By Celia Kitzinger – with Upeka De Silva, Grace Carter, Patrick, Observer D, Observer E, and Katharine Shipley – on 1st July 2020
There were more than 10 public observers at a recent hearing – we’re not sure exactly how many because it’s sometimes difficult to know which of the names that pop up on the screen are those of observers, and who might be an instructing solicitor, a journalist or a member of the court staff.
Rather than separate blogs, some of us decided to write down our individual observations and put them together in a single blog post, not least because it illustrates the different perspectives people from a range of different backgrounds bring – and hence the diversity of things they “see” – when observing the same case. These pieces were written independently and then edited and compiled by Celia.
Rather than an integrated narrative then, here are our seven loosely dove-tailing perspectives.
Celia Kitzinger – @kitzingercelia
The judge, Mrs Justice Lieven, made a point of saying at the beginning of the hearing that she’d not previously had public observers at any of her remote hearings (only journalists) and she obviously valued our presence and wanted to be helpful. She thanked us for attending at the end and pointed out that it’s not “open justice” if nobody comes. She did remember – belatedly as the applicant started his opening presentation – that an introduction would be helpful (in line with Mr Justice Hayden’s recommendations here) but as it turned out she wasn’t able to provide the helpful and succinct background to the issues that we were hoping for. Asked if she’d received some of the documents she said, “I’ve had a really non-stop day and I’m not conscious of having had them”. What she offered as summary was as follows (as closely as I could scribble it down at the time):
“This concerns a young lady who is the first respondent represented by the Official Solicitor and the second respondent is the local authority, and the third respondent is the subject of an injunction to prevent contact with the first respondent and the first respondent’s mother is the applicant”
And then we were into the substance of the hearing.
This raised a lot of questions. Why was the mother the applicant, and what was she applying for? Why was this case before the Court of Protection: what did (or might) P lack capacity to decide for herself (and why)? What decisions was the Court being asked to make in her best interests? It would have been so helpful to have this information.
Information emerged piecemeal over the course of the hearing. I was very confused when one of the barristers said that “P has the mental and physical functioning to do as she chooses” (so why is this case in the Court of Protection?). The judge responded by saying, “When I met her, she was very keen on engaging in education and going back to university this Autumn”. This was a puzzle. Finally, someone mentioned that P had a brain injury received in a road traffic accident last year, and that although she’d hoped to return to full-time tertiary education, this was now looking unlikely. The judge said of P (based presumably on something she’d read in the bundle) that it “sounds as if P’s having – in a non-technical sense – a psychotic episode perhaps?”. Much later, someone else said that P had been assessed as lacking capacity in relation to her care and her contact with others. At no point was it clear to us as observers what P wanted to get out of this hearing or what her values, wishes, feelings and beliefs were. I assume that the Official Solicitor had this information, but he didn’t convey it in court.
The two key issues discussed in court were:
First, an injunction to restrain contact with P against a man who’d been released from prison earlier this year and had been in contact with her pretty much every day, and spending the occasional nights at hotels with her until the Covid-19 lockdown. This man was described later as “not her boyfriend or partner”. The injunction against him was “to protect her from risk”. There was a short discussion about “a TZ number 2 sort of care and support plan” which I didn’t understand (and which someone referred to as involving “lofty principles but quite what they mean in practice it’s not so easy to say”). Plans were made for a next hearing at which an injunction would be served on this man (at either an in-person or a remote hearing).
Second, what care should P receive and paid for by whom. She was the subject of a personal injury claim in respect of the road traffic accident and it seemed likely there had been some interim payments but nobody seemed to know what these were, what was being claimed for her, or what was likely to be available in future. There seemed to have been a lack of coordination and communication on this matter, which could surely have been settled by the Official Solicitor, acting on P’s behalf, obtaining this information from the Personal Injury solicitor and sharing it with the court. There was also a muddle about whether P was or was not currently receiving psychological support – sufficient that the judge sounded exasperated when she said “It wasn’t ten minutes ago you said she wasn’t getting any psychological help and now it turns out she’s seeing a neuropsychologist on as much as a weekly basis”.
This somewhat acerbic comment was characteristic of Mrs Justice Lieven in this hearing. As a social psychologist with expertise in conversation analysis and institutional interaction, I was particularly interested in how the judge asked questions of the advocates and engaged with their answers. For example, she concurred with the suggestion that there should be a Round Table Meeting (“RTM”) to sort out the care plan and this led to a discussion about whether or not lawyers should be involved in that. The judge was initially of the view that having lawyers involved was a bad idea – that “the less lawyers are involved the better”, that “it shouldn’t be necessary to drag lawyers into something like this” and that their presence would divert health care professionals from focussing on the care plan. In response, the barrister representing P’s mother pointed out that if P’s mother were included in this meeting, as, surely, she should be, she would be disadvantaged by being the only non-professional present: he asked for his instructing solicitor to be allowed to attend to support her. The judge accepted that this solicitor (only) should attend the meeting, but that they should be “urged not to speak more than is proportionate, restrain their lawyerly instincts and just be there to support P’s mother”. A subsequent discussion about whether or not P’s mother was in fact to be included in the meeting led to another exasperated-sounding comment from the judge:
“Mother is a key part of whatever care plan is put together. What are a bunch of professionals doing sitting around deciding how P is going to be supported at home if the person she’s going to be living with isn’t there?”.
When there was further demur, she commented:
“I’m not going to micro-manage your meeting, but if you rock up to the next hearing and it’s all gone horribly wrong because you didn’t include P’s mother, you can imagine how supportive I’m going to be.”
Upeka De Silva – @de_upeka
What I appreciated the most was the Judge’s discussion about allowing the mother of the woman in question to have a solicitor with her so that she was appropriately supported when faced with “a bunch of professionals“. The fact that English was not the mother’s first language made that even more appropriate. Counsel for the local authority argued that having a lawyer present makes other professionals behave differently but this was considered less important. This to me was once again what I appreciate about the Court of Protection – making sure people’s voices are heard.
Grace Carter – @GraceCarterECR
I am a law PhD student at Nottingham University interested in observing hearings because my key research interest is on how we can make advance planning under the Mental Capacity Act – which for people with disabilities often means making decisions on their behalf in their “best interests” – more compatible with Article 12 of the Convention on the Rights of Persons with Disabilities.
Article 12 states that “persons with disabilities have the right to recognition everywhere as persons before the law”, and that all appropriate measures should be taken “to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. The Mental Capacity Act, by contrast, allows substituted decision making which has the effect of denying a person with disabilities the full legal capacity to make legally enforceable decisions. The conclusion that someone lacks capacity to make their own decisions, and the making of decisions on their behalf by a court, is problematic from this perspective. An article by Alex Ruck Keene suggest that the Court is achieving greater CRPD compatibility by adhering to the individual’s wishes and feelings in best interest rulings, and by requiring clear and convincing justification before they are departed from. I wanted to see to what extent this was true first-hand.
In this hearing the court was conducting advance planning on behalf of someone with a disability and making decisions relevant to their future. As I was watching the hearing I was thinking about the extent to which the individual was included in decision-making, and how meaningful that inclusion was. I was glad to see that the judge included P’s mother in the multi-disciplinary discussion of her care plan – although I did wonder why this sentiment did not extend to P herself. I was also glad that the judge critiqued counsel for the local authority who used P staying out until 4am as an example of ‘risky’ behaviour. I wonder what other examples of ‘risky behaviour’ P was exhibiting however, given that a young woman without a disability staying out til 4am isn’t uncommon and likely wouldn’t be viewed as being as comparatively ‘risky’ as it was for P.
I believe P should be offered support in her decision making – in regards to both her intermediate and long-term care plan, and her relationship with the man she is meeting with. It was not made clear whether an injunction to stop his contact with her is in line with her will and preference. It was not clear how much support she had been offered or would be offered in making decisions about her care and contact, nor was it clear whether and on what grounds it had been decided that she lacked capacity to make these decisions for herself. It also wasn’t clear (to us as observers) what P’s own wishes were. Overall, it’s hard to make any meaningful judgments on the content of the hearing without knowing more information. Having more detailed facts about the case at the start of the hearing would have been very beneficial.
Patrick – @Patricklawtweet
I was interested in the reference to “TZ Number Two” — particularly the care plan reached in that case, which was advanced here as a model for dealing with P’s “risky behaviour” in terms of contact with other people. It turns out that A Local Authority v TZ (No.2)  was a very interesting case involving, as it happens, one of the barristers from this hearing.
TZ was a 24-year-old man with mild learning disabilities, atypical autism and hyperactivity disorder, who wanted to seek out sexual partners. He had, (in No.1), been deemed to have capacity to consent to and engage in sexual relations. In the second case, though, it was found that he did not have capacity to decide whether or not a potential sexual partner was safe, or to decide what support he would need when having contact with a potential sexual partner.
Accordingly, a care support plan was made to help TZ develop a sexual relationship without exposing him to a risk of harm. The plan focused on educating him and empowering him to make his own decisions, but until he was able to do so, various measures were put in place to protect him. His care workers, rather than an appointed deputy, were entrusted with responsibility regarding day-to-day matters: they would remind him of appropriate behaviour, for example, and encourage him to progress slowly with relationships. It was not their job to vet his potential sexual partners, but to step in — as unobtrusively as possible — if there was reason to think he was at real risk of abuse. The court retained its role with regard to more serious and long-term questions.
The Court of Protection has generally treated capacity to decide to have sex as an ‘act-specific’ rather than ‘situation-specific’ or ‘person-specific’ issue. So if P is found to have capacity to decide to have sex with one person, it is very difficult (and potentially very intrusive) for the court to find he or she does not have capacity to decide to have sex with any other person. This has led to concern about vulnerable people being left at intolerable risk of sexual exploitation by predatory actors. On the other hand, if P is found to lack the capacity to consent to sex, the Court of Protection is prohibited by section 27 of the Mental Capacity Act from deciding on their behalf that they may do so, even with a particular person, or when P has expressed a positive desire. This has led to concern about disabled people being prevented from enjoying their full human rights and freedoms, and cut off from intimacy with others.
The judgment in TZ strove to strike a pragmatic balance between protection and autonomy — neither to shirk the court’s responsibilities to TZ nor to prevent him living his life in the way he wanted.
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. The judge tried to get solutions efficiently that were probably in the best interests of the victim. I particularly liked the way that she tried to make everything as easy to follow as possible. For example, when acronyms were used unnecessarily and excessively (like RTM meaning Round Table Meeting”) she pointed out that she would prefer to reduce the number of acronyms being used. “Do we need to acronymise everything – even roundtable meetings?” she said. The reason I like what she did is that it becomes very hard to follow if people are speaking in acronyms. It is just jargon.
She was also really interested in making sure that not too many legal professionals stayed involved in this case and to get as much agreement as possible outside the court. She tried to create opportunities for people to work things out outside the courtroom.
She also noticed that something misleading happened. There was a question as to whether or not the patient was receiving any psychological help from the NHS
One of the barristers said the patient was not receiving any help from the mental health team. This clearly concerned the judge. She said, “given the seriousness of her brain injury last year – she was an in-patient for a very long time – there must be some mental health follow-up on that, mustn’t there?” The mother’s barrister said “I agree that there should be, but there isn’t“. A bit later it turned out that the patient was receiving support from an NHS neuropsychologist every week. The judge pointed out that she had been told that the patient was not receiving psychological help and then everybody corrected themselves. Nobody really apologized for the misleading comments but it’s interesting that it was known by at least some people in the hearing that the patient was receiving frequent psychological treatment on the NHS and yet for quite a few minutes they allowed it to seem to the judge as though the patient was not receiving any psychological treatment at all.
The truth came out in the end and it didn’t seem sinister, but it was very interesting for me, as somebody who has to use the Court of Protection, to see how something which is not true can seem to be true for some time – and I could see that it might not always get corrected.
I’m not going to pretend that I fully understood everything that happened. It involved a lot of different institutions and organisations: insurance companies, payments for crash victims, concerns about the behaviour of vulnerable people, possibly abusive relationships, the role of families, local authorities, hearings and prisons and roundtables and all this type of thing
I could tell all of these things were in play but because I don’t have the understanding of how these different institutions work and collaborate together (the word ‘multidisciplinary’ was used many times) I don’t really know exactly what was going on.
If I were a bit more familiar with the case then I might have found it a bit easier to follow but I certainly am grateful for the opportunity to have been able to listen to this case and I will take up the offer to observe a Court of Protection hearing again in the future..
This hearing is the first experience I have had of observing the Court of Protection ‘in action’. Admittedly, the fact it has taken me so long to actually observe the Court (in light of me having spent many years writing, reflecting, and teaching on the Mental Capacity Act 2005 and the work of the Court) is perhaps a slight indictment on how the Court of Protection has been presented over the years. The ‘secret court’ narrative which seems now well-established has probably been a block to many members of the public accessing open Court hearings, and even thinking they can. I was pleased to hear the judge’s thanks at the end for the public: encouraging the public to attend like this will massively help to demystify the Court’s processes. Her comment, “they’re not actually public if nobody turns up” made an important point. However, I would add to this that not only is it important that the public do turn up, but that the public have sufficient details of the case in order to make their ‘turning up’ purposeful.
Although members of the public were welcomed to the hearing and clear instruction was given on the Transparency Order, I felt a precis of the case would have been immensely helpful to have included the public in a more meaningful way. Although I ‘worked out’ the circumstances of the case as the hearing went on, particular elements of the discussion were difficult to follow as sufficient information was not known prior to the observation. If the public really are welcome in open Court settings then I would suggest a clear precis is offered at the start of the hearing.
Nonetheless, observing the hearing was fascinating. I was surprised by how informal it seemed (apart from the obvious deference to the judge e.g. “I’m sorry M’Lady for the acronyms” etc). Some of the informality of the hearing might have been because insufficient information had been passed to the Judge in time for her to sufficiently process prior to the commencement of the hearing. As a result of this, the initial questions she asked of those representing the respondents were conversational in nature as she tried to tease out information. The hearing presented itself more as a meeting and discussion rather than a Court hearing. Of course, this may be good in order to further demystify the Court of Protection and make it even more accessible, but it was in my opinion that the judge would have benefitted from more time to read the particular circumstances of the case before the hearing started.
I will use this, and my observation of further hearings. to inform my work on supporting other professionals to understand the Mental Capacity Act 2005 ‘in action’.
Katharine Shipley – @KatharineShipl2
Access to observe this case was extremely easy. I was emailed the Zoom meeting details within 10 minutes of requesting access. The Transparency Order was emailed to me directly following the meeting and the judge outlined the main points of this at the start of the hearing.
I found this case somewhat difficult to follow at first. It was helpful that the judge outlined the parties involved in the case, when she had realised that the public would not understand the context. Even so, it took a while to work out what the key issues were (although the judge was clearly also struggling with this at times!).
In terms of the content, as a Clinical Psychologist and Court of Protection Special Visitor, I was familiar with the mental health issues, although other members of the public might have struggled to follow some of the language. Even the judge was flummoxed by the acronym RTM (round table meeting).
I did find myself wondering why much of the discussion was happening amongst legal professionals, when the issues related so centrally to mental health support and treatment. The judge helpfully stated that a multi-disciplinary meeting regarding P’s needs would ideally take place without lawyers. There was a thoughtful discussion about the effect of lawyers upon such a process and I was impressed with the judge’s consideration of the applicant’s potentially disadvantaged position in professional meetings.
The confusion about P’s current care and support was evident and I was concerned at one point that her immediate needs might be misunderstood. My hunch was that her needs had not been well identified by the right service/s. It was evident that the legal professionals understandably struggled to comprehend what these needs were and the uncertainty about who was providing what care appeared to reflect inefficient communication between the involved parties. I found this somewhat depressing as I suspect that it at least partly reflects the current burden and pressures upon public services.
During a discussion about a committal application, consideration was given to conducting this virtually, as opposed to in-person. It was felt that the issues might be taken less seriously in a virtual hearing and that the gravity of the situation would be conveyed more successfully with a physical appearance in court. I found this quite fascinating and the idea resonated with me. Many of our usual rules and social conventions have been bent or cast aside since the start of lockdown and the new methods of working can appear as a kind of game. There is also definitely a kind of distancing involved in the use of virtual platforms. My teenage daughter told me that when she talks to her friends on a video call, she feels that she can speak more freely, as if the interactions are not quite real!
The thing that struck me most of all, was how little mention there was of mental capacity. Although this was only mentioned in passing, I gathered that it had recently been established that P did not have mental capacity in relation to the issues of concern, and there was mention of a proposed further assessment of her capacity in the coming months. She had apparently sustained a head injury in the past year and considering that there can be significant recovery over the first year or two following such an injury, regular reviews of her capacity will be crucial. There was also mention of P’s capacity in relation to her engagement with social media, but this was not discussed in detail. P sounded very vulnerable and I hope that the immediate risks to her will be addressed. There appeared to be some confusion about the questions for this hearing, but at least by the end, these were better formed.