Henrietta Martha Job v the Mental Health Act Chap 28:02 Section 41

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Madame Justice Margaret Y Mohammed
• Judgment Date: 13 December 2024
• Neutral Citation: TT 2024 HC 317
• Docket Number: Claim No. CV 2023-02860

In the Matter of Henrietta Martha Job

(The Patient)

and

In the Matter of the Mental Health Act Chapter 28:02

and

Liam Job

(The Applicant)

Consolidated with

In the Matter of the Mental Health Act Chap 28:02 Section 41

In the Matter of Part 70 of the Civil Proceedings Rules 1998

and

In the Matter of the Application by Rekaleigh Job to be Appointed the Committee of Henrietta Job

(Pursuant to the order of the Honourable Madame Justice Margaret Y Mohammed dated 1 March 2024)

Before

the Honourable Madame Justice Margaret Y Mohammed

Claim No. CV 2023-02860

Claim No. CV 2023-03849

IN THE HIGH COURT OF JUSTICE

APPEARANCES

Mr Keon Beckles Attorney at law for Liam Job, Mark Job and Declan Job

Mr Peter Taylor instructed by Ms Nehanda Samuel Attorneys at law for Rekaleigh Job

Ms Fazana Ali Attorney at law for the Public Trustee

INTRODUCTION

1 Henrietta Martha Job (“the Patient”) resides at LP No. 3B Field Trace, Water Wheel Road, Diego Martin (“the Patient's home”) with two of her children Rekaleigh Job (“Rekaleigh”) and Mark Job (“Mark”). The Patient also has three other children namely, Liam Job (“Liam”), Declan Job (“Declan”) and Javier Job (“Javier”). Liam lives with his own family in Arima, Declan resides with his family in Chaguanas while Javier is living in the United States of America (“USA”). The Patient is a widow and her deceased husband Errol Job (“Errol”), the father of all five of her children, departed this life on 16 April, 2023. At the time the instant actions were filed the Patient was diagnosed with an advance stage of Alzheimer's and/or Dementia and she is incapable of taking care of herself and is therefore unable to manage her affairs. Liam, Declan and Mark have applied to be appointed joint Committee of the Patient. Rekaleigh has also applied to be appointed the sole Committee of the Patient and her application is supported by the only other sibling who is not a party to the proceedings, Javier.

2 Liam, Declan and Mark contend that they should be appointed the joint Committee of the Patient as they will ensure that she is kept in the Patient's home where she is comfortable in familiar surroundings as Liam does not wish to sell it; Mark lives in the Patient's home with the Patient and is meticulous about ensuring that the Patient's needs are met; they share a close emotional bond to the Patient as Liam took her to be examined by Dr Shafe due to Rekaleigh's refusal to provide any information about the Patient's medical condition and she has hid her medications from them; they will also ensure that the caregiver for the Patient only attends to the Patient's needs; during the period when Rekaleigh had access to the Patient's bank account she mismanaged the Patient's funds and did not spend it on the Patient; and they will ensure that the Patient's religious, social and familiar needs are met as they would not prevent the Patient's children from having access to her.

3 Rekaleigh's position was that she should be appointed the sole Committee to the Patient as she is gainfully employed and the only sibling who has continuously lived with her parents, Errol and the Patient; she has been caring for the Patient and she hired a caregiver for the Patient in November 2022; she enjoys a good relationship with the caregiver; she is the only sibling who takes the Patient for her medical appointments; she administers medications to the Patient when the caregiver is not present; she purchases all the medications and groceries for the Patient; and Errol reposed sufficient confidence for her to care for the Patient as he appoint her executrix and beneficiary of the Patient's home in all 3 Wills he made prior to his death. She also asserted that Liam and Declan are not suitable to be appointed Committee for the Patient as they do not live with her and Liam, Mark and Declan are not capable of providing the round the clock care and attention which is required by the Patient.

4 Liam, Declan, Mark, Rekaleigh and Javier filed affidavits and at the trial were cross examined on their contents. The Public Trustee filed a Field Investigator's Report on 17 January 2024 (“the FIR”). Although Javier stated in his affidavit that he supported Rekaleigh being appointed Committee for the Patient, I have attached little weight to his evidence in determining which sibling to appoint as Committee, as he admitted in cross examination that since he migrated to New York, USA in May 2019 all the information he has on the Patient he received from Rekaleigh as he has not returned to Trinidad due to his immigration status.

LAW AND ANALYSIS

5 Section 38 of the Mental Health Act 1 sets out the powers of the Court when dealing with application to appoint a Committee for the Patient as:

• “(1) In addition to the powers conferred on a Judge by sections 36, 37, and 37A a Judge may, with respect to the property and affairs of a patient, do or cause to be done all or any such things which he may consider necessary or expedient—

  • (a) for the maintenance or other benefit of the patient or members of his family or both;

  • (b) for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not suffering from mental disorder; or

  • (c) generally for administering the patient's property and affairs.

• (2) In the exercise of his powers under subsection (1), the Judge shall have regard to –

  • (a) the requirements of the patient;

  • (b) the interests of creditors as well as to the desirability of making provisions for obligations of the patient notwithstanding that they may not be legally enforceable.”

6 The role of the Committee is set out at section 41 which provides:

• “(1) A Judge may by order appoint as receiver for a patient the person named in the order or the holder of an office so specified.

• (2) The receiver shall, in relation to the property and affairs of the patient, do all such things as the Judge in exercise of his powers under this Part, orders, directs or authorises him to do.

• (3) A receiver may be discharged by order of the Judge at any time if the Judge considers it expedient to do so and shall be discharged—

  • (a) automatically on the death of the patient;

  • (b) by order of the Judge whenever the Judge is satisfied that the person is capable of managing and administering his property and affairs.”

7 The Mental Health Act is silent on the process or test to be adopted by a Court to determine who is the appropriate person to appoint as Committee for the Patient. Local judgments have provided some guidance in this regard. In The Application by Roy Williams (A Patient) 2 Jones J (as she then was) opined that, ‘It is the welfare of Williams [the Patient] which must guide my decision.’

8 In The Application of Cobham-Albo 3 Jones J (as she then was) stated that the best interest of the patient was the test she applied in arriving at her conclusion. Rampersad J in Charlene Rahamut; Deborah Namsoo v Simone Samaroo; Tyrone Soodeen 4 concluded that the court ought to take into account:

• (a) The relationship shared between the patient and the persons intending to be appointed;

• (b) The wishes of the patient and the ability of the applicant to undertake these wishes;

• (c) Whether the financial and daily living needs of the patient are being met — including the patient's religious, social and familial needs;

• (d) The need to keep the patient in familiar surroundings, where possible;

• (e) The suitability and adaptability of the conditions of the premises for the accommodation of the patient; and

• (f) The general well-being and safety of the patient.

9 Mohammed J in Angela Forbes—Mayers (A Patient) v Greddis Forbes 5 applied the factors as detailed by Rampersad J and noted that the word “benefit” must be construed widely to include even the benefit of the patient's family.

10 In my opinion the factors set out by Rampersad J in Charlene Rahamut are not an exhaustive list but they are a useful guide when determining who to appoint as Committee of the Patient. I propose to consider the evidence using these factors.

The relationship between the Patient and Liam, Mark, Declan and Rekaleigh

11 Liam's evidence was that he shares a close relationship with the Patient as he visited her from time to time and when he is unable to visit Mark brings her to his home. He also stated that Mark La Borde (“Mr La Borde”) who is the father of Rekaleigh's daughter was granted permission to reside at the Patient's home by his father, Errol and that his father attempted to evict Mr La Borde on two (2) separate occasions. He testified that Rekaleigh threatened to abandon all her responsibilities for caring for Errol and the Patient if Mr La Borde was forced to leave the Patient's home. Liam also testified that there were several physical altercations between Mr La Borde and Mark within the Patient's home, including an incident where Mr La Borde threatened Mark with a knife which Mark reported to the police.

12 Liam's evidence was unshaken in cross examination and he confirmed that Rekaleigh has not prevented him from having access to the Patient.

13 Declan's evidence was that he moved out of the Patient's home in August 2011 and the last time he visited was on 10 June 2023 as Rekaleigh has been very hostile towards him. He testified that he was willing to be appointed Committee together with Liam and Mark as he was prepared to do anything which is required to assist the Patient.

14 Mark's evidence was that he had a loving relationship with the Patient and Errol and lives in the Patient's home save and except during the period 28 December 2019 to 8 April 2021 when he was in the United States of America and unable to return due to the travel restrictions imposed as a result of the Covid 19 pandemic. His evidence was that both his parents were in good health in 2019 and they got ill in 2020. He stated that although he...