A Case Manager observes in the Court of Protection

By Jackie Waggott – 6th July 2020

I’m Director of Operations at Social Return Case Management, managing a team of Case Managers, providing support, supervision and oversight of the case management service, as well as holding a caseload of my own. As case managers we work with the Court of Protection frequently, as many of our clients have sustained a life changing injury which means that they lack capacity to make certain (specific) decisions on an area of their life.  Lots of our clients have a Property and Affairs Deputy (appointed by the court) and we work closely with these representatives when supporting clinical and social needs.

My interest in wanting to observe a case is really one of professional development and wanting to learn more, so that I can better represent the clients I work with.  I also want to be able to enhance my ability to support the team in understanding how the court works and what to expect if we’re called to court or asked to provide information, such as a statement for a hearing.  I decided that observing a hearing – one which I have no professional involvement with – would give me the opportunity to hear and evaluate processes and outcomes and deepen my experiences to date. So off I went to find the opportunity to be an observer of a Court of Protection case.

The First Avenue House list didn’t go up until after 5pm the day before the date I’d arranged to spend time observing.  I emailed that evening and sometime after 9am on the day of the hearing I got an email back saying that the judge (Senior Judge Hilder) had agreed that I could observe and also that the hearing would start at 10.30am (half an hour later than listed).

They sent me the Transparency Order with the instruction to read it before the hearing. It’s quite anxiety-provoking to get it 30 minutes before the hearing: you have to read it, and you have to declare to the judge that you’ve read it and that you understand  it. The order just isn’t clear and takes more time than that to be able to say ‘I thoroughly understand that’. I felt a real sense of responsibility to read, digest and understand the order so I could make the declaration in court, and ensure I was abiding by it. It would be good to make the Transparency Order more transparent!

The hearing I had identified was to be held by telephone conference. At exactly 10.30am they called and dialled me in.  There was an introduction that the judge said was “for the benefit of the observer…” which covered some information about the previous hearings they’d had.  It was really useful for me and enabled me to understand the context.  I would have struggled if I hadn’t had that at the beginning. I hadn’t really expected to be going into a second or third hearing in a series, and without an introduction it would have been very difficult to follow indeed. Also, although the context was given, it wasn’t stated exactly who was there in the hearing and I had to pick up names and roles and match them to voices as we went along.

It was a case where P was a thirteen-year-old child and there was an application for authority to purchase property.  The Court of Protection has jurisdiction over the property of children if they are likely to continue to lack capacity post the age of 18 years:

“The powers under section 16 as respects any other matter relating to P’s property and affairs may be exercised even though P has not reached 16, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18.” ((Mental Capacity Act s. 18 (3))

This case concerned the proposal to purchase two properties on behalf of a child whose parents were separated – using money the child had acquired, I assume, via a medical negligence claim.  The plan, I gathered along the way, was that the child would be able to live with each parent separately and both houses would be accessible and appropriately equipped. The case was about how the child could retain enough liquidity of funds to meet care needs, whilst having access to the two properties, as in essence some of the funds would be invested on each property.  Consideration was given to how the money would come back to the child, and when, and how a Deed of Trust should be drawn up.  Both parents were in court, along with a professional Property and Affairs Deputy and the Official Solicitor.

There were lots of numbers and financial information discussed, and in a technical level of detail. The parents came with their own ideas of what they wanted to contribute and when, and these were contrasted with the needs of P.  Issues discussed were things like: do they start to pay back the child when they move into the property, or when the properties are purchased – because adaptations had to be made.  The parents sounded very reasonable and level-headed but clearly had some understandable personal investments in this issue: it was of course their lives and futures that were being discussed. The judge was able to bring an objective perspective and also to consider factors which in her experience have come up in the past, to forward-plan and mitigate issues that may otherwise need to return to the court for a decision in the future. What I felt unfortunately was that the Deputy was representing the parents and not the child – and that was very much picked up by the judge.

The judge was brilliant.  She said she was concerned that the Deputy wasn’t independent of the parents. And I felt she was frustrated that the Deputy hadn’t done enough to prepare and sort things out in advance of a hearing being needed.  By contrast, I felt that the judge absolutely was standing in the shoes of P and totally upholding his rights. She was just crystal clear with what she thought should happen.  It was about fairness and drawing a line, which was good to see.  She kept bringing it back to P.  She kept saying things like, “but that doesn’t seem fair (for P)”. It was all dealt with extremely logically, which I know you’d think, “well yes, it would be” but it was impressive how there was no mess; there was no tangling up of wood for trees, just decisive resolution.

I really felt the judge knew all the inside details of the case. She was really on top of it: she knew all the family’s personal circumstances, all of their financial circumstances and small factors that made me feel she understood the family. I do wonder, as a family, what that would be like; to have the reassurance that the judge understands, but to also have all of your personal information discussed in court in such depth, and in a public hearing. I also wonder what the family were told about an observer being present. I hope they were reassured. Nevertheless, for the judge, that was a lot of (crucial) information to hold in your head for one hearing when you’ve got another hearing in the second part of your day and you have to do just the same all over again.

Having observed, I won’t be so concerned, if I’m needed for a hearing in the Court of Protection professionally in the future. It helped me understand too what the expectations are in advance of a case being in court, so you’re not in a position where the judge tells you to go away and sort something out and come back again when you’ve done it. You need to have explored all the avenues and exhausted all the opportunities to sort it – in a logical and timely manner – before it lands on the desk of the judge.

I did expect justice to prevail.  And I have to say that I do feel reassured that on the one time I’ve been in court that’s exactly what happened.

Jackie Waggott works as a case manager in the North East of England, heading up a team of Case Managers at Social Return Case Management. She has a clinical background as a specialist physiotherapist and has over twenty years of experience of working with clients with neurological difficulties in the community. Her interests lie particularly in brain injury rehabilitation and supporting clients who experience disorders of consciousness.  She can be contacted by email at jackie.waggott@social-return.co.uk.  Jackie tweets @jackiewaggott