The Court of Protection (CoP) used its inherent jurisdiction to conclude that an elderly lady was subject to undue influence by her daughter.
Background:
CA, a 79-year-old woman, was diagnosed in 2021 with a neurodegenerative disorder, although she might have been misdiagnosed. Her daughter, DA, held the property, affairs and health and welfare lasting powers of attorney (LPAs) for CA.
In February 2023, CA was admitted to hospital with a chest infection and subsequently discharged in May 2023. From the 23rd of October 2023, a care plan was put in place and CA has since lived in her home with 24-hour assistance.
The relationship between CA and DA has been tumultuous with numerous complaints spanning several years made by professionals of DA’s treatment of her mother. Many allegations, including verbal aggression and force-feeding, have been substantiated by hospital staff and carers. Norfolk County Council also consider CA to be vulnerable and subject to coercive control by DA – at least with regard to some aspects of her life.
Decision:
Mrs. Justice Arbuthnot first made findings about the allegations which she found to have been proven. She noted that “DA still thought of her mother as she was when she had all of her faculties and her strength intact. She had not adapted her approach to her mother.” She then turned to CA's capacity and best interests, ruling that CA lacked the capacity to manage her affairs and make care decisions due to memory issues, yet retained sufficient capacity regarding contact with others and making or revoking her health and welfare LPA.
The Court ordered supervised contact between CA and DA or EA, CA's ex-husband, and imposed conditions on DA's powers to protect CA. The LPA for health and welfare remained in force, but DA's powers as attorney were circumscribed by injunctive relief with 11 conditions to ensure CA's protection. This was also due to the fact that Court qualified the relationship as undue influence.
Finally, the Court considered whether contact restrictions could be authorised under the inherent jurisdiction of the Court. She imposed a supervised framework, meaning that all contact between CA, DA and EA would be supervised. CA’s social workers’ graph showed a decline in the number of ‘incidents’ since the daughter’s visits had been supervised, and this weighed in the Judge’s decision.
Similarly, despite the Judge acknowledging that DA – who had recently been diagnosed with a serious medical condition – might want to discuss this privately with her mother, the Court was convinced that private phone calls could be used to pressurise her mother.
The judgement sets out plans for three further hearings. Moreover, the Judge directed “the parties to jointly instruct an independent psychological expert to consider the family relationships and how they can be managed so that CA remains safe when she sees her family. It may then be possible for unsupervised contact to take place.”
Implications:
This case demonstrates the extent of the Courts’ powers. This is a rather long judgement with a detailed analysis of the various allegations. The Court was careful before concluding that there was undue influence on the daughter’s side. Due to this finding, the Judge was obliged to circumscribe the LPA.
This case is also a good example of the concurrent use of the Mental Capacity Act 2005 and the Inherent Jurisdiction of the High Court to ensure the highest level of protection.