. The District Judge said that to describe this as “troubling” would be an understatement. Further, it appears that Mrs P no has no money, her credit card is in the red and no trace has been found of her pension.

Assessments of Mrs P had “made clear that the only living being with whom she shares any love or devotion is her dog, Bobby”. Her social worker advised the court of the importance of her having some form of contact with Bobby, if possible. However, in what the District Judge described as a “brutal and insensitive” response to this, the Deputy dismissed the suggestion, saying simply that “in the absence of any factual information about Bobby, his owner or the home’s policy on animals, it would seem irresponsible in the extreme to suggest that a dog visits a care home for elderly and frail people”.

The Deputy’s attitude towards the solicitor acting on behalf of the Official Solicitor was uncooperative, to say the least. They wrongly suggested that she had no legal standing in the matter and appeared to resent her interference. As the District Judge said: “When enquiries were made of them, they appeared to reject such questioning or consider themselves challenged in some inappropriate way. That is not the case. The questions being put to them were a line of reasonable enquiry by the Litigation Friend as to Mrs P’s best interests.”

Requests were made of the Deputy for money for various things for Mrs P, including gluten-free food, which she requires as a coeliac sufferer, and new clothes, which were needed because she had suffered weight loss. The Deputy did not respond to these requests until chased by the solicitor for the Official Solicitor. Mrs P is still wearing ill-fitting clothes, and is financially unable to attend to her personal needs, such as having her hair and nails done.

Finally, the Deputy did not consider that he was required to attend the hearing of the Official Solicitor’s application. Unsurprisingly, the District Judge seemed to take a dim view of this.

In the circumstances the District Judge was satisfied that the Deputy was not acting in Mrs P’s best interests. He went on: “In fact, it is entirely unclear on what basis they consider the steps they have taken to be in her interests. Their sole focus should and can only be Mrs P, yet they appear to be working against the Litigation Friend and not with them”. He therefore ordered that the Deputy should be removed, saying that:

“The Deputyship cannot continue to operate in “a prism” of its own.”

The full report of the case can be read here.

Photo by Jessie Jacobson via Flickr under a Creative Commons licence

Author: Stowe Family Law

Comments(2)

  1. Andrew says:

    Interesting about the dog.

    The full quotation is “In such a case we would say that possession of Bobby has passed to his new owner . . . in the absence of any factual information about Bobby, his owner or the home’s policy on animals, it would seem irresponsible in the extreme to suggest that a dog visits a care home for elderly and frail people” – you missed off the bit before the ellipsis.
    .
    That must be right. When the owner of a pet goes into residential care the pet must either be put down or given to someone able and willing to look after it. In the latter case it becomes the new owner’s pet and it is preposterous to suggest that she (in this case, she) should be required to bring it to the care home even if the management there will allow it — which they probably won’t. It is no use being sentimental about it.
    .
    My views may be coloured by having once acted for an ex-husband who wanted sale under a Mesher. The time expired when the youngest child did her A-Levels but my client had generously held off while she was at university. His kindness was repaid by his ex getting a dog during the daughter’s last year “because she was lonely without her” and trying to resist the sale because her share would not buy her a house with a garden; she would have to buy a small flat where she could not keep Fido.
    .
    Fortunately the District Judge took an unsentimental view of it and told her that she would have to have the dog rehomed or put down at her option!

  2. mike clarke says:

    I too am suffering similar fates at the hands of the official solicitor

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