Mental health – Admission of patient to hospital

Alternative Citations

[2013] Lexis Citation 104

Hearing Date

10 October 2013


Court of Protection


Mr Justice Moor


Julian Reed for the applicant. James Gatenby for the first respondent. Phillip Morris for the second respondent. Peter Wakeford appeared in person.


Mental health – Admission of patient to hospital. Mr and Mrs B were husband and wife. Mrs B developed Alzheimer’s disease and was hospitalised. Due to Mrs B’s wishes, prior to losing capacity, the health board responsible for the hospital refused Mr B access to, and information about, Mrs B. He subsequently applied for certain orders with a view to obtaining, amongst other things, access to Mrs B. The Court of Protection dismissed his application finding that in depriving access the health board had not acted unlawfully by depriving him and/or his wife of a right to family life.


The judgment is available at: [2013] Lexis Citation 104

Mrs B was aged 70. She is a patient at X Hospital, where she had been since January 2013. She suffered from Alzheimer’s disease which was in a very advanced state. Mr B was aged 66. Mrs B had two children of her first marriage, N and S. In June 2010, Mr B was appointed as her property and affairs deputy although that was opposed by S. In November, Mrs B left the family home. The police were involved. Mr B alleged that she had been kidnapped by her children. Mrs B was interviewed by two social workers, CW and JE. They concluded that Mrs B had capacity to take a decision as to where she wanted to live. She therefore went to London with her son, N, in accordance with her expressed wishes. Mr B applied to without notice for an order for the immediate return of his wife to the family home. Although an order was made, she remained in London with her son until 16th February 2011 when she returned to Wales to live with her daughter, S. Dr J, a consultant in the psychiatry of old age, reported that Mrs B had said that her husband had been horrible to her family. She said she wanted to come out of the marriage as she could not cope with it anymore. She added that she wanted to live with her daughter. Dr J concluded that she had the early onset of dementia but she had capacity in respect of residence, as to who she wished to see, and, on the balance of probabilities, to decide whether or not she wished to divorce but she was unlikely to have capacity to litigate. Mrs B issued divorce proceedings. Mr B denied that the marriage had irretrievably broken down and denied the specific behaviour allegations raised against him. Mr B instituted proceedings for ‘conspiracy to end a marriage’ against N, S. On 14 June 2012, Mrs B was admitted to the Y Hospital. She has been in hospital ever since. Mr B visited her at the hospital. He contended that she was content to see him and suffered no adverse reaction as a result. Her treating psychiatrist, Dr Z confirmed in writing that, as it was Mrs B’s wish when she had capacity that she did not wish to see Mr B, he should be forbidden from seeing her. Mr B was therefore turned away from the hospital twice thereafter, once when he attended with a solicitor. Dr Z considered he was bound by Mrs B’s instructions when she had capacity. On 19th September 2012, Dawson DJ stayed the divorce petition on the basis that Mrs B did not have capacity to litigate the divorce. He dismissed the conspiracy case and stayed Mr B’s application to become her health and welfare deputy.

Mr B applied to the court for a declaration that the first respondent health board had acted unlawfully in: (i) depriving Mr B and Mrs B a right to family life; and (ii) depriving him and his wife of the right to freedom of assembly and association. He also sought an order directing the Health Board to afford him access to his wife and provide him with information about his wife’s well-being; and damages.

The application would be dismissed.

Mr B was not entitled to a declaration that the health board had acted unlawfully in depriving him and/or his wife of a right to family life. They had acted lawfully. Nor was he entitled to a declaration that the health board had acted unlawfully in depriving him and Mrs B of the right of freedom of assembly and association. His application for access to Mrs B and information as to her well-being also failed. He was not entitled to damages. Mrs B had not needed a health and welfare deputy. If it had been necessary it would have been quite inappropriate for Mr B to take on the role. That would have been entirely contrary to Mrs B’s wishes when she had had capacity. It would have been a recipe for conflict with her family. It would not have been in her interests. Mrs B had not wanted to see her husband or had wanted him to be involved in her care. In short, she wanted to end her relationship with him. Those were her wishes. There had been no undue influence. She had had capacity at the time. The health board had been entirely right to act on those wishes after she lost capacity (see [36]-[37], [42]-[46] of the judgment)

HE v A Hospital NHS Trust [2003] Fam Law 733 applied; R (on the application of Burke) v General Medical Council [2004] All ER (D) 588 (Jul) applied.

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