Inspired by Bournewood: A s.21A challenge and delay in the court

By Evie Robson and Celia Kitzinger, 10th May 2021

On the morning of Tuesday 13th April 2021, we both logged on to MS Teams to observe a hearing before District Judge Ellington (COP 13715986).  The listing information on the First Avenue House website – which helpfully provides advance information about the issues to be addressed in court –  informed us that the case concerned s.21A of the Mental Capacity Act 2005. Such cases are quite common in the Court of Protection and we have blogged about them before (e.g. here): they are effectively reviews of whether someone is lawfully deprived of their liberty. 

The person at the centre of this case is an 84-year-old man, “DM”. He joined the hearing from a hospital psychiatric ward.  He has had a successful career as a journalist, to which he often refers (he’s very proud of his journalist granddaughter who has “followed in my footsteps“). Although he is now divorced, his wife and daughter are “closely involved and loving towards DM and supportive” according to the judge (although neither was in court).  He has diagnoses of vascular dementia and hypomania – diagnoses, said DJ Ellington, tactfully, that DM “may disagree with”.  Until recently he has lived on his own in sheltered accommodation and he wants to return home.

As DJ Ellington set out in her opening summary, DM has been living in a hospital psychiatric ward for the last six months.  He was admitted under s.2 of the Mental Health Act 1983 following a deterioration in his mental health, then subsequently detained under s.3 for treatment, and then (since early February 2021) under a standard DOLS authorisation.  He is not allowed to leave the ward on his own, and is only allowed to go out with care staff.  The ward doors are always locked, and he’s subject to continuous control and supervision.   He’s been ready for discharge for more than two months, but there is disagreement about where he should go.  

The local authority contends that there is reason to believe that DM lacks capacity to make his own decisions about care and residence, so that the court should make decisions on DM’s behalf. They believe it is in his best interests to move into a residential care setting.  They say he hoards at his home, gets lost when in the community, is unsafe in traffic, and has difficulty looking after himself.  At a best interests meeting in February 2021, they decided that it was too much of a risk for DM to return to his sheltered housing.  DM’s ex-wife and daughter are also concerned that he’ll be unable to cope if he returns to his sheltered accommodation.

DM disagrees.  He does not accept that he has any mental health problems.  When it was explained to him that professionals were concerned about his “getting lost”,  he said, “That is completely fallacious.  Sometimes my purpose is questionable, but not my intelligence behind it.”  

DJ  Ellington clarified from the start of the hearing that the question of where DM will live “will not be decided today” but will be deferred to another hearing in a few weeks’ time.

DM was represented by Nick O’Brien (via his litigation friend, the Official Solicitor).  The local authority was represented by Thomas Jones.

Meeting DM 

DM joined the hearing slightly late.  From the outset he appeared very engaged with the proceedings and asked for the names and roles of all the people he could see on screen.  For one of us (Evie), encountering the protected party in person in the (virtual) court was a new experience. 

Evie Robson

DM was  actually present in the courtroom.  I could put a face to the name of a person whose personality and charisma would otherwise have been lost. From the very start,  he demonstrated an avid interest in the court proceedings, clarifying the names and positions of all those with their videos turned on. 

As the lawyers discussed the possibility of a move to a care home (pseudonymised here as “Elm House”), DM became increasingly agitated.  He interrupted the proceedings and brought out a document he had written earlier, although it turned out that he couldn’t actually read it with his current spectacles (“I’m a two-pair-of-glasses man I’m afraid”) so he quoted snippets from memory.   He was clearly quite distressed by the idea that he could possibly be sent to live in a place where he really does not want to be. 

DM  knew quite a bit about Elm House, having researched it on the internet and it was obvious that he resisted any suggestion that he should move there. He felt it would be degrading, and from his descriptions I could not disagree. It was quite unexpected and very moving to listen to him:

I don’t want to go to Elm House.  There is rubbish on the front drive. The hedges are not cut.  It’s a tiny little room.  I would be kept there until I rotted away.”

He continued in a confident outpouring of emotion which I found quite heart-breaking.  Never before had I heard the thoughts and opinions of a protected party in the Court of Protection so clearly as I heard them then. He told the court “I want to fulfil the things I have not completed”, specifying “I have a wonderful novel to write”.  His belief in fruitful years to come was clear when he said  “I’m only 80. I have 20 years of life to live. I am going to live to 100”.  He asserted “I will go into the accommodation that suits me,” adding:  “Even to suggest that I should be deprived of my freedom any more and put into isolation, that really did scare me”

However, confident as DM sounded about his plans for the future, it seemed to me that his views were slanted.  Before he began his impromptu speech he said “Under Section 3, I have more rights than any other person would have, and none of the restrictions apply” – in a manner not at all spiteful but instead almost desperate.  I got the impression that he did not want to be grouped together with people he perceives to lack the capacity he believes himself to have. 

Whether or not he has capacity to make his own decisions about where he lives and the care he receives is not the thing that most interests me (although obviously that is important to the court process).  Rather it is the power he had to command the attention of the courtroom to ensure we all heard the story completely from his perspective. Without DM’s presence in court, and the sudden passionate expression of his views,  I would not have felt such strong compassion for him.  His presence, articulacy and vivacity made him so much more human in a place where it easy to become just a name or some initials. 

Obviously not all protected parties wish –  or are able  – to appear in the online courtroom, but what stood out for me here was the need to properly hear their voices and opinions and to accord them respect.  DM is a man who previously exercised authority in the world. He had a successful professional career and made significant decisions in the course of it.  And now other people are treating him as someone without capacity to make basic decisions about his own life.  It is easy to see how he must feel vulnerable, powerless and humiliated.

Later in the hearing,  DJ Ellington – who had talked with DM before the court hearing started  – reported that he’d said  “if you treat someone like an idiot, they will become an idiot”.   That strikes me as very poignant.

Whether or not DM has the capacity to decide where he lives, he clearly has enough understanding to realise the position he has been placed in.  He is, as Nick O’Brien said,  “acutely aware that he has been deprived of his liberty”. 

Celia Kitzinger – DM at a previous hearing before DDJ Allen

During the course of the course of the interactions Evie has described, I realised that I’d met DM before, in a telephone hearing on 24th February 2021 before Deputy District Judge Allen.  In that hearing he was ebullient. 

He was insistent on knowing the names and roles of all the participants in the hearing and was unfailingly courteous and complimentary towards them.

There seemed to be some persistent hearing difficulties.  Several interactions ran off like this:

 Various non-sequiturs were also possibly occasioned by hearing difficulties:

In the earlier hearing I watched, DM was quick to intervene when his barrister  (Alison Easton) addressed the court to argue for detailed investigation of the options of returning home and of extra care accommodation (as well as the preferred option of residential care promoted by the local authority):

I would like to congratulate that last lady speaker.  What a fantastic presentation.  That’s a very clear plan –  the clearest I’ve ever heard put forward.  I am capable of living on my own and feeding myself and going out on my own. I have a penchant nowadays for calling taxis even if it does cost a few bob.  As for my appearance and dress, I can do a quick change in about ten minutes if I have to.  If I’m not to go home, I’d be quite happy with the extra care accommodation at [Place] if you require it. I’m not incontinent. I don’t need spoon feeding or assistance in the bathroom. […] I would love to get back into the community. I’m not going to do a runner. We all have our little faults. I hope mine will be overlooked.”

Later he helpfully suggested to the judge that she should read about “the Bournewood Agreement” which he’d researched on the internet (perhaps here) – explaining “he was deprived of his liberty but he proved his detractors wrong and moved back into the community.  That’s what inspired me in this case”.

At (what DM took to be) the end of the hearing he said:

“Thank you very much to all parties here today.  You’ve done a great job.  You’ve shown some flexibility.  I’d like to commend [the extra care accommodation] which has a very good view over [open countryside].  I look forward to the result.”

The poignancy comes from seeing DM,  who had once possessed power and authority in a successful professional career, who had “travelled the world” (he mentioned South Korea and Cuba) as part of his work, pleading for his liberty.  Now, others make decisions on his behalf and he clearly feels himself diminished by this. “I’m compos mentis, 100%,” he said.

Amongst the older people I know, some adapt to changed life circumstances and cede power and control to others graciously, and can even be relieved to have the responsibilities of choice lifted from their shoulders.  For others, autonomy and independence are core to who they are as people – central to their sense of their own dignity as human beings.  I hear in what DM says a complex mix of bravado and ingratiation, as he tries to demonstrate his own capacity and assert some control over his future in the face of his “detractors”.  

It’s the fundamental problem at the heart of so much of the work of the Court of Protection.  How do you keep someone safe if the very requirements for doing so constitute a fundamental assault on their sense of themselves as human beings?  As Mr Justice Munby famously said:

“… we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?” (para. 120, Re MM (an adult) [2007] EWHC 2003 (Fam))

What next?

From my (Celia’s) perspective as observer, there didn’t seem to have been as much progress between the two hearings – 7 weeks apart – as I would have hoped and  expected.  Nick O’Brien seemed to hold the Trust partly accountable for this since they  have “not been cooperative with the provision of disclosure” (which I think means they hadn’t supplied the court with  DM’s medical records) and there had also been a problem with obtaining evidence about DM’s capacity to make his own decisions (via a s.49 report).

There is still no certainty about whether or not DM has capacity to make his own decisions about residence and care, nor any agreement about what kind of accommodation and care package is in DM’s best interests in the event that he does not.    

Capacity

It was said that DM has “quite an unusual presentation”: he’s  “complex” with a “spikey range of ability”.  On capacity, there is, says Nick O’Brien, counsel for DM (via the Official Solicitor)

“…an issue as to whether DM lacks capacity to make the relevant decisions about his residence and care or whether some of his choices reflect hypomania and are better characterised as unwise decision making caused not by an inability to weigh up and use information but rather by not attributing the weight to risk factors and consequences which others would prefer.”

He gave an example of the way in which DM is “a lot less risk-averse” than the local authority – in other words, he may perfectly well understand and accept the risks, but consider it worth accepting them as the price of his freedom: “he says he won’t get lost going out into the community, and – if need be – he’ll just get a taxi home”.  (The judge added that DM had also agreed to wear a security pendant.)

 On behalf of DM, Nick O’Brien submitted that a report was required under s.49 of the Mental Capacity Act 2005 as to DM’s capacity to make his own decisions about where he lives and what care he receives, but he had been told that these reports were taking “at least three months”.

This has prompted those instructing me to start making enquiries of independent psychiatrists who might work on swifter timescales. We have a number of enquiries still outstanding this morning. The court effectively has two choices: either accept the delay of 3 months – which is effectively an invitation not to be asked to provide a report at all, or insist that they provide one sooner. Three months is simply unacceptable when they have a clinical relationship with DM already, but the Official Solicitor’s position is that we will probably need an independent expert.

Best Interests

In the view of the local authority, a move to Elm House – a residential care home – is in DM’s best interests.  Having read the Official Solicitor’s position statement before the hearing, the local authority mooted – as a sort of ‘compromise’ solution – that DM could be moved to Elm House but with a special bolt-on package of “community access” arrangements set up with an outside care agency, amounting to 7 hours per week.  This would enable, they said, “a hybrid model of community life and residential care”. 

This was clearly a frustrating position from the Official Solicitor’s point of view.

We’ve been provided with a balance sheet analysis that identifies four residential care homes amongst its options, none of which is the option that is being proposed by the local authority today. And none of the four have we had the chance to investigate – let alone provide DM with the chance to look at them.  He’s not had the opportunity to look at any of the four options.  We have a question about what DM’s life would be like if he moved to a residential care home.  One of the clear features of this case is DM’s enthusiasm for being active and out and about.  One of the reasons he’s not keen on Elm House is its location.  He’s familiar with that area of London and his understanding of the distance from the care home to shops and so on is right.  He has plenty of skills in self-care over and above just getting washed and dressed in the morning.  He can make himself a snack, breakfast, a cup of tea.  Elm House does not allow residents to do this for health and safety reasons.  The result would be a de-skilling – and a denial of DM’s opportunity to take part in the sorts of activities that can be important in combatting dementia.  […]. We cannot be satisfied that a move to Elm House is in DM’s best interests.  My client is acutely conscious of the fact that he’s been deprived of his liberty and doesn’t want to continue to be at the hospital, but the alternatives are not clear.

The Official Solicitor also made the argument – pretty much the same argument made at the hearing seven weeks earlier – that there had been no adequate exploration of the possibility of DM returning home: “there simply isn’t a plan set out as to how care would be delivered if he returned home. That cannot be excluded at the moment. It hasn’t been investigated.

The case is supposed to be back in court on 12th May 2021.  We hope there is progress and that DM will be able to move to somewhere he can be happy. 

Meanwhile, DM waits, deprived of his liberty on a locked ward. By the time of the next hearing (if it happens as planned), he will have been ready for discharge for more than three months.  

Evie Robson is a Year 12 student studying English Literature, French, Maths and Further Maths at Whitley Bay High School. She has contributed several other blogs to the Project (e.g. here).  She tweets @evie275

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia

Photo by Jon Tyson on Unsplash

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