By Celia Kitzinger, 1 March 2022
Ms C says she hates where she lives – in a residential care home (I’ll call it“Beech House”). She has said so “loudly”.
She expressed her “strongly held feelings” directly to the judge when he met with her on 25th January 2022. Throughout that meeting she maintained, in strong terms, that she does not wish to remain at Beech House and that she wants to move to a home of her own in the countryside.
The court has just decided, at a hearing I observed on 3rd February 2022 (COP 1002630T, before HHJ Farquhar at Brighton County Court) that she’ll be staying at Beech House for the foreseeable future.
It’s not that unusual for the court to make decisions that run counter to the wishes and feelings of the person at the centre of the case. An oft-quoted judgment by Mr Justice Mumby (Re M: ITW v Z  EWHC 2525 (Fam)) was cited in this case in relation to the decision:
“… in considering the weight and importance to be attached to P’s wishes and feelings the court must, of course… have regard to all the relevant circumstances… [including] […]
(d) the extent to which P’s wishes and feelings are, or are not, rational, sensible, responsible and pragmatically capable of sensible implementation in the particular circumstances; and
(e) crucially, the extent to which P’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is in her best interests”
It was submitted by the CCG (represented by Eliza Sharron, that Ms C’s wishes are “not capable of being given effect to, within the context of her best interests”.
Counsel for P (Oliver Woolley, instructed via her litigation friend the Official Solicitor) agreed – with the caveat that “the Official Solicitor is fully cognisant of the importance of [Ms C’s] ascertainable wishes and feelings and the conclusion reached by the Official Solicitor has as a result not been reached without a degree of hesitation”.
This is another clear example of the tension between P’s wishes and feelings and the position advocated on P’s behalf.
It is routine practice for the litigation friend in the Court of Protection not to represent P in any conventional legal sense but to instead identify and relay P’s wishes and feelings, investigate and assess the available options, and present what the litigation friend considers to be in P’s best interests.
“Ordinarily, a lawyer who submitted entirely the opposite of what she knew her client to wish would face, at best, professional sanctions, and at worst, a claim for negligence. In the Court of Protection, however, current practice would tend to suggest that there are circumstances where the lawyer must indeed argue against their client’s wishes. It is ironic and is (or should be) a cause for concern that they are doing so in relation to the most vulnerable of clients, and do so on the basis of instructions given by a person – a ‘litigation friend’ – contending that they are acting in the best interests of the individual concerned.” (Litigation friends or foes? Representation of P before the Court of Protection, by Alex Ruck Keene, Peter Bartlett and Neal Allen)
The practice of P’s litigation friend advancing something contrary to P’s wishes is unremarkable in the Court of Protection
What really stood out in this case was the approach taken communicating the decision to Ms C (who was not in court for the hearing).
Ms C is in her 40s with cognitive impairment caused by an acquired brain injury in 1996. She also has a diagnosis of organic mood disorder and engages in “emotionally dysregulated behaviour”.
There’s agreement between the parties that she lacks capacity to make her own decisions about residence and care: this means that the ‘capacity’ qualifying requirement for the s.21A standard authorisation for deprivation of liberty is met.
The parties also agree that the ‘best interests’ qualifying requirement is met. Their view is that, given the options available to her (basically there aren’t any alternative placements on offer that will meet her needs), it’s in her best interests – despite her wishes and feelings – to stay where she is.
Ms C has been in Beech House since February 2020, following the breakdown of a whole series of previous residential and community-based placements.
When she was living in a supported living bungalow with 2:1 support, she made threats to staff and threats of self-harm. These incidents led to her being admitted to hospital and the provider served notice.
She was then admitted to Beech House on an emergency basis, on what was supposed to be an interim placement while somewhere more suitable was identified – and she’s been there ever since.
The problem is that, after a long search (proceedings have been ongoing for almost 3 years), no alternative viable options are available that will meet Ms C’s needs.
Although a number of different types of placement have been explored, the independent social worker, Mark Caulfield, who acted as the court-instructed joint expert, came to the conclusion that it was in Ms C’s best interests to remain at Beech House.
In part, this is because the level of care she’d need in a supported living or community-based placement would in fact be more restrictive than at Beech House. She currently has 1:1 care and carers are (as counsel for Ms C put it) “able to step back when not needed”. It seems agreed that she’d need 2:1 care if she were to live in the community, and she’s previously described that level of care as feeling “like a prison”.
She also seems to have “settled to a degree” in her current home. She’s expressed “shifting” views about it, and is “happy with some elements of the care environment, whilst expressing frustration with others”. The expert considered it likely that Ms C would “express some level of unhappiness about any package of care and support that would meet her level of need”.
He recommended that she should remain at Beech House but that steps should be taken to support her with more activities, including art sessions, physiotherapy, and a gardening group starting up in the late Spring (all of which the CCG has agreed to fund).
When she moved into Beech House, she brought very few of her own possessions with her (it was supposed to be an interim arrangement) and most of her things are in storage. She’s now being helped to access the storage facilities and sort out what she wants to keep.
The parties agree with the expert that “it is currently in Ms C’s best interests to remain living at [Beech House], given the failure of the community-based models that have been attempted previously”. They think she might make progress and potentially move to independent living in the future, but that will take sustained professional input over some years – of the type available to her at Beech House.
The Official Solicitor endorsed the view of one of the CCG witnesses:
“Having tried a range of community-based models for [Ms C] in the recent past without success, it is the CCG’s view that the best chance of [Ms C] making meaningful progress over the long term, with a view to attaining some of those goals, including potentially moving to independent living, is at [Beech House] where she has access to a range of outside professional input that will be available to her there in a stable environment.”
In the end, he said, there are no other options available, and Beech House is appropriately meeting Ms C’s needs. Ending these long-running proceedings is also in her best interests (he said), as “although it is not the decision that [Ms C] would have wished for, it will at least provide certainty as to her arrangements moving forward”.
All this seems to have been agreed between the CCG and the Official Solicitor back in December 2021, at what was anticipated to be a final hearing.
But before a final decision was made by the court, the parties agreed that consideration would need to be given about how best to inform Ms C of the outcome. The Official Solicitor also requested that Ms C be given the opportunity of meeting with the judge, so that she could express her wishes and feelings directly to him.
At the hearing I watched on 3rd February 2022, the CCG invited the court “to determine these long running proceedings, based on the fact that the qualifying requirements are met”. It was, said Eliza Sharron, “effectively an agreed order that could be dealt with on the papers, but seeing that it’s clearly against the wishes of Ms C, it was important that the issues should be set out in a hearing in a public setting. It doesn’t need to look rubber-stamped.”
The judge approved the order, acknowledging that: “everyone knows that this decision is not what she wanted; she’s made that very clear to everyone who wanted to hear it and lots of people who probably didn’t want to hear it.” He was, he said:
“… satisfied the criteria are met in terms of capacity and best interests and so I’m left with the position – and I’m not going to say ‘unfortunate’ position, because I am satisfied this is in her best interests, and so although I know it’s not what she wants, that’s only one factor I have to take into account. I approve the order in full. I hope things go well.”
Communicating the decision to Ms C
So, having had a bit more than month to consider how best to communicate to Ms C the unwelcome news that she would be remaining in Beech House, here’s what the team came up with (having consulted widely with those caring for her). This approach is formally documented in a lengthy recital to the order made by the judge.
- Representatives of the CCG will inform Ms C of the outcome after the court has made a final determination by meeting Ms C in person in the conference room at Beech House
- They’ll commission additional support for Ms C in the event that the court decision triggers distress and very challenging behaviour
- The CCG will provide an easy read document to Ms C during the meeting (covering the points set out in a document annexed to the final order) – but will mainly discuss the outcome with her 1:1 and answer any questions she may have.
- It was not proposed that a social story be developed, because it was believed that this could cause further distress and confusion to Ms C.
- Once Ms C has been informed of the decision by the CCG, her solicitor will make contact to consider the appropriate timeframe for a final visit to speak with Ms C (to try to ensure that she’s not too distressed at the time of that visit)
- The same information (from the easy-read document) will be used by all professionals when informing Ms C of the decision.
The “essential contents of easy-read document” attached to the order are:
- That there was been a court case all about Ms C, and where she should live in the future
- A Judge has been asked to decide where Ms C should live, because everyone thinks that she cannot make the decision for herself because of her brain injury
- Ms C has solicitors [names redacted] who come to visit Ms C and meet with her on video to find out what Ms C wants.
- The judge has met with Ms C and listened to what Ms C wants for her life. Ms C has been clear that she does not want to remain at [Beech House].
- The judge has also listened to what her case manager [name redacted] and independent expert professionals think is best for her.
- Ms C has been having some input into her mental health and is being seen by new professionals. Everyone is pleased at the progress Ms C is making.
- The Judge thinks that Ms C is well cared for and is receiving the care she needs and thinks she should stay at [Beech House] for now.
- Everyone hopes that Ms C will make enough progress to live more independently in the future.
- The Judge has made a decision in Ms C’s best interests that Ms C should continue to live at [Beech House]
- Everyone knows that this is not the one that Ms C wanted. It is okay to feel upset and angry about the decision. Ms C can ask questions about the decision. She can talk to staff about how the decision makes her feel.
- Ms C’s court case will come to an end, but Ms C will continue to be seen by her case manager [name redacted], and her RPR [name redacted]. Although Ms C’s court case has come to an end, she may be able to make an application to court in the future if there is an actual alternative option for the Judge to consider. She should speak to her RPR about this in the first instance.
I haven’t seen the easy-read document itself, and I don’t know how well – or how badly – Ms C took the news, but I was impressed by the care taken over how to inform her.
Georgina Byrne, a solicitor at Macintosh Law, acted for P in this case. She says:
“A difficult decision for the judge, but ultimately the right one. It is always difficult to manage a P’s expectations throughout a case, and particularly so when it is unlikely that the court will be able to endorse their strong wishes. Careful and delicate consideration of how best to inform P of the outcome of their challenge is essential and it was certainly worth the extra time spent. P understandably didn’t take the news well, but we’ve tried to make sure that she has the support in place for her to try to process the decision“
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
Photo by Clare Tallamy on Unsplash