Bagguley v E [2019] EWCOP 49

WTLR Issue: Spring 2020

RICHARD JAMES BAGGULEY

V

E (By his litigation friend the Official Solicitor)

Analysis

The claimant was the Property and Affairs Deputy for the defendant (E). The claimant applied for authority for buccal cell samples to be taken from E for the purposes of DNA testing to establish whether E was the father of three adults (D, P, and A).

E was expected to die within the year though his health was not currently critical ([28]). The procedure for collecting the sample was probably no more intrusive than assisting E to clean his teeth.

Earlier DNA tests were undertaken on E’s instructions in 1991. They indicated a 99.9% probability of paternity, provided no close relative of E’s was a possible father. In 2012, E’s former deputy initiated inter-sibling tests (without E’s participation). These indicated that two were full siblings, that the relationship between one of them and the third was inconclusive, and that the data on the relationship between the other and the third sibling was much more likely if they were half rather than full siblings. There were, however, potential explanations for the results which were consistent with E being father to them all.

After A’s mother died when A was 14, E had taken on responsibility for her. He had bought her a pony when she was 5, and she had a photograph of him holding her at her Christening. A’s evidence was that he was always in D and P’s lives, and they confirmed that E had lived with them intermittently. Comments by them to the deputy indicated that A, D, and P all had memories ‘punctuated with affection’ for E.

Held (allowing the application):

Jurisdiction

Declarations as to E’s best interests and orders facilitating the taking of body samples for non-therapeutic purposes fall within ss15-16 Mental Capacity Act 2005 (MCA) [6]. The court therefore had jurisdiction under s16 MCA to make a decision on his behalf as to whether it is in his best interest for samples to be taken and subjected to DNA analysis [5] (referring at [9]-[12] to re N (an adult) (Court of Protection: Jurisdiction) [2016] Fam 87 and N v A Clinical Commissioning Group [2017] AC 549).

In exercising these powers, the court would have regard to s4 MCA which identifies the relevant criteria as to P’s best interests (following Secretary of State for the Home Department v Skripal [2018] COPLR 220) (at [7]).

To the extent that LK v DK [2011] 2 All ER 115 is authority for ss20-21 Family Law Act 1969 providing the only jurisdiction to direct scientific testing of a non-capacitous individual, it is wrong (at [8]). That jurisdiction will rarely if ever provide the appropriate route for such testing.

Best interests

Identifying E’s best interests requires a broad and often subtle evaluation of a wide canvas of factors (at [13] referring to Briggs v Briggs (no 2) [2017] 4 WLR 37, re D [2012] COPLR 493, and Salford Royal NHS Foundation Trust v P [2018] COPLR 120).

It was not difficult to imagine circumstances where the capacitious might elect to take their secrets to the grave, and the incapacitous should be afforded no lesser opportunity (at [14] doubting dicta in LK v DK).

Regard may be had, when considering a protected person’s best interests, to matters post-dating his death (following Re M (Statutory Will) [2009] WTLR 1791 ([2011] 1 WLR 344), and particularly how he will be remembered after his death (following re P (Statutory Will) [2009] WTLR 651 ([2010] Ch 33). A protected person’s past and present feelings should be considered a facet of ‘all the relevant circumstances’ rather than be regarded as a presumption of the outcome or determinative of the issue ([16], following re D (Statutory Will [2010] WTLR 1511 ([2012] Ch 57)).

The position if E dies before any sample of cells is taken

The substantive jurisdiction of the Court of Protection ends on the protected person’s death (re A (A Patient: Deceased) [2018] EWCOP 17) giving rise to the concern that a protected person might die after an order that a sample be taken but before it could be implemented.

If E were to die before a sample was taken, then ‘appropriate consent’ is required to take a sample for the purposes of obtaining scientific or medical information about him or any other person (s1 Human Tissue Act 2004 (HTA)). Properly construed, however, an order under s16 MCA was an ‘appropriate consent’ for this purpose (ie within the meaning of s3(6) HTA) ([22]).

The position if E dies after a sample is taken but before it is tested

A similar issue would arise if E died after a sample was taken but before it is tested. Section 45 Human Tissue Act 2005 provides that it is unlawful to hold bodily material intending that human DNA in the material be analysed without ‘qualifying consent’ (as defined by sch 4 para 2 HTA).

‘Appropriate Consent’ and ‘Qualifying Consent’ are mirror concepts in the HTA ([25]). The same approach therefore applies ([25]-[26] read with [18].

This interpretation accords with the fundamental principles of the MCA 2005 and the Human Rights Act 1998 (at [26]). The legislation emphasises the protection of the vulnerable and the bodily integrity of the deceased. The construction adopted does not strain the language of the legislation in any way, and its consequence is to promote E’s autonomy.

E’s best interests

There were alternative explanations for the sibling test results which were also not as ‘powerful’ as paternity tests ([35] referring to re F (Children) (DNA Evidence) [2008] 1 FLR 348).

While the earlier tests may establish paternity on the balance of probabilities, the court could not be sure ([36]). Re-testing E was most likely to determine the question conclusively.

The fact of the 1991 report indicates that E himself wanted to know whether he was the children’s father. He is also likely to have believed that the question had been conclusively answered in the affirmative. The 0.1% alternative canvassed in the 1991 report was predicated on a hypothesis only. There was therefore a compelling inference that, if E were capacitous, he would want the tests to be undertaken (at [37]).

E took on responsibility for A and clearly had affection for her. E therefore showed that he was able to act responsibly and maturely, and it is reasonable to infer that he would wish to do so in these circumstances (at [38]).

It was in E’s best interests that he be remembered with affection by his family, and the resolution of the DNA analysis is likely to promote affectionate memory of him (at [39]).

In addition, establishing of a relationship between E and the three children would reduce the need for a contentious dispute over E’s estate (at [41]).

While the children’s Article 8 rights are not directly a facet of E’s best interests, E is likely to have wished to protect their right to know their paternity if possible (at [42]).

Procedure

This application should not have been placed before the court as a paper exercise, and it wrongly gave the impression that E was near to death ([27]).

In an urgent case, there may not be time to contact the Official Solicitor, and she will not have the opportunity to conduct independent investigations. Nonetheless, her experience, knowledge, and unique professional obligations may provide an important contribution even where she has no greater or even a lesser knowledge of the available evidence. In a true emergency, it will be a matter of judicial discretion as to whether it is necessary or whether time is available to contact the Official Solicitor, but it is impossible to be prescriptive (at [43]).

It should be signalled in clear and entirely unambiguous terms, that where an application is brought to the Court of Protection on an urgent basis, evidence of urgency must be presented which is clear and cogent. This is to be regarded as a professional obligation on all professionals involved, but most particularly on the lawyers bringing the application (at [44]).

An application which becomes urgent due to professional delay in decision making is a professional failure which always militates against the interests of the protected person. If a hearing is capable of being listed so that the parties are appropriately represented and all involved have an opportunity to consider and reflect upon the issues, it must be. This is a facet of the Art 6 rights of all involved, but particularly those of the protected person (at [44]).

There is no absolute requirement that protected parties be joined in every case, even when considering deprivation of liberty (notwithstanding dicta in Re X (Deprivation of Liberty) [2016] 1 WLR 227) ([45]). In an emergency, the judge will need to evaluate the proportionality of the arrangements and any order is likely to be tightly time limited with an expeditious return date.

JUDGMENT HAYDEN J [1] On 14th October 2019 I heard an application on behalf of Richard Bagguley, the Property and Affairs Deputy (The Deputy) for E, seeking authority for buccal cell samples to be taken from E for the purposes of DNA testing. The objective is to establish whether or not E is the father …
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Counsel Details

Lucie Wood Cobden House Chambers, 19 Quay Street, Manchester, M3 3HN, Tel: +44 (0)161 833 6000, e-mail: civil@cobden.co.uk) instructed by BBP Legal Ltd (22 Sun Street, Lancaster, LA1 1ER, Tel: +44 (0) 1524 401 010, e-mail: office@bbpsolicitors.co.uk) for the applicant.
David Rees QC (5 Stone Buildings, Lincoln’s Inn, London, WC2A 3XT, Tel: +44 (0)20 7242 6201, e-mail: 5sblaw.com) instructed by the Official Solicitor for the defendant.

Cases Referenced

  • Briggs v Briggs (no 2) [2017] 4 WLR 37
  • DCC v NLH [2019] EWCOP 9
  • LK v DK [2011] 2 All ER 115
  • N v A Clinical Commissioning Group [2017] AC 549
  • Re A (A Patient: Deceased) [2018] EWCOP 17
  • re D (Statutory Will) [2010] WTLR 1511
  • re D [2012] COPLR 493
  • re F (Children) (DNA Evidence) [2008] 1 FLR 348
  • Re M (Statutory Will) [2009] WTLR 1791
  • Re N (an adult) (Court of Protection: Jurisdiction) [2016] Fam 87
  • Re P (Statutory Will) [2009] WTLR 651
  • Re X (Deprivation of Liberty) [2016] 1 WLR 227
  • Salford Royal NHS Foundation Trust v P [2018] COPLR 120
  • Secretary of State for the Home Department v Skripal [2018] COPLR 220

Legislation Referenced

  • Family Law Act 1969
  • Family Law Act 1969, s20
  • Family Law Act 1969, s21
  • Human Tissue Act 2004
  • Human Tissue Act 2004, s1
  • Human Tissue Act 2004, s3
  • Human Tissue Act 2004, s45
  • Human Tissue Act 2004, Sch 4
  • Mental Capacity Act 2005
  • Mental Capacity Act 2005, s15
  • Mental Capacity Act 2005, s16
  • Mental Capacity Act 2005, s4