By Astral Heaven, 21st July 2022
I am a Local Authority Approved Mental Health Professional (AMHP) and Deprivation of Liberty Safeguards (DoLS) Lead and a practising Best Interests Assessor (BIA).
Part of my role as BIA when I’m undertaking DoLS assessments is to talk with the person I am assessing, and with their family and friends, about their right to challenge through the Court of Protection, my assessment that they lack capacity to make a decision about whether or not they should be accommodated in the hospital or care home for the purpose of being given care and/or treatment and/or my decision that it is in their best interests for them to be deprived of their liberty.
As part of this discussion, I need to explain about the Relevant Person’s Representative (RPR) role. This is the person the Council as ‘Supervisory Body’ must appoint when a Standard Authorisation under DoLS is granted, to maintain regular contact and to represent and support the person in all matters related to the authorisation. This includes requesting a review of the DoLS, requesting an Independent Mental Capacity Advocate, or challenging the DoLS authorisation in the Court of Protection if the person wishes or would wish to do so. The RPR can also bring an appeal if they believe it would be in the best interests of the person subject to DoLS to do so.
If the person being assessed has mental capacity to choose an RPR and they have a friend or family member aged over 18, willing to act and eligible for the role, they select the person to act as RPR. If the BIA assesses that the person lacks the mental capacity to select their RPR then any attorney or deputy with personal welfare authority can select one for them (including selecting themselves). If the person themselves or their deputy cannot select anyone, then the selection is made by the BIA – and if they too are unable to make a selection because there is no one who can meet the requirements of the role, then the council will appoint a professional independent paid RPR.
When we have discussions with the person and their friends and family about the RPR role, very often we will be asked questions about the court process if an appeal is brought and how much they can be involved in this. In cases where a family member may wish to be appointed as RPR but the BIA assesses they do not meet the requirements for the role or there is a potential conflict of interest and a Paid Representative is appointed rather than a family member, the friend or family member might feel upset that a challenge is being made or concerned they will not be included within the process. Therefore, being able to provide them with information about how the court process works, and reassurance that they can be fully involved, is very important when we are having these discussions.
As BIAs, our involvement in the DoLS process ends at the point we submit our report, and it’s been scrutinised and a Standard Authorisation has been granted. We rarely then get the opportunity to follow what happens next when the person wishes to challenge the authorisation. It is therefore really valuable learning to have the opportunity to observe hearings to see what happens once a s21A challenge reaches Court. Personally for me, it significantly increases my understanding of the process and means I am then able more clearly and confidently to explain the process to others, including families.
I have previously observed around 15 Court of Protection hearings and I’ve written or contributed to blogs to the Open Justice Court of Protection Project before (e.g. “Why covid vaccination is NOT in this care home resident’s best interests; Is it lawful for C’s carers to support him in accessing a sex worker?)
Having a little space in my diary one Friday recently (8th July 2022), I applied to observe 2 directions hearings I found from the list published by the Open Justice Court of Protection (OJCOP) Project, and – as it turned out – both raised issues relating to the question of what was entailed for family members who wanted to be involved in proceedings, and whether they should participate as “parties” or not. One of the hearings had been brought as a challenge to a DoLS authorisation.
I’ll start by writing about my experience of gaining access to the hearings and issues relating to Open Justice and then I’ll turn to the questions that watching these hearings raised for me.
Open justice matters – and why I didn’t send my CV to the court
The first hearing I observed was before Her Honour Judge Bloom (COP 13953155 Re DM) at Luton Justice Centre & Bedfordshire County Court for 1 hour starting at 10am on 8th July 2022. It was listed as an interim and directions hearing concerning residence and care and deprivation of liberty.
The second was before Her Honour Judge Smith (COP 13953702) at Newcastle County Court at 12pm, again for one hour on 8th July 2022: it was listed as concerned with where P should live, healthcare, and appointment of deputy for personal welfare.
Both requests to observe were responded to very quickly and I was sent the Transparency Orders for both. Having now observed so many remote hearings over the past couple of years, I would say it’s been fairly rare to have been sent the Transparency Order without requesting it, so I noticed a very clear improvement in this respect.
One concerning issue is that for the second hearing, I was initially advised that the Judge required a copy of my CV to be sent to her. This was a surprise – and it is only due to the confidence I have from regularly reading the OJCOP blogs and from observing previous hearings, that I felt able to reply to the court, saying that I should not need to send a copy of my CV as I was applying to observe the hearing as a member of the public, in line with the Court of Protection’s transparency project. This project arose from a pilot in 2006 which has since been adopted into court practice and enables professionals working with the Mental Capacity Act 2005 and other members of the public to gain really helpful insights into the work of the COP and see first-hand how such important and often life or death decisions are made (without reference to our CVs).
Had I not held the level of certainty I did, that sending my CV was NOT a requirement of being allowed to observe a hearing, I know I would probably not have questioned this and it would have put me off observing – both that hearing and probably future hearings too, largely (for me) because my CV would have needed some updating, which I simply would not have had time to do.
I am quite certain that a request for a CV would put others off from observing hearings too. Many people would not question the request: after all you would not normally query a request from a court. For example, when I told my husband that I had challenged this request, his mouth dropped open and he replied ‘only you could do that!’ So, this type of request could be detrimental to open justice. In addition, although I am a professional requesting the link to observe hearings, this opportunity is not just open to professionals, but to any member of the public – not all of whom would have a CV to send.
Despite this shaky start, however, I feel HHJ Smith actually went out of her way to accommodate my request to observe this hearing. I was a little late logging on and court staff both emailed and then called me to make sure I was able to log on. The judge spent some time in making sure everyone had read and fully understood the Transparency Order and time was given to ensure this was done.
Unfortunately, there was no summary of the case in either hearing and with each being a directions hearing only lasting less than an hour, I was limited in my understanding of the cases.
Family members as parties
The interesting shared element of my experience of watching these two short hearings on the same day was the issue of whether or not family members should be joined as a ‘party to proceedings’ – and for the first hearing a large part of the hearing was dedicated to discussing this.
In the first hearing (before HHJ Bloom), there were 2 sons, seemingly in dispute as to the best interests of their mother (P). She had been living with Son A, but Son B had made allegations (these were not discussed), which appear to have led to her moving to a care home. There was a Standard Authorisation under DoLS in place and an appeal had been brought by her RPR (who was also attending as litigation friend). The first half of the hearing comprised a discussion about whether or not each of the sons wanted to be a ‘party to proceedings’ in their own right or not. Son B, who had made the allegations about his brother, said he wished to be made a full party. Son A, with whom P had been living with, said he did not.
Son A was advised that if not made a party to proceedings he could still submit evidence, ‘but not as a party’, and would still be provided with copies of the orders, served with statements obtained, and would be able to attend all hearings.
It was explained to son B, that if made a full party there can be cost consequences, because if expert reports are required, he would, as a party, be responsible for part of the cost of any assessments. The judge said it was unlikely in this case that an expert report would be needed as there was no query about capacity and the court was looking at best interests and whether P could go home with a care package or whether that would be untenable.
Son B, who wished to be made a party, said he would not have any money to contribute toward reports – so it was suggested he could be made a party, but could then step out from being a party if an expert report was needed, in order to avoid him being impacted financially.
Son A, although not being made a party, was advised he would get invited to round table meetings, receive copies of the orders and attend hearings, so would still be able to participate fully.
In the second hearing before HHJ Smith, which appeared to be about an order to remove P from her property to a care home, it was stated (during the discussion as to whether family were to be made party to proceedings, that if they were parties, this would mean they were ‘formally and actively involved in proceedings and can present arguments to the court rather than being an observer’. There was no mention of this involving any possible costs.
Listening to these two approaches led me to want to understand more about what being a party to proceedings means and whether or not (and under what circumstances) this would be the better option for family members. If in fact this risks incurring costs, and families can still be fully involved in proceedings without being a party, then what would actually be the benefit? Also, what information is provided to families to enable them to make this decision?
In my view it would be really useful to have a guide for families – maybe in a Q&A format. “What is a party to a case?” “Why have I been asked to be a party?” “Why haven’t I been asked to be a party” “How do I participate in a case if I’m not a party?” “Can the judge make someone a party if they don’t want to be?” “Can I change my mind about being a party and join/drop out later?” “Will there be financial implications of being a party?”.
I was very pleased to have watched these two hearings as they forced me to think about what information I should be providing to families about s.21A appeals.
I am currently in the process of updating our RPR pack for families so it would be really helpful to have a guide for families about the s21A appeals process and information on what it means to be a party to proceedings.
So this is a call to lawyers in the Court of Protection: please can someone write a guide for families informing them about the pros and cons of being formally a party to proceedings – something that I and others can then include in our packs.
Astral Heaven is a qualified social worker and AMHP and has been practising as a BIA since 2009. She is currently AMHP and DoLS Lead for a Local Authority in the West Midlands. She tweets as @AstiHeaven