By Claire Martin, 6th March 2021
Inspired by the Open Justice Court of Protection Project, I have attended several Court of Protection hearings over the past 8 months (and blogged about some of them too). As a psychologist working with older people in the NHS, I have found these observations valuable continuing professional development. They are a great education in how mental capacity law is practised and just so compelling on a human level. They reveal how our treatment and care might be navigated, should we lose capacity – and that’s something that potentially affects us all.
I had a little bit of time on a Thursday morning so I applied to attend a hearing (COP 13575520) on 11th February 2021 at 11.30am at Wrexham County Court before Her Honour Judge Howells.
The case, listed for a pre-trial review, was for a man I will call David (not his real name). The hearing focused on the expert evidence which had recently been filed from Dr McCorry (Consultant Neurologist), what issues could be agreed, and what issues needed to be determined at a final hearing.
Counsel for David (who was the applicant), via the Official Solicitor was Emma Sutton of Serjeants’ Inn, instructed by Sarah Newport. She gave a very helpful summary of the history and background issues of the case for observers.
Judge Howells concisely explained the principles of open justice and why observers were present. I counted about 15 others in the hearing – one was a trainee judge, so there were perhaps more than ten public observers.
The issues being discussed in relation to David’s care were:
- Whether the ongoing use of a visual monitoring system was agreed;
- Whether any declarations/costs sought on behalf of David were agreed; and,
- (if not) further case management and listing to a final hearing (which is what happened).
It turned out to be an eye-opening hearing, not really due to the care issues in question but in relation to the apparent lack of correct process followed by the respondent public bodies responsible for oversight and provision of David’s care.
David is 39 and has a severe learning disability, poorly controlled epilepsy and congenital cerebral palsy with right-sided hemiplegia. David’s consultant neurologist describes his epilepsy as “‘very poorly controlled’ with ‘daily unpredictable seizures’ of ‘multiple different types’. David has ‘limited communication’ and is able to express in-the-moment needs, such as feeling hungry. He likes cars, going on trains and visiting caravan sites.
David’s package of care is jointly funded by the Local Authority and the Health Board (the respondent public bodies in the case). He lives in a care home and receives 56 hours 1:1, and 42 hours shared care each week.
He has lived, happily it seemed, in this care home for about 18 years. His place of residence was not in question at this hearing, neither was his lack of capacity to make the following decisions, which all parties (at previous hearings) had agreed he lacks capacity to make:
- Care and support
- Use of a helmet for protection due to epileptic seizures (David himself was reported to be happy to wear it and the court had seen pictures of him wearing the helmet)
So, the areas of contention were around his overall care needs, whether they necessitate night-time video monitoring (and indeed whether that would effectively achieve the desired outcome of ensuring David’s increased safety) and whether any established failures of the public bodies to follow the best interests process contained in the Mental Capacity Act 2005 should result in them paying David’s legal costs.
David’s Care: What Happened, When, and the complexities of agreeing this in a Court Order
We learnt that David’s care team had had a meeting on 5th April 2019 about his care needs. At this meeting, they decided to install a visual monitoring system (VMS) in his bedroom, allowing them to observe him during the night via a hand-held video-monitor.
I was not clear why this was deemed necessary at that time specifically – that information would likely have been provided in the court bundles at earlier hearings. I deduced from this hearing that the care team was concerned about David’s epileptic seizures and his safety when unmonitored (principally through the night).
No best interests meeting had been convened prior to this meeting on 5th April 2019 and Counsel for David asserted that there had been no consultation with the family about its use. No deprivation of liberty authorisation was in place regarding David’s residence within the care home until eight months later (8th December 2019), when the Local Authority granted one, however that did not provide authority for the use of the VMS, which was a separate best interest decision.
One of David’s parents is a respondent in the case and was present at the hearing. It is important to know that she lives abroad and is closely involved (along with David’s sister) in his care. She told the court that she has always been included and consulted about decisions for David’s care. She speaks to him weekly via video-link and is clearly a strong advocate for, and cares deeply about, his wellbeing. It must have been a shock to her only to have learnt about a video monitoring set up, which means he can be watched without his knowledge, a full year after it was installed.
Without sight of previous orders and documents in the court bundles, it was quite easy to muddle up the chronology of what happened, when. My understanding of the timeline is as follows:
- In 2019, David’s care team becomes more concerned about his seizures, and their ability to monitor them and be present to ensure his safety.
- They convene an MDT (multi-disciplinary team meeting) on 5th April 2019 and decide to install a VMS in his bedroom to enable observation during the night.
- There was no consultation with David’s family at this point, which is stipulated (section 4(7) of the Mental Capacity Act 2005).
- The Local Authority granted authority for David to be deprived of his liberty on 8th December 2019 by way of a standard authorisation– this did not provide authority for the VMS;
- On 20th February 2020 an application was made on behalf of David pursuant to section 21A of the Mental Capacity Act 2005, to challenge this standard authorisation.
- Judge Howells has presided over David’s case since 5th March 2020. At this time, an interim order was made authorising the VMS pending further order. This was the first time it was authorised.
- A consent order was put in place on 6th November 2020 with agreements made up to that point.
- A pre-trial review was set for 11th February 2021 (this hearing) to resolve the outstanding issues.
- The expert witness filed their report late, meaning that clarifying questions could not be submitted and answered in time for the hearing.
One thing I was confused by (during the hearing) was the assertion by counsel for David, in their position statement, of public bodies: “failing to ensure that P was lawfully deprived of his liberty for a period of 3 years and 7 months between 20 May 2016 until 8 December 2019. During that period, P had no access to an RPR/ IMCA which included the period when the visual monitor was installed.”
As set out above, I have since learnt that authorising a deprivation of liberty by way of a standard authorisation is separate and distinct from authorising an intrusive form of monitoring (via a VMS) which requires a separate best interests process. The fact that a separate process was required (and a separate best interest decision in the event of a dispute) was accepted by all parties, and the court.
There was some wrangling about the exact chronology and wording regarding the declaratory relief sought on behalf of David, particularly in relation to the failure to consult David’s family and those with an interest in his care (as per s4 of the MCA 2005), and the failure to arrange a best interests meeting regarding the VMS prior to the issue coming to court.
There was also discussion of whether such wording could be in a recital (as opposed to a declaration). There were a number of declarations made (under section 15 MCA 2005) by the court, and (in the end) one recital. This hearing has been an education for me, as I now understand what ‘recital’ and ‘declaration’ mean in court judgments. In this blog from 2019, John Bolch clarifies:
“A recital to an order essentially contains anything relevant to the order that cannot be, or is not, actually expressed as an order. It is important to understand here that the court can only actually make an order if it has power to do so, that power usually given to it by statute. Thus anything relevant that the court does not have power to order must be included as a recital to the order. This is true even if the parties have agreed to the thing.
Recitals also have other purposes. In particular, they may set out the background to the order, which can be useful if the order has to be interpreted at a later date. A common example of this in an agreed (consent) financial remedy order is a recital which confirms that the parties agree that the terms set out in the order are accepted by them in full and final satisfaction of all financial claims by either party against the other.”
During discussions about dates and meetings Judge Howells stated: ‘I can only make declarations if the process has been agreed. Do these narrow issues add anything?’ (Judge’s emphasis)
Counsel for David stated clearly that the amended wording suggested by the Health Board was factually inaccurate. She outlined again the dateline for the first best interests meeting following a court order, which ‘doesn’t make sense’. She pushed about this, stating that a best interests meeting 5 months after court proceedings have started is not consultation: ‘The issue is that no meeting was arranged prior to the installation of the VMS – that is a fact’.
The judge further intervened at this point, to summarise that it’s not only the installation of the VMS but also its use, that is in question, as well as when proper consultation began. She asked David’s parent: ‘Do you agree with [the Local Authority/Health Board] position – were you consulted?’ David’s parent replied:
‘Not entirely – I was made aware [of the VMS] but not really consulted. Consultation only came about because of court action – not the Health Board doing it of their own initiative.’
At this point I was thinking about the spirit vs the experienced reality of ‘consultation’. What was the actual process like for David’s parent (especially trying to be part of things whilst living abroad)? What is the definition of consultation? The Oxford English Dictionary defines it as: Consultation: noun The action or process of formally consulting or discussing. “they improved standards in consultation with consumer representatives”.
It didn’t seem to feel like a formal process of discussion from her perspective, illustrated by her words: ‘I was made aware’, which has the flavour of being informed, not consulted. The consultation was ‘after the event’.
I have had many encounters myself over the years with people in caring or treating roles, and with my parents (mostly in hospitals), and the range of what different people thought constituted ‘consultation’ (either with me, my parents or with me as their relative with LPA for Health and Welfare) has been as wide as a church door. My own sense is that, what determines whether people truly consult, is their belief about who should have the decisive say-so about someone’s care and treatment (Is it me, you, someone else …. or is it us?). Who ‘owns’ the decision? I also know, working in health care myself, that generally people do what they think is the right thing for a person’s care. The issue, as I understood it here, is not so much that bad care is thought to be happening, but that the legal process of who has that decisive say-so has been (allegedly unlawfully) purloined by the public bodies responsible for David’s care.
There was a nagging thought throughout this hearing for me – I wasn’t sure why no consultation or seeking of authorisation about the VMS decision had been done prior to its use. The care team was not there to speak for themselves (though they might have had that opportunity at earlier hearings, or provided submissions, I am not sure). I also wondered about the level of support and training David’s care team might, or might not, have had. Did they realise that a VMS constituted an intrusion and potential violation of his human rights? If not, why not? See the comment by Adam Wagner (below) regarding the duty of organisations to ensure that staff are fully versed about MCA provisions.
Counsel for the Health Board, Thomas Jones, requested that the declaration ‘record that there was in fact – albeit late – a meeting in July 2020 with all present, where best interests for the VMS was discussed’. My understanding is that this meeting would still have been 15 months after the installation of the VMS. He said that, if it is not agreed to acknowledge that meeting in the declaration, then the Health Board would ‘see it as creating an incomplete picture’. Counsel for the Local Authority, Robert Goodwin, supported the Health Board’s requested caveats.
The judge clarified with counsel that ‘the Health Board needs to know over what period they are said to be in breach – does that satisfy your concerns?’ There was then discussion about the facts of meetings dates that were not in dispute. Counsel for David argued for a factually correct wording in the declaration that ‘a best interests meeting was arranged 5 months after proceedings were issued’. All parties agreed. The judge said she was ‘grateful for the pragmatic view that the Health Board and Local Authority have taken in relation to proceedings today in agreeing these matters’. This meant that further litigation regarding declaratory relief was unnecessary as the public bodies accepted that they had acted unlawfully as regards the MCA processes implemented regarding the use of the VMS.
The public bodies accepted that the additional restriction of a VMS remained in place for a long period of time without external authorisation or advocacy to scrutinise the decision. And counsel for David raised a further, nuanced, point: that there remains no finalised plan for use of a monitoring device from the Local Authority and Health Board, and that this is needed to inform whether a VMS is indeed in David’s best interests. She, and David’s parent, have questions (now submitted to the expert witness) of whether, in fact, a VMS would be effective at increasing his safety to a point where it was a proportionate infringement of his Article 8 rights. These will be answered at the final hearing.
Additionally, it was not contested by the Local Authority (as the supervisory body) that David was unlawfully deprived of his liberty within the care home for a significant period of time, and that this was a separate ‘breach’ from the absence of an MCA process regarding the VMS. A separate declaration was made regarding this issue.
Whether and how public bodies can be held accountable
Whether (or not) a VMS in David’s bedroom will obtain the safety for him that is argued by his treating clinician and care team is one thing – there were questions around whether the two night-staff caring for eight residents would actually have eyes on the video at all times, and if not, whether this means actual increased safety for David, or just the appearance of increased safety, whilst simultaneously intruding upon his privacy.
That the public bodies responsible for David’s care did not follow the statutory process for his care, is another thing. The facts of the matter and dates for seeking authorisation for deprivation of liberty were not really in dispute as the public bodies accepted (at the hearing) that they had acted unlawfully. The public bodies (Health and Local Authority) did not seek to follow a best interests’ process until the case was coming under the nose of the Court of Protection, and it was notable that the case was brought by David (not the public bodies seeking authorisation for their actions). Counsel for David stated that there had been a ‘wholesale failure by either public body [to recognise that] that a video monitoring system required a best interests decision’.
As a result, she is seeking ‘declaratory relief’ for David (s15, 1 (c) MCA). The wording of the relief was agreed at the hearing and final declarations were made by the court. As a consequence of that position, counsel on behalf of David, confirmed that costs would be sought at the final hearing against the public bodies.
Not knowing how frequently costs are awarded against public bodies in Court of Protection, I did a bit of research. Here is a 2011 Human Rights Blog, where Adam Wagner reported on a case (that went to the Court of Appeal) of a man with learning disabilities who was unlawfully removed from a foster carer.
“In summary, whereas the usual rule in Court of Protection cases is that there is no order for costs (that is, neither side pays the other’s costs irrespective of who has “won”), in particularly grievous cases of council misconduct – in this instance, relating to unlawful deprivation of liberty under Article 5 of the European Convention on Human Rights – the rule will not apply and the council will have to pay.”
In this case, Counsel argued that the conduct of the public bodies in relation to David’s care calls into question whether David’s Article 8 human right to ‘respect for your private life, your family life, your home and your correspondence’ had been breached, and also his rights under Article 5 as he was unlawfully deprived of his liberty within the care home for a significant period of time without authorisation.
Of relevance, potentially for this case, Wagner states: “The complexity of the law was also no excuse: Given the enormous responsibilities put upon local authorities under the MCA, it was surely incumbent on the management team to ensure that their staff were fully trained and properly informed about the new provisions”
I found other cases where costs (or partial costs) had been awarded against public bodies, here (2011) and here (2018). In the latter case, Mr Justice Newton was excoriating in his comments regarding a Local Authority’s repatriation of someone in their care to their home abroad:
“Without hesitation I conclude that the circumstances of this case are so poor and so extreme (both in relation to institution of proceedings and their subsequent conduct) that I should make an order that the costs of the proceedings should be born (sic.) by the Applicant and Second Respondent. …. They are both public bodies, I simply make an order against both jointly and severally.”
Following Munby (again here), what is considered ‘good reason’ to depart from the general rule of no costs, will be the litmus test in relation to costs sought in David’s case.
My reading of when the Court of Protection might depart from the general rule of ‘no costs’ (rule 19.3 of the Court of Protection Rules 2017: “the general rule is that there will be no order as to the costs“) started here, with Sir James Munby in 2014 (President of the Court of Protection at the time):
“Where there is a general rule from which the court can depart where the circumstances justify, it adds nothing to say that a case must be exceptional or atypical for costs to be ordered … Each application for costs must be considered on its own merit or lack of merit with the clear appreciation that there must be a good reason before the court will contemplate departure from the general rule.”
At this hearing, the Local Authority and Health Board did not confirm their position in relation to a costs order, and this will be a matter now for the final hearing. I was not especially surprised about this; public bodies are not rewarded for transparency (Daniel Thornton discusses this in his blog here on Improving the Transparency and Accountability of Public Bodies, though talks more about Government Agencies than Health and Local Authority bodies).
In David’s case, the Local Authority’s position is simply that:
“The Local Authority is of the view that due to the matter needing to proceed to a contested final hearing it is not at the stage where it needs to confirm its position regarding either of these matters. The Local Authority accepts it has been put on notice of such by P’s representatives …..”
It might well be the case that a video-monitoring system is the best way to respond expeditiously to David’s seizures through the night. There were clearly complex issues to understand from David’s medical consultant and the expert witness regarding best practice for David’s particular epileptic condition. His safety was clearly their over-riding concern. Interrogating how to best keep him as safe as possible, whilst also preserving his rights, seems to have been lost in the process – over many months.
My lasting impression at the end of the hearing, which lasted just over an hour, was that all of this time and energy might have been spared if the team involved in caring for David had recognised that the action they decided to take was an intrusive one, that deprived him of his human right to liberty (Article 5) and privacy (Article 8). So, Deprivation of Liberty and best interest processes needed to be followed.
Summary: What Happens Next?
What was agreed at today’s hearing:
- Declarations under section 15 MCA 2005
- Questions to be asked of the expert witness
- An interim best interests order to continue with VMS until the final hearing.
The outstanding issues, which will be addressed at the final hearing (which will be listed for 2 days) in April or May are:
- the best interests decision for VMS, following the questions answered from expert.
- If the matters still need to be challenged this will come back to court.
- If matters don’t need to be challenged (i.e. all parties agree) a consent order can be made.
- Whether the public bodies should be responsible for paying David’s legal costs.
- In terms of updating evidence, Counsel for David stated that there was a ‘shopping list’ for the public bodies to attend to in order to fill in the gaps in relation to their management of David’s care and best interests. The judge noted that the public bodies ‘recognised some failings on their part’.
The judge asked for Position Statements forty-eight hours in advance to allow all parties to read and digest the contents. I hope to attend.
Claire Martin is Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin