From black letter law to real-life decision making

Editor’s note: This is a report of a later hearing in the same case as the one covered in a previous blog here.

By Lucy Williams, 29 October 2020

I am studying a module on Health Care Law at the University of York.  We explore how decision-making capacity is determined on the basis of the Mental Capacity Act 2005, how best interests decisions are made, and the Court of Protection’s role within this process. 

This module sparked my interest in observing a Court of Protection hearing as I was intrigued to see how black letter law and the details of legislation are translated into court decisions.  In particular, I wanted to see for myself how much weight is given to the individual’s wishes in best interests decision making once it is determined that they lack capacity to decide for themselves.  

According to the Mental Capacity Act 2005, a person making a decision in someone’s best interests must, “so far as is reasonably ascertainable” consider “the person’s past and present wishes and feelings” (s. 4(6)(a) MCA 2005).  I wanted to see what that looks like in practice.

The case I observed was before the most senior (Tier 3) level of judge.  Here’s how the hearing was listed on the Royal Courts of Justice site (here). 

Before MRS JUSTICE LIEVEN, Also sitting as a Judge of the Court of Protection, Monday, 12 October, 2020, At 10:30 AM, FOR HEARING IN OPEN COURT, COP 13520726 Re ‘RT’ MS Teams Hearing

There was no information as to what the hearing was about in advance – the RCJ website provides no details (unlike the list by First Avenue House here).  

It turned out that this was not the first court hearing regarding the treatment of the young lady at the centre of the case. A previous hearing had been observed by several public observers who had blogged about their experience here.  This was especially useful because no summary was given at the start of the hearing.  According to the blog post about the previous hearing, no summary was provided then either despite summaries having been recommended by Mr Justice Hayden (Vice President of the Court of Protection) here.

From the blog post about the earlier hearing I learnt that P is a young woman who sustained a brain injury in a road traffic accident last year (although I remain uncertain about what specifically this injury entails).  Two main issues were discussed at the previous hearing: a request for an injunction to limit contact with P against a man who was deemed ‘dangerous’ and had recently been released from prison; and P’s care plan and how it would be paid for. The second of these was also the main issue discussed in the hearing which I observed. 

I found it extremely easy to gain access to the hearing.  I sent an email directly to the court clerk past at about 9.40am (for a 10.30 hearing) and got a response with the Microsoft Teams meeting link within 10 minutes. The hearing was short, only about 45 minutes in total, and the technology worked smoothly, although there were a few times I couldn’t make out what the counsel for the local authority was saying due to issues with his microphone. 

For me personally, the fact that the hearing was virtual rather than in person increased the accessibility to Court of Protection cases: to observe in person I would have needed to travel to London but instead I was able to view the proceedings more than 200 miles away in York. 

There were quite a few people in court during this hearing, including a few other observers, Key participants were the Judge, Mrs Justice Lieven, and counsel for P’s mother (Parishil Patel QC) , who was the applicant, counsel for P herself (John McKendrick QC)  and counsel for the local authority (Jon Holbrook).  

The hearing was focused around creating an appropriate care plan for P, who needs neurorehabilitation to help her achieve her goal of returning to university to continue her studies in 2021.  There was discussion about a residential placement for her rehabilitation, but P did not want to this because she wanted to stay close to her father who is very ill (and is likely to die within a year).  “We would be incredibly reluctant to force P to leave home and leave her father in such circumstances” said Patel.  Counsel for P herself agreed with this position and said: “It would be quite wrong to act against her wishes and feelings by sending her to an establishment when she wants to be at home.”  The hope was that there would be a residential placement nearby so that she can both receive therapy and be near her father at the same time.   Counsel for the LA also broadly agreed with this position and discussed what was being done in the meantime to provide (and fund) P’s therapy.

The wishes of P to remain near her father were respected by the judge who accepted that it was not in P’s her best interests to be sent far away.  She supported the view that a search should be conducted for appropriate residential care facilities nearby P’s home with experience in her specific type of injury, referring to the possibility of a “quasi-residential placement – like a day boarding school where you can get release” so that P could return home and be with her father when she wanted to. This showed me how well the court respected P’s wishes after she had been deemed to lack decision making capacity and how her wishes influenced the court’s decisions. 

The judge focussed on what was needed to make this a reality in practice. It seemed not to be very clear to anyone in the hearing exactly what would constitute appropriate therapy for P: there were references to three different models – intensive neurorehabilitation, a stepdown approach in a residential placement and community rehab – but no clear impression of what they looked like in practice or which would be most appropriate for P.  

The  judge said that “rather than the LA reinvent a wheel they’re not familiar with” they should talk to ‘Barts’ (I assume this is referring to Barts Health NHS Trust which is a children’s hospital in London) about what places there are in P’s geographical locality for people with the kind of neurological damage P has sustained,  and then provide a statement of this in the next hearing.  In response to the suggestion that there should be an order requiring Barts to provide a statement, she said “Don’t sit and wait for 28 days for Barts to produce a witness statement.  Give them a call and between the two of you work it out.  Have a conversation”.

The judge also raised a concern about what should happen if P’s behaviour and mental health deteriorates and there is a crisis. There have been such crises in the past during which she’s been sectioned.  “I want that interim scenario covered in the plan,” said the judge, “so that next time I see you we’re not all in disaster mode”. 

What I found particularly interesting in my observations of the hearing was the attitude of the judge, which I had expected to be more distant and formal.  Instead she came across as very engaged and human.  For example, when questioning counsel for the local authority about their plan for managing a crisis response, she responded to his attempt to answer by saying: “I think you’re ducking the issue to be frank.”  From her tone, it was easy to infer that Mrs Justice Lieven was exasperated by the legal representation for the local authority and their inaction in helping P. A similar forthrightness was witnessed in the previous hearing before this same judge:  one public observer suggested the judge was ‘somewhat acerbic’. The judge’s frustration was also evident when she described the hearing as “not a fantastic use of court time and public money”, referring to the number of times the case was coming in front of the judge without seeming to move forward significantly to benefit P.   When arranging the date for the next hearing she said: “there are some cases where I feel if I don’t have a hearing, nothing happens!”  While this attitude could be seen as sharp and critical, it seemed to me to be necessary in ensuring her stance was made clear and understood by all parties while pursuing the best outcome for P. 

For me as a student of health care law, this experience of observing the Court of Protection in action illustrated the reality of applying the ideals of the Mental Capacity Act 2005 to real life.  In theory, it’s easy to say that decisions should be made in P’s best interests, but even when – as in this case – everyone agrees what that is, judges have to deal with real-world issues like which rehabilitation unit would be suitable, how to find one with a vacancy in a particular area, how to manage a situation that could change unpredictably before the right rehabilitation unit is available, and how to ensure that the local authority and others responsible for P’s care keep up the momentum in finding the right treatment for her.  Understanding the Mental Capacity Act 2005 is not just about analysing black letter law and statutes and discussing it in the abstract. I’ve learnt that the Court of Protection’s role is also about managing the concrete particular details of a particular P in the specific conditions of her life and in the context of over-stretched health and social care services.  

Lucy Williams is an aspiring solicitor, who is currently in her second year of studying law at the University of York. Her email address is lw1972@york.ac.uk and she tweets @lucyfeywilliams

Photo by Ilyuza Mingazova on Unsplash