By Jenny Kitzinger, 17th January 2022
The hearing I observed on 20th December 2021 (Case 13382192) concerned Mr G, a 64-year-old man who has vascular dementia, Korsakoff Syndrome, and frontal lobe damage. He also has problems with diabetes and alcohol use, and previously had an opiate addiction, from which he has since recovered.
The hearing was to determine where he should live.
At the time of this hearing, Mr G was living partly in his own flat and partly with his partner, Miss F. The two had originally met and moved in together in 2016 but their relationship had broken down and, in January 2020, after making serious allegations against her, he had moved into a care home and broken off all contact with her. However, he had re-established a connection with Miss F during a trial of returning to live in the community that had started in September 2021. He had also withdrawn all his allegations.
The focus, most of the time in this hearing, was on the allegations against Miss F. They included allegations of physical and financial abuse and coercive control, and an allegation that she’d deliberately administered an insulin overdose when she visited him in hospital. There were also reports of her being obstructive and hostile to healthcare professionals trying to support Mr G.
My interest in this hearing was two-pronged.
On the one hand, I have a longstanding interest in how to investigate the abuse that happens ‘behind closed doors’. In the 1980s I was involved in setting up one of the first UK refuges for girls needing to escape sexual abuse at home and I wrote a book about how child sexual abuse is reported and understood: “Framing Abuse”. There is, of course, also extensive research showing that abuse by carers (paid or unpaid) is a serious, and often hidden, problem (currently the subject of a government review).
On the other hand, I am concerned with how family members, perhaps struggling to care as best they can with inadequate support, may sometimes be wrongly, inappropriately or precipitously characterised as neglectful, or suspected of being abusive, with a move to institutional care seen then as an obviously better option.
In addition I’m interested in how conflict between family members and social care staff or health care staff may be framed by professionals and recorded in social and healthcare records. In my experience, family members who have views about a person’s treatment which strongly differ from those of healthcare professionals may sometimes be framed as unreasonable, aggressive or not having their relative’s best interests at heart.
As the sister of an individual with profound neurological injuries, and through my links with other families in this situation, I know how relatives can feel subject to negative stereotyping. In my own sister’s medical notes, I discovered I had been labelled: ’difficult’ and ‘vociferous’ and criticised for being ‘obsessed’ with the Mental Capacity Act and the Court of Protection and for ‘writing letters+++ to consultant’.
I was therefore fascinated to see how Miss F’s conflict with the healthcare professionals might be addressed in this hearing and the way in which the specific allegations around her treatment of Mr G would be investigated.
I also felt very invested in this case as I’d been following the ins and outs of proceedings about Mr G for almost a year and a half.
Outline of the hearing
The central question (where Mr G should live) had been considered at over half a dozen previous hearings because Mr G has been and remains adamant in rejecting residential care.
At various times over the protracted proceedings there seemed some hope that, with the right support in place (including from Miss F), he might be able to live long term ‘in the community’. (See my previous blogs here, here, here, here and here)
The December 2021 hearing reported in this blog was basically a ‘fact finding exercise’ to address the concerns about Miss F, alongside reviewing how his trial placement back in the community had gone, prior to making a final decision about residence and care.
The hearing was before HHJ Tindal at Worcester Combined Court and was a hybrid hearing.
Three barristers were present: one representing Mr G via the Official Solicitor, another representing the NHS Trust and a third representing the Local Authority.
Miss F attended remotely as a Litigant in Person. She had intended to be in the courtroom in person but because Mr G was unwell, she had to connect from home.
Mr G was present for most of the hearing in so far as he was visible lying in bed behind Miss F. He made occasional interjections, and on a few occasions got up and walked out of the room. By and large, he declined to contribute formally to proceedings apart from making one statement: “My position is simply that I want to live with [Miss F]. I want to share my life with her”.
Miss F had been presented with a “schedule of allegations” and at the start of the hearing these were read out to her by the judge.
Evidence in support of the allegations was then presented (mainly by the barrister representing the Local Authority, Carol Knotts) and Miss F was invited to respond and was questioned about them.
The Court of Protection is not a criminal court so although it may make findings about behaviours which can include criminal behaviours (such as physical abuse or coercive control), the standard of proof is on the “balance of probabilities”, rather than “beyond all reasonable doubt”. There is no criminal conviction for the person against whom such findings have been made, but CoP judges can use such findings to protect people who lack capacity to make their own decisions from abusive relationships. They might, for example, issue an injunction to prevent contact with the protected party.
Two recent examples are:
- A County Council v LW and another  EWCOP 50, a case concerning LW, a 60 year-old woman with mental health problems. In his judgment Mr Justice Hayden summarised LW’s relationship with her partner, MG, as “abusive, exploitative, coercive and wholly inimical to LW’s welfare”. MG’s behaviours were manipulative and included a “sadistic component” [para 5]
- BU, Re  EWCOP 54, a case concerning BU, a 70 year old woman with dementia. In her judgment about BU’s partner, NC, Mrs Justice Roberts highlighted the “corrosive and coercive nature of the control which I find NC to have exercised over her” [para 89] and found “him to have engaged on a deliberate and calculated attempt to subvert any independent decision-making on BU’s part” and to take control of her finances. [para 91]
In both cases steps were taken to prevent contact and also to protect P from entering into a forced or coerced marriage or civil partnership with their abuser.
In the cases cited above, the case was explicitly focused on the abuse (and the application to court was made for that reason, by the County Council in the first example, and by BU’s daughter in the second).
However, questions about the behaviour of a partner (or other family member) may emerge as part of any hearing.
For example another blog published by the Open Justice Court of Protection Project describes a case where the local authority decided to remove an eighteen year-old from her family and place her in residential care in spite of family protests. This young woman (P) has profound learning disability and cerebral palsy; the local authority’s concerns about her welfare at home included alleged:
“…. exposure to physical aggression (from the mother’s partner towards the mother), missed medical and dental appointments, dental decay, the mother (Ms X) not providing P with prescribed medications […], not following advice about the need for P to wear her back brace, allegations that she was putting P at risk of choking because she won’t use a blender to puree food, and in other ways “wilfully ignoring” the advice of professionals, and behaving “aggressively” towards care staff. “
Background to Miss F and Mr G’s relationship and an overview of allegations
The allegations presented in court against Miss F gave a clear and compelling picture of the concerns which reflected and/or informed social and healthcare professionals’ approach to Mr G’s best interests.
It seems that Miss F met Mr G in July of 2016 and he had moved in with her by the following month (August 2016). He was in difficult circumstances, and out of control of his own life (he may have been homeless at this point). However, he was about to turn 60, and became eligible for his pension payout very soon after moving in with her. As he’d previously had a high-flying career in finance, this was a very large pension and, with Miss F’s help in tracing his assets, Mr G was also able to locate and access an overseas account he had previously set up.
In August 2018, Mr G started to make allegations against Miss F to the professionals involved in supporting him – and he repeated and expanded upon them over the following months.
He accused Miss F of taking £40,000 from him and trying to control his finances. On top of this, he accused her of coercive control of his medication (he was addicted to opiates). A district nurses recorded his statement that Miss F would “give him an extra pill if he was good or well behaved”.
After a series of hospital admissions Mr G also made allegations of physical abuse and, in January 2020, he opted to go into residential care “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.” (Testimony from Mr G’s social worker from hearing 21st Sept 2021)
It was not only the accusations from Mr G himself that alarmed social work and healthcare professionals. Professionals reported overhearing interactions with Mr G which caused concern e.g. an incident when she was heard to “scream and shout at him” after a phone call (where the phone was not disconnected after the call) and another where a GP’s receptionist was alarmed by the way in which Miss F spoke to Mr G apparently putting pressure on him to sign a consent form.
Miss F’s interactions with the professionals themselves also raised red flags. There were reports of her trying to gain access to his medical records, for example, verbal aggression, confrontational behaviours and staff feeling she was obstructing them from doing their job.
There was also, of course, the incident when Miss F gave Mr G the alleged ‘overdose’ of insulin. He was in hospital at the time and his diabetes medication was being determined by the medical team there. When Miss F became concerned about Mr G’s blood sugar levels and was unable to persuade the hospital to provide him with more insulin (over a weekend). She went ahead and gave him insulin herself, informing the medical team on the Monday. They called the police – she was arrested and bailed pending investigation (but never charged).
During this December hearing, additional evidence presented to the court included the fact that Miss F had been arrested for shoplifting just after she met Mr G: this was used to suggest she must have been short of money, hence raising concerns about her involvement with him more broadly.
An examination of Mr G’s finances also revealed a series of large cheques signed by Mr G, but where the payee was added in Miss F’s handwriting (although the total amount of potentially ‘suspect’ transactions came to only 13K, not the 40K that Mr G had originally accused her of taking).
Mr G withdraws his allegations
The original source of concern, and the strongest evidence for most of the allegations against Miss F, had originally been Mr G himself.
However, two months before this hearing, Mr G had withdrawn all his allegations against Miss F. (This was when he was back living in the community and his long-term prospects for staying there were under consideration – and Miss F was offering her support.)
This left the relevant professionals uncertain about how to understand his position. As his social worker carefully commented, he could 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”.
It became important to have a fact-finding exercise in court about the allegations against Miss F – both for her own sake (she was keen to have the accusations scrutinised) and for future planning about Mr G’s care.
Cross-examining Miss F
The question of legal representation
There seems to have been some confusion about whether or not Miss F might be eligible for legal aid for the December hearing, and she’d been unable to access independent legal advice and representation. Early on in the hearing she commented that “In the absence of advocacy I was intending on coming and refusing to answer any of these allegations against me because it is inequitable that I’m the only person who’s not represented”. HHJ Tindal responded that “These allegations have been hanging over your head for over 2 years in some case 3 years” and he was clear that “If I take the view that I am minded to make serious findings against you …I could adjourn to enable you to get legal advice”
The focus on specific allegations
There were 13 allegations against Miss F, 8 of which focussed on her treatment of Mr G and 5 of which concerned her interactions with social and healthcare professionals. Clear direction was given by the judge about the focus of cross examination. It should, he said, focus on the allegations about her conduct towards Mr G rather than the allegations about her behaviour towards staff. This was “Not because it’s not important how Miss F speaks to professionals but that it is clear Miss F speaks her mind and professionals on occasion find that quite challenging.”
The style of cross questioning
The style of questioning of Miss F by the barrister for the Local Authority was much more confrontational than anything I’d seen before in the court (at least in relation to a lay person). I also noted that Miss F was rather good at holding her own.
The following exchange, for example, about the insulin incident is typical of the type of interaction during the cross-questioning.
Carol Knotts: Let’s deal with the issue of the insulin, because you were
arrested by the police, weren’t you?
Miss F: Yes.
Carol Knotts: You admitted to one of the nurses that you had given Mr G
Miss F: I didn’t ‘admit’ it, I volunteered that insulin had been supplied
to Mr G – because I didn’t want the nurses to think doing
nothing had lowered his blood sugar. Only an idiot would leave
a Type 1 diabetic’s blood sugars running at 21.5 […]
Carol Knotts: You didn’t inform the staff immediately after it had happened?
Miss F: No. They’d told me they were not going to give him anything
and there wasn’t a prescribing physician until the next day.
They were reckless in not giving him insulin
Carol Knotts: What you did put him at risk didn’t it?
Miss F: Rubbish. It did not.
There was another sharp exchange concerning the time Miss F had shoplifted.
Carol Knotts: At the time he moved in, you were clearly short of money.
Miss F: No. I had 5K savings ready to install a new kitchen.
Carol Knotts: The police record (on page 57) shows that on 8th September
2016 you were arrested for an offence of shoplifting (which
occurred on the 15th August.)
Miss F: You are assuming that was because of I was short of money.
Carol Knotts: You pleaded guilty.
Miss F: This matter has been dealt with. You are wrong in your
assumption that I couldn’t afford to pay for it.
Carol Knotts: Why take it?
Miss F: I refuse to answer your question. You may infer.
Miss F’s evidence
When Miss F did offer explanations and answer questions, a very different picture emerged from the picture presented by the Local Authority.
Regarding ‘financial abuse’, for example, a great deal of time was spent going through copies of a series of cheques – all of which benefitted Miss F, and where the payee was in her handwriting, although the signature was Mr G’s. Most of the cheques appeared to be for Miss F’s mortgage. Miss F argued that this was simply a reflection of normal exchanges between a couple, based on an informal agreement between them, complicated by Mr G’s illnesses. Mr G had moved into Miss F’s home and she’d given up her job to care for him and he’d agreed to contribute financially to their shared living arrangements. Then there was a “a terribly chaotic period” after Mr G had had a stroke, “with lots of mortgage payments unpaid that he’d previously agreed to make”. Miss F had been served with an eviction date in early 2019 after making no mortgage payments through 2018 she said. It was at this point that one of the most problematic cheques was signed, when a friend of Miss F’s went into the hospital and returned with a cheque signed by Mr G while he was very ill indeed (I think the implication was that he was very unlikely to have had the capacity to make a financial decision regarding signing the check at this point).
Regarding the alleged abusive behaviour toward Mr G, Miss F was clear that all the behaviour described was motivated by her concern for him. Her expressions of anger at Mr G were when she was at the end of her tether with his self-sabotaging behaviour or distressed about his state. The incident when she threw a pan (and it broke a window) in her home was not an attempt to harm him (“I didn’t aim it at him. I’ve never injured him in any way”). She countered that he had injured her in the past: “During summer of 2018 – I had to hide in the lavatory; he’d cut my hands where he tried to wrest the car keys out of my hand”. (This was one point at which Mr G interjected, protesting that this allegation against him was ‘Absolute rubbish!’)
Incursions such as trying to gain access to his medical records were not actions taken against his will, but reflected her support role, and the need to be proactive when he was in no fit state to take the initiative.
Behaviour presented as evidence of harassment and attempts at coercive control by the Local Authority were similarly seen in a very different light by Miss F. Contacting Mr G in breach of bail conditions (following the insulin incident) was motivated by the knowledge that Mr G needed her – his mother had died and he had absolutely no support in organising the funeral, so “I did it in support of him”. Repeated phone calls, that he might see as harassing, were driven by her desire to ensure he was okay.
Miss Knotts: On the 29thJanuary, he’s complaining that you are harassing
him, He showed [a healthcare professional] 43 missed calls
to him from you.
Miss F: I’d make 103 calls if I couldn’t have access to him. I was
trying to find out how he was and where he was.
Regarding allegations of abusive behaviour toward professionals, Miss F was equally confident in refuting them. So called ‘aggression’ at professionals was justified frustration when they had done their jobs poorly (such as the GP who had, she said, ‘recklessly’ prescribed several weeks’ worth of opiates, breaching the arrangement whereby Mr G’s access was meant to be strictly controlled).
In relation to Mr G’s own allegation against her she argued that Mr G confabulated at times and deliberately deflected his own responsibility or was kicking against her efforts to support him or to control his addiction:
“What you are observing is a consistent drug seeking behaviour…And I am the whipping boy for this”.
Mr G, she argued, invented his own reality and there were times when “Mr G would say black was white if he thought it was of benefit to him”. In relation to the suggestion that she used medication to control Mr G, she reflected that at one point Mr G had told her he could “get me into a lot of trouble” and that he was sometimes angry with her because she was the only thing that stood between him and his addiction. His illness could make him manipulative, and indeed, led him to want to resist or punish her.
Miss F concluded: “My conscience is clear, my memory is clear, I’ve never done anything to cause Mr G harm, physically or psychologically, or pharmaceutically.
She retained her composure throughout what must have been difficult cross-questioning, and became a little weepy only towards the end of the hearing, commenting:
“I apologise for my loss of composure (weeping) I was told by Mr G: ‘I’ll tell you about tomorrow. You are the one in the dock’…I reiterate I’ve never done anything…but try to promote his health and wellbeing and restore him to his good health that had been lost and indeed his standing in the community.”
The judge’s conclusion
The barrister for the Local Authority made a closing statement – reiterating key evidence against Miss F and characterising some of the explanations offered by her as “unsatisfactory” and stating ”It is obvious we are not getting the full story”.
The judge then rounded off this part of the fact finding by saying he was grateful to the local authority for preparing the bundle of evidence and the schedule of allegations. He acknowledged that the Local Authority had quite properly taken great care in relation to these allegations and to ensure safeguarding.
He then highlighted that this had been the first opportunity Miss F had had to respond to the allegations against her and stated that:
“I found her evidence, detailed, compelling and honest… In my judgment, whilst there are findings to be made, they are relatively modest and moderate findings, unlikely to have any long-term bearing on my decision in the case”
The judge said he could entirely understand the Local Authority’s concern that Miss F had pleaded guilty to shoplifting just before Mr G moved in with her. He was, however, satisfied that it was not indicative of her financial difficulties at the time. He accepted that the arrangement for Mr G to pay Miss F’s mortgage was an agreement that had been made between them as a couple. Although some of the cheques were concerning, especially those signed by him when he was very ill, “this was not a case of financial abuse”.
In relation to the overdose of insulin, HHJ Tindal accepted that it had been done with good intent rather than with the aim of harming Mr G and noted that “It could have caused significant harm to Mr G – but all the evidence I have seen is that it brought down his blood levels to a safer level”.
In relation to allegations of abusive behaviour he accepted Miss F’s account of the pan-throwing incident and “I am satisfied that at times when professionals have heard Miss F expressing her frustration and anger at Mr G that is a natural human reaction of someone dedicated to caring for someone not easy to care for”.
Regarding “aggressive” behaviour towards professionals HHJ Tindal noted that Miss F has “consistently been very blunt and straightforward to the point of disrespectful to some of the professionals”. Miss F, he went on to say, “is not someone who respects a professional because they are a professional. As a consequence, more than one professional has been at the receiving end of Miss F’s frank views. That is not a safeguarding issue – it reflects that Miss F felt she had to make clear her concerns”.
HHJ Tindal’s noted that once the narrative had been established in relation to Miss F being “the problem’ (a narrative established by Mr G), “that is a narrative that the professionals took on board.” He observed that:
“I am satisfied that Mr G has complained about Miss F to professionals which reflected his resentment at the time towards Miss F for controlling his life… Whenever Mr G doesn’t like not just Miss F but also professionals seeking to restrict his freedoms, he complains about all of them”
”I exonerate Miss F from the allegations that she has faced and will proceed on this basis that none of the allegations against her have been substantiated.”
I found the ‘fact finding’ process followed for this case detailed and ultimately reassuring.
On the one hand the Court systematically addressed concerns about Miss F and additional evidence was sought out for the hearing (such as the investigation into the cheques). It was clearly important to seek evidence regardless of Mr G’s withdrawal of his allegations against her and to cross-question Miss F robustly. Such processes are key to protecting people from coercive control in particular.
On the other hand the Court process ensured that Miss F knew the allegations against her and could respond to them. The judge also clearly acknowledged how professional narratives might form a bias against family carers who are “blunt and straightforward”.
The fact-finding process meant that, going forward, best interests decisions could be made with a clearer understanding of Miss F’s behaviour towards Mr G. It was also important in light of the fact that both have talked in court about plans to marry (and both have capacity to marry).
The fact-finding process took the first 3.5 hours of this court hearing. The remaining time focussed on whether or not Mr G should be returned to the care home. This decision did not take very long. My next blog will explain what happened, and what conclusion was reached.
Jenny Kitzinger is Professor of Communications Research at Cardiff School of Journalism, Media and Culture. She also co-directs (with Professor Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre and runs online training for healthcare professionals about law and ethics. She tweets @JennyKitzinger