By Rebecca Poz, 18th February 2021
I have attended court before, both in person pre-Covid, and remotely in 2020. I have attended Magistrate’s Court, Crown Courts, the Court of Protection and the High Court, as well as Fitness to Practice Hearings, but I have only ever attended as an Expert Witness, and once as a juror. I wouldn’t exactly say that I have enjoyed attending court as an Expert Witness, but I have felt privileged to be able to see a piece of work through to its completion and bear witness to a chapter in a person’s life at a point at which their very humanity and right to self-determination are under scrutiny. In those moments when the pressure has been at its greatest and I have questioned my own decision-making skills in agreeing to stand as an Expert Witness, I have been able to revert to the realisation that this isn’t about me, it’s about P. That any one of us could one day be P. And if I were P I would want someone to provide the necessary professional information to help the judge in coming to a decision. From what I have experienced, the Court of Protection process holds P right at the centre.
As hearings moved to remote platforms, this has allowed an opportunity to observe a wider range of cases and practices. I felt this could provide me with a different perspective; almost the way that attending a wedding as a guest is different from attending as a bride or groom. Life seems like a game of Tetris; with different elements appearing that seem to have no relationship to each other, and only by holding onto multiple pieces and turning them over in your mind do they eventually fall into place and those inter-relationships build a clear landscape. So, for example, I like to understand how the evolution of the brain impacts on its functioning, how the organicity of the brain relates to a person’s interpersonal relationships, the way they express themselves in the world, the way the world imposes limitations and disabilities, how culture plays out in our assumptions, and the way we construct a legal system around all of that. Because this is also the journey that my patients experience, so it seems helpful if I can share in that same journey.
I attended a hearing (COP 13698546 Re: AW) on Thursday, 4 February, 2021 before Mrs Justice Judd, as a novice observer. I wasn’t too sure what to expect and unfortunately the case was not summarised at the start of the hearing. On entering the virtual hearing – with camera off and mic off – I was met with some surprise that I was there, as there had been some confusion about whether it was a private or a public hearing, and I was then asked who I was. My sense of having done the wrong thing kicked in. Having never attended a remote hearing as an observer only as an Expert Witness I panicked, so gave my full name and job role. They then clarified that they only wanted to know if I was attending as a member of the public.
There followed a significant amount of reflection about whether the hearing should remain as a public hearing, and there was clearly initially some preference in the room for it to be moved to a private hearing for the protection of P, as a young person “with autism spectrum disorder and complex developmental disorder” who (said the judge) “is very troubled and in need of considerable assistance”.
Steve Broach, applicant for the local authority was not at the previous hearing at which – it was reported – Mr Justice Keehan had listed the hearing as “private”. Nor was Hannah Taylor, representing the CCG, whose client had not even been a party at the previous hearing. But Peter Mant had been there and explained:
“We simply took the standard terms of Hayden’s guidance at the start of the pandemic. It’s a cut and paste from that rather than any considered thoughts. It would be consistent with general principles of transparency to allow attendance with appropriate reporting restrictions.”
There was then a discussion about whether the case should be heard in the Court of Protection, or whether – because it’s possible that P retains capacity – it should be heard under the inherent jurisdiction (and hence become a private hearing in the Family Division).
The judge said she was “concerned about the capacity test” provided by the consultant psychiatrist. Steve Broach agreed that more information was needed about capacity and that there wasn’t sufficient basis at this stage for any final declaration, but said that there was “ample reason to believe that P may lack capacity” and hence sufficient evidence for an interim direction under s.48. of the Mental Capacity Act.
“We say” (said Steve Broach), “that the expert report gives us enough reason to believe that this young person may lack capacity to make decisions as to care and residence. So it’s appropriate to remain within the statutory framework of the Mental Capacity Act until we find capacity.”
Peter Mant agreed that “on balance, the threshold is met” and said, “we would invite you to continue on the current path”.
Having heard these submissions, the Judge agreed that there is sufficient evidence to satisfy the s.48 test that there is reason to believe that P lacks capacity to make decisions about care and residence. It was agreed by all that an order authorising a deprivation of liberty was definitely in P’s best interests. The judge approved the order for instructing an Expert Witness, and asked for a new hearing to be reserved to her.
It was interesting to be able to see the steps that take place prior to the instruction of an Expert Witness, which is the point at which I would normally become involved in a case.
I was surprised that I felt bizarrely nervous about attending without having done any preparation. I wouldn’t normally dream of entering a court room without knowing the case and having read the court bundle, and being asked to introduce myself didn’t help!
On reflection I had a sense of slight disappointment at not hearing the human story within the brief hearing for this case. My usual role is to meet with P and many people that are important in P’s life, to really try to immerse myself into the macro and micro culture of P’s life and understand how the instructed questions relate to P and P to them. Observing this hearing didn’t provide any of that, it felt more like attending a business meeting. But what I did experience, which felt very familiar, was that thread of all parties holding in mind that P is vulnerable, the deep and overt reflecting, and all parties wanting to engage in a protective process – including, in this case, the request for P’s initials to be changed for the hearing if it was to remain as a public hearing.
The case is likely to be back in court in mid-March 2021.
Dr Rebecca Poz is a Consultant Clinical Psychologist and Clinical Neuropsychologist with the Norfolk and Suffolk NHS Foundation Trust, and in private practice, and an Honorary Senior Lecturer at the University of East Anglia. She specialises in the psychology of Older People and the sequelae of brain injuries. She tweets @rebeccapoz