By Celia Kitzinger, 9th June 2022
This was an urgent hearing to consider the issue of contact between Mrs M and her son.
Until the end of last year, Mrs M, who is in her eighties and has dementia, lived with her son at his home. Her son was her main carer.
She’s now living in a care home, and the local authority has made an application to place conditions on her contact with her son. They want an order that he cannot remove her from the care home for any reason, and that his visits to the care home should be supervised by staff.
Clearly, something has gone very badly wrong.
I watched this hearing (COP 1393210T before District Judge Charnock-Neal in Newcastle) on 27th May 2022 via MS Teams.
I had no idea what it would be about: it was listed (unusually for Newcastle) without any mention of the issues before the court.
I learnt from the very helpful opening summary by Adrian Francis of Deans Court Chambers, representing the respondent local authority, that the case had begun as a s.21A appeal, with Mrs M as the applicant, represented by Jonathan Barker of The Richmond Partnership, via her paid Relevant Person’s Representative (RPR). Mrs M objects to being detained in the care home and deprived of her liberty. This was supposed to be the first directions hearing to address that matter.
But instead, just a few days before this hearing, Durham County Council, the local authority that is depriving Mrs M of her liberty, made an urgent application seeking an order that “Mrs M is not removed from the care home for contact or any other reason by her son, and that their visits within the care home are supervised”.
Mrs M was not in court, nor was there any mention during the hearing of whether she could or should have been.
The son whose visits were the subject of the order (I’ll call him “Ali”) was present, but not as a party to the case. His two brothers were there too and all three were invited to address the court.
Some professionals involved in Mrs M’s care, including her social worker, were also visible on screen, but did not speak.
Although the respondent local authority lawyer (Adrian Francis) played a full role in the hearing, Jonathan Barker (for Mrs M) did not.
If the hearing had been proceeding as a s.21A case, Jonathan Barker would have been representing Mrs M via her paid Relevant Person’s Representative (RPR). But in the context of the new application concerning contact, he said he could not do this. He made it clear from the outset that “the limits on the steps that the paid RPR might properly take on behalf of [Mrs M] are such that the paid RPR cannot act as Litigation Friend for the case as a whole or even in relation to potentially contested applications such as this”. He said he could “do little more than adopt a neutral stance in relation to this application, pending the appointment of a Litigation Friend for Mrs M” (i.e. the Official Solicitor). However, he did point out (both in the written position statement and orally) that Mrs M’s wishes and feelings on the subject of contact are largely unknown and should rapidly be elicited and that her sons had not had any opportunity to respond formally to the evidence from the local authority. He also asked the court to issue the appropriate directions for the further conduct of the s.21A application, which was the only area in which he could act for Mrs M.
So, Mrs M was effectively unrepresented in this hearing about the contact she could have with her son.
I was concerned that the local authority’s application was one that would interfere with Mrs M’s Article 8 right to respect for her private and family life (and of course the right of her son), but Article 8 was not raised in the hearing, nor was it mentioned in either of the position statements I was sent.
Nor were Mrs M’s wishes and feelings about contact with her son much mentioned by the local authority – except for the claim that she was (or might be) upset by his behaviour – for which no evidence was supplied during the course of the hearing.
Overall, this was one of the very few hearings I’ve observed where I felt that the protected person at the centre of the case lacked a voice. I got very little sense of Mrs M as a person, or what her views are about visits with her son.
What I did learn about Mrs M came largely from Ali and his brothers. Despite apparent rifts in the family that meant the brothers did not have much to do with each other (and one lives overseas), they came across as united in their love and concern for their mother, and their unanimous focus was on releasing her from the “prison” (as Ali called it) of the care home.
Counsel for the local authority (Adrian Francis)
According to counsel for the local authority, the problem with continued contact between Mrs M and her son Ali, is that Ali has “exhibited challenging behaviour with professionals”, which is said to have “upset his Mum”.
Ali strongly objects to his mother being deprived of her liberty and he objects to her receiving the prescribed medication, the antipsychotic risperidone. He thinks this may be causing her harm, and has repeatedly suggested a “medication holiday” to test that out.
He first raised these objections at the end of 2021, when Mrs M was hospitalised under s.2 Mental Health Act 1983: she was said to be self-neglecting and to have delusional and persecutory beliefs. According to the local authority, “it is reported that [Mrs M’s] home conditions posed a significant risk to her and that she had taken to keeping a knife by her side, was hoarding and barricading herself into her home”. Since she was “non-compliant at the point of admission”, she was subsequently admitted to hospital following the execution of a warrant for a Mental Health Act 1983 assessment.
Risperidone alleviated her symptoms, says Adrian Francis, and she returned home. But once she got home, she stopped taking her medication and “failed … to co-operate with the package of care”. She was recalled to hospital after only 4 days and on 16th March 2022, a Mental Health Tribunal upheld Mrs M’s detention under s.3 Mental Health Act 1983. At some point (I’m not sure when) she was discharged from hospital to the care home where she now lives.
The local authority has a raft of complaints about Ali’s “inappropriate” behaviour. In particular, he “has a history of persuading her not to take her prescribed medications”.
The local authority filed evidence from Mrs M’s social worker explaining why it’s necessary to restrict her contact with her son to supervised contact only within the care home or its garden.
On 19th May 2022 (says the social worker, quoted by the local authority), Ali did not return Mrs M to the care home until 8.45pm, meaning she was not able to take her medication at the correct time.
Ali took this mother to the local GP surgery and refused to leave until she’d been seen by a GP (says the local authority). There was also evidence about his behaviour in a statement from the GP surgery. He had “barricaded the doors open” and was “shouting in the reception area, in front of P and other patients, threatening to sue the surgery and saying that P has been ‘left to rot’ in the care home”.
The local authority alleges that that Ali is telling his mother not to take risperidone and that her medication makes her breathless. After speaking with Ali, Mrs M has sometimes “secreted her medication” instead of swallowing it, “which could lead to her becoming acutely unwell”.
The local authority believes that “witnessing her son’s inappropriate behaviour” is or could be upsetting for Mrs M. They say that if Ali were to be permitted to continue to take his mother “into the community for contact visits”, it would lead to further disruption to her medication schedule. Overall, his behaviour is putting his mother’s placement – where (says counsel for the local authority) she is “generally settled” – at risk.
The local authority is not asking for a restriction on the number of visits (though they would need to be within normal visiting hours) but they want those visits to be supervised by a member of staff and to take place only within the care home or its garden.
Mrs M’s son, Ali
According to Ali, before the intervention of the state into their lives, and his mother’s compulsory treatment under the Mental Health Act, first in hospital and now in the care home, she had been “a fit, healthy, independent 85-year-old woman”. But now “she’s in an absolutely horrific state”.
He described, in a torrent of words and with obvious distress, how she had contracted COVID-19 in the hospital and was “battling for her life”. Now, in the care home, “the care home manager alludes to her being happy and taking part in things – she is not! She’s clinically depressed. She wants to be at home, in the garden. She’s fed up of being in prison.”
Ali pleaded with the judge to consider Extra Care housing which had been “promised at the tribunal”.
A previous decision that Mrs M should live in Extra Care housing was confirmed in the position statement from the local authority which says that:
“whilst a best interest decision has in the past been made that she can reside in Extra Care housing […] the local authority’s up to date position is that given recent challenging behaviours by [Ali] and his undue influence upon [Mrs M] that [Mrs M] would not be safe in a less restrictive placement. Hence at the present time the local authority considers that it is in her best interests to remain in her current placement and would oppose any move to a less restrictive setting.” (Local Authority Position Statement)
Ali denies persuading his mother not to take risperidone. “At no stage did I tell her not to take medication – she did this of her own volition, because she’s an intelligent woman. She has lots of capacity”.
He disputes the local authority’s version of what happened at the GP surgery, which he says is “based on false and misleading information”. “There were no raised voices and no threats”, he says – and he wasn’t there because he wanted a GP’s appointment for his mother but “to chase up my concern that my mother was having breathing issues and nothing was being done. She was diagnosed with heart failure less than two weeks ago – she didn’t have that prior to being sectioned. She has kidney damage now, and she was fine prior to being sectioned. Dr A said she couldn’t rule out it being the drugs”. Ali says he has health problems of his own and has not been vaccinated against COVID-19: “so I told the receptionist I was keeping the door open with two small chairs in front of the door to keep an airflow in the reception area. It’s been put down I ‘barricaded the door open’. How do you ‘barricade’ a door OPEN, by the way?”. He referred to “this nonsense about my behaviour” being “trumped up” and said to the judge, “if it was your mother, you’d be absolutely furious. My mother is dying in that care home and nobody cares”.
The judge stemmed the flood of Ali’s speech, and focused him on the specific issue of contact, by asking Ali a series of questions. She established that he normally sees his mother every day, arriving at the care home between 1pm and 2pm and taking his mother out for the afternoon, often until the early evening (about 7pm). He described what they do together – going to the garden centre, buying plants and then going back to Ali’s house and spending some time in the garden. She sits with the cat on her knee, which she loves. They watch films “upstairs, on a projector with a massive screen” and then buy fish and chips for supper on the way back to the care home. Mrs M loves going out with him, says Ali, and is “in a great mood” by the time he takes her back to the care home: “and then next day she is depressed again”.
Ali says that on the one evening he brought his mother back late – this is the occasion the social worker refers to in her statement as having interfered with Mrs M’s medication– he did so with permission. “Me and my mother always told nursing staff what time we’d be coming back and that day we said, ‘we’ll be late back tonight – is 9pm alright?’ and they said ‘yes’ and now that is thrown back in our faces. That’s what we were told and we stuck to it. There’s lots of different staff and they don’t communicate. You tell one staff member something at 2pm and when you come back there’s a different staff member and they don’t know what you’ve been told. The first we heard about this time of return being a problem was yesterday. We never realised before. This is massively unfair and a typical example of the tactics the family has experienced. We’ve got solid proof they’ve lied at the tribunals – they’re making my mother suffer.”
The judge intervened a couple of times into this flow of words to try to focus Ali on the matter of contact: “this is useful information about the background to your mother’s care and I will need it in the future but I don’t have time this morning”; “What I’m dealing with today is just the application by the local authority about contact”; and “you will have the opportunity to put all this in a statement later”.
“One last point”, said Ali. “I have never told my mother not to take her medication, but she shouldn’t be on anti-psychotics – they’re dangerous. Please let her come back to her family. Just give her her freedom back. She’s dying. She’s giving up on life. Seven weeks without my mum getting out will kill her – it will knock her over the edge”.
The judge then asked court staff to mute Ali. This is only the second time I’ve seen a judge find it necessary to mute a family member in court. I understand the time pressures and the need to focus on the matter in hand and I could see Ali’s desperation to get his point across, while the judge struggled to assert her authority, but it is (obviously) unfortunate to arrive at a position where someone’s contribution is closed down in this way.
The judge then asked each of Ali’s brothers, in turn, for their input.
Mrs M’s second son (who lives overseas and whose contact with his mother is via frequent telephone calls) said he agreed 100% with what Ali had said. “He put the case across perfectly and raised lots of valid points. We’re talking about our mother. We’ve seen her deterioration since they applied the Mental Health Act – the bottom line is that if you saw how she was before and how she’s deteriorated since going under the Mental Health Act you would cry your eyes out.” There is, he said, “a massive difference between when she was first sectioned and now”.
He said he’d looked on the Alzheimer’s Society and Mind websites and read that “this is a massive issue today for care homes in the UK, with old people being prescribed anti-psychotics that they don’t need”.
He referred to what has obviously been a breakdown in communication between the professionals and the family – saying that the social worker was “fabricating evidence” and that the information she had provided to the court was “mistruth” or “speculation”. “We’re not being obstructive or awkward. We’re concerned for our mother. When we speak out,they classify us as obstructive and awkward”.
The judge asked specifically for his view on the specific issue of Ali’s visits (the focus of today’s hearing).
“If you take those visits away, you will basically destroy her. Why is nobody concentrating on the positive side of those visits?”
Like Mrs M’s other two sons, the third son commented on the huge deterioration since Mrs M was removed from Ali’s care.
He lives in the UK but at some distance from his mother, so his contact with her is mostly via telephone. Before she went into hospital, he says, she was “solid as a rock” – he described how, in the year before admission, she had got a ladder, gone up into the loft and brought boxes down. Now, he says, “she slurs her words” and is clearly unwell. He too reports that she contracted COVID-19 in hospital (“she was on oxygen and everything and nearly died”) and although he’s not sure whether the risperidone is a problem or not (“I don’t know about that”) he’s certain that “there’s something not right somewhere about her medication”.
He refers to some kind of rift between the brothers – “there’s no relationship between me and my brothers – end of story – but I care about my Mum, and Ali should see his mother. He’s local to our Mum. Ali, really, no matter what, should see his Mum. Ali 100% loves his Mum, no two ways about that“.
Clarifications and ‘interruptions’
The judge clarified what the local authority was asking her to do: “Nobody’s saying ‘no contact between Ali and your mother’. The local authority is asking the court to put conditions on it, to make arrangements for that contact”.
When one of the brothers (I think it was the second son) said at this point, “Judge, may I speak?”, I was surprised to hear the judge say: “Again I’ve been interrupted. This is unacceptable and you must allow me to speak or I will mute all of you. This is not about stopping contact, it’s about whether it should be restricted or conditions put on it”.
I was surprised because I don’t think the son had intended to ‘interrupt’ or that he intended any disrespect to the judge – rather the reverse, he was asking for permission to speak. This really wasn’t an ‘interruption’ (nor was the previous event the judge had so labelled) unless – as of course judges do! – you have a good grasp of the rules of the courtroom and the way in which speaking turns are organised in this specific context. What I have seen in other courtrooms from other judges is an awareness that family members are not deliberately flouting the rules – they just don’t understand them. I’ve seen judges explain the rules to family members (along the lines of “This is a courtroom and there are rules for who can speak and in what order. So now I’m going to hear from X and then Y and then I will come back to you for anything you want to say”). I’ve also watched judges tolerate these sorts of infringements of court protocol with good grace, while still clearly remaining in control of the proceedings – and I appreciate the skill and expertise involved in being able to do that. What I saw today is how difficult it is to establish your own authority as a judge in a gracious and confident manner when you have a full list, are obviously under time pressure and you are engaging with voluble family members determined to get across points that are not germane to the issue you need to decide, right now, at this hearing.
“I understand that”, said the second son, referring to the judge’s clarification about the issue today being about arrangements for contact – not stopping contact.
“Our concern is not just with restriction of contact – it’s type and quality of contact. She doesn’t want to be stuck in the care home. She lives for going outside. Taking her to the garden centre, or taking her to the park – that’s what my mother needs. She needs that kind of stimulation. Having to stay in the grounds of the care home with a member of staff sitting there supervising is not a natural situation. She hasn’t got friends there. She’s depressed. She wants to get outside and experience life with her son. If you close that off completely, that’s a horrendous thing for my mother – and I believe that will have a negative effect on her.” (Second son)
Ali (who had been unmuted by this point) leapt in to support his brother’s observation. “She’s on anti-depressants and could not take being confined, imprisoned, taken away from her natural life”. He then launched into a series of other allegations and concerns. He said the care home manager had “threatened” his mother, saying “’if you don’t take your medications, I’ll send you back to the mental health ward’; ‘if you don’t take your medications I won’t let you out.’ She can’t do that!”. He said he’d asked for CCTV footage from the GP surgery which “will vindicate me completely”. He said that the family was “not getting believed and professionals are believed. But professionals do lie – look at that policeman who’s been accused of raping women”.
The judge intervened: “You will do me the respect, please, of allowing me to give my decision”.
The judge’s decision
The judge outlined what the case was about and the submissions she had heard, the fact that three of Mrs M’s sons had addressed the court, and what they had said.
She said that she’d read a capacity assessment which makes it clear that Ms M has “health difficulties, both mental and physical” and that she found there was reason to believe, on an interim basis, that Mrs M lacks capacity to make decisions about contact with her son. This means that the court can make a best interests decision about contact.
The judge said: “I make no order concerning contact between [Ali] and his mother to restrict him spending time with her, but I do put conditions on where that takes place. That condition is that contact will take place in the care home, or in the care home garden, or in the community, provided that it is at all times supervised by a member of staff from the care home, a social worker, or another member of the local authority. This is to ensure, in [Mrs M’s] best interests, that she takes her medication on time, that her son or anyone else, does not exert influence over her to not take her medication, and that she’s not exposed to behaviour that may upset her.”
The judge said she had independent evidence from the GP’s staff that Ali’s behaviour was experienced by them as “disruptive”.
“I understand that emotions run high in families. I understand the motivation is [Mrs M’s] best interests. But I cannot allow her to be emotionally upset or cause harm to her mental health by any repeat of that type of behaviour. So, I am putting that restriction on contact. This is a temporary restriction until the next hearing.”
She then addressed the sons to give some brief information to the sons about what they should do if they wanted to become parties to the proceedings, and explained that (parties or not) they could send written statements to the court (e.g., concerning “background about your mother, what you think would be good for her in the future, what your concerns are for her welfare”).
She also explained to them the other arrangements she was making in the order: a s.49 order to assess Mrs M’s capacity, inviting the Official Solicitor to take on the role of litigation friend for Mrs M, provision for the social worker to provide a further report about options for Mrs M’s residence and care in future, disclosure of care records, and a schedule of dates by which each is needed with provision for the three sons to respond to the information.
The next hearing (to be listed for two hours, by MS Teams) is on Friday 29th July 2022 at 2.00 pm.
This was a painful hearing to watch, and must have been painful for some of the people involved, including of course Mrs M’s sons, and also the social worker who was the subject of some of their allegations, who sat silently listening. (At one point, one of the sons asked why she was not responding to the claims they were making about her “mistruths“, and the judge explained that she would give witness evidence at a future hearing.)
The chasm between the three sons and the people caring for their mother felt unbridgeable – with effectively two different versions of reality.
For Ali, his mother (despite her physical deterioration) has capacity to make her own decisions. The evidence presented by the local authority is that she does not.
For Ali and his brothers, their mother is deteriorating because of the risperidone; for the professionals, this is the very medication that will keep her well.
For Ali and his brothers, the restrictions on her liberty in the care home are harming her; for the professionals these restrictions are necessary to keep her safe.
Representing the local authority, Adrian Francis said that Ali “lacks insight into his mum’s degenerative condition and will inadvertently put her at risk”. Ali says the professionals are lying. His mother is being ill-treated. His brothers agree.
The very actions that, for Ali, are acts of love and care – questioning the value of risperidone and asking for a “medication holiday”, seeking medical attention for his mother’s alleged breathlessness – are (for the local authority) acts that risk causing her harm.
When the local authority seeks to ensure that Mrs M gets her prescribed medication on time and backs off from the agreement to move Mrs M to an Extra Care placement (“on the basis of risk and repeated contact from son”), Ali sees them as keeping his mother in prison and depriving her of her liberty.
It’s clear that everyone wants the best for Mrs M, but that they have diametrically opposed views as to what that would be.
There’s so much I don’t know about this case. I don’t know what precipitated Mrs M’s hospitalisation, or what her living conditions were like with her son. I don’t know what treatments were tried prior to or instead of risperidone. I don’t know how able Mrs M is to express her views, or to participate in decisions about her residence, care and contact. I don’t know what attempts have already been made to improve communication between Ali and the professionals.
Like the judge, I accept that Ali is motivated by what he believes is in his mother’s best interests. I think the professionals are too.
I kept thinking (perhaps naively) that better communication, perhaps with an independent expert in old age psychiatry at a round table meeting, or perhaps formal mediation, would be a better way of tackling this impasse.
I also wondered whether, in addition to the issues of residence, care, and (now) contact, before the court, the question of Mrs M’s medication should be explicitly addressed, since this lies at the heart of Ali’s concerns about his mother’s care. Since watching this hearing I – like Mrs M’s three sons – have searched the internet for information about the use of risperidone for dementia and psychosis. From what I read, it’s controversial. I too would be concerned if it had been prescribed for my mother, and would be asking questions about non-drug methods as an alternative, about reducing the dose, about the side-effects and the cost/benefit analysis. Probably I, too, would be seen as a “difficult” family member. Can Mrs M’s litigation friend, the Official Solicitor, when appointed, ask the judge for a declaration that risperidone is, or is not, in her best interests? Can Ali become a party and get legal representation so that this matter is properly addressed?
The judge’s decision departed from the order requested by the local authority in authorising visits between Ali and his mother outside the care home and its garden – so long as these visits are supervised. This was helpful, I thought, in recognising the value the sons say Mrs M puts on getting out and about and spending time at Ali’s home. But I don’t know if this will work in practice. I can’t quite envisage staff having the time to spend hours in the garden centre with mother and son, or watching films with them at Ali’s house. The practical issues involved in supervising visits in the community were not addressed at any point during the hearing. And, as one of the sons said, having someone supervising them at all times will inevitably affect the quality of the interaction.
I remain troubled, too, that Mrs M’s voice was absent and that she was (in effect) unrepresented in a hearing that interferes with her fundamental Article 8 rights to private and family life. I have no idea what she makes of any of this, or what she wants for herself.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
 The Transparency Order I was sent for this hearing includes an Order from the judge as to how the case was to be listed. “The attended hearing is to be listed as follows: (i) Where P should live (ii) Healthcare; (iii) Varying or terminating an urgent or standard authorisation under the Deprivation of Liberty Safeguards”. (§3 Transparency Order, 25th May 2022). It was not in fact so listed – due (I am told) to “human error”.
 All quotations from what was said in court are as accurate as I can make them. However, we are not allowed to audio-record hearings so my quotations are based on touch-typed notes made during the hearing and are unlikely to be verbatim.
 For academic research on the peculiar speech-exchange system of the courtroom and the turn-taking organisation constitutive of the formal hearing, see J Maxwell Atkinson and Paul Drew (1979) Order in Court. Macmillan Press. Lawyers may not appreciate how impenetrable this speech exchange system can feel to lay people and how easy it is when you don’t know the rules to be heard as “speaking out of turn” or “interrupting” – an experience which adds to the alienating experience of the courtroom when there is no intention to offend.