Observing my First Court of Protection Hearing

By Meriel Scott – 19th June, 2020

Monday 15 June

10.30am 13159699 SF

DJ Eldergill

“To consider:  Varying or terminating an urgent or standard authorisation under the deprivation of liberty safeguards”

This was the way the hearing I observed was listed on the government webpage for First Avenue House, the London home of the Court of Protection.

I was keen to observe a Court of Protection hearing because I’ve just finished the GDL (Graduate Diploma in Law) and am starting on the BTC (Barrister Training Course) after the Summer, so I thought this would be really good experience for me.   I’m interested in medical ethics and clinical negligence for my future career and I can see the overlap with the work the Court of Protection does. 

I sent two emails requesting access to the hearing using the email address displayed on the First Avenue House website – but they both bounced back.  Celia Kitzinger, from the Open Justice Court of Protection Project, checked for me and discovered they’d posted an email address with a typo in it, and gave me the correct email address, so I tried again. Third time lucky!  I thought I wasn’t going to get a reply because nothing came through until 10.30, which was the time the hearing was due to start – but then I was sent a number at exactly 10.30 to dial in on. I also received a Transparency Order attached to the email which set out conditions and restrictions regarding identification of the parties to the hearing and explaining contempt of court issues.  

The hearing was conducted by phone.  When I called in, I found I was speaking directly to District Judge Eldergill and he explained what the hearing was about.  It concerned a young man who had “severe autism” and the hearing was about his relocating from one area of the country to another. There had been various complications around costs and dates. The family was not happy with the lack of attention being given to the care plan by the residential home he was in, so they were very keen that he should move. I think this plan to move him had been decided at a previous hearing in March, and then everything had stalled because of COVID-19.   It was very helpful to get a brief summary like this from the Judge at the beginning of the hearing.

It was the first Court of Protection hearing I had listened to and it was hard for me to know exactly what all the terminology meant and what was being referred to and also to understand exactly what stage things were at in this whole series of hearings that had been held about this young gentleman.  But I definitely felt I got the general gist.

There were lots of people at the hearing. There was someone representing the young gentleman in question. Then his parents were there, and his sister and her partner. There were representatives from the County Council where he was currently living, and from the Council he was moving to. There was also someone from the care home he was in and someone representing the accommodation he was moving to. And the young gentleman’s psychologist.  So that was quite a few people for a phone call but luckily they had quite a few different accents which made it easier to follow who was speaking – and they did tend to re-announce who they were when they started speaking again – “It’s Mr [Name] again”, that sort of thing –  which I was very glad of.  But there were lots of occasions where people talked over each other to the extent that the Judge had to keep intervening to keep order.  Especially when things were contentious!  It was very different to video where you’ve got that body language – that sort of “run up” to someone wanting to say their bit.

The young gentleman’s sister in particular was very frustrated at what had been happening and she went off on a tangent a bit, saying things directed against the care home, and the Judge tried to restrain her.  But she kept saying, “I want to be heard.  Nobody’s listening to me”. And I thought that the telephone conference, compared with a physical courtroom, gave her more control and freedom to speak.  She came across very powerfully. There must have been about four occasions when matters were somewhat heated and there were more than two people speaking over each other.  And Judge Eldergill really had to state firmly, “One person at a time!”   But then in other ways people were very respectful and asked for permission and said, “Can I speak next?”. 

The barrister for the young gentleman was very clear and very specific about what he expected out of the hearing. He was very business-like and made it clear what answers he was looking for from the hearing – including confirmed dates for the move.  Because the people from the County Council were being incredibly vague saying things like “ooh, I haven’t had an email back about that yet” and he was trying to tie them down and get them to commit.  He was saying “That’s not acceptable – we’re not having another hearing unnecessarily”.   And they did agree a week in July when the move would take place. 

One of the issues discussed at the hearing was the problem caused by the fact that the young gentleman’s visits had been restricted. They’d put in place 30-minute visits for the family to come to the care home, but the fact that he couldn’t go out with carers and have interaction in the community had had quite an impact on his mental health. His sister had asked if she could take the place of the carers and there was a lot of discussion about how that would work without putting other residents at risk regarding COVID-19.  The Judge agreed that she would take a test, and only on a negative result would she be allowed to take the young gentleman out for two to three hours, and she’d have to wear PPE.  And the care home agreed to that and it was going to be put in the Order from the hearing.

Overall, I was surprised by how little the Judge spoke. The hearing was mostly everybody else conversing with each other, asking each other questions, and the Judge let them get on with it. It felt more like mediation in some ways.  It felt to me as if he was trying to get everyone to where they needed to be, in some kind of consensus, without dictating to them. And I thought that was good.

This hearing demonstrated to me the way in which the Court of Protection can work very effectively to enable people’s voices to be heard.  In a complex multi-agency situation, with a range of people all with their own particular involvements in the issues what’s important, and what I saw happen in this case, was a serious focus on getting things right for the individual person at the heart of it all.  

Meriel Scott is a future barrister looking to practice in the area of clinical negligence. Meriel is an older student en route to the Bar and brings experience from working in the charity, local government and higher education sectors. She tweets @Mezbop

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