By Claire Martin – 9th July 2020
[Editor’s Note: In her reflection on the hearings she observed, Claire mentions a number of questions with which she was left – one of these, relating to what is meant by terms such as “applicant” and “respondent”, is addressed in a post we have published since we received Claire’s submission: Who’s Who in the Court of Protection? – by Tor Butler-Cole, published 7th July, 2020.
The Open Justice Court of Protection Project would love to hear from any professionals who would be interested in helping us to clarify some of the other points Claire raises – see below, and get in touch!].
My interest in attending a Court of Protection hearing is because I am a psychologist working with older people in the NHS. My job includes assessments of people’s cognitive functioning, capacity and so on but I have never observed a CoP hearing before. I am also aware that, had I not been a psychologist, in a sliding doors scenario, law would be the draw for me! So, when I saw Celia’s tweet about the public being able to observe CoP hearings remotely, due to COVID, I wanted to join in.
It was fortunate for me that both of the hearings I attended turned out to be about making a best interests decision for an older person. That was pot luck though – as the issues weren’t stated in the CoP listings.
Where should P live?
The first hearing, before District Judge Ellington, was about where P should live – home or a care home. P was currently at home, has a diagnosis of dementia and has been deemed to lack capacity to make the decision about where she should live herself. The Local Authority (LA) had made an application to the court to revoke the Lasting Power of Attorneys (LPAs) for Health and Welfare, and Property and Finance, which were held by one of P’s children, who had made a decision that she should remain at home. This seemed a very tricky issue to judge – and indeed the case is coming back at a later date following further evidence from the Office of the Public Guardian. Meantime, the judgment was that the care home was in P’s best interests. It felt very difficult to assess what had actually happened in the LPA’s navigation of care for P. The LA’s statements were vociferously rebutted by the LPA and indeed he stated that the yearly LA checks of the LPA had been satisfactory.
Where P lived (at home) was considered by the LPA to be in his mother’s best interests because he reported she was ‘unhappy, depressed and self-harming’ in the care home and happier at home. P’s own current or previous wishes were not reported at the hearing – however, this could have been because she was unable to express them verbally now and that she simply had not done so in the past. This must make CoP decisions harder, especially when there are fiercely contested views about a person’s best interests, as in this case – including within the family. One would hope that people would discuss their future care wishes (if they have a view on them) with the person they appoint to be their Attorney at the time when they appoint them, but unfortunately it’s common for this not to happen. It would be interesting to understand this a bit more – why don’t people discuss these things, even though they are appointing a LPA?
I was very interested in the rationale and evidence provided from the Local Authority regarding the risks to P in remaining at home. There was disagreement about whether she ‘wandered’ riskily when at her own home versus in the care home. There were no objective records of ‘wandering’ provided for either setting, however, nor any analysis of the possible triggers and potential ways to help keep her safe. There was a district nurse report saying she could not be kept safe at home due to ‘wandering’, but no actual evidence from this report was offered to support this assertion, such as occasions when P had left the house and been at risk. There was an allegation that the LPA had, at times, locked P in her home – which would obviously create further risk – but the LPA denied this. I was unclear whether P was under the care of the local Community Mental Health Team (CMHT) for older people, and if so, whether they had engaged the specialist Behaviour Support Service (which are teams – sometimes called Challenging Behaviour Teams – across the country for older people with dementia and their carers to assess, formulate and help with “Behaviour that Challenges”, such as ‘wandering’ – or ‘walking with purpose’ or ‘walking about’ as it is less pejoratively called). This could have been part of a previous hearing, though no reference was made to such evidence. I found myself wanting to know when, where and how the ‘wandering’ occurred, and what had been tried to help keep her safe at home, for a fuller picture of the level of risk the situation posed. It felt like a big gap not to have this information to consider as part of making this decision.
It was academic in any event, as the Local Authority argued that there was not enough money to fund staying at home, even with P’s own money to top-up what she was entitled to. It was decided that P would move to the care home in 3 days as a ‘transition plan’, with a clearer analysis of ‘challenging behaviours’ in the care home setting to be considered at a further best interests hearing in August – the LA was given this task. In my job I would usually be able to follow-up how someone is doing, and I have found myself thinking of P over this past week and wondering how she is getting on in her new surroundings. The CoP sees snippets of people’s lives and makes enormous decisions for them – and I was heartened to hear the judge address all the family members present, one by one, to ensure that they understood her judgment and had a chance to ask questions.
What should happen with P’s possessions?
The second hearing (before District Judge Beckley) was about an older person also currently in a care home. His daughter was also present at the hearing (and contributed clearly and articulately). At a previous hearing it had been decided that P did not have the capacity to make his own decision about where to live, and despite his wish to return home (where he had lived alone), this was not in his best interests. Among other issues, he has limited mobility and his home was a flat on the fourth floor of an old converted building, without the potential for a lift. He had been offered an alternative possibility – a ground floor flat – which he had declined. The main issue for this hearing was surrendering P’s tenancy of his flat (which everyone agreed was in his best interests ) and (therefore) removing P’s possessions from the flat (about which there was some disagreement).
P had not visited his flat since April 2018, when he had been admitted to hospital and then discharged into a care home. It was unclear whether or not P knew that he would not be returning to his home, or that clearing his possessions was being planned. I wondered about this – he had a functional mental health problem and I had the sense (from what his daughter and Official Solicitor said) that he might have been able to take part in and express a view about at least some of what was happening in his life. We were told that, prior to COVID, the plan had been to take him back to his flat to support him in making decisions about which of his possessions he wanted to keep, which to recycle, and which should be discarded. I was a bit confused, then, about why no conversations with him concerning the current plan were reported during this hearing (from either his daughter or his legal representative). At the hearing, the plan around clearing his flat seemed contingent upon his having a role in making decisions about his possessions. The Official Solicitor, acting for P, argued strongly that P needed to be given the chance to say what he wanted to happen with his possessions: ‘don’t pull up the drawbridge because of a lack of effort and understanding of his mental health condition’.
The judge decided that the decision to terminate the tenancy could not be delayed until further investigation had been conducted into P’s wishes concerning all of his possessions. The tenancy would be surrendered by 27 July. Family were invited to list items that they believed should be retained because it has material or sentimental value, and the local authority would save items like books and wall-hangings but everything else (toiletries, magazines and newspapers, food, electrical appliances, household stuff etc) would be disposed of. The remaining property would be put into a storage facility paid for by the local authority until 27 October after which it, too, would be disposed of. The plan was that P would have support – either from his family or from care workers – to go through his personal property while it is in storage and give him the opportunity to retrieve items of value to him. The judge said it was ‘important to put into place steps for P to express his wishes and feelings about his property and say what he would like to keep. It felt like case management, which I didn’t expect at a CoP hearing!
What really struck me in both hearings was the very careful and courteous manner with which the judges included family members, and the time that they gave to all parties. In both hearings, the judges put a lot of effort into enabling the family members to express their views, concerns and disagreements, in a very ‘non-judgmental’ manner. In neither hearing, however, were P’s views referred to in any detail, which really surprised me.
I would have found it really helpful to have been able to read position papers and draft orders prior to the hearings. At times I found it hard to follow what was going on – some conversations were based upon previous decisions in previous hearings of which I was unaware, and (although a brief summary of attendees was given at the start) I wasn’t always sure who was who at the hearing until I’d worked it out as I went along.
It was very steep learning curve for me – not having any legal knowledge or experience. I left both hearings with many questions about terminology! Who is the ‘applicant’? Who is the ‘second respondent’? What is the difference between Public Law and where the Court of Protection sits? What is a Section 16 Determination? Some of these feel like naïve questions now that I am typing them, but I hope that Open Justice Court of Protection can commission some blogs that will introduce this area of law to people like me who are interested in learning from watching hearings and who, like me, have no legal training.
In older people’s multidisciplinary mental health teams, decisions are regularly made about a person’s capacity, best interests, treatment and care. We work with people with mental health distress that can temporarily (and longer term) affect their capacity to make specific decisions for themselves, as well as people who have a diagnosis of dementia who are living with a degenerative condition that progressively removes their cognitive skills (amongst other things). Best practice is to ensure that the person, and others important to them, are supported to have a voice and be central to decisions about their care – whether that is small, day-to-day decisions or far-reaching decisions such as where people live, what medication or other interventions are decided upon. Being able to observe CoP hearings, where there are disputes and deliberations about the ethics (‘best interests’) and legalities of such decisions, teaches us all about how we care for each other when we lose capacity to advocate for ourselves. Understanding the judgments is instructive for those of us at the coalface contributing to such decisions. I intend to observe more hearings when I have time, to deepen my knowledge and understanding of the legal nuances of such issues, and to help me to learn about and change my own blind spots in my practice as a psychologist. The more I can learn the better my practice will be, and I can cascade and pass on this knowledge to my colleagues too. Even though we are only present as observers at the actual hearings, we can be part of a reciprocal dialogue and collaboration between ‘law’ and ‘care’ with blogs such as these and the work of Open Justice Court of Protection – and that must be ‘good thing’!
Finally, I want to pay tribute to the family members in both cases – they spoke up for themselves in what is most likely an intimidating setting. There were solicitors present for various parties, often in disagreement with family members and having the benefit of a legal training on their side. Both judges were very helpful to family members and (I thought) conveyed the importance they placed on their presence as equal parties in the deliberations. That was uplifting to witness and the remote open court process is likely to boost this further – there’s nothing like being watched to promote good practice. What a great opportunity, brought about by the dreadful situation we are in.
Claire Martin is Head of Clinical Psychology for Older People at Bensham Hospital in Gateshead.
She tweets @DocCMartin