Two weeks of Open Justice Court of Protection

By Gill Loomes-Quinn and Celia Kitzinger – 29th June 2020

It’s been a good two weeks for Open Justice in the Court of Protection.

On 15 June 2020 we formally launched our “Open Justice Court of Protection” Project and we’ve been overwhelmed by the enthusiasm with which it’s been greeted, and the number of people – many more than we expected – who want to observe hearings. 

More than 70 people (many with professional involvements in issues related to mental capacity and best interests) have contacted us in the last two weeks to say they’ve been inspired by our project to observe hearings.  These are just the people who have told us about it: there are probably others we’re not aware of who’ve also now observed hearings for the first time.

Some have written for our website about their experiences – with blogs from  several aspiring barristers, a full-time carer, a nurse, the Policy Officer from an end of life charity, a speech and language therapist and a Mental Capacity Act Trainer.  We’ve also been contacted by three people who have forthcoming Court of Protection hearings for a member of their family, two of whom have so far observed hearings

Public Impressions of Person-Centered Hearings

People explain in their blogs what they learnt from watching the hearings. What shines through is their appreciation of the huge emphasis the Court places on the autonomy of the disabled people at the centre of its work, and of individualised, person-centred decision-making. One observer (who herself advocates for a family member) said of the hearing she witnessed:

“The law enabled a person with a learning disability to access the same rights and healthcare as any other citizen. This gives me a huge sense of relief that my family member will be safe and listened to with these structures in place, and free to live the life he chooses.”

Others made similar points:

“My main focus is that the person remains at the centre of everything. It was so reassuring to see that this also was the primary focus within a formal court hearing for Mr Justice Hayden”  

(Sara Shorten).

“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)

 “Mr Justice Williams maintained unwavering focus on what is right for P … I left feeling reassured that person-centred decision-making, an issue I feel strongly about, prevailed.”  

(Upeka de Silva).

In one hearing, an observer was impressed by the fact that “P spoke for most of the 60 minutes of the hearing … probably for about 80% of the time. … I think P certainly had a very fair and full hearing” (David Thornicroft).  Another observer commented that she felt P’s relative was better able to contribute her views in court because “the telephone conference, compared with a physical courtroom, gave her more control and freedom to speak.  She came across very powerfully.” (Meriel Scott).   This is all very different from Celia’s own initial experience of remote justice in which P’s daughter felt utterly ignored and silenced by the Court (described here).  Thankfully, no subsequent hearing seems to have been as lacking in empathy for the patient and for the patient’s family as this first remote hearing.

How Technology is Working in Remote Hearings

Technology seems to have worked reasonably well across all the hearings and nobody expressed the view that remote justice was inferior to the physical court room or risked compromising the principle of a fair hearing.  Observers have described the hearings as “pretty seamless” with “almost no glitches or interference” (Patrick) and one was “impressed with the Clerk being able to share her screen so that an order from a previous hearing before a different judge was made visible to all” (Upeka de Silva). Another commented:

I’d heard terrible stories of remote hearings – tech drop-outs and parties having to rely on phones being held up to screens so I was pleasantly surprised by how smooth this experience was from the technological perspective. 

(Olwyn Cockell)

What Blocks and what Facilitates Access to Hearings for Public Observers?

1.  Lists

The biggest obstacle to attending a Court of Protection hearing is not knowing when and where they are happening and how to gain access. 

Court of Protection hearings are listed in three different locations ( First Avenue House, the Family Division list and CourtServe).   Checking across three different lists, each with its own peculiarities, is time-consuming and frustrating and CourtServe, especially is “very user-unfriendly …(for users who are members of the public)” (Meriel Scott).

I think I am reasonably good at finding how to do things on the internet, but I wouldn’t have had a clue about how to access this hearing without Celia’s blog post here and the daily suggestions of listings here. Open justice is a great idea in principle, but if it’s not easy to access it then surely it kind of defeats its own objective?

(David Thornicroft)

What’s needed is “a comprehensive consolidated listing system”

(Patrick). 

Also, for each court hearing (whatever list it appears on) observers would value “a few keywords to indicate the themes or issues involved (as is done on the lists from First Avenue House) (Patrick).  One observer, who left a court hearing partway through (because it was on a financial topic she found impenetrable) points out that she would never have signed up to observe it if she’d known in advance what it was about. She says:

“I would strongly recommend that a very brief indication of the issues be included against each listing for COP hearings in the Family Division (as they are on the First Avenue House listings)”

(Upeka de Silva)

With “precious little information available about the nature of the hearings and the potential issues to be resolved” (Meriel Scott), it’s hard to choose a hearing that will be of maximum benefit.  We’ve had several emails from intensivists, a palliative care nurse and a dentist asking if we can tell them when a hearing relevant to their specialities comes before the Court.  Of course, we cannot. We also suggest that access to information regarding the “impairment[s] of, or disturbance in the functioning of, the mind or brain” likely to be involved in a hearing would likely make it easier for Disabled People’s Organisations, and others concerned with Disability Justice to observe hearings that are of specific relevance to their work. This would not only be in-keeping with the broad aims of Open Justice in the Court of Protection, but would also embrace the goals of the United Nations Convention on the Rights of Persons with Disabilities: particularly the duty in Article 4 UNCRPD for States Parties to “actively involve” disabled people and their representative organisations in the “development and implementation” of legislation impacting disabled people.

We are delighted to be able to report that this week the Family Division (High Court) site has added a sentence specifically naming “members of the public” as among the groups who can contact them for assistance if they wish to attend a hearing (this was not previously the case). Access to hearings from this site is now straightforward for members of the public, and recent cases have seen an increase in attendance (reflected in our blog posts from observers). 

Recently however, there were four days during which the email address for contact to arrange to observe a hearing had been mistyped on the First Avenue House website, so emails bounced back: five people contacted us about this and we were able to provide the correct email address: we don’t know how many simply gave up.  During the same period one of us (Celia) found the email address for one of the regional hubs (Leeds) reproduced in CourtServe with an error, such that anyone reliant on that for observing a hearing in the North East-East Region would have been flummoxed.  Many of the hearings listed in CourtServe do not provide contact emails at all for any would-be observers and those that do often lead to dead-ends with court staff unable to help

Our solution to the patchy situation with regard to listings has been to tweet individual court hearings across England and Wales along with (as best we can determine) sensible contact information so that at least people are aware of the hearings and stand some chance of being able to observe them.  Where we are fairly confident that a hearing will be easy to access (although we can’t be sure that it won’t be adjourned or vacated) we list it as a “Featured Hearing” on our website.   

We are assured that the Court of Protection is looking into this problem and has a plan to roll out a new standard process for ensuring that all courts co-ordinate with their relevant regional Hub to provide consistent and timely information about hearings for CourtServe (this will also serve to educate court staff).   We look forward to seeing this in action!

2. Court staff

The first point of contact for members of the public wanting to observe hearings is the court staff.  Some people were very impressed by them. One observer described a judge’s clerk as “fabulously organised” and efficient.  Another observer extolled the virtues of a different member of the court staff:

So, I’d like to commend the Administrative Officer who dealt with my applications quickly and courteously. I emailed my requests to attend the 3 separate hearings at about 9.00pm the previous evening. By 9.30am on the morning of the hearings I had received several replies from the Admin Officer explaining what I could and couldn’t do. All friendly and clear, and not the slightest hint that my request was in any way inconvenient. She is a credit to the Court!

(David Thornicroft)

Equally, court staff can (and do) block access by failing to answer phone or email enquiries, not passing on messages to the judge in a timely fashion, or by wrongly informing would-be observers that all remote hearings are private – as Celia has been told on six occasions in different regional courts.

3.  Observers’ Anxieties: What’s Expected and will I Understand?

Many people anticipating their first observation in the Court of Protection are concerned about what to wear (for video-hearings), what to call the Judge, what to say if they are addressed by the judge, and what will be expected of them while attending a hearing.  This can amount to “cold-blooded fear”,  even from people who are otherwise very motivated to attend a hearing.  This kind of anxiety is a deterrent.  We would welcome Guidance from the Court on proper decorum for observers.

In the meantime, we suggest that people dress reasonably smartly and find a neutral background in a quiet and undisturbed place.  We’ve referred people to the helpful list of ways to address the judiciary here but also pointed out that in practice it’s often not necessary to use any address term – though many people report being anxious about getting this wrong in the context of  “rigid formality when addressing the judge” and the “abundance of ‘lordships’ and ‘learned friends’”.

In regional court hearings, public observers may often find it is the judge herself who calls to add them to the conference call and they are often taken aback to find themselves speaking directly to the judge (e.g. Meriel Scott; Veronika Maresova).

The most common interaction with the judge concerns the Transparency Order which is also a source of anxiety to many observers (“does it mean I can’t say anything publicly about this case?”).  We have therefore published a blog about Transparency Orders which people can read in advance of attending a hearing.

In terms of understanding what’s going on, the short answer is that most of us who are not lawyers (perhaps even more specifically, lawyers in the Court of Protection) do not understand a lot of what goes on.  We don’t have ready access to what is meant by “a Section 49 order” and we may not have the details of “the TZ No. 2 case” when it’s raised in court.  The language and terminology, the short-hand explanations and the acronyms are often opaque.  But we can understand the dilemma that has led to the court hearing, and we can understand in broad terms the way the court is trying to address this.  That’s what motivates us to attend hearings.

There are two key opportunities for public observers to gain insights into the issues before the court during a hearing: these are (1) with an introduction at the start of the hearing itself; and, (2) via access to preliminary documents (e.g. skeleton arguments, position statements, draft orders), and any other documentation relevant to the hearing and available to public observers. Our experience so far has revealed some important points about each of these processes:

Summarising the Matter before the Court at the Start of the Hearing

In order to maximise understanding, someone (the judge or counsel for the  applicant) needs to do a brief introduction to the case and to the key issues to be addressed in this hearing  – as recommended by the Vice President of the Court of Protection here.   This is still commonly not done (even when there are many public observers) and the quality of the introduction when it is provided is very variable. It may just be that this practice is new and unfamiliar but without it (or with a poor introduction that confuses more than it elucidates) we are lost!  At a minimum we need a bit of information about who P is, and the ‘history’ that has led to this case, including any declarations relating to P’s lack of capacity to make certain decisions; and a summary of what the key issues are to be addressed in this hearing.  We also need to know who the parties are (e.g. “P’s mother” represented by Barrister A is the applicant; there are two respondents, P represented by Barrister B and the Local Authority represented by Barrister C”). We also need a bit of information about the positions they are taking (e.g. “P’s mother believes it would be best for her daughter to leave the care home and come back to live at home with her; the Official Solicitor on behalf of P and the LA do not think returning home is in P’s best interests”).  Well done – which probably means prepared in advance, succinctly, accurately and neutrally – these introductions take no more than 3 or 4 minutes and make a huge difference to public observers’ abilities to follow the hearing. 

“It was very helpful to get a brief summary like this from the Judge at the beginning of the hearing … 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.

(Meriel Scott)

By contrast, another observer attended a hearing at which there was no introductory summary and found it “hard to comprehend”.

It was clear to me from what participants were saying that the young man being discussed had a fairly unique set of issues: references were made to damage in childhood, trauma, even indoctrination and that he required a ‘tailor-made solution’.  However, had the advocates been invited to give a short summary of the case and issues to be resolved … this would have considerably helped my understanding.

(Olwen Cockell)

One of us (Celia) attended a hearing at which a clearly over-worked and under-prepared judge took it upon herself (belatedly – she remembered part way through the opening submission that this had been advised) to give an opening summary.  Although the gesture was appreciated, it was actually incomprehensible and left observers piecing together information during the course of the hearing – with “ah hah!” moments as each successive piece of the jigsaw fell into place (P has an acquired brain injury – 15 mins into the hearing; P lacks capacity to make her own decisions about contact; 30 mins into the hearing etc.).  It might be an idea for judges to be provided with a kind of “template” of “ingredients” for a good introduction to a hearing.

Access to Court Documentation for Public Observers

People observe court hearings for different reasons and with different interests and skill sets.  Not everyone will want (or understand) the paperwork associated with a hearing. For many, an opening summary will provide enough background.  For some though (including some law students and trainee solicitors and people involved in delivering mental capacity training),  access to the documents is very helpful: certainly both the authors of this piece  would always appreciate having the position statements and draft order for a hearing.  As barrister, Kyle Squire explains in his blog about the “bundle”: 

“If you do intend to observe hearings it is really worth asking for it and reading whatever you are sent in advance. It will help you understand what the case is about and what the issues are for each hearing. It will all begin to fall into place after a while!”

We’ve rarely received any of this information in advance, so this is perhaps an aspiration.  It’s often revelatory, in terms of understanding what we’ve been listening to, when we get it after the hearing.

A valued experience

We believe it is very much worth addressing and overcoming these barriers, to facilitate members of the public to attend hearings: as this experience is often reported to be tremendously valuable. 

I am in a Court of Protection hearing myself at the moment. And I find the whole process extremely intimidating.  So it was very nice to see a hearing that I’m not involved in!  I recognised one of the barristers from my own case. He seemed nicer than when he comes up against me. And I thought that the judge in this case was absolutely brilliant.  She was clearly concentrating on what was happening and she was concerned that the right thing be done for P.

(Anonymous).

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.

(Patrick, aspiring barrister)

Absolutely fascinating to see the law in action. I was relieved to find that there was nothing that I have been saying on MCA training over the past 15 years or so that contradicted what the Judge said, and I really liked the way she set out her reasonings.  … Remote hearings won’t necessarily be around for ever. And it’s so much easier to observe (or in this case listen to) one remotely, than actually going to the court itself. If you’re involved in health & social care in any capacity (pun intended!) then you should take advantage of this opportunity now before it disappears. I’m looking forward to doing it again very soon.

(David Thornicroft, Mental Capacity trainer).

We are both delighted to have discovered over the last fortnight that many other members of the public, from the wide variety of personal and professional backgrounds touched by the Mental Capacity Act 2005, share our commitment to understanding and scrutinising the work of the Court of Protection. And that many members of the legal profession, the judiciary, and court staff share our passion for, and dedication to upholding in practice the principles of Transparency and Open Justice that underpin the role of the public observer in court hearings. One of us (Gill) spent a month at First Avenue House observing court hearings, not long after the introduction of the Court of Protection Transparency Pilot (you can read about her experiences here). She remembers feeling frustrated at having been caught in the middle of what she experienced as a communication gap between lawyers and court staff on the one hand (who perceived the Transparency Pilot as a significant increase in their workload – when “no one ever comes anyway”), and members of the public, including academic researchers on the other (who had no idea about the Transparency Pilot, or the opportunities it presented). Gill is relieved to be witnessing a resolution of this stalemate. We are both excited to be bridging this gap – and to continue building on the momentum that this project has gained in the last two weeks. We look forward to our project playing a role in championing the values of Transparency and Disability Justice in the Court of Protection.