By Celia Kitzinger, 28th June 2021
Update: I’m informed that the next hearing for this case (previously listed for 2nd July 2021) has now been vacated, and is re-listed for 4th August 2021 at 3pm. We will post information about how to observe on our home page in due course.
Most of the hearings we blog about originate from judges who are based either in the Royal Courts of Justice, or in First Avenue House in London. It’s much harder to observe hearings in the regional courts.
It’s more difficult to find out about the hearings (it takes trawling through CourtServe) and it can also be challenging to gain access, not least because judges in the regions – especially District Judges – seem to be less well supported administratively. We’ve found that emails sometimes don’t get forwarded to the judge, and even when they do, the time it takes to add yet another person to a conference call can sometimes be just too much of a burden.
So, I was pleased to be granted access to a telephone hearing before District Judge Stone in the County Court at Barrow in Furness at 3.00pm on 7th June 2021. I chose this particular case (COP 13759851) because it’s in Cumbria, where I live – and also because (unusually for CourtServe listings) the entry included the issues to be addressed: “Welfare – Residence & Care”.
I received a response to my emailed request, sent to the Manchester hub, within two minutes (!) from a member of the court staff who said, “No worries I will just send this request over to the local court.” Twenty minutes later, I was sent an email from Barrow County Court, attaching something that purported to be a transparency order (it was actually a remote hearings order) and asking me to confirm my telephone number. At 3.10pm the phone rang, and DJ Stone welcomed me to the hearing.
It was (as most hearings I observe are) a directions hearing, i.e. a hearing for the judge to review the case and consider whether there needs to be further information or action taken by the parties, before a final hearing at which the judge makes a final decision based on all the evidence, reports and all the points put forward by both parties. (For more information on types of hearing see this Guide.). I’m pretty sure, from what I heard, that this was the first ever court hearing about this case.
It concerned a person (P) with dementia, of whom the representative for the local authority (I think a solicitor, rather than a barrister) said: “the dementia is quite advanced and there’s no capacity at all with this lady”.
She lives at home and is cared for (via direct payments) largely by her daughters (and, I think it was said) her next-door neighbour. They spend a lot of time at P’s home.
The local authority has brought this case to court because they have recently become aware of the “restrictions” that P is subject to. Due to her dementia, she is unsafe leaving the home alone, and there have been real concerns in the past when she’s gone out and then “been found in circumstances that could have been very detrimental” (judge). So, the doors of P’s house are locked and she cannot leave on her own. Cameras have been set up inside the home too, again with the aim of keeping her safe.
This, said the representative for the local authority, amounts to a deprivation of liberty following the Cheshire West ruling: i.e. P is under continuous supervision and control and she is not free to leave the place in which she is residing.
The local authority representative appreciated that the motives of the daughters were to “facilitate P’s independence”: “They are trying to do the right thing by having this lady live in her own home as long as possible”. Later she reiterated, “They are doing everything they can to keep Mum in her own home”.
But they were concerned that this arrangement may not constitute the least restrictive option for P. Also, they had asked the daughters what ‘emergency plan’ was in place in the event that P needed to leave her home quickly (e.g. fire) and the answer was “not forthcoming”. They reported a “lack of information from the family”.
Both daughters had confirmed that they didn’t want to attend the hearing or be joined as parties – despite holding Lasting Power of Attorney for both financial decisions and for health and welfare. The local authority representative expressed the view that they would prefer the attorney-daughters to be parties “to make joint working easier”.
The judge said that “Family members are clearly doing their best to ensure P can remain in her own home, given the distress they believe she would feel if forced to move to other accommodation. But they have set up a situation that may amount to a deprivation of liberty, and so it is necessary for the court to obtain full information”.
The judge made an interim order (s. 48 MCA 2005) that there was reason to believe that P lacks capacity to litigate and to make her own decision about where to live. A social worker was present in court and I believe she had assessed P’s capacity and completed a “COP 3”.
The judge also made directions inviting the Official Solicitor to act as P’s litigation friend. The representative from the local authority remarked that “the last request for the Official Solicitor got lost in London”, leading to some discussion as to how to ensure that the matter is dealt with efficiently this time.
The judge said that the “current care arrangements can continue until further consideration of the evidence” and listed another hearing on Monday 28th June at 11.30am, via BT MeetMe, for one hour and 30 minutes. He emphasised that the case was “urgent” and that a decision could not be delayed.
Before that hearing, there is supposed to be a roundtable meeting, and “a continued invitation to the daughters to attend the hearing, so they can understand the decisions the court is being asked to make on behalf of their mother”.
A personal reflection
If I were to lose capacity in the future, I want someone who knows me well to be the designated decision-maker. For me, this would be self-evidently preferable to decisions made by Court of Protection judges who don’t know me, my values, the way I’ve lived my life and the things that matter to me. And so I have appointed my wife and (if she is unavailable to act) my sister with Lasting Powers of Attorney for Health and Welfare. They know my wishes and beliefs very well, and would weigh them heavily in any best interests decision they had to make about me.
Also, several family members have chosen me to act as their attorney for health and welfare if they were to lose capacity to make their own decisions.
So I was alert in this case to the apparent limits of the daughters’ powers, as attorneys, to make the decision to deprive their mother of her liberty in her own home. This has implications for anyone who has appointed someone to act as their attorney and/or is the designated attorney for someone else.
The court did not actually explicitly discuss the relationship between Lasting Power of Attorney and Deprivation of Liberty – but it was clear that the judge took for granted that decisions concerning deprivation of liberty (like locked doors and cameras in the home) were decisions that properly fell to him, and not to the daughter-attorneys.
I did some research to find out more about this after the hearing, and I’m still not entirely clear about why or how the decision-making powers of attorneys are restricted in relation to deprivation of liberty – although it’s clear that they are.
So, even if someone has given me clear and strongly-worded directions that I am to keep them out of a care home at all costs – which might include locking them inside their home and using video-cameras to keep them safe – I gathered from this hearing that I’m probably not able to do that without the Court of Protection getting involved.
The ever-helpful Alex Ruck Keene explains it like this:
“… it is important to note that it is not possible for a donor to ‘opt out’ of DOLS by providing that an attorney can consent on their behalf to the deprivation of liberty, and any attempt to include such a provision in the instrument is likely to end up being struck out upon the Public Guardian’s application to the Court of Protection (see the unreported decision of Senior Judge Lush in Re Stewart). So even if the attorney considers that the arrangements are in the person’s best interests, and what the person would have wished, this does not obviate the need for the DOLS authorisation procedure to be invoked. The courts have not decided whether the ‘substituted consent’ of an attorney would also obviate the need for an application to the Court of Protection in the context of a deprivation of liberty taking place outside a care home or hospital, but the decision in Birmingham City Council v D would suggest that a court would approach such a proposition with considerable caution.” (Alex Ruck Keene, “Powers of attorney, care homes, best interests and deprivation of liberty”, March 7th 2016, Mental Capacity Law and Policy Blog)
This hearing prompted the realisation that it would probably be helpful to the person I have appointed as my own attorney to have something in writing from me, making clear my current (capacitous) views on the matter of depriving me of my liberty. So. I have now written a short piece expressing my values, wishes, feelings and beliefs about a possible incapacitous future in an institutional setting vs. in my own home. If my attorney is required to contribute to best interests decisions about where I should live and/or whether I should be deprived of my liberty, she will need to show that she is taking into account my own views on the matter: a record of my position on the weight I give to being safe and protected, vs. being free and at risk of harm would (I hope) help to support the decision-making process. I have also requested the people for whom I might find myself acting as attorney in the future to do likewise.
Meanwhile, I look forward to the next hearing in this case.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia
One thought on “Keeping Mum in her own home: Deprivation of Liberty and Powers of Attorney for health and welfare”
Really interesting discussion about limits of powers of attorneys. It may be useful to note what the Law Commission had to say at paragraph 10.17 of its report on Mental Capacity and Deprivation of Liberty: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2017/03/lc372_mental_capacity.pdf
We took the decision not to allow either a donee or deputy to consent on behalf of the person for three key reasons. The first reason is that there is only very limited support in the Strasbourg case law for any concept of proxy or substituted consent. Mr Justice Keehan has noted that the reference to substituted consent in one case had the character of a “chance passing comment”. The second reason is that it appears to us problematic, as a matter of principle, for a person to be able to remove themselves from the scope of Article 5(1) by giving a power of attorney without themselves having considered the specific circumstances which might engage the Article. We therefore consider that there is a qualitative difference between the giving of advance consent and the action of a proxy decision-maker. The third reason is that we think that, as a matter of practice, it is better to err on the side of caution here given that there is sufficient evidence from the case law that not all donees and deputies act in compliance with the spirit or the letter of the Mental Capacity Act. We therefore think that codifying the current position is the right approach.
Although the LPS does not codify the current position (set out in Celia’s blog) that an attorney cannot consent by setting this out in expressly, it does not alter the current position, so things will not change until/unless a court finds that an attorney can give ‘substituted’ consent so as to stop a confinement being seen as a deprivation of liberty. For more on this concept, you may want to see this video: https://t.co/qTWkOkgwYz?amp=1
I am always interested to hear if there is a case which this point can be tested as there are important things to say!
LikeLiked by 1 person