By Gill Loomes-Quinn – 1st September, 2020
In February 2017, as part of my PhD research, I spent a month at the Court of Protection at First Avenue House, High Holborn, in London. In this blog, I share my observations from the first of fourteen hearings I observed during this time – focusing on what was to become a key theme across my observations: that of Delay as a feature of cases in the Court of Protection. I consider the causes and impact of delay in this particular case, as well as my responses to these observations as a disabled activist and socio-legal researcher.
If anyone were to ask me for advice on how to approach a PhD, something I would emphasise first and foremost would be to grasp any opportunity that comes your way, and to keep your eyes open for ways to create your own chances. It was this approach that led me to London, to the Court of Protection at First Avenue House, High Holborn. And so it was, on 3rd February, 2017 that I arrived for the first in a month of hearings I observed – accessing the court as a public observer under the (at that time) relatively newly implemented Court of Protection Transparency Pilot. I have written elsewhere about my experience of using the Transparency Pilot to access “Open Justice” in the court, so here I introduce the first hearing I observed and consider it from the perspective of what it reveals about mental capacity “law in action” in the Court of Protection, and about the role of the court in the lives of disabled people.
The hearing was part of an ongoing case – Case No. 12275212 ADHB v Rotherham Metropolitan Borough Council and was listed for 10.30 am before District Judge Glentworth. I arrived at court with Paul Magrath of the Transparency Project who had kindly agreed to accompany me to my first hearing, and we found our way to the waiting room where Paul explained the Transparency Order to me. A key feature of my observations, conducted physically in the court (as opposed to the remote hearings being conducted as a consequence of the Coronavirus pandemic), was the contribution of the waiting room to my experience. Across the month, the waiting room functioned as an interview space for me to talk to counsel in a hearing I was observing, or to court staff in order to learn more of the work of the court, and their views on “transparency”. It also enabled me to observe parties arrive and introduce themselves to each other informally before entering the court room. This was sometimes extremely useful for figuring out the roles of the different “actors” (although it was not always easy, and my assessment was sometimes incorrect). In this instance, it was my classroom, as I attempted to soak up everything I could about “transparency in action” and what it meant for the legal culture that surrounded me. This was a steep learning curve.
On entering the courtroom itself, Paul and I were directed to a row of seats against the back wall. No desks or other writing surfaces were available, and when Paul asked the member of court staff directing us if we could use a desk in front of us with a sign reading “for parties’ use only” on its top, he was answered with a shake of the head. This presented a practical problem in terms of how I might take notes during the hearing (recording of hearings is not permitted), and also materially shaped the role of public observer – as someone apparently expected to watch the “performance” of proceedings, but not to engage with the substance and the discourse of the hearing in the depth that required the taking of detailed notes.
Everyone stood as the judge entered, and the hearing began. The judge asked Paul and me to give an account of our reasons for attending the hearing – “for the tape”. She also referenced the Transparency Order, confirming that we had been given a copy, but not requiring us to confirm we had understood it. While there did not seem to be any suggestion that we should not be there, I experienced it as a little daunting to be asked to speak in court. On reflection, I also question the fact that we were required to explain our presence in a hearing listed to take place in “public with reporting restrictions”. It seems to be an unnecessary barrier to Open Justice for a member of the public to be expected to justify their presence in a “public” court. After this preliminary procedure, the substantive hearing began.
The hearing was part of an ongoing case concerned with “varying or terminating an urgent or standard authorisation under the Deprivation of Liberty Safeguards”. It began with what was to become a theme across many of my observations: delay. In this instance, the respondent (the Local Authority) had requested an adjournment to this hearing following three previously vacated hearings. Following the court’s refusal to adjourn, the Local Authority had informed the judge by email of its decision not to attend. So the Authority was not in attendance or represented at this hearing – a circumstance that the judge described as “staggering”. I then heard of the litany of preceding delays to the progress of the case so far – including in obtaining an appropriately qualified psychiatrist to assess P’s capacity. This was highlighted as particularly concerning as P’s condition is progressive, and it is possible that at the start of the process of attempting an assessment (around November) he may have had the capacity to make the relevant decision(s) himself. There were then further subsequent delays (of around 55 working days) and adjournments to allow the Local Authority time to identify a possible placement for P, which may involve his social worker “outsourcing” this placement.
The judge summarised her concerns about the impact of ongoing delays on P, saying she was aware that he had “expressed impatience”, and “must be wondering whether the court cares”. She also discussed with counsel for P the fact that P had expressed a wish to attend hearings relating to his case, but no steps had been taken to facilitate this. It would apparently be difficult for him to attend court in the morning, but, as the judge put it “the court is responsive” and an afternoon hearing would be possible. In principle, it would be possible for P to attend court with the support of carers, although today the care home did not believe it to be in his best interests to attend. There was a question as to whether it would be possible for the court to visit P at his care home, though the judge commented that resource issues may prevent this, as “we’re down on numbers”. It was concluded that it was for those representing P to make the arrangements for a visit and that his solicitor should take responsibility for this. This was apparently “in accordance with the terms of the order” – which had presumably been agreed at a previous hearing and was unavailable to me, so I was not clear what exactly the terms of the order were. Such gaps in my decoding of proceedings were to become an ongoing feature of my observations, as judges and barristers frequently referenced documents to which I did not have access.
At the time of this hearing, P was resident in a “nursing home” and was described by the judge as “not an easy person to place”. I learned that he “wants something he can’t have” i.e. to live with his wife – this was not possible because it was apparently not what his wife wished. There was some confusion about P’s precise diagnosis relating to his loss of capacity – with it initially being described as Korsakoff’s Syndrome. However, Counsel for P informed the judge that a psychiatrist had questioned this, suggesting an alternative diagnosis of “alcohol-related dementia”. At this point, I was struck by the care and precision the judge applied to being clear about what was and wasn’t known about P’s condition, and to emphasising the boundaries of her professional role and expertise – “I’m not a psychiatrist, I don’t understand the distinction if there is one. I think we should be talking about alcohol-related dementia”. Without the respondents (the Local Authority) present in court, there was very little scope for progress in the case. Following discussions about the delays and their impact, it was arranged that a further hearing should be scheduled for 14th March 2017 (a further 5 and a half weeks away), and that arrangements should be made for P to attend “if the Official Solicitor considers it is in [his] best interests to do so”.
I then heard the judge say, and hastily scribbled down, that she was going to order costs against the respondent Local Authority under Rule 159. I had no idea what this meant, but after the hearing attempted to decode it, beginning by consulting the Court of Protection Rules. I found that Rule 159 is concerned with “departing from the general rule” i.e. for determining the payment of costs for hearings to do with property and affairs (Rule 156) or personal welfare (Rule 157). As this hearing was concerned with a personal welfare decision, Rule 157 dictates that generally there will be no order made as to the costs of proceedings. The departure ordered today meant that the respondent Local Authority must cover the court costs of themselves and the applicants as a consequence of their failure to attend the hearing. I also heard the judge refer to “Rule 89”, and subsequently read that this concerns “orders made without a hearing or without notice to any person”. It means, among other things, that the order must contain a statement of the right (of P, any other party, or any other person affected by the order) to apply for a reconsideration of the decision. I took this to mean that because the respondent Local Authority was not represented in court, the judge was required to make clear that they had the right to apply for the costs order to be reconsidered. This was also my first experience of attempting to follow technical details of Court of Protection proceedings with which I was not familiar and scribbling them down to try to decode them later. It brought home to me that a degree of legal literacy and research skill can be needed to truly engage with open justice in the Court of Protection, and that it can be necessary to “hold your nerve” scribbling down complex, unfamiliar details and hoping that you will be able to piece them together later.
An Activist’s Immediate Response – Responsibility and Opportunity
My thoughts immediately after the hearing can be divided into two categories: (1) to do with the operation of the Mental Capacity Act 2005 in practice; and (2) to do with being a public observer in the Court of Protection.
Concerning the first of these points, my overriding impression was a sense of outrage at the impact that the delays described were demonstrably having on P and on his quality of life. This “touched a nerve” as I recalled the times, when I had found myself waiting – caught in a trap of disability-related bureaucracy. And I felt a sense of righteous anger on P’s behalf. It seemed that the court hearing had played out (on a formal “stage”) a type of experience that will be familiar to most disabled people and our families and others who support us, but that can often feel isolating, and hidden from the rest of society. I have no way of knowing the cause of the delays in this case, beyond the judge’s comment that P was “not an easy person to place”. But I was prompted to reflect on my personal and professional experiences of often well-meaning and compassionately motivated professionals working as part of a system rooted in intransigence. I found that afterwards, as I went to buy lunch on Chancery Lane, I could not shake the sense of outrage at the possibility that bureaucratic delays may have led to a person with a progressive, degenerative condition having been robbed of the right to make a decision of such obvious importance to him (had the capacity assessment happened at the point when it was suggested he may still have had capacity), and then subsequently of the right to attend court and participate in his own hearing (on the three occasions when scheduled hearings were adjourned at the request of the Local Authority). Gladstone’s legal maxim that “justice delayed is justice denied” seemed frustratingly apt in this case, and it seemed that the laudable principles at the heart of the Mental Capacity Act 2005 – particularly that “all practicable steps” should be taken to promote the capacity of a person at the centre of a decision (s.1(3) MCA 2005), had fallen prey to the grinding gears of local government (in)action. My quest for “law in action” in the Court of Protection had begun with an exposition and interrogation of the consequences of inaction.
This leads to the second part of my initial thoughts on this hearing. I was left with the impression that as a public observer in the court, I had borne witness to the exposition of an injustice that would likely otherwise have been felt only by P and those immediately surrounding him. I had seen and heard the judge condemn as “staggering” the decision of the respondent Local Authority not to attend the hearing, and to use the court’s discretion to award costs against the Local Authority, departing from the “general rule”, as a way of further sanctioning this behaviour. While these may accurately be understood as responses to inferences of disrespect shown towards the court (as opposed to P), the judge’s references to P “wondering whether the court cares” meant that the authority of the court practically and symbolically ensured that P remained the central focus of the proceedings. As a consequence of this experience of “bearing witness”, I also felt a sense of responsibility – that I had seen and become aware of an aspect of social injustice, and that I should take this knowledge with me. I felt I could not just ignore or forget about it. I think this highlights the intensely personal, but also intensely public/political nature of the Court of Protection; and the reason why principles and practices of open justice and transparency are so intensely important. At the centre of this hearing was a decision about where one individual should live. However, woven into this decision-making process are themes of social injustice – of delay and discourtesy – that are not unique to this individual, or to this case. In observing this hearing, I was able not only to see law in action, but to witness “on the ground” the experience of a disabled person that enabled me to “join the dots” with my own personal and professional experiences, and that informed and fuelled my activism. This meant that while I had no knowledge or involvement with P, who remained (quite rightly) anonymous to me, the knowledge I took from that, and the other hearings I observed during my month at the Court of Protection, have enabled me to “pay it forward” in shaping my activism through research and advocacy. In this sense, the enactment of mental capacity law in the Court of Protection embodies the maxim that “the personal is political”.
For disability rights activists, the transparency agenda affords us new opportunities to strengthen and inform our activism. So much of our experience of oppression – of discrimination, and of bureaucratic intransigence – happens behind the closed doors of doctors’ consulting rooms, or of local government offices. But here, in the Court of Protection, it is played out before the authority of the court, and now, before us – the public. Shining a light on collective injustice might be the first stage to challenging and changing it – if we can seize the opportunity.
Gill Loomes-Quinn is co-director (with Celia Kitzinger) of the Open Justice Court of Protection Project. She tweets @GillLoomesQuinn
 It is worth highlighting that the move to “remote justice” in response to the Coronavirus pandemic has widened the scope of ways in which P may access, and participate in, her or his court hearing(s) remotely from their home or hospital, with technology being harnessed routinely in order to facilitate such remote participation. (See, for example, the compelling account of “listening to Mr A’s voice” from his hospital bed, detailing the steps taken to ensure that P was able to participate on his terms in a hearing in which he was first respondent, in Kitzinger et al., 2020 – here).
 SI 2007 No. 1744 (L.12)