By Celia Kitzinger and Anna (Daughter of P), 9th May 2022
Anna (not her real name) contacted the Open Justice Court of Protection Project towards the end of April 2022, saying that she’d been asked to attend a s. 21A directions hearing about her mother (in a care home, with Alzheimer’s) and was finding the Court of Protection process “opaque”. She didn’t know how it was possible for her mother to have made an application to court given that her mother knows nothing about it, or what her own role as a daughter was supposed to be (as “interested person” or “party” – what’s the difference?). When asking for information from the lawyers representing her mother, she’d been told to seek independent legal advice. Could she watch a Court of Protection hearing, she asked, and see for herself what was involved.
Fortunately, there are lots of s.21A hearings to choose from in the Court of Protection, although only First Avenue House London and the Newcastle hub routinely include this descriptor in the listings.
I offered to observe with Anna, so that we could discuss it afterwards.
On the day we’d chosen to observe a hearing, there was one before District Judge Beckley (at First Avenue House), listed like this:
3rd May 2022. 10:30am District Judge Beckley
COP13744224 T v London Borough of Hillingdon
Section 21A Deprivation of Liberty, Decisions relating to P’s care and residence
TO BE HEARD REMOTELY
PRIVATE HEARING NOT OPEN TO THE PUBLIC
Time estimate 2 hours
I’ll give a summary of the case, and describe what happened in court and my views of the hearing and then Anna will describe her impressions of the Court of Protection, based on her observation, relating it to her own experience..
The hearing – Celia
The hearing began with the judge restating that the hearing was “private” (as listed) but that the rules permit him to admit observers and to specify that there is no contempt of court if we report the proceedings so long as nothing is published that discloses the identity of the person at the centre of the case, where they live, or those caring for them. (This is an approach to remote hearings that seems to be adopted uniquely by judges at First Avenue House: judges at every other Regional Hub simply disapply Practice Direction 4C, make the hearing ‘public’, and issue a Transparency Order.)
It concerns a woman in her early nineties who has dementia and diabetes. She has no contact with remaining family members, but is supported by a long-term friend (M) who – like T– is not a first-language English speaker.
Importantly, M holds Lasting Power of Attorney for both Health and Welfare and for Property and Finance. (There’s a very helpful blog post by Alex Ruck Keene on “Powers of attorney, care homes, best interests and deprivation of liberty”, which covers the legal issues concerning deprivation of liberty when the protected party has a attorney.)
Until August 2020, T lived in her own flat. After hospital treatment, she agreed to be discharged from hospital to a care home to see if she would like it.
It turns out she did not, and she started asking to go home within a few weeks.
Her attorney (M) approached the local authority on 8th December 2020 to explain that T would like to return home.
Court of Protection proceedings were issued a few months later, on 22nd April 2021. (I don’t know why it took nearly five months to issue proceedings)
It’s now more than a year since proceedings were issued.
According to counsel for T, it’s been confirmed that T’s flat is suitable for her to return to and M has identified a suitable live-in carer, but “very little has happened to progress a trial return home or to consider any other options for T”.
Counsel for T said that, “the return home was considered feasible quite some time ago. The difficulty turns largely on funding issues”. Later she said, “It’s a terrible tragedy that one of those rare cases where a return home is a feasible action is being hampered by funding issues”.
As I understand it, the issue is that since T was found ineligible for Continuing Healthcare Funding, she’s been considered a “self-funding” resident at the care home, with M having commissioned her placement. She now owes tens of thousands of pounds for the care she’s received at the care home she doesn’t want to be in, and has “exhausted her liquid assets”. Her flat (since she’s not living in it and it is mortgage-free) is considered by the local authority to be a capital asset from which she is expected to fund her own care (e.g. by selling it or via equity release).
Counsel for T challenged this characterization, saying that T is a temporary resident of the care home, who intends to return home, and as such her home must be disregarded in any assessment of her assets.
“She was placed there by the NHS as a means of getting her out of hospital. Nobody chose this placement for her. She was put there for an assessment and then left there. It was a short-term expedient in which she’s got trapped by some Kafkaesque nightmare”.
The position taken by counsel for T is that, given the circumstances, T should not have to fund her care, but that in any case “at this stage the most important thing it to get the trial at home done, and if it doesn’t work out, then it will be straightforward as the flat will have to be sold”.
If the trial of living at home is successful, however, there will be an issue of how her care at home will be funded – at least after the first month, which the local authority has now agreed to fund, on a trial basis.
The right to a “speedy” decision
Schedule A1 of the Mental Capacity Act 2005 was drafted so as to meet the requirements of Article 5(4) of the European Convention on Human Rights.
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” (European Convention on Human Rights)
Section 21A is supposed to provide the detained person with the means of obtaining that speedy review – but in practice (at least in my experience of watching s.21A hearings) it could rarely be called “speedy” (see: Inspired by Bournewood: A s.21A challenge and delay in the court and Delay in a s.21A challenge to the capacity requirement).
In this case, says counsel for T, “despite no less than 5 sets of directions having been given by the court, T has not had a speedy review of her detention in circumstances where it is entirely possible that she could have returned home some time ago”.
Concerns about quality of care
Not only is there a concern about delay, but also the quality of care she’s received at the care home has caused serious concern to her friend and attorney (M) and to her legal representatives.
Nobody at the care home speaks T’s native language. There have been problems relating to hearing aids, dentures, spectacles, and T has sustained serious injuries in two falls at the care home. M reports that T’s swollen legs are not elevated as they should be and that T has sometimes been left in dirty clothes, without having had her hair done. She says T is very sad.
Counsel for the local authority (Thomas Boden) made clear that the local authority does not accept these concerns and there is no evidence of safeguarding issues.
“It is disingenuous,” said counsel for T, “for the local authority to say there were no safeguarding issues, when it decided not to undertake an investigation”.
How the judge engaged with the problems: time and money
The judge maintained a firm focus on ensuring that T gets a trial of living at home as soon as possible. He addressed the practical steps required in pursuit of that aim. He made no findings of fact regarding the quality of care at the home, nor did he pursue the matter of alternative care homes.
He set up quite a tight timetable by which the local authority and clinical commissioning group need to provide specified information, including a care plan and transition plan, detail about how T’s diabetes will be managed at home, and issues relating to a problem with entering and leaving the flat now that T’s mobility has declined (there are steps). The local authority asked for 21 days (“due to work load capacity and time available to staff”) but were granted only 14 days to provide information – with a requirement that “a senior officer within social services” must provide an explanation to the court if this direction is not complied with.
The judge decided against an order (proposed by counsel for T) that an social worker should be appointed to urgently seek another care home for T because “I don’t want to derail our planning for a return home by talking about alternative care homes”. I got the impression that he very much ‘cut to the chase’ of the issue, which was to get T home as swiftly as possible.
This was so even though the local authority will not keep her place at the care home open to cover the eventuality of the trial of living at home failing.
Acknowledging that nobody can order the local authority to reserve T’s place, counsel for T arrived at the view that “if that results in her going to a different care home, maybe that’s a good thing”.
It is not within the power of the judge to order the local authority to keep the placement open, but counsel for the local authority indicated that it would be within the judge’s powers to direct the attorney to do so (i.e. M). Presumably this would mean that M would have to pay the care home charges (out of T’s assets) for the month-long trial while T is living at home.
Counsel for T reacted to this suggestion with exasperation: “M has exhausted all T’s liquid assets. You can’t direct the attorney to do something that can’t be done.”
“If there were sufficient funds”, said the judge, “that would be a practical option, but if there’s no funding available for M to do that, it’s not a realistic option for me. If the money’s not available, I can’t order her to do that”.
Counsel for the local authority then asked the judge to order M to set out the funding position under different scenarios.
Counsel for T responded with incredulity. “We’ve been around this loop at the RTM [Round Table Meeting] on Friday…. M is a longstanding friend, doing a sterling job of supporting T in the face of circumstances where I think a lot of people would have given up. She’s not an expert, she’s got no financial training, she’s not legally represented. It simply isn’t right to try to ask M to go and obtain financial advice and legal advice and then second guess the outcome of the local authority’s decisions…. At this stage the most important thing is to get the trial at home done”.
The judge declined to make any such order.
The judge said he would need to “squeeze in a hearing outside of normal times” to ensure this case was heard in a timely fashion. It’s listed for a next hearing at 9.30am on 7th July 2022 (as a remote hearing). There was also a deadline set for filing a COP 9 form, setting out when the trial at home is going to take place- and if that target deadline isn’t met then there will (also) be an earlier hearing on 30th May at 3pm.
The view of T’s friend and attorney, M
T’s friend and attorney, M, was not a party to proceedings, but the judge treated her as having “an important role” and asked whether she would like to address him. She spoke with some passion (bear in mind her first language is not English):
“I am appalling the long time it’s taking [the local authority] to decide T can go home, since she decided in her second week at [the care home]. It’s her will to be at home. She understands that, in later days, she probably won’t be there, but at the moment she’s distressed to be in that place where she’s not happy at all. I can’t describe how she’s feeling. Please allow her to trial home for her own peace of mind in the latest years of life.”
Later, M acknowledged with a sigh that she wasn’t an “expert”. “It’s the first time in this situation. I want to help my friend. I’m not familiar with the court. I’m thinking of T’s dignity and peace of mind. I just want her to be happy and have peace of mind”.
I was pleased to hear the judge check M’s understanding of how things were going forward and thank M for the role she has undertaken so far as T’s attorney. “The role that people who agree to be attorney for people who lose capacity is a very significant one”, he said. “My thanks to you for undertaking that. There is recognition from the judges of the Court of Protection for the work undertaken by attorneys. And I hope you’re reassured that T will be having a trial of living at home as she wants in the very near future”.
I was pretty horrified by this case, and dismayed that T has been deprived of her liberty against her wishes for such a long time, despite the fact that the Court of Protection has had oversight of this case for more than a year. I wondered if Anna would be as concerned as I was with the delays in addressing T’s wish to return home. I was pleased that the judge behaved impeccably in terms of his focus on T’s wishes and feelings, and attempted (albeit late in the day) to facilitate her return home as soon as possible.
It was also lovely to hear the judge thank M, and express his appreciation of the work carried out by people acting as Lasting Power of Attorney for people who’ve lost capacity. That must surely have felt supportive to Anna, whose sister has Power of Attorney for their mother. I was alarmed by the challenges being put in the way of T’s friend and attorney and empathized with her position. I think few people would expect to take on a task of this magnitude when agreeing to act as an attorney for someone, and there seems to be little support available for attorneys in this sort of situation. This is of some personal concern to me since I am a nominated attorney for four different people in the event that they lose capacity in the future, and have also appointed close family members as attorneys in the event that I lose capacity. For any attorney it would be hard work to have to deal with the position taken by this local authority – and it’s a reminder that we should appoint as attorneys people who not only know and love us, and know our wishes well, but people who also have the stamina, strength and skills to stand up to challenging behaviour from public authorities (and/or – as I’ve seen in other cases – from professionals).
I would add that the interactions between the two lawyers in this hearing was (for obvious reasons) rather less “collaborative” than at most Court of Protection hearings I’ve observed – and I worried that Anna might feel I had misrepresented the “inquisitorial” nature of the proceedings, given what I experienced as the occasionally clearly critical (or even acerbic) nature of the exchanges.
Finally, I tend to put myself in the role of the protected party and think “what if that were me?” and then figure out whether there is anything I can do now, while I still have capacity, that could protect me against ever finding myself in P’s situation. My personal response to many hearings I observe is to tweak my Advance Decision to Refuse Treatment, or write an email to my attorneys that they can use as evidence of my wishes and feelings, values and beliefs. But there are some circumstances it seems very difficult to avoid. In this case, T seems to have done all the right things – not least by appointing someone (her friend M) to make decisions on her behalf, both in relation to money matters and in relation to her health and welfare. But the law doesn’t permit M to just remove T from the care home and bring her home (which is what I would want M to do for T in this situation, and what I would want my attorney to do for me). I would wish my own attorneys to make all decisions for me in the event that I lose capacity. But that’s not possible. The state both withholds from attorneys the right to make decisions relating to deprivation of liberty, and also dictates the basis on which attorney’s decisions must be made (which is not coterminous with the person’s past or present wishes).
My experience as a first-time observer – Anna
When I first received an e-mail inviting me to attend a Section 21A COP hearing relating to my mother, my first reaction was anger (how have we got this far without the family being directly consulted?) and panic. What was the process? How would the family be involved and our voices heard? What was this secretive Court of Protection (COP) that was going to be involved in making fundamental decisions about my mother’s life?
As a brief background, my elderly mother, who has Alzheimer’s, has been placed in a residential care home by social services, with the complete agreement of her children. This includes my sister who is her LPA* for both Health and Welfare and Finance and Property, and is a decision that we still support, as we fundamentally believe it is in her best interests.
My mother has, however, not accepted the decision and when asked officially, says that she wants to leave the care home. In order to protect her human rights, an RPR* was appointed for her after a DOLS* assessment. Following which the Official Solicitor appointed a solicitor to represent my mother, who has now filed court papers. This happened in a period of around six months, with no involvement from the family.
The case is officially “my mother vs the Council”. “Vs”. What images did that conjure up for me? Crime, guilt and innocence, barristers arguing in front of a stern judge, in an imposing court room. “I rest my case, mi’lord”. Waiting for a verdict that would have huge implications, with her family on the sidelines or even maybe not able to participate at all, silent spectators to a life-changing decision.
Neither of the solicitors in the case could explain much about the process, and advised us to seek our own legal advice. Of course, we knew this meant incurring costs, which we wanted to avoid. I frantically started to try to find out more, going down internet rabbit holes looking for information about this type of hearing.
And that’s how I came across the Open Justice Court of Protection Project website. I sent them an email. Celia Kitzinger, co-founder of the Project, got in touch which set off a train of events leading to me observing a hearing, within a very short space of time. Celia gave me a lot of invaluable advice, including about the nature of the COP. Very importantly, she explained that it was not an adversarial court but an inquisitorial one, with parties providing evidence that would enable the court to make the best decision for the individual. It is largely a collaborative process, with parties working together.
I asked Celia if she could help me apply to be an observer of a hearing in order to learn directly about how it worked. I would not have had the first clue how to do this but she guided me through it, figuratively holding my hand, even to the extent of observing the hearing with me.
The process started with Celia finding a Section 21A hearing. She sent the court an email the evening before asking to be an observer, and forwarded the email to me so that I could send an identical request.
On the day of the hearing, I received a link to the hearing, which was being held on Microsoft Teams. It was a bit off-putting to read in the header: “TO BE HEARD REMOTELY, PRIVATE HEARING NOT OPEN TO PUBLIC”, the capital letters seemingly shouting that I wasn’t allowed to attend. However, Celia had reassured me in advance that that this message referred to the fact that only people who had been sent an official link could attend.
Nobody asked me who I was or why I wanted to attend before sending me the link. That said, maybe the fact that my request e mail was identical to Celia’s indicated that I was known to her and therefore an acceptable person! The email included a link to a document, a Directions Order, with a previous date, which I quickly skimmed through to give me more information. This included information relating to the confidentiality of the hearing for all people attending, therefore including me as an observer.
I logged on nervously ten minutes before the hearing was due to start. Celia had warned me to keep my camera and microphone off. When I was admitted, I saw a couple of people already waiting, some with cameras on and some not, and gradually more people joined. At the allotted time, the court clerk welcomed the attendees and waited for a late joiner.
This hearing was not the first in the case and therefore the lawyers were familiar with each other. When the late joiner arrived, the court clerk notified and admitted the judge.
There were seven people in attendance in total, three representing P*, including her LPA, one each representing the local authority and NHS (other respondents named), the judge, the administrator and two observers, myself and Celia. The LPA was not an official party to the case and she choose to keep her camera off.
After initial greetings, the judge started by saying that there were two observers to the hearing, naming us. He addressed us directly, stating the private and confidential nature of the case, and asking us to indicate by silence that we had understood the law we had to comply with. I was slightly relieved not to have to speak, but would have done so if necessary.
The judge then suggested that it would be useful to have a quick précis of the case to date to help us. I was really surprised by this, as I was aware that this would take up valuable time, but P’s counsel did this and it was indeed useful. Especially for me with a view that I would be involved in a Section 21A case in a few weeks’ time. The hearing proper then began.
It lasted for an hour and a half. Each party was asked to speak in turn and various issues were addressed and returned to. The judge also invited P’s LPA (and friend) to speak at certain appropriate points. She was not a lawyer and I felt that a great deal of care was given to making sure that she understood where necessary and could make her feelings known. This was in spite of her not being an official “party” to the case.
I found the judge very sympathetic and humane, and it was clear that he only had P’s best interests at heart. He was also sympathetic to the huge strains that the local authority was under, especially because of the pandemic, and also the NHS.
P’s counsel was very good at bringing the court’s attention back to the fact that P is an individual person, trapped in what she called a “ Kafkaesque nightmare”. Everybody treated each other with respect despite their disagreements.
Some time was spent trying to program future hearings, and dates by which further evidence had to be submitted in order to achieve those. The judge was consulting his diary during the hearing and working backwards. It made me appreciate both the demands on the time of legal professionals and the slow wheels of the legal system, even in this case for which it had been established that time was of the essence.
The space for the hearing, being a virtual one, created an environment which I thought was probably better than being in a physical courtroom. I liked being able to observe with the camera off and I felt that it created a certain informality, which made it less of a stressful experience. When at one point one of the attendee’s connection dropped, the hearing was paused to allow them to rejoin and it wasn’t a big issue. I could also see the participants’ faces during the hearing – if it was a physical courtroom, I would have been at some distance, looking at their backs and probably struggling to hear. I am pleased that the hearing about my mother will be a virtual hearing – it also makes it easier for me to attend.
At the end of the hearing, the judge authorized the two observers to have access to the position statements of P’s counsel and the local authority, provided the parties agreed. P’s counsel immediately said yes, and asked Celia (who then appeared briefly on camera) to send it to me, as she didn’t have my contact details. The Local Authority counsel said they would seek instructions (and have not sent their position statement). On reading the position statement of P’s counsel subsequently, it helped me understand further what had been discussed during the hearing and was therefore very useful. In an ideal world, it would have been helpful to have read this before the hearing, but I don’t know if this can always be accomplished.
So, what have I learned?
First, I have learned that having an LPA in place does not mean that the LPA can make all the decisions for a person no longer deemed to have capacity – and that those decisions they do make must take account of the person’s wishes and feelings. The judge made that very clear. In law, an individual with dementia still has views that need to be listened to and taken account of, even if a family, who knows a person and cares for them, thinks they know best. The Court of Protection is the last shield of protection for an individual. Whilst now understanding more about why this legal protection is in place, it does make me question the ultimate value of an LPA for Health and Welfare, as I had assumed it meant that the LPA could make all the decisions in the best interests of P when they were deemed to no longer have mental capacity to make their own decisions. And I wonder how many LPAs fully understand the limitations.
Second, this experience has really helped me to understand how the Court of Protection works and helped to demystify the process. I was particularly impressed by the care and attention given by the judge to helping make the experience accessible to a lay person, whether it be the LPA or P or myself as an observer. And I was pleased to hear him pay tribute to T’s LPA. I know from the experience of my family that my sister has had to spend a lot of time and energy supporting our mother as her LPA, in addition to her time spent supporting our mother through the care she provided before our mother was admitted into residential care. The COP process is a step that we hadn’t anticipated having to go through, and it shows what a commitment being an LPA is.
Finally, I won’t comment on my thoughts as to the exact circumstances of T, as I don’t think it would be appropriate. I was more interested in observing the process. That said, it was difficult to hear the details, especially how long it was taking for a satisfactory outcome to be achieved. I would add that in our case, the whole family is happy with the care being provided to our mother and she does seem happy at the home, even if she doesn’t want to accept it will be the place where she spends the rest of her life. Like many elderly people with dementia, she is fighting her infirmity, and wants to keep the flames of hope alive.
Observing this case has given me more confidence about my involvement in my mother’s case, when I will probably be a party, at my request, and thus an active participant. The Open Justice Court of Protection Project has certainly helped shed a light on what had seemed an opaque aspect of the justice system. I am much more reassured about the process and certainly my anger has been assuaged. I would thoroughly recommend a family member involved in a similar case to observe a hearing if possible. It is truly enlightening.
As for me and my family, we still have a long road ahead but at least we can see it more clearly.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has observed more than 300 hearings in the Court of Protection and hopes to observe future hearings relating to Anna’s mother when they reach court. She tweets @KitzingerCelia
Anna is the daughter of a woman who is currently a P in a Court of Protection s.21A application. She’s not using her real name because she wishes to protect her mother’s privacy, while also hoping that other families can benefit from reading about her family’s experience. She hopes to blog in future about the hearings as the case progresses through the court.
*There are lots of initials to learn when involved in a case like this. LPA = Lasting Power of Attorney; RPR = Relevant Person’s Representatives; DOLS = Deprivation of Liberty Safeguards; P = Protected Person