By Claire Martin, 25th August 2021
On 12th August 2021, I attended a hearing (COP 1324896T) with District Judge Beckley at First Avenue House, London. It started at 10.39am. The case has been before the court since 9th May 2018, initially with District Judge Mort. The applicant is P (via her litigation friend the Official Solicitor) and the respondents are (1) the Local Authority, (2) P’s daughter, (3) P’s granddaughter and (4) P’s financial deputy.
P is an 87 year-old woman, currently (and for the past 50 years) living in the UK. She – and her family – wish her to return to her country of birth to be with, and be (partly) cared for by, them. During the hearing we heard (from P) that her husband has died, she misses him very much and she absolutely does not wish to live in a care home. She is currently living in her own flat, with carers attending (though I am not sure about the frequency of attendance or the type of care they provide, it is clear she has a substantial package of 1:1 care).
As I sat waiting for the hearing to start, the number of those joining the MS Teams call rose and rose. In the end, there were 14 people in attendance, plus DJ Beckley and me. I am still not clear who everyone was, but this was my list:
- P herself (assisted by her carer).
- Counsel for P, instructed by the Official Solicitor – Sophy Miles.
- Counsel for the Local Authority – Tara O’Leary
- P’s Social Worker
- P’s financial deputy
- ? possibly Official Solicitor
- ? possibly LA solicitor
- Someone who is helping to find out about safe, escorted air travel
- P’s daughter (connecting from abroad)
- P’s granddaughter (also connecting from abroad, and with P’s daughter)
A Hearing Crossing Continents and Languages
DJ Beckley introduced the hearing and, I thought, showed a clear eye to ensuring all people felt, and were, included in proceedings. It was a difficult job for him; and it was a difficult hearing for others to be part of – P herself, her family abroad and the other participants too. The remote connection worked well from a technology perspective, though as always, it is very difficult for people not to speak over one another.
DJ Beckley first thanked the interpreter for attending and agreed the process for interpretation – that each section of dialogue would then be interpreted, in real-time. He introduced me, as the sole observer, and I needed to unmute myself and confirm that I had received and understood the Transparency Order (which I had received prior to the hearing – not always the case). DJ Beckley then asked Sophy Miles, counsel for P, to summarise the case so far.
P originally came to court in 2018 as part of a s21a Mental Capacity Act application – this is when a deprivation of liberty authorisation is challenged. P was in a care home and did not want to be there. P was deemed to lack capacity to make decisions regarding her residence and care, as well as her property and affairs. The court subsequently declared that P did indeed lack capacity for these decisions, as well as lacking capacity to litigate, hence her representation by the official solicitor. At some point, however, she moved from the care home to her current home, which is her own flat, supported by a package of care.
P is a vivacious and accomplished woman – and, though she was often upset throughout this hearing, she knew her own mind and expressed her views throughout. P speaks four languages, is a fantastic cook, an excellent knitter, reads the newspaper from her country of birth regularly and, when in better health, travelled between the UK and her country of birth to visit family.
She has many physical health conditions to deal with – diabetes, osteoarthritis, osteoporosis, ischaemic heart disease, hypertension and asthma. She is also reported to have ‘cognitive impairment’. Though a causal diagnosis for this was not discussed, P takes Memantine which is a medication for people with a diagnosis of Alzheimer’s type dementia. It will be the cognitive impairment that brings her capacity to make certain decisions under scrutiny, and it is likely to have been discussed in more detail at a previous hearing.
In June 2020 P’s daughter and granddaughter were added as parties and the issue for the court has since focused on P’s best interests regarding whether or not to move to her country of birth. Sophy Miles explained that this was a final management hearing, to decide on the next steps required, before a final hearing can take place.
Meaningfully Involving an ‘Incapacitous’ P in Proceedings
It quickly became clear that P wished to make the judge aware of her thoughts and feelings. DJ Beckley took time to assure P that he was interested in her views and would make time for her to be heard.
Early on, Sophy Miles noted that P’s deputy had concerns about her money ‘expiring within two years’ if P moved to her country of birth, necessitating a move to a care home there. P immediately interjected, very upset: “No, No! I don’t go nowhere”.
DJ Beckley replied: Can I try to reassure you? We are not suggesting you should move now into a care home. We all understand that you wish to live in your own home and – if we can work out the practicalities – in [your country of birth].
P (via the interpreter): I’m not stupid. I speak four languages. I know how to keep a home. You’ll never see me dirty.
P was crying at this point and the judge attended to her distress, saying he was sorry she was upset and that these hearings can be difficult, especially when remote. It was very hard for P to calm down and listen to what others were saying and she repeatedly interrupted proceedings, in an upset and agitated state. I felt for her, and for everyone at the hearing. It seemed that all parties were trying to do their best and a lot of work had happened in the background. For example, exploring possible escort services for air travel for P, should it be decided to be in her best interests to return to her country of birth; making contact with the equivalent of a social worker in that country to discuss handover of care needs; identification of potential independent guardians for P’s finances if she moves. The Local Authority and the Official Solicitor (and others) had clearly worked together productively and in the service of trying to progress the issues at hand.
DJ Beckley explained (several times) to P that he needed to hear from everyone in turn, and that he would come to her for her views. Her family, carer and the interpreter sought to reassure her that she would be listened to.
The Local Authority (and the Official Solicitor and P’s financial deputy) has concerns about the sustainability of P’s finances and suitability of the home environment if she were to move, whilst acknowledging the potential emotional benefits for P of being close to her family. P’s deputy had calculated that her money would last 2-3 years at most, on the costings he had available for living near her family. A key consideration is that, were she to remain in the UK, the CCG (which currently funds 25% of P’s care) has confirmed that it would fund 100% of her care when her funds expire.
There remained uncertainty about the care and accommodation proposed for P, were she to move abroad. There has also been some disquiet expressed by another family member regarding P’s daughter’s motives for bringing her to where she lives and overseeing her care, and potentially finances. Her daughter and granddaughter have agreed to make a witness statement detailing the proposed provision for P, including how her finances will be able to support her sustainably:
Judge: I hope you understand how important it is for me to ensure she will be provided for if she moves – including her funds. I’m not seeking this information to be awkward – I want to ensure she will be OK. I also need to ensure she’ll be looked after if she flies home, that it’s in her best interests.
Daughter (via interpreter): I haven’t spoken much. She will be well looked after – she wouldn’t have to wait months and months for her teeth or a wheelchair. It doesn’t work like that in [country of birth]. …. I promised her I would bring her over. I beg you to bring joy back. My daughter and I will take care of her – we don’t need a guardian, we can look after her. Just give this back to her.
Obviously P heard all of the conversations, and each exchange renewed her distress and her urge to interject and express how upset she felt. She was crying for much of the hearing and, throughout, the judge sought to help her understand what steps he was following to enable him to understand how best to help her. I thought he was kind and compassionate, didn’t seek to stop her being upset, and rather offered a narrative that she might better understand the process and feel some reassurance from that knowledge.
At the same time, since June 2020, so over a year, this issue of whether it is in P’s best interests to return to her home of birth has rumbled on. I could relate to her and her family’s frustration at the slow pace of things – even though this might not be anyone’s fault per se, it reveals a system that is slow to resolve important life issues when capacity to make those decisions oneself is lost; and P in this case is 87 years old.
P speaks for herself
When it was P’s turn to speak, she said the following:
“From what I understand – I haven’t eaten well here, I live on dry bread, [shouting at this point] they don’t feed me here properly. My house was an open home – people came to eat my food. Here I have suffered. If my husband was alive this wouldn’t have happened. [at this point P’s daughter was in tears]. I can’t go anywhere.
I do want to move, but I don’t want my UK citizenship to be taken away.”
It transpired that P was used to going out, with cash in her purse, getting the food she needed, cooking it (for many people) with a feeling of purpose. Since moving into the flat, with carers, (I think) she has been unable to do this. There was some discussion about not wanting to use a card, only cash, and the judge talked about some shops only taking card payments now. I felt so sad for her that this, one of life’s daily pleasures for her, had not been made possible (though of course I do not have any detail of her abilities to do the things she was missing).
Judge: I understand you’d like your own flat and to be looked after by your family and people like [carer] who is with you now?
P: Of course! Yes I want my own apartment.
Judge: Can I check some other things? I understand your false teeth are not comfortable.
P: [gesturing to her teeth] The person making the teeth was useless – they’re not a full set, just the middle. I can’t eat like that! I need a full set of teeth. How do you expect me to eat?!
DJ Beckley also addressed delays with a new wheelchair. The Social Worker informed that an
independent dentist has been secured for a second opinion and the correct wheelchair is ‘on
schedule’ and due to arrive in the next week or two. P’s granddaughter explained that ‘food is a big trigger. She needs a cook from (country of origin) community – ‘just one meal a day that’s appropriate to bring’. The judge affirmed ‘clearly food is important. The carer and deputy have heard this – I understand how important food is for people to feel well. I hope people have heard that’.
This was a brief respite in an otherwise distressing hearing – P’s face relaxed and she smiled, speaking in her first language. Her granddaughter said that P ‘made an invite for all of you to eat her food’ and DJ Beckley asked P to send him a recipe. Everyone was smiling at that point – and it brought some relief to the proceedings.
The judge then expeditiously moved the hearing along to determining a final hearing date. This will be on Wednesday 13th October at 2pm. I don’t think I will be able to attend. I do hope that P can find comfort and purpose wherever she lives – it seems as if everyone is keen for her to live where she wishes, which is in her country of birth, alongside her daughter and granddaughter. The best interests process in the UK needs to satisfy itself that this is, indeed, the right place for her to be.
I haven’t attended a hearing before where P has been as vocal, or as distressed (as far as I am aware), by the proceedings. I felt quite distressed myself throughout the hearing, even when P wasn’t speaking, because I could see the pain in her facial expressions and that she was crying for much of the hearing.
DJ Beckley’s approach was compassionate. He handled the frequent disruptions to the process with humanity and a lightness of touch. In particular, I noticed that at no point did he ask P to stop crying or to calm down – instead he validated her feelings and tried to explain to her, in understandable language, what was happening, what he needed to know and what he was going to do next. I thought this was exemplary practice – trying to stop people from expressing their feelings can often be about our own discomfort, rather than about what might be best or most helpful for them. I did wonder whether P might have been offered the opportunity to go first in expressing her views – it was hard for her to listen to others’ views without having had a chance to speak. This might have been difficult for her even if she had gone first, since certain topics (such as whether a care home would need to be considered) were very upsetting for her, understandably.
P was certainly able to convey her determination, the sense of herself as a woman who knows how she likes to live her life, and her absolute horror at the thought of living in a care home. Her voice came across very powerfully – and I came away thinking that, even though it was clearly a distressing experience for her, it might also have been very important for her to know that those charged with making decisions for her, had witnessed her views directly.
Claire Martin is Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin