By Joe Lord, Thursday 8 October 2020
Orders from the Court of Protection can be momentous for ‘P’, the person at the centre of the case. Orders may (among other things) deprive P of their liberty, interfere with their bodily integrity or assume control of their property – all steps that could attract criminal sanction were they not implemented in P’s best interests. The underlying themes here – the impact of law on the individual, and the story of the individual themselves – have always interested me, and have no doubt fostered my desire to practise at the criminal bar.
Touching heavily on these themes, the hearing I observed on 23rd September 2020 (Case number COP: 13573266) struck a chord. Before getting into the detail, I should note that only after chasing First Avenue House was my email request forwarded to the presiding judge, DJ Beckley. I then heard nothing until 2pm, when the judge phoned to admit me to the hearing. The moral here is: if you want to observe, always keep your phone ready for the scheduled hearing time.
I observed the second of what will be three hearings concerning Gerald (not his real name), an elderly man who had lived in a flat with his now-deceased parents since the 1970s. Gerald’s primary medical condition is vascular dementia, which is largely responsible for the accidents at home that have seen him in and out of hospital over a number of years. This saga culminated in April 2020 when Gerald was discharged to a local care home, with proceedings issued by the Local Authority (‘LA’) in June 2020 to determine next steps, namely where Gerald should live and receive care, and whether Gerald’s tenancy over the flat should be terminated if he remains in care. Gerald was represented by Ms Keri Tayler, with Mr Jon Holbrook acting on behalf of the applicant LA.; Gerald’s place at the centre of proceedings was constantly reiterated by counsel and DJ Beckley throughout the hearing.
As is routine, the LA applied for an order under s.21A Mental Capacity Act 2005 (‘MCA’) to determine whether Gerald meets one or more of the requirements for the deprivation of his liberty, and to challenge the purpose and conditions surrounding such a step. At first blush, the broad scope of this order seems to provide a worrying degree of power to a judge. Nonetheless, a ‘presumption of capacity’ is fundamental to the MCA (see s.1), a welcome safeguard that requires the state to work uphill when seeking such powerful orders.
Another protective layer comes from s.21A MCA, which is focussed directly on whether it is necessary, proportionate and in the best interests of P to be detained, rather than on the circumstances which led up to the deprivation of liberty: Director of Legal Aid Casework & Ors v Briggs  EWCA Civ 1169. This seems to ensure P’s current condition is adequately considered, preventing a decision being coloured wholly by past events. It also reflects P’s position as the protagonist of proceedings conducted in his best interest in that the enquiry is focussed on exploring the most up-to-date account of P’s wishes and feelings.
I was reassured by the detailed exploration conducted by the court into Gerald’s position. At the previous hearing, Gerald had made clear (via Microsoft Teams) that he knew where he was and what he wanted – particularly access to newspapers and a return to his flat, the address and significance of which Gerald was well able to recall.
Gerald is clearly a pragmatic and proud man. In this hearing, DJ Beckley ran through Gerald’s statements that he strongly believed he could manage at home with care visits, but preferred to stay in the current ‘so-so’ home if around-the-clock care was needed. If a care home was truly necessary, Gerald asked only that one capable of accommodating his cat could be found; although this could not be done, readers will take comfort from Mr Holbrook (for the applicant), who confirmed that the LA is looking after the cat. Gerald also wanted to see his local football team in action, accepting that COVID-19 – rather than the LA – might be the stumbling block to this.
These details were significant to me for several reasons. Firstly, they reinforced the position of P as the person at the centre of the case and, secondly, illustrate the genuine care taken by the Court, the LA and social workers – despite the pandemic and wider budget constraints. Most importantly, such details brought to life the charming quirks of an individual: these are details which make legal cases both fascinating and heart-breaking. I could not help but feel compassion towards Gerald, something which no doubt coloured my ‘take-away’ from the hearing that he was strong enough – at least mentally – to have his liberty and dignity back.
Of course, I could not truly comprehend Gerald’s position, a position which was patently vulnerable given his medical history. Indeed, there were further hints at vulnerability as legal arguments began: although the terms of the Order were largely agreed, Mr Holbrook stated that round-table meetings between the parties were at an impasse without a position statement from the Official Solicitor. Ms Taylor (acting on behalf of Gerald) disputed this, persuading DJ Beckley that, as the applicant, the LA bears responsibility for leading the case direction, and that it made perfect sense for the Official Solicitor to submit her stance last with the benefit of all the evidence.
However challenging the predicaments of Gerald and those like him, we can take comfort in the knowledge that dedicated and diligent professionals, from social workers to court staff, are striving to ensure that the best decisions possible are made for those like Gerald in our society.
Joe Lord is an aspiring barrister who recently graduated with a First-Class degree in Law from UCL. Currently a volunteer for Advocate, he is aiming to study the BPC in September 2021. He tweets @Joe_Lord7; his Linkedin is Joseph Lord.