By Celia Kitzinger – 20th August 2020
It’s shocking to log on to a regional Court of Protection video hearing (COP 13524261 before Her Honour Judge Davis in a regional court) and to discover that P is attending the hearing from Her Majesty’s Prison.
Instead of the domestic clutter of a family home, or the familiar backdrop of a care home or a hospital, the person at the centre of this hearing (let’s call him Joseph) was seated at a table with a blank wall behind him in a stark institutional prison setting.
He looks to be in his mid-twenties, but I later learn he’s still a teenager. He seems shy, overwhelmed perhaps by what is happening, not particularly communicative but obviously pleased to see his mother, who has also joined the video-conference.
We’re all on line, waiting for the judge who eventually turns up half an hour late, apologising profusely that her previous case took longer than expected.
During that half hour we are a captive audience as Joseph’s mother engages with her son, delighted to see him after a long separation: “Hello sweetheart! I love you Joey, my little darling. I’m here Joey. I’m always going to be here for you, fighting your corner. You’ll be out soon, so don’t you worry. I miss you Joey! I love you so much!” She asks the sort of questions any mother would ask of a teenage son she hasn’t seen for a while: is he eating well (“you look as though you are”), is he sleeping well (“you need lots of sleep, a growing lad like you”) and does he get enough exercise (“just 15 minutes of walking around, that’s life in here, that’s just how it is”). She passes on messages from the family (“Nan says hi”; “Tell her I said hi back”). She talks about what might happen when he gets out of prison – suggesting a haircut and a shave. “I look like Big Foot!” he says. She repeatedly reassures him that “we’ve got your back”; “I’m your Mum and I’ve got your back for ever and ever“.
It turns out that Joseph, who has autism and mental health challenges, is in prison due to an incident where he assaulted a carer and caused criminal damage to his room. According to his mother (with whom I have spoken twice since the hearing), social services called the police and said, in effect, “nick him and charge him” (her words). This is – says his mother – a completely inappropriate response to someone with Joseph’s problems:
“It’s just not right. It’s wronger than wrong”, she told me. “This shouldn’t be happening to Joseph or to anyone else like him. He’s a beautiful soul. He has his problems because he’s autistic and has mental health problems, but that doesn’t mean you can treat him like an animal and just lock him up.“
The main issue to be addressed in the hearing is where Joseph should live when he’s released from prison in ten days time.
Unusually and – to me – again shockingly, it is Joseph’s mother (and not the Local Authority) who has brought the application to Court. This is because the Local Authority was treating Joseph as someone who had capacity to make decisions for himself. Joseph had refused services, challenged his autism diagnosis, and said he wanted to live in a flat on his own. So the Local Authority had withdrawn all services. They appeared to be content to leave him with no services on the basis that he had capacity to refuse them.
When it became clear that her son, left without services and living in a flat on his own, was involved with “bad people”, using illegal drugs, “smashing everything up”, “burning stuff”, and – once – assaulting her, his mother “begged for help”. She was told Joseph was an adult now, and “we have to let him make his own mistakes”.
“They were telling me I was an over-protective mother, but I knew he would be dead if I didn’t get him the help he needed. It’s been nightmare after nightmare. They’ve really let my family down. There have been years of failings in services. The system is broken.“
Her view is that “they wanted to say he had capacity so they could wash their hands of him”.
Joseph’s mother had never heard of the Court of Protection at the time she made contact with the Mencap Helpline. I spoke (with her permission) to Julie Hinnigan, who is part of the legal team which supports the Helpline (now the independent legal charity called Access Social Care). Julie Hinnigan told me:
“The Helpline team was very concerned about the safeguarding issues she was raising – and she had a number of reports indicating that he may lack capacity to decide about residence and care. At best his capacity seemed borderline. We get so many calls from parents in this situation: they’ve been fully involved in care, and then their child hits 18 and all that experience that the parents have of bringing up the child is just lost, and the focus is switched on to autonomy. We wrote a very detailed letter outlining the safeguarding issues – self-neglect, he’d been a victim of cuckooing – and we said back then that there was a ‘risk of impulsive behaviour leading to police involvement’. The reply was brief: ‘our social worker has assessed him as having capacity and we’re not going to disclose anything about that, we’re not going to undertake a safeguarding enquiry and we don’t agree that an independent capacity assessment is needed’. End of. So, then we had to find a legal firm willing to take it on.“
Once the court hearing started (with Joseph represented by Rhys Hadden for the Official Solicitor) it was apparent that some progress had been made, and a potential placement had been identified and agreed by the parties. Counsel for Joseph’s mother (Katie Scott) summarised some of the problems ensuring the appropriateness of this placement. Previous placements, she said, “have broken down – including in ways that have led to prison”.
“When Joseph ‘kicks off’ the only response has been to call the police and then he ends up in the criminal justice system, and his mother – for obvious reasons – is extremely keen to ensure that doesn’t happen again. He’s also been sectioned and spent time in hospital. The Official Solicitor and [Joseph’s mother] have raised some concerns about whether this is going to be any more effective than previous placements.” (Katie Scott, Counsel for Joseph)
The proposed placement hadn’t been discussed with Joseph because there had been no available virtual visiting slots at the prison. It did feel to me, as an observer, as though everything had been cobbled together at the last minute. As with many court hearings, there was mention of a prior advocates’ meeting just before the hearing started, and the sense that agreements had been reached under the pressure of knowing that the case would shortly be before the judge.
An interim placement order was agreed, with follow-up arrangements in place to see how Joseph was getting on after the move, and another hearing in early September 2020. Meanwhile, his mother tells me that she Face-timed Joseph recently and he told her the placement was “really really good”. He’d been baking cookies, making pizza, playing football and TV games and been to the beach! She plans to visit (all being well on the public health front) for a family birthday in a few weeks’ time.
According to Julie Hinnigan, the failings in social services were in part due to lack of knowledge and support for autistic adults – especially those, like Joseph, who don’t also have a learning disability. “Services for autism are often way behind specialist services for learning disability”, she says. “People with autism like Joseph can present as very able and mask very well. It can be genuinely very tricky for non-specialists to assess their capacity”.
So far, at least, this story has a happy ending. The Court of Protection has lived up to its name. It has protected and ensured support for a vulnerable young man who is now flourishing in his new placement.
The tragedy is that this situation arose in the first place – that he was left so much at risk, ricocheting between psychiatric hospitals and prison, without the support he needed.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia