Till death do us depart…

By George Julian – 9th July 2020

‘I said when I married you… I said till death do us depart, I said and that’s the way I want it because at the end of the day we shouldn’t have other people interfering and stopping us from having that privilege and that’s what I’d like’

P’s Husband

These were the words of P’s husband in a recent hearing I attended. My immediate thoughts on hearing him speak was how much he reminded me of one of my favourite neighbours, kindly, humble sounding, understated with a lovely local burr.

After a few hours’ reflection my overriding impression of the proceedings was of the compassion shown by His Honour Judge Horton and the genuine inquisitorial nature of the court. I’ll return to this later.

When Celia Kitzinger and Gill Loomes-Quinn launched the Open Justice Court of Protection Project I was keen to support them and immediately agreed to attend a hearing and blog about it. My only stipulation, to myself, was that I wanted to stay local. Even though hearings are now held remotely, I was keen to ‘observe’ a case in my local community, or one like it. After several weeks of requesting permission to attend Court of Protection hearings in my local area (the Westcountry) I finally struck gold yesterday and was granted access to attend a hearing held by HHJ Horton.

What was the hearing about?

This hearing was the first case management hearing and His Honour Judge Horton was asked to consider whether it was in P’s best interests to remain deprived of her liberty at a residential home under a standard authorisation issued in March 2020.

HHJ Horton helpfully started the hearing with a very brief outline of the circumstances that brought the case before the court; stating that if I were in the back of his court as a member of the public he’d give a brief introduction and so that was his intention.

This was a challenge to P’s Deprivation of Liberty pursuant to Section 21A of the Mental Capacity Act 2005. P has diagnoses of Alzheimer’s, depression, Type 2 diabetes and hypertension. P is resident in a residential home, having been admitted there in August 2019. P’s initial admission was on an emergency respite basis, but her stay has been extended and the DOLS authorisation was made permanent in October 2019.

At the hearing the applicant was the Relevant Person’s Representative for P, represented in court by Mr Conroy, who was challenging the DOLS order. P and her husband have been married for over 40 years and P’s husband has full involvement in P’s care and treatment. P’s husband had taken legal advice but was representing himself during these proceedings. P has a number of children, some more involved than others and at least one had been served with notice of this hearing, but none were in attendance.

HHJ Horton made it explicitly clear that P had ‘consistently expressed a wish to return home and P’s husband wants P to be home’. This was the first case management hearing before the court on this challenge and there had been no previous hearings to date.

How was it conducted?

Due to the coronavirus restrictions this hearing was held remotely on BT Meet Me. I was served a Transparency Order and had to confirm in writing in advance that I would be bound by it, and to several other conditions, all very sensible ones, like I would be on my own, that I understood I must not record any part of the proceedings and that my role was purely as an observer and I must take no part in the proceedings.

HHJ Horton made clear that the hearing was being recorded for HMCTS purposes only. It was also clear that there had been significant amounts of paperwork including position statements, documents and assessments provided to the court and that parties had an advocates’ meeting prior to this hearing taking place.

Who was in court?

HHJ Horton dialled me into the meeting and as I was the last to join, I’m not completely certain about who else was there, even though the judge did do a round of introductions.

• Mr Conroy was representing P and he had an assistant Ms Riley with him.
• Mention was made of a relevant person’s representative (RPR) but it was unclear to me whether she was in attendance at the hearing.
• Mr Pullen (sp?) represented the local authority and the NHS Trust.
• P’s husband was attending having taken legal advice but was representing himself.
• At least one social worker was present, and a couple of other people whose names and roles I did not catch.
• I was the only observer.

How the hearing proceeded

HHJ Horton introduced the purpose of the hearing, as above, and invited Mr Conroy to talk the court through the draft order that had been shared in advance with the parties. He went through the draft order line by line, paragraph by paragraph and HHJ Horton invited Mr Pullen and P’s husband to comment.

This was exceedingly helpful for me as I had no line of sight of the paperwork. I imagine it may also have helped P’s husband who did not have access to a written copy of the draft order either, due to not having access to email.

It became apparent that the relevant person’s representative was bringing proceedings ‘not because she says anything in respect of best interests of P, but because she has a role to protect P and P has clearly expressed to anyone who would listen that she wishes to return home’. The RPR sought legal advice on her appointment and these proceedings were issued ‘very shortly after’.

HHJ Horton checked with P’s husband that he did not wish to be a formal party and was instead content to receive documents and tell the court his point of view. P’s husband confirmed he did not wish to be a full party but instead he promised to do his best to get his point across.

All parties were agreed that there were only two options available: that P remained at the care home, or that P returned to the matrimonial home. Another care home was not considered necessary as neither P nor her husband, nor Mr Conroy, expressed any dissatisfaction with the care provided at the home.

P’s husband’s contributions and HHJ Horton’s compassion

While Mr Conroy did the most work in terms of presenting arguments to the court and explaining the draft order and positions taken, it was P’s husband’s contributions that caused me to sit up and listen a little more carefully. I think on reflection because it was he who brought P alive to the court, and to myself as someone with no prior knowledge.

He recalled a meeting held when P was admitted to the home for respite in October:

‘I thought she was only going in for respite, I got upset in that meeting and said I want to take her home. The social worker said you’re not taking her home, I’m going to stop you’.

It became apparent that P’s daughters wished for P to remain in the home, and P and her husband were desperate for P to return to their matrimonial home. P’s husband described P blaming him for not being allowed home and being desperate to see their little dog who she’d not seen in ages. He became quite emotional sharing this with the court ‘I gets upset, I’m sorry’.

HHJ Horton immediately sought to reassure P’s husband:

‘there’s nothing to apologise for, you’ve put your position very clearly, I anticipated that was where you were coming from. The upside is the case is now before the court, it will be for a judge to decide what is in the best interests of P, you’ll get an opportunity to have your say, and her representative will, and the professionals. On the ground I can see it’s an incredibly upsetting case, you’ve been together for a very long period of time and the fact she’s now blaming you for putting her in the home must be difficult’.

It was at this point P’s husband shared the statement this post opened with. The conversation developed and he explained how the move to the residential home had come about:

‘I was trying to convince her to have some respite and she said no; that’s when she fired off and I had to get social services in, and the police was involved as well, and ever since then I’ve been trying to get her home because I’m guilty’.

Again, quick as a flash, HHJ Horton responded, showing not only that he was paying close attention but also displaying a level of compassion and humanity that I’ve rarely seen in court (albeit most of my court time is spent in coroner’s courts). The interaction went like this:

HHJ Horton: You’re not guilty, this is what happens when people become unwell and not as well as they were. I’m very, very sorry it’s happening to your family.

Just take a moment, take a moment

P’s husband: I’m OK.

HHJH: Are you ok? You’re at your home? Have you got the dog there?

P’s husband: I have, I’ve just put her outside

HHJH: You’re very welcome to bring her in if you wish some comfort.

A little later P’s husband explained his concerns about coronavirus and his fear that P would catch it, and asks how long it will take to get P home:

‘I was frightened by the coronavirus, in a lot of homes people have died. I know the home hasn’t had any cases, but there’s nothing to say it won’t, it’s blowing up in different places. I was really worried if she got coronavirus I’d never see her again. I can’t wait to see her and hold her and hug her. If you can help me any way please do…. shame she ended up in the home and I’ve all this stress put on me trying to get her home. Thank you for listening to me, Your Honour’.

HHJ Horton responds in such a reassuring and calming way, simply stating:

‘I’m delighted to listen to you. We’ll continue going through this order; the purpose of this order is to get all the information the court needs to make decisions and see if there’s an agreed way forward; get some reports in, is it agreed, if not the court needs to decide. I’ll make direction for another hearing in a little while, it’s not being kicked into the long grass’.

The contentious bit

The whole hearing was incredibly cordial and genuinely inquisitorial, the focus on P’s wishes and those of her husband, and what was required to move this forward to a final hearing.

Conversation moved on to discuss permissions to share documents with various parties, what paperwork family members would be required to file if they wished to take part in the proceedings, and dates for disclosure to be made, and witness statements to be filed with the court. HHJ Horton gently reminding the parties of the need to be specific, and also ensuring that P’s husband’s views were incorporated into and reflected within the documents, despite his role being that of an interested party.

We heard little from Mr Pullen, acting for the local council and the NHS Trust, with the exception of one contentious point. The draft order that Mr Conroy was talking the court through included reference to accommodation ‘available and unavailable’. The interaction went as follows. Mr Pullen relayed that his clients were:

‘a bit confused by this and wanted it to read best interests and accommodation options… it just seemed clearer to my client, available and unavailable is a bit vague, what does unavailable mean? If P’s condition changed between now and assessments taking place, and preparation of statement, obviously that will be taken into account automatically by my client. What does unavailable accommodation options mean? Some sort of independent flat?’

HHJ Horton: ‘If I could interrupt you, could I ask Mr Conroy what is the magic in the wording available and unavailable please?’

Mr Conroy: ‘…the family matrimonial home could technically be available in bricks and mortar but becomes unavailable because the local authority costs that returning home, but they won’t pay for the care…’.

The discussion moved to how that could be worded differently, to reflect the two options on the table (remain in the care home or return to the matrimonial home) and incorporate costs issues. I think it’s fair to say that P’s husband struggled to understand the cost issue, in his mind it was simply about P returning to their home, and they would care for each other as they had previously.

HHJ Horton explained that he was getting the Local Authority to do their job by telling him what it would cost and what help would be put in; that there was a need to look and balance the costs of P remaining where she was and the quality of care that can be provided to her.

Mr Pullen was at pains to point out that it was not ‘all about costs’ and that his client’s:

‘concern has really been that because of the nature of P’s condition it’s simply not in her best interests, or practical, for her to return home. I’m anxious P’s husband doesn’t go away thinking it’s just cost preventing her coming home’.

HHJ Horton ensured P’s husband understood and placed a requirement on the assessing team to speak with P’s husband and find out what he was offering and ensure any assessment fairly reflects what support he could offer. He returned to this point a little later reiterating:

‘That needs to factor in the emotional support that P’s husband can provide, they have been together for 40 years and are obviously dependent and devoted to each other; that needs to be taken into account please… Everybody has heard me say it, it’s an obvious point and I know anyone carrying out an assessment would take it into account; I’ve made the obvious point because P’s husband is taking part in these proceedings and I want everyone to recognise the importance of him to the case’.

Where next

A number of further assessments will take place and a roundtable meeting will be scheduled with all interested parties and legal representatives towards the end of September.

It was decided that HHJ Horton could dispense with the requirement for a pre-trial hearing, given this roundtable, and he would move to list a full day hearing two weeks later. He placed a duty on the applicant and respondents to bring to the attention of the court immediately any concerns arising at the roundtable that would put the final hearing in jeopardy.

It was decided that this final hearing would be held by video-link on Microsoft Teams or Skype for Business, although it was also confirmed that P’s husband does not have the hardware or software to participate. His legal representative and P’s solicitor will work together to try and find a work-around; HHJ Horton urged Mr Conroy, P’s solicitor, and Mr Pullen, representative for the Local Authority and NHS Trust to try and make available a clean room and the technical kit required to enable P’s husband to join by video link.

In the event that all parties reach consensus and confirm that in writing, the final hearing may be substituted with an email exchange with the judge on the day, or the day before. HHJ Horton also decided that the most important thing was to get this case in front of a judge who can sit in the Court of Protection, either a circuit judge or a district judge, whoever has got time, so he did not seek to retain it himself.

The call came to a close with HHJ Horton thanking everyone for their contributions and the final word from P’s husband:

‘Thank you, Your Honour. You’ve explained it well to me and Ben Conroy has too’.

My thoughts and reflections

I found following the case both saddening and reassuring in equal measure. It feels desperately sad to me that an emergency respite admission could potentially result in someone not returning to the matrimonial home and their husband of 40 years.

Despite the suggestion that it was not solely about costs, I couldn’t help feel that was the unspoken (or barely spoken) elephant in the room. For all the rhetoric about person-centred care, and community support that has been promised in health and social care in the last few decades, at the end of the day I get the impression that institutionalisation (even in a very good care home) still appears to be the preferred option for those holding the purse strings. I acknowledge however that this is a complicated situation and I have the barest of details after 90 minutes on the end of a telephone.

Which is where the reassurance and hope comes in. I was left absolutely 100% certain that HHJ Horton was focused on P’s best interests throughout, and hopefully that laser sharp focus will translate into the final hearing. It is such a difficult decision it only seems appropriate that a judge make it.

My final reflection was on how compassionate, supportive and inquisitorial this Court of Protection hearing was. I have spent hundreds of hours in coroner’s courts, which the Ministry of Justice would have us believe are inquisitorial not adversarial and I have rarely found that to be true. This experience left me reassured that an inquisitorial approach was possible, and not only possible but genuinely beneficial, in terms of enabling the court to keep its focus on P and achieve its aims, but also in ensuring interested parties have a supportive and kindly experience, as opposed to being left traumatised as I have so often seen in coroner’s courts.

I will attempt to continue following this case and hope that I will be able to join the final hearing to observe. I’d recommend others try to join a hearing too, and don’t be put off if you don’t get to join the first, second, third… one you ask to join, you might, like me, be eighth time lucky.

Dr George Julian is an open justice campaigner who live-tweets coronial inquests into the deaths of learning disabled and autistic people [see @LBinquest@HandleyInquest@TozerInquest@JusticeforCol@JoeInquest and @SashaInquest]. She also spends her time as a freelance knowledge transfer consultant, a representative for bereaved families in death investigations, as an activist and a craftivist.

George tweets @GeorgeJulian and her DMs are always open.