Protection versus Autonomy and Pragmatism versus Principle: A Balancing Act in the Court of Protection

By Patrick – 2nd July, 2020

This is an account of a Court of Protection hearing before Mr Justice Hayden in the case of Re ‘D’ on Friday 19th June 2020. In it I aim to provide an insight into the hearing itself, and — as someone with a keen interest in the law but no legal qualifications — what it was like to observe.

Gaining Access

This was my second time observing a hearing at the Court of Protection. Again I followed the advice here, and my experience of gaining access was much as described inmy first blog. One difference was that I emailed to request access the night before, rather than on the morning of the hearing. That I received a reply with an access link at 9:41 pm is some indication of how hard people are working, and over what long hours, to make open justice possible in this time of remote hearings.

Of course, that’s not to say everything is perfect: again, there was no reply to the email requesting a Transparency Order or paperwork to help me follow the hearing, and there were no details or keywords on the listing to indicate what it would be about.

The hearing took place using the Microsoft Teams video conferencing platform. Once the judge had arrived, the clerk announced the hearing was beginning and all those present should ensure that they did not make any recording of it, that they were in a quiet, private place, and that they had taken measures to minimise potential distractions. There were 17 people in attendance to begin with, including the judge (Mr Justice Hayden, who had presided at the first Court of Protection hearing I observed), the barristers, the clerk, solicitors, social and care workers, and observers.

The barrister for the local authority began by saying he had received the judge’s request for him to help those observing proceedings understand what was going on by introducing the facts and background of the case. The judge clarified that this was the practice to be followed in all remote Court of Protection hearings, and was in accordance with guidance that had been published for barristers. He directed counsel to that guidance and encouraged him to bring it to the attention of other members of the Bar.

Background

From the barrister’s introduction, it soon became apparent that this hearing was dealing with the same P (“D”) as the hearing I had read about here. D is a young autistic woman with ADHD, cognitive impairment, anxiety, depression and other conditions. She had previously been found to lack capacity in regard to various decisions.

She had at some stage become pregnant and given birth to a child, and the effect on her had been “catastrophic”: she hadn’t been able to recognise when she was in labour, had discharged herself from hospital very soon after giving birth, would not return to hospital when an ambulance was dispatched for her, and would not take pain medication despite the fact she must have been “in agony”.

In September last year she had been provided with accommodation, but chose not to avail herself of it and instead lived with a boyfriend. There was a suggestion that the relationship had not been a positive one, and she was at risk of exploitation. Once the pandemic had taken hold, there was also concern that she was vulnerable to contracting Covid-19, and was not abiding by social distancing and other guidelines. In April, an Order was made that she could be removed to another location, where she would be able to self-isolate for 14 days before returning to the accommodation she had been provided with in September.

By the time of the hearing I observed, there had been some happy developments. D had forged friendships with the other residents in her new accommodation and she had a new boyfriend.  Overall, she was making good progress and enjoying life, and wanted to remain where she was.

The main issues discussed in this hearing were whether D had capacity to make decisions regarding a) contraception and b) other healthcare, specifically with regard to Covid-19.

Not only did the deliberations provide an insight into the balancing act between autonomy and protection that lies at the heart of the Court of Protection’s operation — they ultimately illustrated what Mr Justice Hayden has described elsewhere as “the fundamental principle that the promotion of autonomous decision making is itself a facet of protection”.

Contraception

It was established that D’s social worker had performed a thorough and competent assessment that concluded D did have capacity to make her own decisions about contraception. The barrister for the local authority, however, submitted that because the matter was of such fundamental importance to D, the court should base its determination on the best possible information. An expert with more experience in the area should conduct another assessment. The recent assessment, for example, had not indicated that D could discuss the pros and cons of different methods of contraception.

The judge acknowledged that this request was “appropriately kind, protective and reflective”, but asked for it to be framed in the context of the Mental Capacity Act 2005 and the presumption of capacity that lies at its core.

Counsel for D, instructed by the Official Solicitor, argued that all the available evidence indicated capacity, so the presumption of capacity had not been rebutted and there was no justification for further intrusion or infringement of D’s autonomy. Moreover, D had been able, with support, to understand, retain and weigh the information relevant to these decisions. (It is one of the five principles of the Mental Capacity Act that “[a] person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”.) Among other things, D knew that the point of contraception was to avoid pregnancy, and had identified that the pill might not be a suitable option for her because she was liable to forget to take it.

The barrister for the local authority raised concerns about D’s capacity to retain the relevant information. Counsel for D argued that she did not need to retain the information for any prolonged period of time because she would receive support at the point of making the decision. The envisaged method of contraception was an injection that would be effective for three months. There were no grounds to worry that the necessary support would not be available at the appropriate time, because D was living in a residential care setting and receiving a minimum of 14 or 15 hours’ care a day.

The judge described the issues involved here as “exquisitely difficult”, and he seemed wary of getting lost in a morass. There was no direct discussion, for example, of whether if she decided not to have the injection, she would then be required to have retained the relevant information before deciding to engage in sexual relations two months later. The court may have been satisfied that the support she needed to exercise capacity in that regard would be available whether or not she had retained the relevant information on her own. Interestingly, D’s barrister raised the prospect that such discussions could lead down the road to a “person-specific” approach to capacity in dealing with sexual relations. As someone new to the functioning and jurisprudence of the court, it was surprising for me to learn how reluctant it has been to follow that road.

Concerns about the retention of information aside, the local authority’s barrister argued that as contraception was a type of medical care, and it had already been agreed that an expert should be appointed to assess D’s capacity in other areas of medical care, the disruption and cost implications of also assessing her capacity with regard to contraception would be negligible. Moreover, the information gleaned from another assessment might be of use in the reduction of support that the Official Solicitor had been seeking.

In response, D’s barrister articulated a general underlying concern that the appearance of a case before the Court of Protection should not become a licence to open up all areas of P’s life to invasive scrutiny and assessment. The judge made it clear that he was of the same view, and would never allow that to happen in his court. However, he encouraged counsel to “stay micro not macro”, hinting at another balancing act – between pragmatism and principle – that the court must perform.

Eventually the judge resolved that although “on a human level [he] would like to yield to the application”, the court must not let well-meaning paternalism dilute the autonomy enshrined by the Mental Capacity Act. D’s capacity to make decisions around contraception would not be assessed again.

Medical Treatment

This second issue demonstrated how fine distinctions can shift the balance of the court’s judgement from autonomy to protection.

Initially I was slightly confused that the barrister for the local authority had separated contraception and medical treatment into two separate issues, given that he also argued contraception was a form of medical treatment. However, in his submissions he made the point that medical treatment covers a broad spectrum, from putting a plaster on a grazed knee to carrying out major surgery. He conceded (without prompting) that the local authority needed to be more precise about the specific decisions with regard to which it considered D incapacitous.

The pressing concern was that D was at “serious risk” from Covid-19. This risk was exacerbated by the particularly severe impact of the pandemic on care homes, and by the fact that D was in the habit of leaving her accommodation to meet friends. The barrister sought an interim order that should D contract Covid-19, she would lack capacity regarding hospital admission. The need for such a remedy could be inferred from witness evidence that she would find it hard to recognise symptoms and seek help. The ordeal surrounding the birth of her child was cited as further indication that such a step was necessary.

The barrister for D agreed that if there were reasonable grounds to suspect D lacked capacity in that regard, an Interim Order could be made in accordance with the local authority’s request. She sought clarity, though, on the precise content of the Order — would the use of force be permitted if D refused to go to hospital, for example?

Here, the judge seemed pragmatically to prefer the ‘macro’ to the ‘micro’: he said it was possible to over-analyse these matters, and pointed out that in the many cases where he and the barrister had previously discussed such eventualities, P had “invariably” gone willingly. He made pains, however, to stress that the test, even for an Interim Order, was not a low bar. Neither should it be, he said — after all, the Order would represent a significant interference with P’s liberties and Article 5 (ECHR) rights.

Still, he was satisfied that in this case the test was made out. He had begun curating the ambit of the Order and would leave counsel to work out the precise wording between themselves. The matter was not so pressing that the Order had to be in place on the same day, and it would be helpful to the Official Solicitor to have some time to find an appropriate expert, so it was decided that they would have until midday Monday.

Observations on tone, technology and the presence of D

The tone of the hearing was calm and cooperative, with no sense of adversarialism. It was clear throughout that this was an inquisitorial jurisdiction, and the aim was to make sure the judge had the necessary evidence before him, rather than trying to ‘win the argument’. Arguments were raised and considered, of course, but not doggedly pressed. The impression was that everyone was working to strike the balance of protecting D while upholding her autonomy.

It also seems worth mentioning – especially in a hearing involving the issues this one did – that not only were the care and social workers, the clerk and some of the observers women, but one of the barristers was too. Given that D spoke only one word throughout, it must surely be a good thing that the voices discussing the case were not exclusively male.

Despite D’s limited verbal contribution, this hearing showed that remote hearings could, despite their limitations, maintain P at their centre. Though support workers from her accommodation were in attendance from the start, D was not initially present on the video call. The judge asked where she was and why she was not present; he had hoped and expected she might be able to join the hearing. He was, he said, “very keen that in the exigencies of remote hearings we don’t lose sight of P”.

It was explained that the hearing had been playing on D’s mind for the last few days, and she had decided this morning that she did not want to attend. The support worker then said that her manager had gone to find D and check whether that was still the case; the judge said again that he would very much like to see her, but emphasised that he did not want to cause any extra anxiety.

The barrister for the local authority suggested that a one-on-one virtual meeting (with a support worker if desired) might be a possibility if that would be easier for D. The judge suspected that such a meeting could indeed be arranged, because the potential of the video platform seemed unlimited: earlier this week, for example, he had ‘visited’ a hospital with a father and his very sick baby.

It was then announced that D had been found and was happy to participate, at least for a short while. The judge welcomed her warmly and gave her the option of a smaller, more private meeting, explaining that it could easily be facilitated by the technology. (It was, he remarked, “a wonderful thing to be able to press a button and get rid of counsel”.) D declined, but she remained visible, if not always obviously engaged, for almost the entire hearing. Although she was relatively uncommunicative, her presence helped the court fulfil its duty to identify her wishes and feelings in a more complete way than pure reliance on her care workers or the lawyers would have done.

There seemed to me a slight tonal shift once D had arrived, with counsel using more accessible language and speaking more slowly. This was especially true while discussions centred on her present circumstances and feelings, like her frustration at not being able to go out alone. Though it might not always have been understood by D, there was the humanising influence of humour, too: when the argument was put that solo outings were unsuitable because D might not understand the Coronavirus restrictions, the essence of the reply was that she wouldn’t be the only one.

As the hearing turned to matters of law, the language inevitably became less accessible and the pace picked up again. Still, D’s presence on camera was a live reminder of the human being at the heart of proceedings.

In making these observations I should note that I don’t have any experience of attending non-remote Court of Protection hearings. I couldn’t therefore say, for instance, whether or how far the presence of D was diminished by her appearing on video rather than in the flesh. It’s true that when, at some point not long before the end of the hearing, D “popped out”, I didn’t immediately notice, and neither did the judge.

On the other hand, I doubt whether, in the normal course of events, D would have been present at all. The journey from her accommodation and the stress and formality of the court building would at the very least have presented a far higher obstacle to her participation than did a webcam in an office a stone’s throw from her bedroom. And her decision that morning not to attend would have been much harder to reverse. That’s not to mention the benefits of remote hearings for other participants — not just lawyers saved a commute, but care workers who might have travelled hours for a hearing that lasted less than fifty minutes, or had to submit a statement instead of attending at all.

Although D had left by the end of the hearing, the judge closed proceedings by asking the care worker to thank her and say it had been nice to meet her. This had the effect of bookending the hearing with consciousness of, and care for D. It certainly seems fair to say that the judge succeeded in making sure that, whatever the exigencies of a remote hearing, the court did not lose sight of her.

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 Graduate Diploma in Law (GDL) next year, with a view to 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

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