Transparency in the Court of Protection

By Patrick – 20th June, 2020

Editorial Note: The judgment for this hearing has since been published here: Cumbria County Council v A [2020] EWCOP 38 (16 July 2020)

Late last Sunday night I happened upon a tweet from Celia Kitzinger:

The tweet garnered an enthusiastic response and an unexpectedly large uptake. Accordingly, and thanks to their resourcefulness and commitment to open justice, Celia Kitzinger and Gill Loomes-Quinn have since launched the Open Justice Court of Protection Project. This blog post is an account of my experience of taking up the gauntlet and observing a hearing in the Court of Protection for the first time. I offer it in the furtherance of the goal of transparency, and to encourage others to give observing a go themselves.

Why I was interested

The original tweet sparked my interest for a few reasons: 

I have no legal education or professional background, but I have for the last year and a half been investigating a career change to the Bar. I’d been hoping to use these past few months to pursue mini-pupillages. Circumstances having intervened somewhat, I’m doing my best to seek out all the practical legal opportunities I can from the comfort of my kitchen table. After spending many hours on the Supreme Court video archive, or struggling with the audio on the Court of Appeal live streams, the idea of branching out into the Court of Protection was appealing.

It was especially so because one of the catalysts for my interest in the law has been acting as executor in an estate subject to a probate dispute centred on the issue of the testator’s capacity. Reading around that case, from Banks v Goodfellow, through some Law Commission reports, to the Mental Capacity Act, I’ve developed a fledgling academic interest in the area to match my personal one. 

Finally, like many, I’ve been troubled by the potential effects of the current crisis on vulnerable people, including those who lack capacity. All the more reason, then, to support the goals of open justice and bear witness to the profound decisions now being made remotely in the Court of Protection.

Securing access

Helpfully guided by Celia and her blogging (especially here), I braved the listings and chose to seek access to this case:

Before MR JUSTICE HAYDEN

Also sitting as a Judge in the Court of Protection

Monday, 15 June, 2020

At 10:30 AM

FOR HEARING IN OPEN COURT

COP 12922022 Re A 

Remote Hearing

This case seemed ideal for my purposes. It had been listed for open hearing, so there hopefully wouldn’t be too much trouble in gaining access; it was to be held over video link, which would hopefully make it more engaging, and easier to follow for a novice like me; and it was being heard by a senior judge (the Vice President of the Court of Protection, no less) so it would hopefully be dealing with an important or juicy point of law. Celia told me that such a case might only come along once every couple of weeks, so I felt lucky that this one had fallen into my lap. By this point, Sunday night had become Monday morning, so I wrote an email to the Royal Courts of Justice asking to be given information about how to access the hearing, scheduled it to be sent by Gmail at a more civilised hour, and went to bed.

The next morning, around two hours before the hearing was scheduled to begin, I received an email from the judge’s clerk providing an access link via Microsoft Teams. For the first time that I had seen, there was also an indication of how long the hearing was expected to take: two days. I had a commitment that afternoon, and several the next day, but I decided to join for as much as I could. In the end, the hearing finished late on Monday afternoon, so I ‘only’ missed about two hours around the lunch break.

Following the advice in Celia’s blog, I replied to the email, asking for a transparency order and position statements or draft orders to help me follow the hearing. (The advice was also to ask if the judge’s attention might be brought to this letter, with its suggestion of “a short opening helping to place the identified issues in some context” as a way of improving access when observers were present. Given that the author of the letter was one Mr Justice Hayden, that step seemed a little superfluous in this case!) As the clerk had instructed in her email, I sent my request to the RCJ mailbox. Doubtless due to the short notice and the high workload of the court and its staff, I didn’t receive a reply. Inevitably, the absence of background information, including documents mentioned in court, made the hearing harder to follow.

The hearing begins

When the time came for me to access the Microsoft Teams meeting, a few minutes before the hearing was due to start, I was asked politely by the clerk to show my face on video and confirm that I understood I was not allowed to record any of the proceedings. (For what it’s worth, there was no problem when another observer joined but was unable to activate a camera on her computer.) Including participants and observers, the total number of people in ‘attendance’ at the hearing was around ten throughout, though numbers did dwindle slightly as the day progressed.

The judge joined the meeting at 10:30 promptly, having been notified by the clerk that all the barristers and solicitors had logged on. The clerk announced his arrival, stated the name of the case and informed everyone that she was starting the recording.

In another indication of the court’s high caseload, the Judge expressed his regret at not having had reading time. He had managed over the weekend to read the “lengthy but helpful” statement from the Office of the Public Guardian (OPG) and the skeleton arguments, but not all the facts of the cases. It was generally agreed – as he had suspected – that this was not really necessary.

Following the recommendations in his own aforementioned letter, the judge asked the barrister who was due to speak first to set the case in its context. A very brief background was sketched: the applicant was a professional deputy who had applied to take over responsibility for the financial affairs of eighteen people. So far, eleven of the applications had been granted, and this case was to deal with the other seven.

This was the first indication any of the observers had received as to the subject matter of the hearing. I know that some were disappointed to hear the case concerned an area they knew nothing about and in which they had no particular interest. At least two observers discreetly left the meeting for those reasons (having emailed the clerk to explain they were doing so). It certainly seems that it would be helpful to include in the case listing a few keywords to indicate the themes or issues involved (as is done on the lists from First Avenue House). Neither would it seem overly burdensome to do so — though of course that’s easy for me to say.

As the hearing progressed, it became clear that the application had first been made about two years ago, but had been delayed for a variety of reasons. The judge at first instance, Judge Hilder, had referred the case upward because she had numerous reservations about granting the application, and thought there were important points involved that would be best heard by a tier 3 judge.

The applicant himself was not represented by a barrister at this hearing, though his solicitor was present. His desires were aligned with those of the County Council, which was currently the Ps’ deputy, but no longer wished to be. The council had its own solicitor, and was represented by one of the two barristers present. The other appeared for the OPG, which was opposing the application. The OPG also had a solicitor in attendance. 

The cameras of the solicitors, the barristers and the judge remained on throughout, joined sometimes by the judge’s clerk or, on one occasion, an errant observer.

As the judge stressed repeatedly, proceedings in the Court of Protection were concerned with what is in P’s best interests. He described it as “the most highly fact sensitive area of the law”, with no scope for generalisation.

The main event

(It’s worth repeating that this is an account of the hearing as it seemed to me, bearing in mind I have no formal legal education and no previous experience with the court.)

Throughout the hearing there was debate and some confusion as to what exactly the judge was being asked to decide. The judge had found the barristers’ pre-agreed account of the issues at hand too vague, and soon after the hearing began he gave them a break of around ten minutes to decide on something more specific. During the break, the judge left the meeting, the recording was stopped, and the barristers were able to mute their microphones and telephone each other to discuss the issues. They duly came back with an agreement (which was described by reference to paperwork I couldn’t see). However, this debate recurred not infrequently over the course of the hearing.

Money emerged as a major driver on both sides of the case: the council was at least partly motivated by a desire to save money from a tight budget and to manage the competing demands on its limited resources. This was acknowledged as a legitimate consideration. Those opposing the application were concerned that the charging rates of the private deputy were considerably higher than the amount the ‘P’s were currently paying the council. They argued that it could not be in the ‘P’s best interests to pay more for a service that was effectively the same.

The central question seemed to be whether the court could compel a deputy (in this case, the council) to remain in that role against their wishes.

The barrister for the council argued that a deputy’s decision to withdraw could not be impugned as long as it was lawful. Further, the question of lawfulness was not one for the Court of Protection to decide. (It might instead be determined by judicial review.)  The Court of Protection should concern itself with what is in P’s best interests. While making that calculation, he argued, the court should not regard as an option the continuation of the status quo, with the council as deputy. The council’s unwillingness to continue as deputy had taken that option off the table.

The judge was clearly sceptical of this argument, pointing out that the key decision here lay not in the hands of the council as existing deputy, but in the hands of the court. Any decision by the council that it no longer wished to act as deputy was without effect unless the court decided to grant the application. Moreover, given that the application at hand in this case was to discharge the council as deputy, there was some question as to whether the applicant in this case should be the council, rather than the private deputy who was hoping to step in. 

The judge drew a comparison with family law: where a local authority may wish to have a care order discharged because of the burden of the obligations that order imposes on it. (He recalled appearing once before Mrs Justice Hale, as she was then, for such a local authority, and failing to convince her that the court should allow his client’s application for discharge.) It is settled law, he said, that a local authority will not be permitted to discharge a care order if it is found to be in the child’s best interests that the order should continue. The parallel with the case at hand was clear.

The council’s barrister argued robustly against this, maintaining the council had withdrawn consent to act as deputy and, as such, the best interests calculation in this case could not include its continuation as deputy as an option.

He warned that if the court decided it could compel the council to remain as deputy, it would mean that private bodies or individuals could also be compelled to remain as deputies against their wishes. This could have serious consequences in terms of people being less willing to become deputies. 

While he conceded that policy considerations should only feature peripherally in the court’s deliberations, he maintained that there could be grave implications here as to the personal liberty of private individuals acting as deputies. He submitted that Parliament had not explicitly given the Court of Protection the power to infringe on that liberty: the Mental Capacity Act 2005, which created the Court of Protection, contained no such explicit provision. It was, rather, a matter of construction regarding section 19.3 of the Act. According to legislation.gov.uk, that section states that “[a] person may not be appointed as a deputy without his consent”.

In reply, the judge indicated he did not consider that compelling the council to remain as deputy would be equivalent to appointing them as such. In reference to potential policy implications, he said the question under discussion was what the court could do, rather than what it should.

The second major question the court considered was the relationship between the Court of Protection and judicial review. It was even remarked at the outset that the judgment in this case could be “a magnum opus” on the subject — that was, “if your Lordship had it in him”.

The barrister for the OPG argued that section 149 of the Equality Act applied to this case, due to the presence of a protected characteristic: the Ps’ disabilities. As such, the council, being a public authority, must have “due regard” to the need “to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic, that are connected to that characteristic”. 

Here, the disadvantages to the Ps by the proposed new arrangement would be financial, and the judge seemed to doubt whether money counted as being “connected to” the relevant protected characteristic. [I wondered, perhaps naïvely, whether the statistics on the correlation between disability and poverty might bolster an argument in the other direction.]

Opposing counsel argued that while section 149 might well apply, the proper way of testing that and challenging the proposed new arrangement would be through judicial review.

The judge pointed out that the relevant decision for judicial review in this case would be a decision of the Court of Protection to allow the discharge. At least as yet, no such decision had been made.

Counsel for the OPG insisted that there was “something special” about section 149 of the Equality Act that meant the Court of Protection could properly consider it. It was “purely procedural”, in that it asked for “due regard”. Determining whether due regard had been given did not require conducting a merits-based review or diving deep into the substance of the criteria by which a decision was made. It was not, he argued, a matter of pure public law. There was no challenge to the merits of any criteria on rationality, for example, which he conceded would be the domain of judicial review. 

It was, he went on to argue, effectively a matter of case management for the court to decide what factors to take into account in the exercise of its discretion. For one, the court could ask what was motivating the council’s lack of willingness to continue as deputy. The judge agreed on the last point, but said the council was hardly hiding that money was a major factor. What was more, they were allowed to take money into account.

Finally, the judge alighted on the question of what factors should go into the decision as to whether a deputy should be discharged.

The barrister for the OPG identified the following:

• Complexity (in general, the more complex P’s needs or financial situation, the more likely a private deputy is to be involved. In this case, the council had advanced complexity as an additional reason for wanting to transfer the deputyships to the private deputy.)
• Cost
• Personal dynamic
• P’s wishes and feelings (if not already included under personal dynamic)

The judge thanked him for his submission, signalled that this was an area on which he would be reflecting further, and invited both counsel to contact him after the conclusion of the hearing with any additional thoughts on the matter. The barrister for the council had been reluctant to engage with the question for fear of prejudicing his submission that it concerned a decision the court should not be making, but he indicated that he might contact the judge with a reply “in the alternative”.

He closed by saying that it would be helpful for the judge to give an indication in his judgment of how to proceed with an application of this kind in future. The process in this case had been unnecessarily difficult and inefficient in terms of time and cost; some of the Ps concerned had died in the two years since the application had first been made. He indicated that a swift judgment would be helpful and appreciated. 

The judge confirmed that he would make his judgment available as soon as possible after the end of this week. (A link to the judgment will be posted at the end of this blog when it becomes available.)

My impressions

In terms of the technology, everything was pretty seamless. I had no previous experience with Microsoft Teams but the software was easy to download (though downloading it might not actually have been necessary), worked well and was intuitive to use. The picture quality was excellent throughout, with six or seven cameras on at all times. Microphones were muted as much as possible in order to preserve audio and video quality, especially during the afternoon, when collective experience seemed to be that the internet, perhaps because of increased traffic, was more likely to play up. I noticed almost no glitches or interference, though I was absent for a portion of the afternoon session. Infrequently, participants overlapped in their speech, perhaps due to a slight delay in the feed, but any impact was negligible. Counsel and solicitors were able when necessary to turn off their microphones and make other telephone calls. It undoubtedly made matters easier that no witnesses had to be questioned in this hearing. 

One thing worth noting was that, notwithstanding the involvement of the OPG, there was no direct representation for the Ps and no real sense of them in proceedings. As far as I know, none of the observers knew any of them personally. I don’t recall any mention of any humanising details about them as individuals in the time I was observing, though of course this may have happened while I was absent. I imagine the fact that the case involved seven Ps might be of some importance in this regard, and the lack of reading time might also have been a factor. Perhaps most significantly, it just may not have been necessary in dealing with the issues before the court. Certainly proceedings were conducted with an appropriate sense of gravity throughout. All in all, concerns that have been voiced elsewhere about the nature of a remote hearing being desensitising or reducing compassion didn’t appear particularly relevant in this case. This seemed exactly the kind of hearing that could be conducted well remotely. 

As someone uninitiated in the ways of the Court of Protection, I was struck by the fluidity of proceedings: how easily the judge intervened and thrashed out points with the barristers, or invited opposing counsel to comment. Terms of address were formal, with an abundance of ‘lordships’ and ‘learned friends’, but no robes or wigs were worn. At times the form of the hearing felt almost like a business meeting or a university tutorial.

I would definitely encourage others to observe a hearing in the Court of Protection. Even in a case like this one, where the subject matter at first seemed completely arcane, issues were raised that were wide-ranging and significant enough to interest a (relatively!) broad array of people. The close-up camera shots of the participants provided a remarkably intimate window into aspects of the hearing, like style of advocacy, that would be of especial interest to anyone studying (or thinking of studying) the law.

The experience was enhanced because the judge was clearly committed to open justice, the clerk was polite and helpful, the technology worked well and the hearing was conducted by video link rather than over the phone.

Finally, I understand that arrangements for the management of remote hearings are under review. There are some minor changes that would do a lot to facilitate the access of observers. One is an earlier indication of time estimates and the topics involved; another, the supply of position statements and draft orders to make proceedings easier to follow. A comprehensive, consolidated listing system would make a major difference.

Patrick studied languages at university, before training as an actor and going on to work internationally in film, television and theatre. Alongside acting, he has pursued his interest in legal issues by other work and volunteering, including with the Southwark Pensioners Centre, the Belarus Free Theatre and the United Nations Relief and Works Agency in Syria. He is planning to start the GDL next year, with a view to eventually practising at the Bar. He would be delighted to hear of any and all opportunities for gaining further legal insight or experience, especially in these challenging times.

He can be reached at patricklawmail@gmail.com or @patricklawtweet on Twitter.