Council still trying to bring Alzheimer's man back to UK

The Argus reported yesterday how Teresa Kirk, 71, had been freed after one of the country's top judges slammed the decision to jail her for helping a friend with Alzheimer's.

Devon County Council took her to court after she refused to remove the elderly man from a care home in Portugal, and the Court of Protection jailed her for contempt after she persisted in her refusal.

Mrs Kirk, from Saltdean, has now been granted permission to appeal to allow the man to stay in Portugal, but Devon County Council yesterday said it stood by the decision that he should return.

Peter Kyle, MP for Hove, told The Argus yesterday: "I think what we need now is humanity and sensitivity have got to start reigning supreme and that means that the Portuguese authorities and the British authorities have got to work together in an open and supportive way and the needs of the man have got to come first.

"This should not be a matter of pride for the British system; his welfare is what's important. It cannot end up as a merry-go-round between different judicial authorities.

"The real experts in theses cases are often the people who love the person, who know the person. Those are the people who have been shut out of this so far and they must move forward even though some terrible mistakes have clearly been made.

"The opinion of experts is incredibly important but it should not come at the expense of the love and humanity that comes with knowing somebody.

"The system gets it right most of the time.

"But when it gets it wrong it's completely unacceptable and in this case it has gone wrong."

Yesterday Colin Challenger, the barrister who stepped in to represent Mrs Kirk and get her out of prison, said they were now hoping to get fresh evidence to challenge the council's argument that the man would be better off in the UK.

He said: "One of the things I try to apply to situations is common sense - so as far as the man is concerned he has lived in Portugal for a long time and he has been in the Portuguese care home now since August of last year.

"He has never been in a care home in England and the care home they want to send him to - well I have done a bit of research which indicates you would not want to be an inmate there.

"But rather more to the point, he knows what's happening in Portugal and he recognises other people there and people who work there because he has been with them for 15 months."

A spokesman for Devon County Council said: "The High Court ruled on this matter after hearing all the evidence and ultimately concluded it was in the best interests of the vulnerable adult to return to the UK.

"We have no further comment to make as we consider the High Court’s decision to be sound."

CASES AT THE COURT OF PROTECTION REMAIN HIGHLY SECRETIVE

BASED in a severe-looking building in London’s High Holborn, the Court of Protection makes life-changing decisions for some of society’s most vulnerable: those who do not have the mental capacity to make decisions for themselves.

So far, among several major cases, it has ordered a mentally ill woman’s baby be taken from her by forced caesarean; jailed a 74-year-old for seeing her granddaughter; and is deciding whether a wife should be allowed to switch off her husband’s life support machine.

Yet until as recently as the start of this year, and only following significant campaigning from the press and MPs, its hearings were almost entirely held in private.

Opening them to the press and public in January, in a pilot project that has now been extended until August, the court president Sir James Munby noted the value of doing so. “For the last six years accredited media have been able to attend Family Court cases and have been better informed about the work of the Family Court as a result,” he said.

“It is logical to look at extending this greater transparency to the Court of Protection, provided the right balance can be struck to safeguard the privacy of people who lack capacity to make their own decisions.”

Yet the court’s cases remain highly secretive, with the identities of the people involved as default kept secret from the public.

The aim is to protect their privacy but the result is that details are often scant and the full understanding of the case is undermined.

The only reason we know the name of 71-year-old grandmother Teresa Kirk is because the court’s decision has now been reversed by a judge who said the system had failed in her case by sending her to prison. Her six-month sentence, for defying the Court of Protection and refusing to sign a form asking for a loved one with Alzheimer’s to come back from Portugal to be cared for in the UK, meant she had to be named.

Yet the public is not allowed to know the identity of the man or the relationship between them that propelled her to forfeit her freedom and act against the authorities’ decisions on his care. Many argue that means the public cannot properly understand or challenge the court’s decision.

Colin Challenger, the barrister who took on her case free, said: “Understandably the court wants to protect what I suppose is private medical information.

“But the way it has worked in this case is that we have the ludicrous situation that Teresa Kirk is named as the person who has allegedly kept somebody in a care home in Portugal and the relationship between them is kept secret.

“She is identified as the person who has been sent to prison for having behaved in this way and the fact that she has done so in relation to [the person] cannot be published.

“The reason why she is prepared to go to prison because she thinks that he should stay in the care home in Portugal is because she really does completely, in the platonic sense, love him, she has known him a long time and her feelings are genuine.

“But the only thing that can be reported is her name and the fact that a man is imprisoned in a care home in Portugal, that the local authority think he should be in England and she has been imprisoned because she refuses to enable that.”

Mr Challenger, who normally works in civil and litigation cases, said he thought the court should re-think its approach to anonymity and apply it depending on the case rather than as a default.

“I think the court should have discretion and should use it sensibly,” he said. “If I was an Aids patient, for example, I might well be horrified if that was publicised; the reality is if I was a patient with Alzheimer’s, I would not give a damn.”

At the start of the case in May, the Court of Protection also prevented newspapers from naming the local authority involved in the Alzheimer’s sufferer’s case, Devon County Council, although this was amended in August with the council’s support.

Mr Challenger said since publicity around Mrs Kirk’s case he has heard from around a dozen people reporting problems with Court of Protection cases they are caught up in. Former MP John Hemming has long campaigned for more transparency in the Family Court, arguing that “you would not believe” what happens there and more scrutiny and openness leads to better decisions. It has been “over the top” in the Teresa Kirk case, he said. “You cannot even identify the relationship between Teresa Kirk and the individual.”

Dominic Ponsford, the editor of Press Gazette, a newspaper industry website, echoed that view. He said: “Any official secrecy can only be justified if the public interest in confidentiality outweighs the public interest in disclosure. It cannot be right that grave possible miscarriages of justice are going unreported because of secrecy around family courts. Of course children and vulnerable adults have to be protected. But their interests are not necessarily best served when legal decisions about their welfare are taken in secret.”

NO ONE ASKED WHY THIS WAS HAPPENING

TERESA Kirk was jailed for six months after taking an elderly man with dementia to a care home in his native Portugal and refusing to bring him back to Britain.

The 71-year-old from Saltdean was found guilty of contempt of court after disobeying orders for the 80-year-old man – identified only as MM – to be returned to the UK.

Passing the sentence at the Court of Protection, Mr Justice Newton said Mrs Kirk had deeply held, sincere beliefs and was genuinely concerned about the welfare of MM but there was a “long period” where she had successfully frustrated court orders.

He said: “I am left with no alternative but to pass a sentence of imprisonment, however much I have made it perfectly clear that I do not wish to do so.”

She was held at Bronzefield prison in Surrey, home to serial killers including Joanna Denehy.

But this week Mrs Kirk was released after barrister Colin Challenger appealed.

Sir James Munby, the judge who headed the appeal panel, said the process had been mechanical and he questioned why nobody at any stage stood back and asked what was happening.

Lord Justice McFarlane added: “No one at any stage of it has stood back and said, ‘What are we doing here sending this 71-year-old lady to a six-month prison sentence in order to achieve a welfare benefit for (this elderly man)?’.”

The panel will give its full reasons for release at a later date.

Gilliane Williams, senior law lecturer at the University of Brighton, said: “This is not the first time that decisions of the Court of Protection have been subject to criticism.

“The Court of Protection’s ‘mechanical’ approach in this case will no doubt highlight the flaws in the decision-making process that the court is at liberty to implement.”