Emma Heron and Olwen Cockell, 21st May 2021
Editorial Introduction (Celia Kitzinger)
Two relative novices to the Court of Protection had their first experience of a hearing before Mr Justice Hayden on 20thMay 2021. They record their impressions here.
I also observed this hearing (COP 1275114): a s.21A challenge on behalf of a man in his 40s with “learning disability at the most severe end of the spectrum“, autism, and epilepsy.
It was an unusual case for a Tier 3 judge but had apparently been transferred by District Judge Eldergill because P’s mother was also his Deputy and, at some point, was refusing to accept that his placement met the best interests requirement for a Standard Authorisation. This meant that the authorisation conflicted with other existing authority for P, meaning that the ‘no refusals’ requirement was not met. This raised the question of what happens when you get a refusal from a Deputy when there’s no immediately available option – which was the legal issue warranting a Tier 3. That refusal is, however, “historic”, and the case is now, according to counsel, “a simple s.21A challenge, albeit with complicated facts”. On that basis Mr Justice Hayden disengaged from the “interesting academic question”, saying that the Court has “no time to satisfy people’s intellectual curiosity” about issues that are not of direct and immediate relevance.
My understanding is that there was an agreed order but that Mr Justice Hayden called the case in nonetheless because (in his words): “I do not on my inevitably superficial reading of the papers get a sense of a man who is being afforded the opportunity to develop his potential, whatever that might be.” The evidence from an expert witness (described by the judge as “cogent, detailed and long”) suggests that P’s current care home “is not properly attuned to, or educated in, the kind of care than will enable P to achieve of his best – or, never mind achieve anything, but be happy and enjoy life more”.
All parties seem now to accept that P’s current placement is not in his best interests, and – pending a move – there is some concern to improve life for him where he lives now. Hayden J’s focus in this hearing was on practical issues like provision of “Now and Next” cards to support P’s transition between activities, and investigation of the possibilities of enabling him to take part in more of the activities he enjoys: cycling, swimming and hydrotherapy, in addition to his current use of the gym.
P’s mother, present in court, has some concerns about sporting activities because she worries that her son’s epileptic seizures make them unsafe. Hayden J asked for a neurologist report as soon as possible, said that P should not be deprived of activities that might benefit him and added a personal note: “I’m not really much of a gym person myself, Mrs X, but I do like to get out on my bike and I suspect P might like – not quite the freedom of the open road, but getting out in the fresh air.”
I’ve watched Mr Justice Hayden in more than 30 hearings – amounting to well over 100 hours. For Emma Heron (research nurse and LLM student) and for Olwen Cockell (speech and language therapist and Registered Intermediary), this was their first exposure to him. Here’s how they found the experience.
Emma Heron: Learning to Wait
When I woke up this morning, the last thing I had on my mind was observing a Court of Protection hearing but as I logged into twitter to see my messages a post caught my eye:
Actually, I did have the time (unusually!) and I’d been hoping to observe a case for months. Maybe this would be the opportunity. I hastily copied down the email address and the case reference and sent my request to the court.
I waited and waited but got no reply – until eventually I contacted Celia who suggested emailing the Royal Courts of Justice again with the judge’s name in the subject line and the word “URGENT”. Still no reply with 15 minutes to go before the hearing, so she emailed the judge’s clerk for me and also tweeted to alert Her Majesty’s Courts and Tribunal Service (@HMCTSgovuk) that there was a problem for me of gaining access. All was well in the end – I was sent the link in time and I was able to observe.
Excitement turned to anticipation which turned to a minor panic. The seriousness of the situation suddenly hit me and once I was in the virtual court room I had a hundred questions. What if I pressed the wrong button? Was I doing the right thing and would someone tell me if I wasn’t? Was I going to be found to be in contempt of court if my microphone suddenly defied the laws of normality and came on in the middle of the hearing? Fortunately, there was a delay, as the judge was still involved in a different case. A wait and a breather were just what I needed to gather my thoughts and think about what I was hoping to get out of the hearing.
Of course, originally, I’d hoped to observe a hearing before I’d written my assignment for the last module I had done, which covered mental health law. Well, that boat had sailed. But this was a perfect opportunity to listen in and embed the knowledge from my module, seeing the practical application in “real life” as it were. I wanted to look at the attendee list to see how many people were on the call, but I kept my fingers to myself and listened patiently, waiting for the judge to arrive. There was still a little residual concern I’d press the wrong button! I’d assumed the hearing would start on time but it was about 45 minutes before the judge arrived. I’d say if you are thinking of attending, do prepare for this as a possibility (and it also means the hearing finishes later than you’d expect).
We got started. I whispered (yes, the microphone was on mute but I figured you can’t be too careful!) to ask my husband to make me a cuppa having heard him put the kettle on.
There were several reminders from the lawyers that there were members of the public present. I felt this was really good as I think it might have made sure things were explained a bit better – and there was a helpful summary at the beginning to provide some context setting for the observers.
The first thing that struck me as I listened to the summary of what had happened so far was the length of time it had taken to get to this point. The time it had taken for various services not do have done things. And, most importantly the time the person at the centre of the case was having to wait to have the issue resolved. I experienced several emotions during the first half hour. Frustration, amazement, and yes just a little bit of anger. It all just seemed to have been stretched over such a long period of time. As the judge said at one point, “I find myself wondering what has been going on in this case for so long to achieve relatively little”.
I was judging. Oh yes, indeed I was. I had so many things whirring around my head, questions I wanted to ask, objections I wanted to make. Worried that the judge might miss something, that he would fail to fully understand a certain perspective that I could see as a health care professional. What if he couldn’t? It was hard. And – I was not the judge!
Just as well really. I need not have worried. As the hearing unfolded, I was struck by the calm, unhurried pace and attitude of the judge. Nothing was going to slip him by. He was not going to make any sort of judgement until he was ready and he knew exactly what he would need in order to be ready. He had a methodical system of listening, summing up, questioning and clarifying. There was one point in the case where he wanted a piece of information, prompted by a comment that had been made by one of the participants. Various answers were given, offers of what he could have but he knew what he wanted and persisted. There was no fobbing off, no letting things slip, no lapses in attention. Every single comment and insight seemed carefully added to the story that was unfolding and he was in control of it all. All of my worries I’d had about things being missed, things not being seen fell away. This was an expert at work and it was really a privilege to see. He was able to grasp the “zoomed out” view without losing sight of the key issues and without a hint of disrespect.
It struck me as I carried on listening that although my head had been full of thoughts and judgements, his most certainly wasn’t. Not at that stage, anyway. And this is perhaps the most important thing I took away from the session. He is a judge. And yet he was not quick to pass judgment. He knew when that time would come and he wasn’t going to go anywhere near that territory until that time was there. What a lesson to learn.
Unfortunately I had to leave the session before the end – note to self the timings are approximate! – but it was an experience I feel honoured to have had and I am sure one that will be repeated again one day.
Thank you to the Open Justice Court of Protection Project for enabling me to grasp this opportunity through sharing the knowledge and providing guidance every step of the way!
Olwen Cockell – Building a holistic profile
The hearing commenced with the court clerk reminding all parties about the various regulations about confidentiality and Mr Justice Hayden then welcomed all parties.
Mr Justice Hayden did request advocates to give a little background but this was really brief and I actually gleaned more of a sense of the purpose of the hearing from the various exchanges that went between the legal representatives before the hearing officially started.
Legal representatives had actually referred to P by his first name in their informal communications in the virtual waiting room, but I noted that they changed to use of initials when Mr Justice Hayden opened the hearing. I liked it that Mr Justice Hayden asked for P’s proper name to be used as I felt this personalised the case.
From piecing together various snippets of information given about P, I learnt that he is a man in his 40s with considerable difficulties in cognition and communication associated with a primary diagnosis of autism. He is non-verbal and he relies on routine/structure/predictability so that he can function day to day. His mother talked about how his behaviour was calmer and more manageable when he lived at home (for the first 36 years of his life) and benefitted from the very tight routine he was afforded there. For example, she described how when he had a bath, she always washed him in the same order: first his hair, then his face, then his shoulders – and the same thing when drying him. She said this kind of routine really helps him. “I tried to tell the care home this, and they didn’t pay attention to me”, she said – adding that she’s pleased that the need for routine is emphasised in the expert report.
Unfortunately, it seems that P’s residential facility is not offering the level of routine and structure that P needs nor is he being offered opportunities for sensory stimulation that he craves. This has led to his mother to be very concerned about the level of care P has been receiving at his care facility. The independent expert assessment has made a number of recommendations for how P’s needs may be met going forwards. Some of the recommendations could be very easily implemented (e.g. use of a visual timetable); others such as swimming and hydrotherapy may prove more challenging to deliver. Mr Justice Hayden also emphasised the importance of obtaining an up to date objective assessment of P’s medical/physical health to ensure that these activities would be safe for him – recognising his mother’s concerns about his safety but saying “I don’t want to have to rely on Mum because she’s Mum – which is a tribute, not a criticism“.
The hearing also touched upon P’s best interests in terms of his long-term accommodation needs (domiciliary vs residential) but Mr Justice Hayden felt P’s interests would be best served in the short term by a care plan being expedited within the residential care setting.
Mr Justice Hayden showed great humility, taking time to listen and talk to P’s mother, who clearly knows and loves her son very much, so that he could get a fuller sense of P as a person. He also was very keen to have sight of objective expert reports about P so that a comprehensive, holistic profile could be built up.
Through the course of the hearing, Mr Justice Hayden gave all participants sufficient opportunities to contribute, emphasising the importance of positively moving forwards. He closed off one line of argument with the comment: “We’re now unlocking past pain to some degree which probably is no longer productive”.
I left the hearing feeling that Mr Justice Hayden had developed a sense of who P is and that his management of the hearing was laying the necessary groundwork so that all parties can start working towards an agreed plan that will meet P’s best interests.
Emma Heron is a research nurse, currently working in South Wales and an LLM student at Cardiff University. She blogs at www.receivingconsent.com and she tweets @nyrs_emma
Olwen Cockell is a dual-qualified speech and language therapist and primary school teacher. Olwen is based in Kent and has supported children with language and learning for over 20 years. Since 2015 Olwen has worked as a Registered Intermediary and assists children with speech, language and communication needs when communicating evidence to police and to the courts. She tweets @olwenc