By Jacqui Bond – 22nd July 2020
I observed a hearing before District Judge Morgan (Case no: 13569561) via telephone.
Having read other Court of Protection blogs, many of which describe difficulties of access, I was pleasantly surprised to be given permission to observe a hearing at the Welsh Regional Hub in Cardiff at first request.
This hearing was listed with a time estimate of half an hour, but actually took 75 minutes. It was one in a series of hearings concerning the same case: further dates were booked in to consider issues raised from a previous hearing in June that were unable to be resolved today. I gather this is typical and that many cases are the subject of repeated Court of Protection hearings as part of ongoing case management.
There was no introductory summary of the issues (as recommended by Hayden, here) which meant I found it hard to follow and am not sure that I have all the facts correct. Counsel were present to represent Cardiff and Vale Health Board, the local council, and P (who was not present himself) – and who, I learnt towards the end of the hearing, has an acquired brain injury. P is currently living in a residential placement following discharge from hospital, as his primary residence wasn’t suitable to return to immediately.
Initially he had been allowed to go out and see his Mum via public transport. But after he told the staff at the home that he’d had a glass of champagne (and smoked cannabis) while out and about, restrictions were introduced. Another incident involving police being called while he was in a shop with a member of staff meant that supervision had not been lifted when accessing the community and meeting his mother.
I think this placement must be further than 5 miles from his mother’s house because the judge raised the problem of whether he understood the Covid 19 restrictions. In Wales at the time these meant that people could travel no further than 5 miles from their home, except for essential travel.
There was also a problem with the capacity assessment that had been requested. As a social worker I have only ever done a capacity assessment for one decision at a time, but it was necessary to assess a variety of domains here. The judge had no confidence in the capacity assessment presented to the court, describing it as “inadequate” because it had not covered all the domains required. Due to other work P’s doctor had had to prioritise, the capacity assessments would not be completed in good time. Assessing capacity for where P would live, finances, COVID 19 guidelines – which change every 3 weeks – specific to P’s situation, alcohol and/or substance use, and taking medication could be time consuming. The judge ordered that an independent expert should be appointed to assess P.
P’s legal representative was clear that P wished to have the situation resolved with regard to unescorted access to the community. She pressed for a clear ‘on the ground plan’ and what the situation would look like if P were to be relieved of supervision.
In addition, she noted that P had been able to have his medication by depo injection when he was living in the community, but he was now prescribed Olanzapine. I assume this was orally, but it was not made clear. While the current medication regime was suitable for P in a care home, and the LHB (Local Health Board) advised there was currently no clinical need for an alternative means of delivery, she wished for flexibility to be explored. This would allow P more options in terms of a suitable home and the care and support that he would require.
P’s legal representative also raised the issue of P’s former home, which was in need of cleaning. While not within the remit of the Court at present, it was brought to the attention of all parties that P may not be able to obtain another property from housing authorities or associations until his former residence is cleaned and the tenancy surrendered. Cleaning the property may not seem to be a priority for the court, but P had noticed the need for it, and lack of it could affect future housing options.
Due to the length of the hearing, no decisions were made with regard to long-term residency, but a request for a brief outline of the Health Board’s parameters in relation a suitable place to live were to be drawn up and sent to all parties.
Observing the hearing was interesting and made me reflect on my own experience of conducting capacity assessments and the extent to which they would hold up in court. I do wish, though, that the judge or the applicant had done a proper introduction to the issues to be covered in court so that I would have been better placed to understand what was happening and use the experience more effectively for professional development.
Jacqui Bond is a Social Worker, and can be found on twitter as @jacquic71