By Emily Williscroft, 7 October 2020
My experience of observing a Court of Protection hearing was exciting and bewildering and a brilliant educational opportunity. I feel inspired to observe more hearings because it’s such a fantastic way of learning more about the law in practice.
I finished my undergraduate degree (with first class honours from Edge Hill University) this summer and I don’t yet have a training contract – though I was proud of myself that I made it through to the Assessment Centre by the brilliant firm, Irwin Mitchell, that does a lot of Court of Protection work.
I’ve kept in touch with people who work at Irwin Mitchell and on August 18th 2020 I saw this tweet from Kirsty Stuart of Irwin Mitchell.
With a recommendation like that, of course I wanted to attend some hearings.
It took me a while to make time to do this (I work full time), but on Friday 18th September I emailed the regional hub court in Newcastle asking to observe a hearing before DJ Charnock-Neal at 11am that day. I received a response confirming that I could attend, and explaining the process for Judge Charnock-Neal to dial me into the telephone hearing. I’d been reading tweets about people not getting responses to requests to observe, and about hearings being vacated or postponed, so I was prepared for difficulties – but everything went really smoothly.
Upon receiving the phone call from the Judge, I was asked a number of formal questions. I had to confirm I was alone and that nobody else could hear the call, that I was not recording the hearing and that I understood I had to keep details that would risk anyone being able to identify P confidential. Once this was complete, everyone in attendance was introduced. Other people on the call, in addition to the judge, were representatives for the Local Authority and for P (the person at the centre of the case).
As recommended (here) by the Vice President of the Court of Protection, Mr Justice Hayden, the applicant, the barrister for P, Ms Nicola Kohn, provided a useful background summary of the case for my benefit so that I could make better sense of the proceedings. I understood that
P is a grandmother with both dementia and mental health issues. Family ability to provide care and support changed recently so she’s moved into a care home and one of the issues at the hearing was the need for a section 49 report. I had to look up what that was: Section 49 of the Mental Capacity Act (here) gives the court power to require a Local Authority or NHS body to provide a report about P. |There was also some discussion about the effect of the new Health Protection (Coronavirus, Restrictions) (North East of England) Regulations 2020. This would have a significant impact on P’s life and therefore needed to be brought to the attention for the hearing as the changes implemented related to care homes. Information about the new restrictions were posted on social media on the same day as the hearing – and in fact I saw a tweet from P’s barrister about this. She’d learnt about the new restrictions from Twitter which is, she says, “not quite how they told us to research the law at lawschool”!
As it was my first hearing it was all rather overwhelming, I was exposed to a lot of information very rapidly and I didn’t manage to get everything that was said written down or fully understand what I was listening to. The hearing only lasted for half an hour, so it felt like a bit of a whirlwind. But I’m glad I did it.
I knew nothing about the Mental Capacity Act 2005, or about the Court of Protection from my undergraduate degree. I have observed criminal court hearings as part of a module called “Lawyer Skills” but obviously the Court of Protection was very different. It was also completely opposite to the way I had learnt about the law as a student – for example, first learning about criminal offences and then going into court to observe criminal prosecutions. Here I was having to figure out the Mental Capacity Act (and google it quickly) in order to understand what was going on in court. It threw me a bit! I’m going to research the Mental Capacity Act before observing my next hearing – and I’ll definitely use the new “Hearing Feedback Form” from Open Justice Court of Protection, which is designed to offer a framework for people new to this area of law to understand and record what is happening (and to help shape future blogs).
I went into this experience with an absolute minimum of knowledge both about the Court of Protection and about the Mental Capacity Act, and am determined to learn more. I’ve become alert to the importance of ‘capacity’ assessment in determining whether a person makes their own decision or whether it is made for them by others. I also want to learn more about how ‘best interests’ decision-making works in practice.
So, I will be back with another blog as soon as I feel confident enough and can make the time to try again! And I’d recommend these observations to all aspiring solicitors and barristers. It’s a way of engaging with legal issues when it’s not possible to go into court physically and it’s a great way of learning what actually happens in court.
Emily Williscroft is an aspiring solicitor who recently graduated from Edge Hill University. She tweets @emwilliscroft