A judicial U-turn? From ‘no contact’ to ‘main carer’

By Jenny Kitzinger, 28th October 2021

At an emergency hearing on 24^th September 2021, His Honour Judge Tindal issued an injunction against Miss F preventing her from having any contact with Mr G (Case 13382192). 

Miss F, previously described in court as Mr G’s ‘ex-partner’, had not seen him for the 20 months he had been in a care home and “I didn’t know whether he was alive or dead and I made a lot of effort to try to find him”.

At the hearing I attended on 21^st October 2021, just four weeks later, not only was the injunction from September lifted, but the court encouraged Miss F to have as much contact with Mr G as possible and to liaise with healthcare services. There was even discussion of marriage and the judge referred to Miss F as Mr G’s ‘carer’ and as his ‘fiance’.

This was one of the most surprising and rapid twists in any Court of Protection case I’ve followed. This blog explains what happened.

In presenting this account of the hearing I have two main aims. 

• First, I want to demonstrate why the judicial U-turn on the injunction was consistent with the general direction of travel in the series of hearings about Mr G I’ve observed. The change of tack to allow (indeed actively encourage) Miss F’s involvement in Mr G’s life was in keeping with a consistent effort by the judge to take account of Mr G’s own expressed wishes; to balance his liberty and his safety, and to pragmatically trial possible ways forward on the basis of the evidence available to the court and in discussion with the parties involved about the options available at any particular time. 

• Second, by reporting on the way the issues were addressed in the hearing I hope to shed light on how the court operates and how decisions are reached in practice. There are multiple decisions relating to s.21A in the Court of Protection every week (some of which result in published judgments – but most do not). My aim here is to explore how evidence is teased out and options explored through the process of a hearing – a process which is hard to deduce from review of published judgments written up after a final decision has been made. 

The hearing 

Mr G has vascular dementia, frontal lobe damage and multiple health issues. He has been previously deemed to lack capacity in relation to residence and care and was (until very recently) detained, against his will, in a care home. (Some of the complex history of this case is outlined in previous blogs here, here, here, and here)

This latest hearing that I attended (on the 21^st October) was just one of half a dozen I’ve observed about Mr G over the last year or so

This was a hybrid hearing. The judge was present in court, as were Miss F, Mr G and counsel for Mr G via his litigation friend (Rosie Scott). (Note: Mr G  has been deemed to lack litigation capacity so instructions to his counsel come from the Official Solicitor (OS) – and the OS represents Mr G’s ‘best interests’ as opposed to him per se.)

Those who joined remotely included the witnesses and counsel for the Local Authority (Carol Knotts) and counsel for the NHS Trust (not named here as this would reveal the identity of the Trust, which is the subject matter of a transparency order).

This hearing opened with observations from the judge that the unanimous position of the professionals was that Mr G’s trial of living in the community (which commenced just a few weeks ago, on 15^th September 2021) had failed and he should be returned to residential care. 

But, the judge said that, informed by information gathering efforts the previous day, there was now a new option to consider: the option of (working towards) Mr G living with Miss F as it had become clear this is what both of them wanted. 

This had not been considered before as Mr G has previously been adamant that he wanted nothing to do with Miss F and there were professional concerns about contact in the past.

Prior to a 15-minute adjournment for counsel to take instructions the judge asked the parties to consider a brief return of Mr G to his previous care home (which now only had a place for him until the end of the month anyway) to help assess his best interests in relation to living with Miss F. The judge also wanted a new capacity assessment – and one which specifically addressed his capacity in relation to contact and relationships, and to consent to marriage.

After the brief adjournment for parties to consider their position, the hearing resumed and the court heard from two witnesses: first, the locality manager for the NHS Trust responsible for the District Nursing support for Mr G and, second, Mr G’s social worker.

First witness: NHS locality manager

The evidence from the NHS locality manager, and cross-questioning of her in court, revisited and drilled down into problems that had been discussed at previous hearings (going back to 2019 as well as what had been recorded more recently). There was a great deal of discussion of specific blood sugar readings, Mr G’s failure to cooperate with professionals attempting to monitor his insulin use, and problematic interactions with Mr G and/or Miss F which had led to district nurses either being advised to attend in pairs or not to go into premises to see Mr G at all.

The NHS locality manager was clear that district nurse involvement was of limited use because Mr G resented and resisted their efforts to monitor him. She took a positive view of the potential for a partner’s support to be more effective:

In terms of prompting and supervision, I suggest that could be done by his partner [and this would] reduce his anxiety and agitation…In a loving relationship you would do that as part of wanting [to] care from [for?* ] that person. [*Wording unclear, difficulty hearing due to feedback on this witness’s link]

Second witness: Mr G’s social worker

Mr G’s social worker (the second witness) was clearly troubled by questions that remained about the nature of the interactions between Mr G and Miss F. He testified that in September 2019, Mr G “expressed serious accusations against Miss F of emotional and financial abuse…he felt coercively controlled.” After a brief change of mind (which included apparently a plan to marry Miss F), Mr G had then reiterated these allegations:

“After a series of hospital admissions Mr G then repeated the most serious accusations against Miss F – not only around financial control, but also of physical abuse. He then went to [residential care] [in January 2020] as a place of safety at his own wish because he felt threatened and harassed by Miss F. And he has since then, until recently, said that he doesn’t want to have any contact with her.”

Mr G’s social worker faced a dilemma. He could, he said, either conclude that Mr G’s allegations against Miss F “have all not been true and they’ve been a diversion of his difficulties themselves”; or he could conclude “that there has been coercive control and Mr G’s decision to move back with Miss F is caused by his inability to recall the incidents which caused serious distress in the past.”

The social worker also asked: “What shall the Local Authority do should Mr G repeat any allegations against Miss F?” He went on to comment:

“I honestly can say that Miss F had tried very, very hard in very chaotic circumstances to care for Mr G in the community but at the same time, because Mr G was accessing alcohol at this time, and because Mr G was dependent on opiate medication, the conflicts between both became very volatile.”

Although the opiate medication issue seemed to be resolved, this witness was particularly concerned that alcohol might become a problem again (with all the knock-on effects this has) and he felt Miss F might be ‘over optimistic’ about this. 

Mr G’s social worker presented himself as torn about what might be in Mr G’s best interests. He felt that a temporary move back to residential care (against Mr G’s wishes) would cause huge distress. Also, in spite of question marks about their relationship, he saw some benefits of Miss F being able to support Mr G at home. This was because, for example, she would (as she has demonstrated in the past) be willing to call health services against Mr G’s wishes were he to required urgent medical attention. 

Responding to his social worker’s evidence Mr G reiterated the withdrawal of his allegations (“Miss F has never been any other than the greatest of support to me”) and Miss F herself asked why the serious allegations made about her had not been fully investigated. Miss F emphasised that “ I make myself open to any scrutiny”. The judge agreed that “you need, and I need, those allegations to be put to you squarely and to make findings on balance of probabilities about whether or not they are true”.

Initially the judge proposed trying to make findings about the allegations during this hearing. However, after a lunch break and an intervention from counsel for Mr G, that was agreed to be inappropriate course of action, as everyone needed time to prepare, and Miss F might want legal representation.

The rest of the court case revisited some reservations from different parties and reviewed possible ways forward. This included detailed discussion of the best way of getting another capacity assessment relevant to the current decisions to be made (and in a timely manner from someone Mr G and Miss F would have confidence in). 

There was also extensive questioning of Miss F about the ways in which she was prepared to support Mr G to eat well, avoid alcohol, monitor his diabetes, and whether, if necessary, she would involve emergency services. She confirmed she was committed to this. She declared that abstention from alcohol was a condition of their ongoing relationship and that, in relation to his medical state: “If I am to be criticised for being cavalier or over zealous – it would be over zealous”.

By the end of the hearing there was agreement from all parties about a strategy for assessing capacity and on a further trial of living in the community.

The judgment and future plans

HHJ Tindal ruled that it was in Mr G’s best interests to return to his flat with the support of Miss F and he could also visit Miss F at her home. In order to address outstanding concerns, the plan was that Miss F might be offered some training and that health information could be gathered by the health service remotely (e.g. Miss F supporting Mr G to provide photographs of his blood sugar readings to district nurses). There will also be regular ‘welfare checks’ directly with Mr G by phone.

Another hearing is scheduled for 20^th December 2021 by which time Miss F and Mr G will have had the opportunity to try out this arrangement for about two months. That hearing will determine (a) the facts in relation to the allegations against Miss F and (b) address the issue of residence, contact and capacity to marry based on a new expert capacity assessment. 

If arrangements around Mr G’s care break down in the meantime, the case could return to court for an emergency hearing. Judge Tindal emphasised that, in those circumstances, he would not be the judge to hear the case as he was committed elsewhere for the next few weeks. 

I do hope Mr G’s case does not come back before the Court of Protection again until HHJ Tindal returns.

Jenny Kitzinger is a Professor in the School of Journalism, Media and Culture at Cardiff University, where she also co-directs (with Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre. She tweets @JennyKitzinger