By Bridget Penhale, 22nd October 2020
In recent days I have attended three Court of Protection hearings – all of which dealt, in part, with the question of where P (the person at the centre of the case) should live.
The first of these (COP 1361430T, before DJ Mathura) was about an older woman with dementia who lives in a care home. She wants to return to live with her husband but cannot do so because of the unsuitability of their house to meet her needs due to her physical health and mobility difficulties, which mean that she cannot use the stairs any longer. The LA has been tasked with finding Extra Care accommodation for both her and her husband and then sourcing associated support to enable them to live there.
The second case (COP 13629309, before HHJ Rowland) relates to a young adult, subject to a protection order and currently living with parents, about whether he had capacity to consent to marriage – and ultimately to determine where he should live in future and who he should have contact with and what his care arrangements would be. There was a secondary concern about whether he might be subject to a Deprivation of Liberty in his home within the community and part of the hearing revolved around how an assessment relating to this might take place within the context of the pandemic.
In the third hearing (COP 13600925, before DJ England) there was again a question about where someone should live and about steps to be taken in relation to his accommodation, including the location of that accommodation, and also what might need to happen to improve his well-being and quality of life in his current setting, in advance of any planned move.
These were all interim hearings and in all of them there was a very clear sense that there was some way to go before resolution would, or could, be reached via a final hearing. They were heard in different parts of England in different regional courts and concerned very different individuals and sets of circumstances. It was evident from the hearings that significant amounts of work (meetings and roundtable discussions) had taken place between hearings in order to reach some sort of agreement about the next stages and for these to be endorsed by the relevant Judge at the point of the (interim) hearings with clearly laid out plans for further steps that needed to be taken prior to any eventual determination via a final hearing.
As a former social worker, social work manager and academic with interests in older people, mental health and mental capacity, being able to attend these open court hearings virtually has been of great interest – both professionally and academically.
One of the most relevant and pleasing aspects of the hearings has been the evident attention paid to the involvement of P in proceedings. Although P did not attend any of these hearings, what did come across and was clearly conveyed was a real sense of P as an individual and what their views, wishes and feelings were/are in relation to the life-matters affecting them.
In the first case, P’s husband, himself a party in the proceedings, was present and the Judge made great efforts to include him throughout the course of the hearing and to check that he understood what was being said and what was happening – and also to seek his views about the situation.
This was less apparent in the second hearing – although P’s parents were in attendance: an interpreter was needed in order to ensure that the parents were supported to participate in the hearing – but even here the Judge made sure that the interpreter understood what had been said so that the parents could remain involved as far as possible.
In the third and final hearing, a very real sense of P as an individual with clear wishes and opinions about what he wanted to happen as outcomes of the hearing(s) came across throughout the course of this hearing and the Judge was quite central in making sure that this happened. It was clear for example that P was concerned about his spiritual wellbeing and would like to attend Mass. This is challenging at the time of the global pandemic, but a social worker was attempting to make contact with a local priest. P had also expressed a wish to go fishing, but apparently this wasn’t possible given the care home rules at the moment. The judge was, as he put it “baffled” by this:
Of course, the Mental Capacity Act 2005 and in particular the Code of Practice that was developed to accompany it, is very clear about the central position of P within issues relating to decision-making and capacity. Witnessing this in action within the judicial process, albeit some 13 years after implementation of the Act, was very useful to me. This is particularly relevant since some of my work (relating to undertaking Serious Case and Safeguarding Adult Reviews) has concerned situations in which professionals have either not understood requirements or failed to act in accordance with the terms of the Act (sometimes both!).
And although all of the hearings contained areas of tension – notably concerning disagreements about what ‘lack of capacity’ meant in the context of individuals and views contesting the determination of lack of the individuals’ capacities to make their own decisions about certain matters – for example where and who to live with – there was a sense that the issues were being dealt with in the context of individuals’ lives and that there was sensitivity towards both individuals and the contextual situations that had led to the matters being brought before the Court.
At the end of these three hearings I find myself looking forward to following the hearings relating to these individuals further, if possible, and to attending other COP hearings about different types of matters in future.
Bridget Penhale is Reader Emerita at the University of East Anglia, Norwich and also an independent consultant on elder abuse, adult safeguarding and adult social care. She tweets @bpenhale
Promoting Open Justice in the Court of Protection 
I’m so pleased to hear that efforts were made in all three hearings to involve P, and that, in the second case, P’s parents had access to an Interpreter so that they could understand what was being said during the hearing. It’s so important for people to be listened to and for their feelings and wishes to be taken into account.
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