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The Registrar
European Court of Human Rights
Council of Europe
67075 STRASBOURG CEDEX
FRANCE
Strasbourg, 16 May 2024
RULE 39 – URGENT
Person to contact:
Mr. Ümit Kilinç
5 rue Auguste Lamey, 67000 Strasbourg
Phone: 0 (033) 388 36 11 47
Fax: 0 (033) 982 63 52 74
Email: contact@kilinc-
IN THE CASE OF:
Mrs Lioubov MACPHERSON, born on January the 23 rd 1962, 5 Rue des Ardoisières, 22340 Maël-
INASMUCH AS: the applicant’s complaints have been completely ignored regarding inhuman and degrading treatment on her vulnerable daughter as well as being restricted in her contacts with her.
Applicant
Represented by Mr Ümit KILINÇ, avocat recognized by the Strasbourg Bar, 5 rue Auguste Lamey, 67000 STRASBOURG (France).
AGAINST: United Kingdom
The Order of Mr Justice Poole dated 4 th December 2023 rejected the applicant’s demands, especially the medication’s changing of her daughter.
Application for permission to appeal has been refused in compliance with the Order delivered on 25 th March 2024.
Defendant
For the purposes of information, the applicant wants to draw the attention of the European Court of Human Rights on her intent to submit, in the near future, another application in regard to her potential imprisonment linked to the breaches in Article 6 of the Convention.
For six years, the applicant has been prosecuted and punished on hearsay evidence, that was based on nothing but libel. Perjuries and wilful neglects were all ignored by the Court of Protection and the regulating authorities, even the Police. The applicant precises that she’s still exhausting domestic remedies concerning this specific part.
SUMMARY OF THE FACTS AND THE PROCEDURE
Initial background
The applicant, Mrs Lioubov MACPHERSON (L.M.), is the mother of a vulnerable and under guardianship daughter, Ms Ellen OKPATTAKH (E.O.), who was born on 28 th May 1986 and currently is 37 years old.
E.O. was born in Russia and has a diagnosis of cerebral palsy from birth. She developed normally, except mobility. Indeed, she needs to use a walking frame over short distances and her wheelchair for longer distances. Following several surgeries on her legs, she was left with heart palpitations. There were no other physical or mental health problems ever mentioned or recorded.
E.O. moved to Britain in 1997 when she was 11 years old. Initially, the family moved to Wales where the applicant had been appointed as a volunteer housemother in a residential care setting, where people with various mental and physical needs lived in family groups. This was part of the Camphill Communities organisation. There she married her husband, Mr. Roderick MACPHERSON (R.M.) who had worked in the establishment for ten years.
The family decided to settle in England and moved first in Kent for seven years then to the Sunderland area.
In August 2012, E.O. contracted meningitis and spent time in Sunderland Royal Hospital. This resulted in a deterioration in her mental health. E.O. had previously spent couple of weeks in a hospital in Russia but at no time were mental health problems diagnosed or treated. She had no more recent psychiatric hospital admissions, including being detained under the Mental Health Act 1983. E.O. was detained under Section 2 of the Mental Health Act 1983 between 15 th March 2017 and then on Section 3 of the Mental Health Act from 11 th April 2017.
She has been diagnosed of schizophrenia and experienced auditory hallucination including that people are going to kill her and attempt to harvest her internal organs.
The epilepsy was easy controlled with a medication. Since that time, only two seizures have occurred – due to omission of prescribed medication – and both at Placement 1*, however, schizophrenia was a different matter and E.O. needed specific medical care.
Unfortunately, appointments were difficult to arrange because the doctors from Sunderland were uncooperative. Finally, after referral to one of the doctors in Newcastle, E.O. was admitted to the hospital and was put on a treatment.
She remained well for a few years until she decided to stop her treatment on her own initiative. At that time, she lived separately from the applicant.
After couple of months, the symptoms returned. Straight away she went back into her treatment, but it didn’t have the same curative effects. Consultant appointments were still all in Newcastle. They were often unavailable and ended up on long-
In February 2017, E.O. was admitted to Walkergate Hospital. She spent there five months, tried some new treatments in vain. Quite the opposite, it made her condition worse.
In the year of 2017, the local newspaper reported on the building of a new supported living facility in Sunderland called Church View. This medical establishment was to offer a social setting with 24 people, each paying rent as tenants in a bungalow or private apartment. Supportive care would be provided. Adaptive kitchen would be suitable for physically disabled people. A Social life would be built where tenants would assist each other, enjoy day trips, or even holidays as a group.
Importantly, life skills were promised which would teach everything from budgeting and menu planning, to cooking and housework. At that time, E.O. needed to build her confidence in her skills and social life and it sounded ideal.
After much family discussion with attention being paid to E.O.’s needs and future, the applicant’s increasing age, and R.M.’s disabilities following sepsis and emergency surgeries in 2012, an application was made for a tenancy.
It is primordial to emphasise that this early history shows exactly what has been misrepresented and used as the basis of a Court case that was rushed, without proper thought, and used as a method of stopping scrutiny by the Local Government Ombudsman. E.O. was lacking confidence and the lack of interest by the authorities had only made this worse.
Up to this point, there had never been concerns of complaints about the applicant’s behaviour or care of E.O. from any quarter. Social services, respite care, GP, hospital staff, doctors, housing association, neighbours, shopkeepers, family… no one had any concerns about anything at all that was going on between the applicant and her daughter.
E.O. spent time in Walkergate hospital in an attempt to stabilize medication.
In October 2017, E.O. was discharged with the benefit of Section 117 Mental Health Act aftercare. Nonetheless, in a much worse state than before she went in. She was not herself at all, injection that she was put on made her condition much worse and lead to insomnia.
It was agreed, following assessments, that E.O. would require a full and comprehensive care package from 24-
There were 8 tenants instead of 24 as planned. The staffing levels were not fully met. The manager of this establishment arranged with the applicant to allow a transition period into E.O.’s new home for her to settle, and for the staff levels to be brought up to the correct levels. The applicant was asked to continue caring for E.O. until those things were all met. Furthermore, just as with entry conditions and tenancy contracts, no paperwork was issued.
It was at this moment that E.O. began to suffer from degrading treatment in addition to harmful medication. For instance, E.O. was given some expensive silky embroidered bedding for her new home. Yet, on the very first morning, that new bedding had been thrown into the wet room floor to mop up after E.O.’s shower. A complaint was made about the lack of care and respect.
From that point onwards, there has been problems with a dirty and sticky floor every morning from spilled medications. Prescription changes were not administered properly, but instead interfered with.
Moreover, food was stolen from E.O., with crockery being found in staff areas; jewellery went missing; medication errors were recorded as they happened; two seizures occurred with blood test showing low dose of "Epilim"; delicate clothing was washed on long hot washes, destroying the fabrics; the alarm button in the apartment was ignored; mouldy food was found in the fridge on more than one occasion; gum decease; clozapine medication whereas it has been described as highly addictive; bruises, blisters on side of left foot, swollen and redness to toes; matted and odorous pubic hair, red and swollen genital area; toenails needing attention…(Annex no. 1).
As the applicant pointed out: "complaints became an almost daily event".
It was also in October 2017, when the applicant and her daughter first went to see a solicitor, because they had struggled to put a stop to medication called "Sodium Docusate" that the NHS site recommends not to use this medication continuously. It states that prolonged use of this medication could give very serious side effects, like "Electrolyte Imbalance". It means that "level of substances like sodium, potassium and magnesium in the body gets too high or too low. A severe electrolyte imbalance could cause serious health problems such as muscle spasms and twitching and even convulsions. Using this medication continuously could also stop your bowel working on its own".
For some unknown reason, the care facility took upon themselves to approach the psychiatric hospital where the applicant’s daughter had spent seven months previously and here this medication was originally prescribed. They managed to get a prescription for a double dose of this medication that affected her daughter badly. The applicant’s daughter started to suffer from excessive saliva, diarrhoea, and vomiting. The applicant struggled to put a stop to that medication because, as soon as it would stop, it was reinstalled again and again (Annex no. 2).
Even after the solicitor’s advice to her daughter to put a written note from her to her doctor in order to stop this medication was ignored, because the care providers approached another doctor. This on its own indicated an overbearing and bullying attitude that the applicant and her daughter suffered from and which continues up to this day!
In fact, this ideal place took a disastrous turn: no life skills training was ever offered; the small community room was closed and taken as an office, never to be replaced; no community bus ever appeared; E.O.’s tenancy was not respected with entry into her apartment not being preceded with a knock on the door; there were no activities of any sort.
The applicant made a host of complaints and several safeguarding concerns to the Care Quality Commission (CQC) that were never addressed or investigated.
Conversely, there had been concerns about the applicant’s conduct and influence upon her daughter. The care provider expressed concern that the applicant’s conduct might have threatened to compromise the safety and person-
Ensued e-
Subsequently, Mrs Lisa Philliskirk, the Church View manager responded to the applicant. She explained that every individual issues have been addressed and having considered the applicant’s complaints. Nevertheless, she refused to admit that the Church View’s team deficiency and confirmed that they were competent and delivering appropriate care (Annex no. 4).
It was discovered that Placement 1 was being regulated by the local authority, who had commissioned the building of the establishment. They were in partnership with the owners and developers. That registration was illegal, simply because to administer intimate care, the carers involved must be employed elsewhere, whereas the cares were employed at Placement 1 itself, meaning that it should have been registered by the CQC.
As the European Court of Human Rights (hereinafter "The Court") will see, not a single comment was made by the Placement, the local authority, or the judge to that information, but later and quietly the registration was changed to CQC.
The applicant started to file many complaints and safeguarding concerns but after getting nowhere with them and the lack of help from the social services, the social care and local government ombudsman was approached, who informed the local authority that proper procedures must be followed before the ombudsman could take the complaint.
Indeed, the local authority never answered to any of the applicant’s complaints in writing.
It appears that the applicant and Sunderland City Council had several meetings in order to talk about E.O.’s conditions. Mrs Gladys Reed, social worker, underlined that the care provider complained about the applicant’s conduct towards staff which has led to them withdrawing services and which also made them unable to provide de the care safely to E.O.
The applicant endeavoured to do confidential statements of complaint for the purpose of an adult complaint investigation (Annex no. 5).
In the end, the Sunderland City Council tried to reach an amicable settlement despite the serious reproaches which were addressed to them by the applicant (Annex no. 6).
On 8 th May 2018, E.O. purportedly executed a lasting power of attorney in order for the applicant to look after her affairs. The applicant was thus the donee of that power. The solicitor, although delighted with E.O.’s presentation, was aware of her schizophrenia and properly asked the GP to make a capacity assessment.
There were no concerns at all with allowing the signing of the documents. E.O. sent a handwritten letter to the Social Worker, informing them that the applicant was doing power of attorney. E.O. also explained about her worries that the local authorities wanted to restrict their contact. She insisted that it would not be in her best interests.
Another company supposedly independent but commissioned by the local authority was instructed to investigate. That investigation started on 30 th May 2018, coincidentally the same date that the Court papers were issued and was not completed until 7 th Septembre 2018.
Odd comments were made by the investigator about "checking factual facts" and suchlike, referring to the local authority after the investigation was made. The report was not concluded until 14 th November 2018, some 6 weeks after completion (Annex no. 7). The report points out that:
E.O.’s capacity was properly recognised by everybody involved in the investigation, including by the investigator herself who met E.O. as part of her enquiries;
not a single complaint was upheld, even from the CQC intervention whereas statements were made from carers who told of the applicant abusing staff, constantly complaining, being in the way all of the time etc;
not a single carer stated that they personally had suffered abuse;
carers when answering questions in different sections gave conflicting stories;
the report summary did not resemble the contents of the sections;
recommendations for the local authority to action are still not actioned 4 years later;
Consequently, faced with the local authority unwillingness to interrupt this situation, the applicant had no choice but to turn to the British courts, since the local authority issued an application.
The procedure before the British courts
Procedural background between 2018 and 2020
On 30 th May 2018, the local authority issued an application on the basis that there was sufficient evidence to rebut the presumption of capacity in relation to residence, care, and contact, despite that the social worker never provided any capacity assessments while these are legally required documents.
The local authority brought the application for declarations that the applicant’s daughter (E.O.) lacked capacity to make decisions as to where to reside, her care needs and her contact with her mother. In the event that the court concluded that EO lacked capacity to make these decisions, it was understood that the following orders would be sought:
that E.O. should have continued to reside at her current supported living accommodation ("Church View");
that E.O. was provided care and support by her current care provider ("Lifeways") according to her assessed needs, as currently identified in a care plan dated 12 th April 2019;
that E.O.’s contact with the applicant was significantly restricted, should have taken place away from Church View and that when they had contact it was supervised by professional care staff ("Care at Home");
that to the extent that E.O. was deprived of her liberty by the arrangements referred to above the same was authorised and reviewed by the court on a timely regular basis.
The local authority had also brought an application to revoke LPAs in favour of the applicant executed on 8 th May 2018. Orders were sought revoking the LPAs on the basis of the applicant’s unreasonable conduct and that it would not be in her daughter best interests for the LPAs to remain in force. It was unclear whether the local authority would also invite the court to determine whether her daughter had capacity to execute the LPAs last year.
Actually, the local authority went to the Court with any mental capacity assessments, just on hearsay evidence of the social worker. Later, the local authority employed an alleged independent psychiatrist, who worked frequently for the local authority and stated that, 6 months before he even met the applicant’s daughter, that she lacked capacity.
This was against the Mental Capacity Act 2005 which is time specific.
The position statement for the local authority indicated that at that time the authority considered E.O. should stay at Church View or move to another similar placement but that it was not in her best interests to reside with the applicant.
There have been numerous hearings in 2018 and 2019. The most important case management hearing took place on 12 th June 2019. At that hearing the court not only authorised the current restrictions on the applicant’s daughter but also directed further evidence from the local authority as to E.O.’s care needs, a schedule of allegations from the local authority and a response, a final case management hearing on 23 rd October 2019 and the final hearing starting on 25 th November 2019.
At the hearing on 23 rd October 2019 the court gave permission to the parties to obtain further evidence from Dr Ince, directed that evidence be obtained from those involved in the videoing of E.O. in late September 2019, an updating report from E.O.’s Occupational Therapist and updating evidence from the local authority.
The position statement on behalf of the applicant for final hearing starting on 25 th November 2019 before HHJ Moir argued in substance that (Annex no. 8):
regarding capacity, the applicant had always made it clear that she considered that her daughter had the ability to make her own decisions in relation to where to live, her care needs and contact with her mother. It could not be denied that the burden of proof was on the local authority to rebut the presumption of capacity. The applicant endeavoured to prove that the presumption of capacity had not been rebutted on the evidence available. The applicant had especially raised a number of concerns already in the proceedings about Dr Ince report dated 7 th January 2019 and his supplemental report dated 20 th November 2019. The applicant was aware that Dr Ince concluded that her daughter lacked capacity to make decisions as to where to live, her care needs and her contact with others. The applicant was concerned that when Dr Ince visited E.O., her mental health had deteriorated and so it was not the best time to carry out the assessment by reference to section 1 from the Mental Capacity Act 2005;
regarding residence, the applicant considered that E.O.’s own flat at Church View was appropriate for her needs as long as she received care from Lifeways who provided the care for all the residents at this placement. The key issue was the poor standard of care provided by Lifeways which was not meeting E.O.’s assessed care needs;
regarding care needs, the applicant had already highlighted the poor quality of care being provided to her daughter. E.O. clearly had a lot of potential and it appeared that she was not getting the right support to give her the best opportunity to further her interests and skills in the current arrangements. The applicant had warned the court that not only was this absence of structure and routine contributing to her not engaging in meaningful and enjoyable activities, il appeared that there was a risk that this was contributing to a decline in E.O.’s mental health;
regarding contact, the local authority has acknowledged the importance to E.O. of her relationship with the applicant and was invited to confirm their final proposals for restricting E.O.’s contact with her mother. It was submitted that any-
The Order of the Court of Protection dated 20 th August 2020
The Court of Protection emphasised that the applicant has been subject to injunctions, especially:
not to record her daughter (by video or audio) when she was presenting as distressed, agitated or mentally unwell, or (even when she is mentally well) for the purposes of gathering evidence for use in these proceedings or for the purpose of making complaints;
not to take photographs of or record (by video or audio) any social or healthcare staff supporting her daughter;
not to talk about these proceedings with any social or healthcare staff supporting E.O. except:
with permission of the court;
in formal meetings attended by professionals where E.O.’s future discharge plans were being discussed;
not in any way to publicise these proceedings or any evidence filed in proceedings, including by way of posting on social medial.
By order dated 20 th August 2020, the Newcastle Court of Protection decided that:
the proceedings were adjourned to a hearing before HHJ Moir sitting at Newcastle Civil and Family Courts and Tribunal Centre Barras Bridge, Newcastle Upon Tyne, NE1 8QF on 13 th October at 2pm, when judgement will be handed down;
the parties were to file and serve their written submissions by the following dates no later than 4pm:
The Council – 1 st September 2020;
The applicant and R.M. – 7 th September 2020;
The litigation friend – 11 th September 2020;
the following directions applied to the hearing provided for in paragraph 1:
a Russian speaking interpreter shall had been arranged by the court;
the hearing was to be conducted as a remote hearing;
if R.M. was unable to participate by way of remote hearing the parties have leave to request a hybrid hearing with some parties attending court in person;
on the court list for the next hearing the worlds "to be heard remotely" would be endorsed next to this case;
no unauthorised person had been allowed to be present at this hearing (Annex no. 9).
Thereafter, the applicant made closing submissions for the attention of the Court which follow and respond to the closing submissions produced on behalf of the Council (Annex no. 10).
It argued in substance that:
it would be wholly inappropriate to make interim declarations that it was not in E.O.’s best interest to reside with the applicant in the future;
E.O. had capacity to make her own decisions as to her residence, care and contact with others;
it was accepted that E.O. has a diagnosis of paranoid schizophrenia and when her condition was not treated properly, she was extremely unwell, so she might temporarily lose capacity. However, that cannot and should have led to a final decision that E.O. lacked capacity;
E.O. was a bright and articulate young woman and her mother was very concerned that her abilities and potential have never been fully realised. The applicant was very concerned that E.O. had not received the right care and support from the State;
the applicant respected Dr Ince but completely disagreed with his opinions about her daughter’s capacity to make her own decisions. the applicant did not accept that her daughter was unaware of her mental health needs or otherwise lacked sufficient insight into the same. There was a concern that Dr Ince had imposed a very high threshold in terms of what "relevant information" he excepted E.O. to understand, retain, use, and communicate;
the statutory assumption was that a person has capacity to make their own decisions unless and until proven otherwise. The burden establishing a lack of capacity lies on the party asserting the same. On the evidence available, the applicant very strongly took the view that the Council had failed to discharge that burden and that no declaration that she lacked capacity could have been made;
concerning evidence and credibility, the Council accepted that to a significant extent its "case" relied on hearsay evidence drawn from records from people who had not been called as witnesses. That has meant that the applicant and others (including the court) had been denied the benefit of asking them questions and judging their credibility in person. In contrast to the Council’s evidence, the applicant had made herself available and endured a very distressing and exhausting process whereby she had attended court on numerous occasions and was cross-
concerning the schedules of allegations, the Council did not take the applicant through all of the allegations contained in the schedules at the evidential hearings and did not challenge her responses provided in writing in the same;
concerning the Lasting Power of Attorney for Health and Welfare, the court could only set aside the lasting power of attorney if it was satisfied that the applicant had behaved or was behaving in a way that was not in her daughter’s best interest. The court was invited to find as a fact that she had always acted in E.O.’s best interest in relation to both her health and welfare. The fact that the applicant disagreed with the opinion of others as to E.O.’s capacity and sought to advance arguments why she had capacity cannot be seen as inconsistent with her role as LPA. Quite the opposite, the applicant denied that she had ever contributed to any deterioration in her daughter’s health. The causes of those deteriorations had been her underlying mental disorder and the inadequate care and support she had received. That the applicant considered the impact of medications on E.O. as a "chemical attack" was also not inconsistent with the applicant’s role as LPA. Any reasonable person listening to the crying and shouting of E.O. during some of her deteriorations could understand why the applicant had used those words;
concerning contact issues, the Council had to accept that all decisions made in relation to E.O.’s welfare were time and subject specific. The Council also had to accept that decisions about E.O.’s contact were currently for her responsible clinician to make. It was therefore wholly inappropriate for the Council to invite the court to make any decisions on behalf of E.O. in relation to her contact with the applicant (or anyone else). The court simply had no jurisdiction to make such decisions or impose any such "rules" which had to be left to her responsible clinician in consultation with all relevant persons, including the applicant. Further or in the alternative, even if the court had the power to restrict E.O.’s contact with others further evidence from the responsible clinician had to be obtained. This was likely to be a future issue for the court to determine;
concerning residence and care issues, logically, the same points outlined above in relation to the court’s approach to contact with others also applied to the court’s approach to make any decisions in relation to E.O.’s residence;
concerning injunctions, it was correct that the applicant accepted that she had breached her promises to the court not to record E.O. and that in her evidence she sought to justify the same by reference to her daughter’s best interests. The applicant acted in the way she did at an extremely distressing period when E.O. was deteriorating and clearly suffering significant anguish and trauma.
In conclusion, the applicant requested that the court considered her own notes which were attached in the Appendix.
The Judgment and Order of the Court of Protection dated 21 st October 2020
By order dated 21 st October 2020, the Newcastle Court of Protection decided that:
it was declared pursuant to section 15 Mental Capacity Act 2005 that:
E.O. lacked capacity to conduct these proceedings;
E.O. lacked capacity to decide where she should live;
E.O. lacked capacity to decide on her care arrangements;
E.O. lacked capacity to decide on her contact with others;
E.O. lacked capacity to execute the lasting powers of attorney executed on 8 th May 2018 appointing the applicant as her attorney in respect of a) health and welfare and b) property and affairs;
it was ordered pursuant to section 16 Mental Capacity Act 2005, pending further order that:
it was in E.O.’s best interest that she did not reside with the applicant and/or R.M;
it was ordered pursuant to section 22(3)-
the lasting powers of attorney for health and welfare dated 8 th May 2018 and for property and affairs dated 8 th May 2018 appointing the applicant to be E.O.’s attorney, both registered on 17 th July 2018, were revoked.
it was ordered that:
the applicant was forced not to:
record E.O. (by video or audio) when she was presenting as distressed, agitated or mentally unwell, or (even when she was mentally well) for the purposes of gathering evidence for use in the proceedings or for the purpose of making complaints;
take photographs of or record (by video or audio) any social or healthcare staff supporting E.O.;
talk about these proceedings with any social or healthcare staff supporting E.O. except:
with permission of the court;
in formal meetings attended by professionals where E.O.’s future discharge plans are being discussed;
in any way publicise these proceedings or any evidence filed in proceedings, including by way of posting on social media;
the proceedings were adjourned to a hearing before HHJ Moir sitting at Newcastle Civil and Family Courts and Tribunal Centre Barras Bridge, on 8 th February 2021 at 11.00 am, for a "hybrid" hearing (Annex no. 11).
"In broad terms, I would conclude E.O. lacks capacity with regard to treatment of her mental disorder. Her view in respect of blood tests was to check if her organs had been harvested. She fails to understand the purpose of monitoring for medication and the treatment she is on" (§36)
[…]
"Overall, E.O. lacked an awareness of the nature and extent of her care needs due to the lack of insight into her underlying psychiatric illness and her refusal to accept the role the care staff played in keeping her safe and maintaining her mental health. E.O. further lacked any understanding of the triggers to deteriorations within her mental state and that the care staff were there to provide and did provide a protective factor to minimise the risk of harm to herself and others" (§39).
The Court of Protection then considered that the approach had to be "[…] that a person has capacity to make their own decisions unless proven otherwise. In this case, the burden is upon the Council to establish lack of capacity. L.M. [the applicant] very strongly takes the view, as does R.M., that the Council has failed to discharge that burden and no declaration that E.O. lacks capacity can be made". The Court of Protection further estimated "[…] that E.O. does lack capacity in relation to her care and support, needs, residence and contact" (§43). The Court of Protection added that "[…] E.O. does not understand the effects of L.M.’s behaviour upon her mental state and does not understand that L.M.’s behaviour has the potential to undermine her care and placement" (§44).
Concerning the schedule of allegations, the applicant invites the Court to refer to the exhaustive decision’s motivation which couldn’t be detailed for practical reasons (Annex nos 12 and 13).
Concerning the lasting power of attorney, the Court of Protection disagreed with the applicant’s arguments, and expounded that the latter had behaved in a way that was not in E.O.’s best interest as detailed within the body of the decision and the evidence of past behaviour was indicative of future behaviour, justifying the revocation of the LPA.
Concerning contact issues, the Court of Protection explained that it was apparent from the facts which had been determined upon hearing extensive evidence in this case, had to be relevant in considering contact. The Court of Protection maintained that:
"There [was] a need to regulate and supervise contact so that L.M.’s highly expressed emotions and presentation, the strong negative and critical references to the support staff and carers and the conflicts in L.M.’s own relationship with E.O. [could] be reduced and managed so that they [did] not detrimentally affect E.O. and [contributed] to the deterioration in her mental health. The issue of telephone contact and the removal of E.O.’s phone at night [needed] careful consideration and Dr Ince’s changing view between November, December and August [required] careful analysis" (§99).
The Court of Protection concluded by expressing a view and making a declaration in the interim that the applicant’s daughter should have not lived with the latter because it would be potentially unsafe, not only in respect of possible interference with medication but also taking account of all the findings made based upon the evidence read and heard throughout the hearing (Annex no. 12).
The applicant would like to mention to the Court that the judge made serious mistakes in law by accepting a supposedly "independent" psychiatrist’s opinion that her daughter lacked capacity six months before he met her. It has been unsubstituted statements without any foundation or evidence of proof. However, Dr Ince’s report showed that the applicant’s daughter understood his questioning during his interview, nonetheless, his summary at the end reversed his findings by stating that she had no capacity to understand.
At no time have mental health assessments been produced to bring that period into doubt, except properly made assessments that found the applicant’s daughter being mentally capable!
On 13 th November 2020, the applicant submitted an application for permission to appeal with her grounds of appeal (Annex no. 14).
Procedural background before the Order of the Court of Protection dated 30 th June 2022
On 22 nd October 2020, the court handed down judgement relation to E.O.’s capacity, best interests, and the application for revocation of LPAs in favour of the application relation to both property and affairs and health and welfare.
The court made section 15 MCA 2005 declarations that E.O. lacked capacity to conduct these proceedings and to make decisions about residence, care and contact with others.
E.O. was liable to detention under section 3 MHA from 8 th July 2020 to 15 th December 2021 when she was discharged subject to a Community Treatment Order. She was detained at Hopewood Park hospital from 8 th July 2020 to 10 th December 2021.
The proceedings came before the court on 2 nd November 2021, when the court:
made injunctions orders against the applicant:
limiting her recording of E.O.;
prohibiting her from recording professional staff supporting E.O.;
prohibiting her from discussing these proceedings with social or health care staff supporting E.O. save with permission of the court or in formal meetings;
prohibiting her from publicising these proceedings in any wat, including on any social media platform; and
prohibiting her from publicising on any social medical or streaming service (including Youtube) any video or audio recording created at any date;
made injunctions orders against R.M. in the terms of 3 iv and v above;
made, with the agreement of all parties, a section 16 MCA order that it was in E.O.’s best interests to live at placement 3 receiving care and support in accordance with her care and support plan;
made interim orders pursuant to section 48 MCA limiting the face-
E.O. was discharged from hospital to placement 3, initially under a grant of section 17 MHA leave, on 10 th Novembre 2021. On 1 st December 2021 a standard authorisation was granted to placement 3 by the applicant Council ("the Council") as Supervisory Body for the purposes of Schedule A1 MCA.
On 23 rd December on urgent application by the Council, the court varied the interim contact arrangements.
On 1-
On 12 th April 2022, the applicant made an application from the perspective of seeking an order for disclosure of records relation to her daughter, in particular, her medical records and dental records (Annex no. 15).
On 29 th April 2022, E.O. was discharged from her Community Treatment Order.
On 27 th June 2022, the applicant made en application from the perspective of seeking an urgent order that a doctor discontinued the use of adverse medication that had caused her daughter periods of psychosis on a daily basis for almost two years and was a serious risk for her mental and physical health (Annex no. 16).
The Judgement and Order of the Court of Protection dated 30 th June 2022
By order dated 30 th June 2022, the Newcastle Court of Protection decided that:
it was ordered pursuant to sections 16(5) and 48 Mental Capacity Act 2005 that pending review by this court and further order:
the applicant was forced not to:
record E.O. by video or audio for any purpose or in any way;
record whether by video, audio or photographing staff from placement 3, or any other health or social care staff concerned with E.O.;
in any way publicise these proceedings or any evidence filed in the proceedings, including by way of posting on social media, Youtube, or any internet platform or website, including private or public sites…
cause to be publicised on any social media, video or streaming service including Youtube any video or audio recording of E.O., recorded at any date;
the applicant was forced forthwith to remove any social media video or streaming service including Youtube and from any website or other location on the internet, including private or public sites, any video or audio record of E.O., and/or staff supporting E.O., which was present on any of those sites or services;
R.M. was forced not to:
in any way publicise these proceedings or any evidence filed in the proceedings, including by way of posting on social media, Youtube, or any internet platform or website, including private or public sites ;
cause to be publicised on any social media, video or streaming service including Youtube any video or audio recording of E.O., recorded at any date;
it was ordered pursuant to section 16 of the mental capacity act 2005 that:
E.O. should continue to reside at placement 3 receiving care and support there in accordance with care and support plan dated 10 th November 2021;
The application made by Northumbria police for disclosure of E.O.’s healthcare records was refused;
it was ordered pursuant to section 16 and 48 Mental capacity act 2005 that in the interim and pending further order:
There should be no face-
Telephone contact between E.O. and the applicant should take place once every 2 weeks, for up to 30 minutes and should be supervised by being on loudspeaker at placement 3 with at least one staff member at the placement supporting E.O.
During telephone contact:
the applicant should communicate with E.O. in English, even if E.O. spoke to her in Russian;
the applicant should not under any circumstances enter into any discussion with E.O. concerning:
any medical negligence claim, court action or complaint against E.O.’s training or former treating clinical team, E.O.’s social work team or placement 3, including any complaint to the police, CQC or professional regulatory body;
any issue relation ton E.O.’s current or historical health or social care, or her medication;
any possible or proposed change of placement from placement 3;
in the event that E.O. initiated discussion in respect of any of these issues, the applicant should seek to reassure E.O. and diverted her from speaking about these subjects;
the applicant should not contact emergency services but should leave it to the discretion of those supervising contact to make decisions about whether E.O. required medical assistance;
In the event that the applicant breached the orders above, the supervising staff at placement 3 had discretion to bring ton an end any contact session;
it was declared pursuant to sections 15 and 48 Mental Capacity Act 2005 and for the purposes of section 4(7)(b) of the act that:
It was lawful and in E.O.’s best interests that the Council did not consult the applicant for the purposes of taking into account her views as to E.O.’s best interests in respect of her care and support at placement 3 or her contact with her mother saved in the following events:
a medical emergency requiring E.O.’s treatment in hospital;
there being a need or proposal that E.O. moved from placement 3 to another placement;
prior to the formal reviews of E.O.’s contact arrangements provided for at 11(c) below when the applicant’s views as to E.O.’s best interests should be sought by email;
and it was ordered that:
The Council should keep under close review the observed effects (both positive and negative) upon E.O.’s presentation and mental health of the termination of face-
instructing placement 3 to continue logging any requests for contact with the applicant which E.O. made;
continuing to hold at least monthly communication meetings attended by the litigation friend, and informing the litigation friend as soon as possible of any significant concerns in E.O.’s presentation that arise between those meetings;
formally reviewing by MDT whether the arrangements for E.O.’s contact with the applicant (and R.M.) set out in this order remain in her best interest during the following periods:
18-
13-
21-
In the event that the Council and/or the litigation friend considered that the reduction of contact ordered above was not operating in E.O.’s best interests, it should restore the proceedings for hearing, by COP 9 form supported by a witness statement of E.O.’s allocated social worker setting out the effects (both positive and negative) of the reduction in E.O.’s contact with the applicant, and the Council’s proposals for variation of this order;
[In the event that any party sought to restore the case for hearing on a date before the hearing provided for below, the hearing was if possible to be reserved to Mr Justice Poole];
Placement 3 should provide one monthly update to the applicant as to E.O.’s progress by email. If a serious event affecting E.O., or serious deterioration in E.O.’s mental or physical health, it should contact the applicant by email or telephone as soon as practicably possible. For the avoidance of doubt placement 3 was permitted not to accept telephone calls, or respond to correspondence (including emails) from the applicant or R.M.;
Saved for the purposes of consulting the applicant in the limited circumstances set out in paragraph 10 above, the Council was permitted to confine its contact with the applicant and R.M. to statutory reviews. The Council’s adult services department including E.O.’s allocated social worker and the duty team, of the Council was permitted not to accept telephone calls or respond to correspondence (including emails) from the applicant or R.M.;
By 4:00pm 24 th November 2022 the applicant was to file a further witness statement or statements:
summarising progress of E.O.’s care and support arrangements at placement 3 including her expressed wishes and feelings about her arrangements and her mental health presentation;
summarising what requests for contact E.O. had made since the date of this order;
describing the observed effects upon E.O. of the reduced contact arrangements;
setting out whether the applicant had cooperated with the arrangements restricting her contact with staff at placement 3, and with the Council;
summarising the extent to which individual professionals supporting E.O., placement 3 and/or the Council had been called upon to respond to complaints made by the applicant to third parties including professional regulators, the CQC and the police; and
setting out what if any changes were proposed to the care and support plan and to the contact arrangements;
By 4:00pm 28 th November 2022 the applicant and R.M. were to file statements in response;
E.O.’s solicitors were permitted to file further evidence as to her wishes and feelings when advised;
The parties are permitted to convene an advocates’ meeting as advised. The costs of legal representatives attending such a meeting should be a necessary, reasonable and proportionate disbursement on any legally aided party’s public funding certificates;
The proceedings were adjourned to a hearing (whether as a fully attended or hybrid hearing to be determined in consultation with the court) before Mr Justice Pool sitting in Newcastle upon Tyne with an estimate of 1 day on 6 th December 2022 (Annex no. 17).
First of all, the Court of Protection had based its ruling on the aforementioned Dr Ince’s report. This magistrate underlined that capacity was time specific and an individual might regain capacity. However, Dr Ince had advised the court previously that E.O. was unlikely to regain capacity so long as she continued to lack insight into her condition. Indeed, E.O. continued to suffer from the same condition which caused her to lack capacity on the findings of HHJ Moir in October 2020 and she remained sure that she did not have schizophrenia. Consequently, the Court of Protection didn’t see why it should be renounced to Dr Ince’s views and invited the applicant to direct the court to any evidence that might suggest that her daughter might have regained capacity.
Subsequently, concerning the allegeable failings and neglects at her daughter’s placement, the Court of Protection had reviewed the evidence and, contrary to the applicant’s assertions, the evidence suggested a general improvement in E.O.’s mood, sleep, eating, and self-
Then, concerning the demand in order to reduce E.O.’s contact with her mother, the Court of Protection considered that, in the light of the applicant’s complaints, believing that her daughter had been misdiagnosed and, as a result, she was being given medication she didn’t need and that was harmful to her, in the light of the applicant’s complaints, confirming that in her belief medical professionals and the local authority had conspired over many months deliberately to give E.O. the wrong medication to cause her harm, in the light of the applicant’s approaches, making her beliefs known to E.O. on the majority of occasions of direct or indirect contact between them (numerous recordings of her indirect contact with E.O.; films with the speaker phone switched on so that E.O.’s voice, and the voices of staff at the placement who supervised the calls could be heard…), in the light of the applicant’s conduct being harmful to E.O., it was contrary to E.O.’s best interests for face to face contact with the applicant to continue over the next few months. Whilst E.O. had said that she enjoyed seeing her mother, the Court of Protection found out that the overwhelming balance of the evidence showed that it was currently harmful to her.
As a consequence, the Court of Protection had concluded that it was in E.O.’s best interests for indirect contact to be reduced to one telephone call every fortnight for up to 30 minutes to be supervised by being on a loudspeaker at placement 3 with at least one staff member at the placement supporting E.O. The application was for a reduction to one call every three weeks, but the magistrate, in one more attempt to try to accommodate contact whilst protecting E.O. had concluded that the appropriate balance, in E.O.’s best interests, was telephone contact every fortnight (Annex no. 18).
Finally, the magistrate had also given the reasons for refusing permission to appeal, inasmuch as the applicant had an erroneous belief that her daughter was the victim of a conspiracy to harm her by using medication for a mental health condition, schizophrenia, that her daughter did not have. The magistrate precised that the court had received overwhelming evidence that E.O. did have schizophrenia and was being appropriately medicated and cared for at her current placement. Furthermore, he added that the applicant had for many months harmed the wellbeing of her daughter, and endangered her mental health, by a constant campaign to undermine those professionals caring for her, which she waged in front of E.O. on contact. Lastly, he pointed out that the applicant participated fully, as a litigant in person, at the hearing and that the proceedings were fair (Annex no. 19).
Procedural background before the Order of the Civil Division of the Court of Appeal dated 25 th March 2024
On 28 th November 2022, the applicant’s husband (R.M.) made another witness statement (Annex no. 20).
On 6 th December 2022, the applicant wished to appeal the Orders made on the same day by Mr Justice Poole and presented her grounds for appeal (Annex no. 21).
On 15 th January 2023, the applicant made a skeleton argument for committal hearing before Mr Justice Poole on 16 th January 2023 (Annex no. 22).
On 28 th February 2023, the applicant made an application from the perspective of seeking an order for removal of E.O.’s medication (Annex no. 23).
On 7 th March 2023, the applicant made an affidavit in order to make a new appeal against the 16 th January 2023 judgment and 8 th February order (Annex no. 24).
On 30 th November 2023, the applicant made a paid relevant person’s representative report following her daughter’s visit on 29 th November 2023 (Annex no. 25).
The Order of the Civil Division of the Court of Appeal dated 25 th March 2024
The applicant tried anew application for permission to appeal from the Order of Mr Justice Poole dated 4 th December 2023.
However, by Order dated 25 th March 2024, the Civil Division of the Court of Appeal refused this permission (Annex no. 26).
Firstly, the Court of Appeal effected a procedure reminder: in June 2023, the court wished to order resumption of face-
The court ordered in the interim that video/telephone contact take place weekly and fixed a review hearing in December 2023. At the hearing on 4 th December 2023, the judge reiterated that it would be in E.O.’s best interests for her to resume face to face contact with her mother in a carefully managed manner. The judge also rejected the local authority’s proposal to reduce the frequency of contact.
Nonetheless, the applicant was compelled to refuse to have contact with her daughter because the judge persisted to deny her medication’s changing request.
It is primordial to underline that the applicant had tried to appeal many times: yet her applications for permission to appeal from various orders have been dismissed as totally without merit in September 2022, December 2022, and October 2023.
In May 2023, her appeal from the committal order was dismissed after a hearing. On this occasion the judge made the following orders:
that the applicant had to remove material from the internet;
that the applicant would have weekly video or telephone contact (to be supervised and on conditions);
that the proceedings be concluded with liberty to the local authority to restore them within a year for the purpose of applying to extend the injunction order against the applicant if necessary.
The applicant’s grounds of appeal against the Order were:
that the orders are based on false evidence;
that the orders are in breach of her Human Right;
that there have been procedural errors;
The applicant’s skeleton argument challenged her daughter medication and living arrangements and complaints about the independence of her litigation and about her wishes and feelings being ignored.
In refusing permission to appeal from the June 2023 order on 10 th October 2023, the judge of first trial had already declared:
"Your argument in support of this application expresses your disagreement with all orders that have been made. It shows that you continue to be deaf to any point of view but your own concerning E.O.’s diagnosis, capacity, and best interests. Your application does not identify any valid criticism of the judge’s decision. The order was one that he was undoubtedly entitled to make and your application is no more than an automatic and unthinking response. It represents a sad waste of effort that could have been devoted to building safe and constructive contact for E.O.".
The judge of first trial noted that the applicant had ignored this advice and, when refusing permission to appeal, that her application for permission to appeal was a reflex response.
Consequently, the Civil Division of the Court of Appeal refused permission to appeal and certified the application as being totally without merit for the same reasons.
DISCUSSION
On the violations of the Convention
On the violation of Article 3 of the Convention
Applicable principles
Close relatives may under some circumstances claim to be indirect victims of a violation directly affecting a living relative. For instance, a mother can claim indirect victim status in respect of an alleged discrimination affecting her disabled child, in so far as, in addition to the care which she provided, she had instituted the domestic proceedings in her capacity as guardian to her daughter, who was incapable of discernment (Belli and Arquier-
In addition to their status as "indirect victims", family members can also be "direct victims" of a treatment contrary to Article 3 of the Convention on account of the suffering stemming from serious human rights violations affecting their relatives (Janowiec and Others v. Russia [GC], 21 October 2013, n°55508/07 and 29520/09, §§ 177-
Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity (Bouyid v. Belgium [GC], 28 September 2015, n°23380/09, § 81).
The prohibition under Article 3 of the Convention does not relate to all instances of ill-
In order to determine whether the threshold of severity has been reached, other factors may be taken into consideration, in particular: (a) the purpose for which the ill-
Regarding forced medical interventions, a measure which is a therapeutic necessity from the point of view of established principles of medicine cannot, in principle, be regarded as inhuman and degrading. The Court must, nevertheless, satisfy itself that a medical necessity has been convincingly shown to exist and that procedural guarantees for the decision exist and are complied with (Jalloh v. Germany [GC], 11 July 2006, n°54810/00, § 69).
In the case of Gorobet v. Moldova, 11 October 2011, n°30951/10, the Court found no medical necessity to subject the applicant to forty-
Likewise, while the initial involuntary hospitalization of the applicant (who had attempted suicide) was justified, the Court found, in the case of Bataliny v. Russia, 23 July 2015, n°10060/07, that no medical necessity had been shown for his continued involuntary hospitalisation and treatment, including his confinement and participation in scientific research for a new drug (§§ 88-
Regarding the duty to investigate allegations of torture, inhuman or degrading treatment or punishment, where an individual raises an arguable claim that she or he has suffered treatment infringing Article 3 at the hands of State agents, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to "secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention", requires by implication that there should be an effective official investigation (Assenov and Others v. Bulgaria, 28 October 1998, n°24760/94, § 102 and El-
Linked to the above, the Court has underlined that a proper response by the authorities in investigating serious allegations of ill-
Application to the case
Concerning Ms Ellen OKPATTAKH
For introductory, it would appear that, despite not being the applicant concerning this application, Ms Ellen OKPATTAKH has constantly suffered several infringements in her right not to be subject to torture and inhuman and degrading treatments. As the case demonstrated it, Ms Ellen OKPATTAKH is a vulnerable person which has not been able to challenge the basis of the various decisions.
Firstly, Ms Ellen OKPATTAKH has been victim of inhuman and degrading treatments regarding her living conditions in Church View. Indeed, it was the combination of staff shortages, due to being a brand-
As a reminder, Ms Ellen OKPATTAKH endured: delicate fabrics that were being washed at long hot temperatures; missing foodstuffs with Ellen’s crockery being found in staff areas; sticky medicine spills on the floor; theft not only of food but items of clothing; furniture being damaged; mouldy food has been photographed in her fridge on three occasions; three month out of date coconut milk in her fridge and given to her at breakfast; clothing has disappeared at an alarming rate; neglections in hygiene matters; left in isolation; denied of poetry classes; broken computers and telephones; gum disease with prescription mouthwashes and toothpastes given but ignored by the carers; physiotherapists requests ignored; physical assaults… (see for more details Annex no. 1).
In addition, no lines of demarcation were set, such as medication, activity, domestic cleaning. There were no life skills provided as promised in the care facility’s description.
But most importantly, medication was being given wrongly and prescriptions were being changed. Unnecessary medication has become the basis of the original complaints in this case. Ms Ellen OKPATTAKH has been abused and forced to take medication that the NHS site recommends not to use continuously: prolonged use of this medication could lead to very serious side effects, which, actually, have occurred in the case at hand.
Undoubtedly, Ms Ellen OKPATTAKH started to suffer from excessive saliva, diarrhoea, and vomiting. Her mother struggled to put a stop to that medication because, as soon as it would stop, it was reinstalled again and again. Even after solicitor’s advice to Ms Ellen OKPATTAKH to put a written note from her to her doctor in order to stop this medication was ignored, for the reason that care providers approached another doctor.
Furthermore, at the end of May 2017, after Ms Ellen OKPATTAKH was being in residence for only eight months, the local authority took out this Court of Protection case against the applicant. Suddenly, the latter was suspected of lacking mental capacity by the same social worker that was quite satisfied a month or two earlier. The authority investigation was expanded upon, and it was claimed that the applicant was not acting in her daughter’s best interests. The "icing on the cake" was that not only no references were ever made to the failures to provide the promised care and activities and any of the applicant’s concerns, but no references were also above all ever made to the failures in medication by the care facility.
Finally, it is clear that the British jurisdictions, in that case the Court of Protection, has failed to take into consideration these abuses. The different judges have unfairly condemned Ms Ellen OKPATTAKH to a life with no liberty: imposing a ban on the use of her native language with her mother; refusing the use of her computer and telephone contrary to the care plan; forbidding her to use her poetry blog and communication with Russian friends; not given her the benefit of the doubt as required under the Mental Capacity Act 2005; not properly considered her best interest.
The judges failed to see that Ms Ellen OKPATTAKH’s condition was successfully treated, however, she became a victim of maladministration of prescribed treatment to harm her, in order to prove that she lacked capacity. Instead of observing that Ms Ellen OKPATTAKH has been stripped of her voice and liberty, ignoring all of the evidence put forward by her family in multiple statements with positive proves of the medical records, the judges relied on unreliable and unsubstantiated hearsay notes.
Particularly, the injunctions that were in the different orders have been brutal and unjustified: the British jurisdictions have prohibited Ms Ellen OKPATTAKH to discuss with her mother about medications and treatment; they have restricted telephone contacts and face-
Following the above, the violation of Article 3 of the Convention, in its material limb, is demonstrated.
Secondly, Ms Ellen OKPATTAKH has been victim of the neglected investigation made by the regulating bodies such as CQC, the Sunderland City Council, the Social Care Ombudsman and even the police with the criminal investigation into wilful neglect. It appears incontrovertibly that these authorities have not taking into account the host of evidence that were submitted by the applicant.
Moreover, this duty to investigate allegations of inhuman or degrading treatments has not also been honoured by the British jurisdictions which have failed to understand the complexity of this case. The judges have completely ignored an emergency application in regard to serious medical mistreatment together with en affidavit that was submitted to the Court of Protection. The police were instructed to walk away from investigating wilful neglect, physical assault and substantive evidence of perjury by Council’s witnesses. Three social workers and one witness carer have been totally ignored by the British jurisdictions.
Following the above and all the elements supported concerning the material limb, the violation of Article 3 of the Convention, in its procedural limb, is, as well, demonstrated.
Concerning Mrs Lioubov MACPHERSON
For introductory, the applicant has to be considered as a close relative being an indirect victim of violation directly affecting a living relative, to be precise, Ms Ellen OKPATTAKH, her daughter. Indeed, the Court will see that the applicant had to institute domestic proceedings in her capacity as guardian to her daughter – before the LPA were removed – who was incapable of discernment.
In addition to her status as "indirect victim", the applicant could also be a "direct victim" of treatments contrary to Article 3 of the Convention on account of the suffering stemming from serious human rights violations affecting her daughter as demonstrated hereinabove.
As a matter of fact, the applicant left her vulnerable daughter to psychiatric abuses that continue up to this day. It also puts her under enormous daily stress, because of the inability to communicate properly with the responsible professionals. On top of that, the applicant has been treated as a criminal just for complaining and trying her best to protect her only daughter.
It would appear that the British authorities have completely forgotten that every order that was placed on her daughter, who has been without no doubt abused in this procedure, was indirectly placed on the applicant. By these actions, both judges have harmed at the same time the applicant and her daughter’s health.
The applicant has faced a discriminatory behaviour from the British jurisdictions by not any time considering her daughter’s wishes and feelings or what she has stated countless times without variation that she wanted to see more of her family and to be reunited. Hence, through the intervention of the applicant’s daughter suffering, it couldn’t be denied that the applicant has also endured inhuman and degrading treatments.
First of all, by rulings saying basically that her daughter has been a danger to others or herself, not to mention that the false statements which were contested in Court and disproved – such as that the applicant didn’t believe that her daughter has schizophrenia – were already explained: that was not for the applicant to argue the diagnosis, but for the doctors to decide.
Second of all, by injunctions which have been detailed throughout the whole procedure.
Third of all, by rulings showing that the applicant has been treated in an abusive and unpleasant manner, accused of believing in conspiracy theories whereas she just tried to fight for justice and protect her unique daughter.
Following the above and all the elements supported concerning the material and procedural limbs of Article 3 of the Convention regarding the applicant’s daughter, the violation of this article is also demonstrated in both limbs.
On the violation of Article 8 of the Convention
Applicable principles
Concerning Ms Ellen OKPATTAKH
The Court has stated that when a measure falls short of Article 3 treatment, it may nevertheless fall foul of Article 8 (Wainwright v. the United Kingdom, 26 September 2006, n°12350/04, § 43, as regards strip-
The principles applicable to assessing a State’s positive and negative obligations under the Convention are similar (and, therefore in some instances, the Court considered that it did not need to decide which obligation was at issue, see for instance, Paketova and Others v. Bulgaria, 4 October 2022, n os 17808/19 et 36972/19 § 163). Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, the aims in the second paragraph of Article 8 being of a certain relevance (Hämäläinen v. Finland [GC], 16 July 2014, n°37359/09, § 65; Roche v. the United Kingdom [GC], 19 October 2005, n°32555/96, § 157).
In the case of a positive obligation, the Court considers whether the importance of the interest at stake requires the imposition of the positive obligation sought by the applicant. Certain factors have been considered relevant for the assessment of the content of positive obligations on States. Some of them relate to the applicant. They concern the importance of the interests at stake and whether "fundamental values" or "essential aspects" of private life are in issue or the impact on an applicant of a discordance between the social reality and the law, the coherence of the administration and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8. Other factors relate to the impact of the alleged positive obligation at stake on the State concerned. The question is whether the alleged obligation is narrow and precise or broad and indeterminate (Hämäläinen v. Finland [GC], aforementioned).
With regard to the positive obligations that Member States have in respect of vulnerable individuals suffering from mental illness, the Court has affirmed that mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life (Bensaid v. the United Kingdom, 6 February 2001, n°44599/98, § 47).
The Court has long held that an individual’s right to refuse medical treatment falls within the scope of Article 8. This includes the rights of mentally ill patients to refuse psychiatric medication. A medical intervention in defiance of the subject’s wishes will give rise to an interference with his or her private life and in particular his or her right to physical integrity (X. v. Finland, 3 July 2012, n°34806/04, § 212). In some circumstances forced medication of a mentally ill patient may be justified, in order to protect the patient and/or others. However, such decisions must be made against the background of clear legal guidelines and with the possibility of judicial review (ibid., § 220; Storck v. Germany, 16 June 2005, n°61603/00, §§ 164-
In cases where legal incapacity is imposed on mentally ill individuals, the Court has articulated procedural requirements necessary to protect Article 8 rights. The Court often addresses these Article 8 violations in conjunction with Articles 5 and 6. The Court emphasises the quality of the decision-
In proceedings concerning legal incapacity the medical evidence of the mental illness needs to be sufficiently recent (Nikolyan v. Armenia, 3 October 2019, n°74438/14, § 124). Furthermore, in Nikolyan v. Armenia, aforementioned, the Court found that the existence of a mental disorder, even a serious one, could not be the sole reason to justify a full deprivation of legal capacity. By analogy with the cases concerning deprivation of liberty, in order to justify full deprivation of legal capacity the mental disorder had to be "of a kind or degree" warranting such a measure.
Concerning Mrs Lioubov MACPHERSON
The Court has stated that when a measure falls short of Article 3 treatment, it may nevertheless fall foul of Article 8 (Wainwright v. the United Kingdom, aforementioned).
Where the case concerns a negative obligation, the Court must assess whether the interference was consistent with the requirements of Article 8 paragraph 2, namely in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society (Olsson c. Sweden (n°1), 24 mars 1988, n°10465/83, § 59).
The essential ingredient of family life is the right to live together so that family relationships may develop normally (Marckx v. Belgium, 13 June 1979, n°6833/74 § 31) and members of the family may enjoy each other’s company (Olsson v. Sweden, aforementioned). Regard for family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8 (Strand Lobben and Others v. Norway [GC], 10 September 2019, n°37283/13, § 204).
"Family life" can extend after the age of majority on account of "additional elements of dependence" allowing for the existence of "family life" between parents and adult children (see, for instance, Belli and Arquier-
Whilst Article 8 contains no explicit procedural requirements (as noted above), the decision-
Application to the case
Concerning Ms Ellen OKPATTAKH
It should be reminded the same reasoning with reference to Article 3 of the Convention regarding the vulnerable status of Mrs Ellen OKPATTAKH and consequently her inability to challenge the basis of the various decisions. Since then, despite not being the applicant concerning this application, it is evident that she has constantly suffered several infringements in her right to respect for a person’s private life, especially concerning, on one hand, the deprivation of legal capacity, on the other hand, the right to refuse medical treatment.
On the existence of the interference
In regard to the deprivation of legal capacity, in the case in point, there is no doubt that this constitutes a serious interference with the right to respect for a person’s private life protected under Article 8 according to the case law of the Court.
In regard to the right to refuse medical treatment, in the case in point, there is also no doubt that this constitutes an interference with private life and in particular the right to physical integrity protected under Article 8 according to the case law of the Court.
On the legality of the interference
In regard to the deprivation of legal capacity and the right to refuse medical treatment, in the case in point, Ms Ellen OKPATTAKH does not contest that the interference was predicted by the law.
On the pursuit of a legitimate aim
In regard to the deprivation of legal capacity and the right to refuse medical treatment, in the case in point, Ms Ellen OKPATTAKH does not contest that the interference pursues a legitimate aim. In any case, the Government must prove it.
On the necessity in a democratic society
In regard to the deprivation of legal capacity, in the case in point, it would appear that the former GP of Ms Ellen OKPATTAKH made a capacity assessment in order for signing lasting powers of attorney. There were indeed no concerns at all with allowing the signing of the documents. Mrs Ellen OKPATTAKH has sent a handwritten letter to the social worker, informing her about this procedure. She also explained about her worries that the local authority wanted to restrict her contact with her mother and that it would not be in her best interests.
Yet, this letter has been completely ignored by the Court of Protection. Besides, there has never been concerns about Ms Ellen OKPATTAKH’s mental capacity assessments by the GP, social worker and doctors which have shown a proper understanding and decision making.
In fact, the social worker claims to have made assessments on 1 st May 4 th May and 9 th May 2018, concluding that Ms Ellen OKPATTAKH had no understanding, could not digest new information, did not accept her illness, and did not appreciate above all that her mother greatly influenced her decisions.
No assessment records have been produced in spite of the legal requirement to make and keep records. No records were shown to the Court, or to the GP, or to Ms Ellen OKPATTAKH. Moreover, the judge did not question the lack of those records.
Ultimately, this case clearly shows that a Court "expert" consultant was designated and made the opinion that Ms Ellen OKPATTAKH lacked capacity. He declared that she had no capacity to decide who to meet, whet care she needed or where she should live. On top of that, he confirmed that she had no capacity even to sign the LPA 6 months before he met her which in any way complies with the Mental Health Act of 2005.
Thus, the decision-
In regard to the right to agree for a medical treatment, in the case in point, it has already been proved that Ms Ellen OKPATTAKH medical treatment exacerbates her symptoms. Actually, three hospitals have recorded shortages of prescription drugs in her blood. Safeguarding concerns from CQC, Crisis Team, GP and others have been ignored and disappeared.
Hence, the different orders have successively harmed the physical and moral integrity of Ms Ellen OKPATTAKH, confirming a medical treatment which is incompatible with her state of health.
Following all the elements indicated hereinabove the violation of Article 8 of the Convention is demonstrated.
Concerning Mrs Lioubov MACPHERSON
On the existence of the interference
There is no doubt that the restricting contacts injunctions decided in the various orders since the beginning of this lengthy procedure constitute a serious interference with the applicant’s right to have a normal family life protected under Article 8 according to the case law of the Court.
Indeed, "Family life" could extend after the age of majority on account of "additional elements of dependence" which are undoubtedly demonstrated regarding, first, the vulnerable status of the applicant’s daughter, second, the proximity and the love given to each other.
On the legality of the interference
In the case in point, the applicant does not contest that the interference was predicted by the law.
On the pursuit of a legitimate aim
In the case in point, the applicant does not contest that the interference pursues a legitimate aim. In any case, the Government must prove it.
On the necessity in a democratic society
In the case in point, the applicant has constantly suffered of the beyond understanding determination by the care providers and the social worker. As it has been already emphasised, misleading statements have been made in Court without any punishment.
Thereby, the applicant was accused of "many and prolonged night-
Her daughter often had no telephone access to contact her because the phone was usually discharged. The social worker also stated that the applicant had run through hospital corridors to bang on her daughter’s door, disturbing her in the process. However, the latter made no explanation of how the applicant was even able to bypass a locked security door in what was a secure hospital.
At one point, her daughter said that her identity had been taken away, reducing her to nothing. Her telephone and computer were taken away. She asked the applicant to see her passport. That’s why, the applicant showed her Russian passport with her name and photograph on it to reassure her. Nonetheless, nurses reported this to the social worker who immediately called abduction intentions and went to the Court of Protection to remove the applicants nearest relative privileges.
Furthermore, the British jurisdictions only approved these unacceptable restrictions into the applicant’s right to have a normal family life. The Judge, Mr Justice Poole, has only reinforced all of the previous orders and reduced further telephone contact to one call a fortnight supervised with unjustified and severe rules, and face to face access reduced to nothing between June and December.
It should made be clear that all these restrictions have been decided on hearsay evidence that were often out of context and without any signatures or names. There were no witness appearances in Court either.
As a consequence, the decision-
Following all the elements indicated hereinabove the violation of Article 8 of the Convention is demonstrated.
On the scope of Rule 39
Applicable principles
The Rule 39 of the Rules of Court states that:
"The Court may, in exceptional circumstances, whether at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted. Such measures, applicable in cases of imminent risk of irreparable harm to a Convention right, which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation, may be adopted where necessary in the interests of the parties or the proper conduct of the proceedings".
The notion of "irreparable harm to a Convention right" has been defined as harm which, on account of its nature, would not be susceptible to reparation, restoration or adequate compensation.
In this connection, the term "restoration" should be understood as referring to return to the situation before any harm was done. Interim measures are thus indicated by the Court where there is a risk that the absence of such measures would lead to a situation in which restitutio in integrum and other forms of reparation would not be possible if the Court were to consider them warranted at the end of the proceedings before it.
When issuing interim measures, the Court exercises its jurisdiction to ensure observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, in accordance with Article 19, which jurisdiction extends to all matters concerning their interpretation and application, as provided in Article 32 of the Convention (see, inter alia, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 128-
In regard to the scope of Rule 39, the Court has considered in practice that interim measures applied regarding:
Articles 2 and 3: expulsion and extradition claims;
Articles 2, 3 and 6: obvious miscarriage of justice in view of expulsion and extradition where the applicants would fear for their lives (death penalty risk, life sentence risk without possibility of parole, evidences obtained by torture etc.);
Articles 2 and 3: failure to provide to prisoners in contracting States adapted medical treatments;
Articles 2 and 3: failure to provide to prisoners in contracting States necessary medical treatments but costly;
Article 8: forced return of a child which involves break-
Articles 3 and 8: credible allegations of serious and irreparable harm to child;
Articles 3 and 8: cases which reach the threshold of irreparable harm;
Article 8: destruction of frozen embryos/foetus cases (Evans c. United Kingdom [GC], n°6339/05, CEDH 2007-
Article 10: revelation of a journalist’s source (rare cases);
Hunger strikes (rare cases);
Sensitive cases outside the scope, attracting high media interest, controversial status of the applicant…
Application to the case
In the case in point, it appears that this matter falls under Articles 3 and 8: cases which reach the threshold of irreparable harm. The evidence available points to a clearly arguable case of a genuine threat to physical and moral integrity for the applicant’s daughter as well as the ensuing real risk of grave harm in breach of the core provisions mentioned hereinabove of the Convention.
In this case, the notion of "irreparable harm to a Convention right" needs to be understand in the light of the complex legal context. The applicant has faced an impossibility to repair, restore or have an adequate compensation regarding what’s happening with her daughter’s medical conditions.
Moreover, the situation could never return before any harm was done as long as the applicant’s daughter continues to have an inappropriate medical treatment which is causing more pain than good.
On the urgency
This case is urgent inasmuch as the applicant is backed into a corner, meaning that her daughter still suffers from her medical treatment and their contact has never been nonexistent as before.
Besides, the Order by the Civil Division of the Court of appeal, refusing permission to appeal makes the last Order of Mr Justice Poole dated 4 th December 2023 definitive and executable.
The applicant is no longer in measure to contest this ruling or to ask for suspension.
When all is said and done, the applicant is powerless in front of such breach of human rights and lives with the constant feeling that the British authorities have not realised the gravity of this situation.
It appears clearly that there is an urgency to avoid the continuation of the medical treatment concerning the applicant’s daughter before her state of health degrades more strenuously.
THEREFORE, IT IS ASKED TO THE COURT:
To order to the British authorities to suspend E.O.’s medical treatments immediately and make another expert psychiatric assessment until the Court ruled on the merits of the application.
To order to the British authorities to suspend E.O.’s residence at placement 3 for the purpose of living with her mother until the Court ruled on the merits of the application.
Ümit Kilinç