By: Ella Fornsworth, 7 October 2020
As a GDL student looking to gain legal experience in the middle of a global pandemic, things have not been easy recently, with the possibilities of attending court in person or completing mini pupillages significantly reduced.
I was entirely unsure as to whether I was able to attend court remotely, and had struggled to find comprehensive information on doing so, until a fellow participant on an Inner Temple Virtual Open Day mentioned the Open Justice Court of Protection Project, and advised consulting their Twitter account for guidance on gaining access to remote hearings in the Court of Protection.
I followed the Twitter account, and not long after doing so received a message from Celia Kitzinger, one of the Co-Directors of the project, detailing extensive information and instructions on how to request access to a remote hearing.
Consulting their Twitter listings, I chose a hearing that I knew would fit into my schedule and contacted the email address included in the Tweet.
I kept my email quite short, saying that I was an aspiring barrister currently studying on a GDL conversion course, and that I was looking to learn more specifically about the Court of Protection, the Mental Capacity Act 2005 and Deprivation of Liberty applications. I mentioned that I also wanted to gain experience observing court proceedings in general.
I did not receive a response to my email until about an hour prior to the hearing itself, and the response simply stated that the judge had granted me permission to observe the hearing, and asked for a telephone number that could be used to contact me. From there, I just had to wait until I received a telephone call around 10 minutes after the scheduled start time of the hearing.
The hearing I observed was: COP 1354496T KW before District Judge Ellington on Monday 28 September.
When I picked up, I was speaking directly to the judge, which felt pretty daunting! She asked for confirmation of my name, and then asked that I understood that I could not share the name or details (such as location) of the people involved in the hearing. I replied that I understood, and she gave me a brief outline of the case, and explained that she was going to place me on mute for the duration of the hearing. She also explained that the start time had been slightly delayed as she had been expecting to receive some documents that she had not been provided with. Whilst I was speaking with her, there was some interference on the line, so I had to explain at one point that I had lost her, but she simply repeated her question for me.
This connection problem seemed to occur multiple times throughout the hearing; sometimes the judge was quite inaudible and the barrister involved explained at one point that he too was struggling to hear. I understand, however, that this is a fairly unusual problem — at least in other hearings covered by observers in the Open Justice Court of Protection Project.
The hearing was concerned with the transfer of a patient between care homes. The patient’s family was unhappy with the situation at the current one, although the patient said that they did not want to be moved. The main problem that arose was a delay obtaining a financial assessment from the Local Authority on whether one of the family members was able to become a financial deputy for the patient to ‘top up’ the fees of the new care home. The Local Authority barrister explained that the assessment may take another 14 days.
The solicitor acting for the family put on record the frustration of the solicitors in terms of the ‘radio silence’ they had experienced from the Local Authority. They asked for confirmation that the placement at the care home would not be lost during these 14 days, and suggested that the court should direct that it must be done within 7 days instead, as it was in the best interests of the patient to be moved, especially due to the requirement of a Covid-19 transition plan involving an isolation period.
The judge enquired as to whether any information had been provided on the staff experience in the new care home of dealing with agitated and aggressive behaviour, as this had been identified as key to the success of the move in a Section 49 report. The family, the Local Authority barrister and the social worker present all stated that they did not have sufficient information on the experience of the care home staff with this kind of behaviour. The family’s solicitor stated that it would be desirable to address reassurance on this fact before the move takes place.
When asked what order he thought the judge should make, the family’s solicitor stated that the overwhelming case was for a move and that an order should be made, but that the order would be subject to an assessment and transition plan, as well as confirmation that the new care home would have the appropriate skill to deal with challenging behaviour, and the Local Authority would be required to file evidence of these three things, at which point the best interest decision would come into effect immediately.
The judge stated that she needed to see evidence before she could say that the move was in the patient’s best interests, and this will be discussed at the next hearing, which I hope to be able to attend.
I am extremely grateful to the Open Justice Court of Protection Project and Celia for providing me with the information and assistance I needed to be able to gain access to a hearing. Projects such as these are vital for not just law students such as myself to add to their experience, but also for the public in general to have the opportunity to learn more about the Court of Protection.
Ella Fornsworth is an LLM Law and Legal Practice (GDL) student at BPP Law School Leeds, looking to pursue a career at the Bar. She tweets @EllaFornsworth
Photo by Steinar Engeland on Unsplash
Promoting Open Justice in the Court of Protection 
Interesting Blog, thanks for writing this. Yes, I imagine it must have been daunting to speak directly to the Judge if you weren’t expecting it, but how nice that she took an interest in you as an observer and explained a few things. Its great that people are able to observe as its really does help cement how the law is applied in practice.
I’m also very glad that the Judge asked whether the proposed home had suitably trained staff. Its such an obvious point but absolutely right that if a Best Interest decision is made about where someone should live, there must be evidence that the home knows the (already identified) needs of the individual, and is willing to meet them, before a move goes ahead.
If there is a follow up blog I’d personally love to know if anything more is said about who would actually be funding the ‘Top Up’ fees – usually, these can’t be paid from the capital assets of P (even if a relative does become a Financial Deputy) because this could be seen as a deliberate deprivation of assets. In other words, P’s capital would depreciate sooner than would be expected and P might have to move again (once their capital runs out) if the LA remains unwilling to pay more than the contracted rate it usually pays to homes in the area. Interesting implications here, given the legal Best Interest decision making process that is going on!
LikeLiked by 1 person