By Hilary Paxton – 31st July, 2020
On 29 June I started a job as a 2-day per week trainee Independent Mental Capacity Advocate (IMCA) and Relevant Person’s Representative (RPR) for an advocacy provider in Yorkshire. I am currently doing my induction and lots of training. I have never worked with the Court of Protection and am likely to be involved in cases in my job, so I thought that observing a hearing would enable me to gain some insight into how cases are dealt with by the Court.
I also thought a better understanding of how the Court of Protection works in practice would be useful for my national policy work with the Association of Directors of Adult Social Services (ADASS), where I support the preparation for the Liberty Protection Safeguards scheme and the transition from the Deprivation of Liberty Safeguards (DoLS) and the Court of Protection Deprivation of Liberty (CoPDoL) process.
After several attempts to observe a case in the Court of Protection, I was able to watch a hearing on Friday 24 July 2020 before DJ John Beckley sitting at Central Family Court: Thurrock Council vs JS (Case no. 11895778). Although the hearing was listed as Thurrock vs JS, and there had been a number of previous hearings about this case, on the day in question the hearing was focussed on the role and views of the father of JS rather than JS himself. He was in court as a litigant in person, but although the hearing was via MS Teams and other participants could see each other, JS’s father apparently lacked the necessary IT and joined the hearing by phone.
The role of parent in cases where an adult son or daughter lacks the capacity to make decisions about their care and where they live can be particularly difficult, especially where the parents may have a different view from those who commission the services. In this case, the son lives with his dad and his father has been sharing the care with a care agency for some time. The council has proposed that an autism specialist provider may be able to offer opportunities to JS that the existing arrangements may not afford.
This is a rather delicate situation, and there are a number of reasons why a parent in this situation might feel defensive and may feel that their point of view is not being acknowledged or valued. Not having been at any previous hearing in this case, it became clear to me very early on, that JS’s dad was cross. He was frustrated. He felt abused by the council and was really worried about the future for his son.
At a previous hearing, the same judge had decided that he needed more information about what would work best for JS. An order was made that there would be a trial period with both the existing carers and the new autism specialist carers working together to support JS to gather evidence about how he responded to the different approaches. There would always be two staff on duty from 8am till 8pm, one from each provider. This trial would take place over a couple of months, and the evidence would inform the decision, to be taken by the judge at a later hearing, about what would be in the best interests of JS. This approach had initially been agreed by all parties.
There was a problem, however, as the father had strong views that the personal care should be provided by female carers. The new autism specialist company did not have enough female carers to be able to guarantee there would always be a woman carer. The original care agency only had female carers, and so by working together it was possible to always have at least one woman on duty, and it was agreed that if there was a male carer on duty he would not undertake personal care tasks, but would undertake other tasks, such as supporting JS with activities, and supporting other domestic tasks. This was VERY important to the father of JS, as too was the wellbeing of his son. He agreed to the trial period but would have preferred only female carers for his son.
Things came to a head a week before the hearing I attended, when JS’s father came home from an earlier hearing and found that his son had accidentally urinated on his clothes. He was wet and it appeared that neither of the carers on duty had helped JS or supported him to get washed and changed. This whole scene made JS’s father very angry. We’ve all had situations that have led to blowing a fuse or losing it, and this was one of those times. It was reported at the hearing I attended that JS’s father rang the social worker and told him in no uncertain terms how angry he was. He was cross with the carers, he was cross with the commissioners, he was cross with the social worker. And his view appeared to be that if there had been two female carers this would never have happened. He felt very strongly that he did not want the male carers supporting his son. Unfortunately, the social worker was unable to speak to the carers to get their side of the story. A few choice words were reported to have been used by JS’s father and it was stated that he had even called the social worker a wanker…..!
The response was that the council was seeking an injunction from the judge to ensure that JS’s father would not refuse entry to the carers or prevent them caring for his son, and also to prevent him behaving like this to council staff and using bad language. They believed that JS’s father had been preventing the carers from the autism specialist agency from entering the house and caring for JS.
JS’s father had decided to represent himself, rather than to instruct the barrister who had previously represented him. It became clear early in the hearing that the anger experienced by JS’s father was not very far from the surface and when invited to speak it rose up again. The judge had a difficult job to try and take an ordered approach and to make sure that all parties had their say. There were times where he had to be quite assertive. He had to repeat himself several times to JS’s father and had to check a few times whether JS’s father understood the gravity of the situation. He remained calm and gently persistent, explaining his role, and asking JS’s father if he would comply with the order he had made.
He explained that whilst he understood that JS’s father was very angry, because it was an order of the court, there would be consequences if JS’s father did not comply. He explained that this trial was needed to establish what would be in JS’s best interests, and that if JS’s father did not comply, this could jeopardise the evidence to inform that best interests decision that the Judge was to make in the autumn. He gave JS’s father the chance to say that he would comply. In fact, his approach worked and JS’s father agreed reluctantly to try. The Judge decided that instead of granting the requested injunctions, he would give JS’s father one week to prove that he would comply with the agreed approach to the care in the trial period.
The Judge underlined that he had not yet made any decision about the long-term care, and that when he did make that decision, he could decide that it would be in JS’s best interest to move to the new package with the autism specialist provider or he could decide that it would be in JS’s bests interests to go back to the original arrangements. But that he needed the information from the interim arrangements to inform that decision.
He left JS’s father in no doubt of the seriousness of this when he said that he would put another hearing in for one week’s time, so that all parties could report back to the Judge, and at the end of a week if JS’s father had been unable to comply, then the injunctions would be made, and that he could attach a penal notice to the injunction order. He explained that this meant that JS’s father could go to prison if at that point he did not comply with the injunctions.
The Judge sought the agreement to this approach from the Council’s representatives. They were very keen to ensure that JS’s father would desist from using abusive or aggressive language or behaviour to any carers. The judge confirmed that this formed part of the requirements.
By this point in the hearing JS’s father was calmer and although he was clear that he felt the council was not being punished and that he was, and that this did not seem right, he nevertheless agreed to try and comply with the requirements. Who knows whether this might be possible, or might prove just too difficult? Only time will tell. Watch this space!
I found that the process was quite structured, with the Judge inviting both sides to have their say, prior to inviting the social worker to speak, and also inviting the official solicitor to comment. Originally the Judge invited the council to speak first but the representative for the council suggested that it would be best if JS’s father spoke first, as this may provide new information and their instructions may change as a result. The Judge agreed to this approach.
Although there was a structure to the proceedings, and there was clearly a correct way of speaking, it was not overly formal. JS’s father was respectful of the role of the Judge, but remained very angry. I thought that the Judge was very clear about his role and the seriousness of the decisions he makes as a Judge in the Court of Protection. He made absolutely sure that JS’s father had the opportunity to state whether he would comply with the arrangements. He was calm and made sure that everybody understood what he was proposing, repeating himself where necessary, to make sure that all had heard what he said. He also told the court what he was going to do and then did exactly what he had said he would. An example of this was that he mentioned that at the end of the hearing he would make sure that JS’s father was given the opportunity to state whether he wanted to appeal against the Judge’s decision. At the end of the hearing, having discussed his proposals and having sought agreement from the other parties, he did indeed ask JS’s father whether he wanted to appeal to a higher Judge about the decisions. JS’s father decided not to appeal, and to work with the proposed approach for the next week.
In terms of my role as an IMCA or RPR, I learnt that it is essential to be even-handed and remain as calm as possible, when contributing in court. There can be many emotions involved for family members, and as a professional it is essential that all the evidence is available before the Judge can make a decision in the best interests of the person at the centre of the proceedings.
As a policy officer I was reminded that individuals and their families may not always want what we expect them to want. I am aware that the majority of people who work in personal care are female, and that many men with care and support needs would rather have males as carers. But I was reminded that everyone is different and their preferences vary. What is important is to take each person as an individual and work with them to provide care in the way they want. In the case of people who lack the capacity to make decisions about how their care is provided, this may involve working with their family members. I saw the Judge taking this seriously and trying to ensure he could get a feel for what JS responded well to, and what worked well for him, as well as what his father wanted for him. He explained that it was important to him to get as much information on this as possible. He was clear to both JS’s father and the council representative that this should not be rushed, and he wanted to give the trial period as much of a chance of working as possible, so that when he makes a decision about long-term care and support for JS he will be in a position to judge what will be in JS’s best interests.
Hilary Paxton works for the Association of Directors of Adult Social Services in England. She tweets @hilpax
3 thoughts on “Navigating Approaches to Care when Family and Local Authority Disagree”
I observed this same hearing and want to add something about the challenges faced by a litigant in person.
It was unclear to me why exactly JS’s father decided to represent himself. However, the restrictions in legal aid funding, paired with the complexity of both the law and civil procedure, means that there are an increasing numbers of litigants in person, and this may hinder access to justice.
Litigants in person are often seen as imposing problems on the court and as requiring all lawyers involved in hearings to ‘take on burdens that they would not normally have to bear’. However, the ‘Equal Treatment Bench Book’, revised and updated in March 2020, says that litigants in person should not be seen as an unwelcome problem for the court. It aims to increase awareness and understanding of the different circumstances of people appearing in courts and tribunals. It helps enable effective communication and suggests steps which should increase participation by all parties. It’s clear that achieving this could require a judge to put themselves in the position of a litigant in person whose preparation and presentation of the case will not always conform to the court’s rules and regulation.
In this hearing, JS’s father spoke his piece and was very polite and respectful of the court and the judge, although at times his anger and emotional investment in the case, understandably, would get the better of him. I believe that speaking for himself (rather than having a lawyer speak for him) helped him to convey his thoughts and feelings and allowed him to stay in control of what was being said. I found myself sympathising with him, listening to what he had to say, hoping each argument he made would be coherent.
I also think that the Judge, DJ John Beckley, seemed very sympathetic and handled any outbursts really well. In my opinion the order given by DJ Beckley was very fair, and his demeanour towards JS’s father was exactly how I would hope and expect for a litigant in person. The judge showed he was aware of JS’s father’s feelings and the difficulties he experienced, whilst maintaining patience and a balance between assisting and understanding what JS’s father needed.
Aalia Omar is a law student at the University of Essex. She tweets as @_AALIAOMAR