By Beverley Clough, 21 December 2020
After following the Open Justice Court of Protection Project with interest since it was launched in June 2020, I was really pleased to be able (finally!) to attend a hearing on Friday 18th December 2020.
The hearing I observed (COP 13462068 Re ‘LW’, before Mr Justice Hayden) follows on from a judgment earlier this year (https://www.bailii.org/ew/cases/EWCOP/2020/50.html ) which featured in a blog post on this site. It is one that I had been interested in at the time given the issues that it raised around capacity in relation to contact, care and residence in the context of an abusive and coercive relationship.
Back in July 2020, the focus of the hearing was on LW’s strong desire to leave her current placement (which all parties agreed was unsuitable) and to return to live at home in her flat with her partner, M. However, there was very real concern as to the relationship with M – the blog post and judgment go into detail on this, but the history of the relationship and actions of M suggested that should LW return home she would be likely to be coerced into disengaging with care and treatment, resulting in significant deterioration in her physical and mental health. Against this, however, LW had appeared in court, facilitated by Hayden J, and made clear her strong wishes to return to live with M. The previous blog post at the time raised some really important questions, however, as to whether LW’s voice was really heard in this hearing. There was purportedly very little by way of probing LW’s view of her relationship with M or discussion of how she felt about his actions.
Cases such as this then undoubtedly raise questions as to respect for LW’s autonomy, particularly against a backdrop of a very strong and clear desire to return home with M. In the judgment, Hayden J stated that “were I to permit her to return to her flat with MG, I would be exposing her to a regime of insidious controlling and abusive behaviour which is both corrosive of her personal autonomy and entirely irreconcilable with her best interests”. He found that LW lacked capacity in relation to the decisions as to contact, care and residence, and that M’s behaviour was coercive and controlling in line with the definition and examples contained in the Statutory Guidance on the Serious Crime Act 2015. The way forward from the judgment was to remove M from LW’s flat and to cease contact. As Hayden J outlined at para 14- “The pace of progress will very much depend on LW’s reaction to this judgment… progress must be at LW’s own pace. It is LW’s needs that should drive the timetable not the exigencies of the litigation.”
The hearing today then arose from the pace of progress – or lack thereof. It was prompted by the Official Solicitor’s concerns about delays in removing M and progressing towards the end of goal of getting LW home. A number of really interesting issues arose during what was otherwise a fairly short hearing (just over an hour) which I’ll consider in turn: LW’s Art 8 rights and the powers of the Court in the face of sluggish Local Authority responses; LW’s progress after contact with M ceased; the unsuitability of other options: the interaction with housing law, and the Covid context.
What was really striking at the outset of the hearing was Hayden J’s unequivocal frustration at the lack of progress some 5 months after the initial hearing. He stated that he “could not have made it clearer that that he wanted this man out of the house.” Given that at the time of the initial judgment, there was broad agreement across the parties that LW’s current placement was wholly unsuitable for her and indeed this had been the view for at least the previous 12 months, it was deeply frustrating to hear that LW was still in the unsuitable placement. Nothing had changed. M was still in LW’s flat, and, it transpired, he had also destroyed the property to the extent that It is left in a state of total disrepair, with significant work to be done to make it habitable again.
What surprised me, however, was the way in which Hayden J then invoked the Human Rights Act 1998, and Article 8 in particular, to suggest this situation breaches LW’s convention rights and that damages will necessarily flow to reflect this. Later, it was suggested by Hayden J and Fiona Paterson (representing LW on behalf of the Official Solicitor) that such damages could, serendipitously, be enough to repair LW’s flat. The reason that this very strong response by Hayden J to the situation surprised me was because it seems that it had not been argued by counsel: he stated that he can imagine counsel hadn’t expected the Human Rights Act to be invoked by him! But it does demonstrate the severity of the delay in getting LW back home and the gravity of the situation that she is now in, being in a wholly unsuitable placement. The seriousness of this and the impact on LW was later reiterated by Hayden J where he took issue with a statement in the position statement for the Official Solicitor that this delay had not caused any tangible harm to LW. As he suggested, any delay is inimical to LW’s welfare, such is her right to liberty and to choose where she lives.
Reference to the Human Rights Act seems to have been of real utility in aiming to jolt the relevant Local Authority into action- Hayden J reminded the parties that these costs and damages will linger over someone’s head and so movement is needed. Whilst he made no declaration as to breach of the Human Rights Act at this hearing – primarily because the Local Authority did not have counsel available to represent them and that this may cause unfairness – it seems to me that these strong statements and reliance on human rights arguments here will concentrate minds on ways forward.
I have often been cynical as to the power that the Court of Protection has/may have in these sorts of situations, where Local Authorities or Clinical Commissioning Groups fail to act quickly. Today, however, I was really heartened by the robust nature in which LW’s rights were firmly centralised right at the outset by Hayden J. I’ve written in a blog post here about the way that the Court of Protection’s hands can be tied by the options that Local Authorities or CCGs are willing to place on the table. The case of NYCC v MAG  EWCOP 64 is illustrative of this. It involved a man living in wholly unsuitable accommodation, which he had been in for around 10 years and which was too small for his wheelchair, resulting in him having to crawl around and causing painful bursitis as a result. NYCC sought declarations that there were no other suitable alternative places to live and so his deprivation of liberty at the current placement ought to be authorised. At first instance, Glentworth DJ refused to authorise MAG’s deprivation of liberty, necessitating that other more suitable accommodation be found quickly to avoid NYCC breaching MAG’s Art 5 rights. However, the case was quickly appealed, and Glentworth DJ’s approach overruled here. It was seen as (among other things) placing undue pressure upon NYCC to direct their resources in a particular way, and wrongly engaging Art 5 questions. It went against settled case law which establishes that the Court cannot force authorities to use their resources in a particular way – they have to choose from available options.
This rule – about choosing from available options – was plainly stated in the case of MN  EWHC 3859 (COP) and was reiterated as the litigation travelled through the courts to the Supreme Court in 2015 (see SC judgment here). Again, this case raised questions as to whether care arrangements offered by local authorities or CCGs could be authorised as in somebody’s best interests despite them being viewed as unsuitable or deficient. Disappointingly, from my perspective, the Supreme Court judgment re-affirmed the principle that the Court can only choose between available options i.e. options that local authorities or CCGs were willing to offer. As Munby LJ had put it in the Court of Appeal (judgment here), the Court must choose between the lesser of two evils and sometimes endorse care or support as being in somebody’s best interests when other (unavailable) options might be preferable.
However – and importantly for the case today and the call to LW’s Art 8 rights by Hayden J – Munby LJ pointed to areas where there is scope for an exception to this general approach and for further pressure by the Court or Protection if P’s human rights are being interfered with by the Local Authority. He stated that:
“The court cannot be compelled to accept the local authority’s plan, any more than it is obliged to accept the plan propounded by a local authority bringing care proceedings under Part IV of the Children Act 1989. On the contrary, the court is required to act in the best interests of the vulnerable adult and must not – is forbidden by s 6 of the Human Rights Act 1998 to – endorse a plan which in its view involves a breach of Art 8.” (Para 166 emphasis added)https://www.bailii.org/ew/cases/EWCA/Civ/2015/411.html
This is interesting for the case today and the extent to which there is any scope for the local authority to push back against any concerns about the Court of Protection here over-stepping their authority. Hayden J made a clear argument here as to the engagement of LW’s Art 8 rights in her current placement, and it seems that this may take this case into the realms of the exception carved out in MN. Indeed, Fiona Paterson suggested that whilst she had not had time to prepare for the invocation of the Human Rights Act by Hayden J, she could see a case that it might fall within this exception. As there was no counsel for the Local Authority in the hearing today, no declaration was made by Hayden J but it remains to be seen how this aspect of the case plays out when the Local Authority do respond.
What was also really interesting for me about the case today was the glimpse that we got into how LW was progressing following the ceasing of contact with M. Despite her strong feelings as presented in the initial hearing back in the Summer, it was reported that LW has been doing well: she has been happy and engaging with her medication, and has improved her road safety awareness. There were also positive updates on LW seeking to make contact with relatives who had unfortunately been cut off as a result of M’s coercive behaviour. As Hayden J said “ with the malign influence of M gone, LW shows greater potential for rehabilitation than professionals dared previously hope for”. He pointed out that hindsight is a wonderful thing, but he has seen other cases where such interventions in coercive relationships can have such positive outcomes once the source of control is removed. This of course is very tricky ground to navigate, as other bloggers’ reflections after the first hearing here attest to.
Another issue that arose in the hearing was the adequacy of a proposed step-down interim placement that the Local Authority had suggested for LW as a way to get her out of her current unsuitable placement, until she can return to her flat (which is badly damaged, and M is still there). The concern was that this proposed placement had been the target of numerous allegations of abuse and bullying, had not been inspected by the CQC for over 2 years, and had over 40 residents. Hayden J roundly dismissed this option: “she is not going there” he repeated. Hayden J took this opportunity to rightly remind us of the fact that whilst there are many good care homes and carers, sometimes that which the state has to offer “is not a panacea”. He quickly returned the focus of the hearing to LW’s flat, and her wish to return there.
One thing that I wondered throughout the hearing, and which wasn’t fully addressed (primarily because the Local Authority was unrepresented) was why M was still in LW’s flat. Mr Justice Hayde said he was “frankly appalled that this man is still living there and is destroying and devaluing the property”. It seems there was some uncertainty early on as to his legal status there, but Hayden J strongly reiterated that M was a bare licensee with no legal status or right to be in the property. Moreover, his potentially criminal actions- damage to the property, and the coercive and controlling behaviour- should surely facilitate M’s removal. “She’s in a profoundly inappropriate place”, said Hayden J, “and nothing at all – frankly, nothing at all – has been done for five months. Let’s call it what it is!”. Why there has been stalling over this was not fully discussed in the hearing (although I understand some relevant information was in the bundle) and I would have liked to have known more about what efforts (if any) had been made and why they failed. But Hayden J expressed his “enormous disappointment” that “so little has been done since I gave a judgment which might have stirred any local authority to activity, given what I have to say, rather than perpetuate inactivity and leave LW in an establishment which is manifestly not in her interests”. He asked that the order should be constructed “on the basis that I am hovering hawk-like over it to see when that property will be vacated”. This was a really important reminder however of the way that mental capacity law does not sit in a vacuum: it interplays not just with areas of criminal law, social care and public law, but also housing law.
The discussion around M’s residence status though was also an important reminder of the context of the pandemic (indeed, the reason the hearing is virtual) as there was some uncertainty as to whether the stay on possession orders brought in in response to Covid was still in force and what bearing that may have on the ability to remove M. There was also a brief discussion as to whether LW was in the first tranche or second tranche of those due to be vaccinated against Covid. This brought home for me the very real, and the very current, circumstances of the case which can all too easily be forgotten when we just read legal judgments.
The next hearing will be listed for the first available date after 13th April 2021.
Beverley Clough is Associate Professor in Law and Social Justice at the University of Leeds and can be contacted @bev_clough