By Jordan Briggs, 22nd July 2022
This hearing, listed before His Honour Judge Berkley at Manchester County Court (via MS Teams) on Wednesday 20th July 2022, concerned a woman in her early twenties with complex emotional needs (‘P’) who had absconded from her placement on 18th March 2022.
There’s a previous blog post on the Open Justice Court of Protection Project site about two of the earlier hearings in this case (COP 138365220) under the title “Absconded”.
She had moved to the current placement in February 2022 from prison.
It’s a specialist placement with restrictive care conditions (e.g. accompaniment by two staff members at all times and use of a security vehicle for transport).
P was still missing and nobody knew where she was at the last hearing on 24th March 2022.
At that hearing, Ben McCormack (acting for P via her litigation friend the Official Solicitor) made three key points:
- The court, other parties and probation service need a proper explanation of what has happened since P ran away.
- The local authority needs to think about and explain what will happen when P is brought back unwillingly into the restrictive special placement.
- The case should come back for an urgent hearing, preferably with P attending.
We’re told there were subsequently three hearings in this case (on 1 April, 14 April and then 27 May 2022), ie between the hearing on 24 March and the one on 18 July which I observed. They were all in court in Manchester rather than online, and I’m not aware that any member of the public observed them. So I don’t know what active case management had been done during that period – only what was revealed in the hearing I observed.
The Local Authority was represented on this occasion by Adam Fullwood.
Although nobody said expressly that P had returned to her placement (and she didn’t attend this hearing), updates on her progress therein implied that she has.
My blog post deals first with issues concerned with open justice and accessing this hearing, and then with its substantive content.
Accessing the hearing
Accessing this hearing was hard. I initially emailed Manchester County Court for the link, first at 10.16am and again at 12.21pm. I didn’t receive a reply to either email.
I then telephoned Manchester County Court, first at 2.23pm. I was told that I would be emailed the link at 2.45pm. That didn’t happen. I called again at 2.53pm. I was told that HHJ Berkley was still hearing the case before this one, meaning this one would be delayed. I was assured that the link would be emailed to be in due course.
I received the link at 3.04pm. It said “the ink will be available for advocates discussions” [sic] and “His Honour will join the link at the allotted time”, which was (now) at 3.45pm. I clicked the link. Microsoft Teams displayed a message saying “When the meeting starts, we’ll let people know you’re waiting”. I presumed that the meeting had started, but that the advocates were discussing the case privately, which the public would not be allowed to observe even during in-person hearings. So, I waited.
Nothing changed at 3.45pm, save for a car outside the library in which I was seated beginning to very loudly play Thin Lizzy’s “The Boys Are Back In Town”. The irony was not lost on me: on my screen precisely nobody – boys or otherwise – had returned to public view.
At 3.51pm, Microsoft Teams asked for permission to use my microphone. I granted it, yet still nothing changed. At 4.05pm, the hearing began.
Beginning the hearing
At the beginning of the hearing, only HHJ Berkley and Adam Fullwood had their cameras switched on. HHJ Berkley apologised for the delay, but hoped that that “some progress could be made moving forward”. HHJ Berkley specifically welcomed observers to the hearing, but reminded us that transparency and confidentiality orders prevent us from revealing the case’s sensitive details (although I’ve not been sent the Transparency Order).
The judge asked whether advocates had been discussing the case whilst he was delayed. Adam Fullwood nodded. The judge accordingly invited Adam Fullwood to “assist… with whether they’ve been productive and where the parties stand at the beginning of the hearing”.
Adam Fullwood: Counsel for the Local Authority
Adam Fullwood obliged by saying that the directions he would invite the court to make were “almost all agreed” between the Official Solicitor and the Local Authority, who had discussed them while waiting for the hearing to start.
The directions fell into two categories, namely that the court should: (i) authorise a continuation of P’s current arrangements, which amount to a deprivation of liberty, and (ii) have another hearing in about 4 weeks’ time.
Adam Fullwood did not, at this stage, provide an opening summary of the facts of the case, despite Mr Justice Hayden in March 2020 stressing that it is “helpful, for a variety of reasons”, for advocates to do so. The facts were eventually summarised, but halfway through the hearing by Ben McCormack. The absence of an opening summary did not inhibit my understanding, because I had read previous blogs from the Open Justice Court of Protection Project, and I’d familiarised myself with the case before joining the hearing. But, without that assistance, the absence of an opening summary would have prevented me from understanding the hearing’s facts and history.
Rather, after outlining the two categories of directions, Adam Fullwood expanded on them by listing seven issues that were agreed between the Official Solicitor and Local Authority.
Issue 1: Capacity
Adam Fullwood said that he had received a report from ‘Dr Todd’. Adam Fullwood did not explain what that report contained, but Ben McCormack later mentioned that Dr. Todd was a clinical psychologist.
Adam Fullwood said it was agreed that Dr Todd needed to be asked two further questions. These concerned clarification of: (i) what is causing P to lack capacity and; (ii) what “model” of care Dr Todd considers is in P’s best interests.
Expanding the need for a different care “model”, Adam Fullwood said that P’s existing care placement was “fraught”. Eighteen staff members, Adam Fullwood said, have now refused to work with P on account of her behaviour. Accordingly, while previously only restraint-trained staff would supervise P, the care placement is now using staff without formal restraint training albeit with instructions to nevertheless restrain if necessary.
In light of this, Adam Fullwood reminded the judge that the Local Authority “has always accepted and continues to accept that the [current] placement itself is unacceptable”, thereby underlining the aptness of its revision.
Issue 2: Alternative placement options
Adam Fullwood said that the Official Solicitor has been provided with “limited evidence” about the parameters of a search for alternative placement, but wished for richer evidence – showing precisely what had been looked for, and why no search had yet succeeded. This point was taken no further.
Issue 3: Drug misuse
Adam Fullwood said there was a “dramatic conflict of evidence” about whether P was currently misusing drugs. P’s care staff say there’s no evidence that P is misusing drugs. Yet P says that she is. Adam Fullwood suggested that the matter be kept under review. Ben McCormack would shortly return to the issue, as detailed below.
Issue 4: Smartphone
Adam Fullwood said that P had recently purchased a smartphone, and had said that she uses it to contact her “sugar daddy”. There was, he continued, no evidence that she had met this man in person.
Here, my internet momentarily failed. I regained access to the hearing within twenty seconds. I heard Adam Fullwood saying that he was not applying today to restrict P’s smartphone use, but that he may do so in future if that becomes appropriate.
Issue 5: Community access and transport
Adam Fullwood relayed that, in the words of P’s social worker, P has “caused chaos” travelling into – and when in – the community. Adam Fullwood explained that, although secure vehicles have been commissioned specifically to transport P, their drivers are refusing to drive her because P threatens to cause them to crash during the journey. Once in the community, Adam Fullwood explained, P has participated in “street homeless and/or begging activities” .
In light of this, Adam Fullwood invited the judge to direct that placement staff may adopt a “consequential approach” with P. That envisages P’s community access continuing, albeit under the proviso that if P misbehaves, the following day’s access would be cancelled. I think I saw the judge nod, ever so slightly.
Issue 6: “Restrictions”
This issue was difficult to follow. Adam Fullwood directed the judge to page 271-2 of “the bundle”. “The bundle” is legal shorthand for a package of documents given to the judge by a lawyer. It usually contains relevant evidence and documents expressing the lawyer’s submissions about how the case should be decided. (There’s a previous blog post explaining what ‘the bundle’ is” (”Bundles and bundles of Documents”)
The public rarely has access to these bundles. Accordingly, when advocates invite judges to read parts of the bundle without explaining in open court what those parts contain, it is impossible for the public to know what the judge is reading (unless they read it aloud).
I understood, from what passed between Adam Fullwood and the judge, that P’s care team would not allow her to use public transport to access the community. Accordingly, until P’s drivers resumed transporting her, she presently had no practical access to the community. However, once P’s drivers resume transport, I understood the plan to be that P travels with them and under two staff members’ supervision.
Issue 7: Property and affairs deputyship
A ‘deputy’ is someone appointed by the Court of Protection to make decisions on behalf of somebody who lacks capacity to make those decisions for themselves. There are two types of deputy: (i) a ‘property and financial affairs’ deputy, who can make financial decisions like paying bills or organising a pension, and (ii) a ‘personal welfare deputy’, who can make decisions about medical treatment or care. [For more information about deputies, see: https://www.gov.uk/become-deputy)
Adam Fullwood reported that the Local Authority had applied to become P’s financial and affairs deputy, so as to make financial decisions on P’s behalf, but that they had not yet been approved to so act. Adam Fullwood said that “there’s a delay of up to six-months when we send [the application] to London” before applications are answered.
Accordingly, Adam Fullwood invited the judge to approve the Local Authority’s deputyship application. The Court of Protection is empowered to approve these applications by virtue of ss 16(1)(b) and 16(2)(b) of the Mental Capacity Act 2005 (which say that “if a person (“P”) lacks capacity in relation to a matter or matters concerning… P’s property and affairs…The court may… appoint a person (“a deputy”) to make decisions on P’s behalf in relation to the matter or matters)”. Again, I think I saw the judge nod.
Adam Fullwood concluded by asking that the court reconvene on the 18th or 19th of August 2022. He conceded that “whilst arrangements are clearly suboptimal, we invite, at least in the interim, for the court to authorise this deprivation of liberty”.
Adam Fullwood also said that, rather soon, it may become necessary to hold a full hearing conclusively addressing whether P has capacity. Saying “the longer someone is deprived of liberty, the greater the need to consider grappling [with] and determining capacity becomes”, Adam Fullwood invited a capacity hearing sometime after the above mid-August hearing. By that time, he hoped, Dr. Todd should have answered to the additional questions that the Official Solicitor and Local Authority would shortly put to him.
HHJ Berkley thanked Adam Fullwood, then asked Ben McCormack whether he had anything to add. Ben McCormack turned his camera on and began speaking.
Ben McCormack: Counsel for P (via the Official Solicitor)
Ben McCormack began by repeating the facts of the case, and saying that the “nub of the problem” was finding suitable arrangements for P. There was “no doubt that [care staff] are doing the best that they can”, he said, “but the bottom line is that they’re just not equipped” to deal with P.
Ben McCormack accepted that the existing arrangements are the “best option for [P]”, given that the alternative was life “effectively on the streets or close to that”, which brings a “far greater risk of harm”. Yet Ben McCormack underlined the inappropriateness of a care plan which envisages restraint, but knowingly allocates staff who have no training in it.
Ben McCormack suggested that P was exhibited disruptive behaviour because she was “just bored” in her current arrangements, leading her to do things which “she probably shouldn’t”. Connectedly, Ben McCormack said P is “lonely, meaning when people reach out to her on the internet, she says yes”.
Against this background, Ben McCormack revisited five of the seven issues which were agreed between the Local Authority and Official Solicitor.
Issue 1: Smartphone
Ben McCormack said that P’s smartphone use had generated some discussion amongst her multidisciplinary team. All in that meeting knew that she is now contacting a “sugar daddy”. Ben McCormack related that, according to one social worker, “someone had been paying [P] for ‘certain services’”, but Ben McCormack had “no idea” whether that was true. What was clear, Ben McCormack said, was that P was no longer seeing the “boyfriend” who had been mentioned in previous hearings.
Yet, Ben McCormack re-stressed that P was simply “bored out of her skull” in her current arrangements. “Taking her phone off her”, he said, “would be quite a step in that situation”.
Ultimately, Ben McCormack said that the court needed “better and clearer evidence about the edges of [P’s] life that need intervention”. That is, whilst in future the “dial [c]ould tip towards problems” which clearly necessitated intervention, Ben McCormack said that the facts were presently too unclear to justify restricting P’s smartphone use.
Issue 2: Drug Misuse
Ben McCormack said that his instructing solicitor had recently visited P three times. On the first and second occasions, the instructing solicitor had smelled cannabis in her residence. On the third, P told the instructing solicitor that she was smoking cannabis “every day”. Ben McCormack said “it seems odd that she’d lie about that”.
HHJ Beckley interjected, adding “especially [so] given her history”. The judge suggested that perhaps “the monitoring of that issue hasn’t been as good as it ought to have been”, and said he had “no doubt that [P] will continue to misuse cannabis”.
Ben McCormack suggested that social workers’ and P’s evidence are not mutually exclusive: P could have been smoking cannabis, perhaps late at night, with staff simply not noticing it. The judge did not reply.
Issue 3: Alternative placement options
Ben McCormack accepted that Dr Todd could be asked his opinion on the “model” of care that might suit P. Realistically, Ben McCormack doubted that Dr Todd could recommend specific locations to house P, as Dr Todd was not based locally, but had “no problem with him being asked”.
As regards the search for alternative placements, Ben McCormack said that it would be useful if lawyers were given the minutes of P’s multidisciplinary team meetings. At present, Ben McCormack said, he was only being updated about complaints towards the end of P’s caring periods. Reading minutes throughout the period, and not merely at their end, would allow him to “spot in advance [any] issues that are properly the business of this court”. Later the judge asked Adam Fullwood whether he disagreed with his suggestion: he did not.
Issue 4: Capacity
Concluding his remarks, Ben McCormack related that, according to Dr. Todd, “emotional dysregulation” and,“probably”, a “learning disability” together rendered P incapacitous, with the former being the more significant. Against that background, Ben McCormack aligned with Adam Fullwood by saying that at some point “reasonably soon”, the Court of Protection would have to deal with P’s capacity head-on.
Ben McCormack said there was “no doubt that [P] can’t make decisions – the question is why”. He was “not absolutely sure that ‘emotional distress’ is a sufficiently good explanation of ‘impairment in the functioning of mind or brain’”, as must be the case if a person is deemed to lack capacity under s.2(1) Mental Capacity Act 2005.
Ben McCormack assured the judge that the court could proceed on an interim basis because there is “reason to believe that P lacks capacity”. He was referring to s.48 of the Mental Capacity Act 2005, which says “[t]he court may, pending the [final] determination of an application… make an [interim] order or give directions if […] there is reason to believe that P lacks capacity… [and] it is in P’s best interests to make the order, or give the directions, without delay”). However, Ben McCormack said that there was a “lot riding on the capacity issue”, and so agreed that a full capacity hearing may well be necessary.
The judge began his concluding remarks by saying that, in his “instinctive view”, a full capacity determination would be necessary after the next directions hearing. He suggested that next directions could fall on 18thAugust 2022, but was concerned that Dr Todd might not supply “full and proper replies” to his new questions by that date.
Ben McCormack assured the judge that the 18th August date was workable in two ways. First, Ben McCormack said that Dr Todd’s provision or non-provision of answers doesn’t affect the court’s continuing jurisdiction to hear the case. Rather, “if [the court] has it [i.e. jurisdiction] today, nothing will have changed by the 18th of August”, so the court needn’t worry. Second, Ben McCormack said Dr Todd is not a “necessary ingredient” in the search for P’s alternative placement. That search would fall to the Local Authority in any event. Indeed, Ben McCormack said, given “all the indications of a place[ment] that isn’t working”, the search “has to start right away”, with or without Dr Todd’s help.
Satisfied, HHJ Berkley proceeded to authorise all the directions above. Namely, he had “no difficulties with the proposed way forward about capacity or best interests”, and accepted that smartphone use and community access would be kept under review. He said there was “no alternative” to authorising the continuation of P’s deprivation of liberty, adding that it was “absolutely necessary given the risk that she currently faces”. He also approved Adam Fullwood’s “consequential approach” (i.e. community access is revoked if P exhibited disruptive behaviour) as “necessary and proportionate at this point in time”.
HHJ Berkley also accepted control of the property and affairs deputyship issue, saying that he had issued a similar direction in another recent hearing.
And he approved P’s multidisciplinary team meetings being shared with lawyers, adding that it would “no doubt help the Official Solicitor’s understanding between hearings”.
Finally, the judge fixed the return date for 2pm on 18th of August 2022, “on an attended basis” (i.e. in person). The judge gave no reason for moving the hearing offline.
Adam Fullwood indicated that he would draft the directions order, and that if any application to restrict smartphone use became necessary, he would draft it as soon as possible.
I think there were three barriers to open justice in this hearing.
The first barrier was the onerousness of obtaining the Microsoft Teams link. Two emails and two telephone calls were required to discover whether I could observe. I don’t criticise the court staff for that: courts are busy places, and I think it’s unreasonable to expect administrative staff to email and mediate between lawyers, judges, Ps and other implicated parties, all at the same time, and over numerous hearings happening all at once.
Yet, it would have been helpful to receive a brief reply to my 10.16am email, saying that I would receive the link 15 minutes before the hearing, whether that be at 2.45pm as planned, or later if there were delays. Ultimately, I persevered with accessing this hearing because I had successfully accessed hearings before, and because I was supported by the Open Justice Court of Protection Project. Had I been a curious first-time observer, however, I probably would have given up. It’s not optimal, in my view: open justice shouldn’t require such determination and stamina from would-be observers.
The second barrier to open justice was the public’s exclusion from advocates’ discussions. Effectively, in this hearing advocates agreed all matters off-camera, then had them ‘rubber stamped’ by the judge in open court.
However, again, this barrier is not necessarily objectionable. I have undergone work experience as a barrister and so have observed advocates’ discussions myself. I therefore know that advocates’ discussions involve openly exchanging relevant but sensitive details about P (and connected persons).
So, whilst open justice favours transparency, individual privacy points the other way. In my view, it’s right that advocates’ discussions aren’t indiscriminately broadcast to the public, especially where P is highly vulnerable. Yet, I remain somewhat uneasy that in hearings like today’s, all open justice exposes is a hearing’s scripted and closing act.
The third, and least forgivable barrier, was the absence of an opening summary. The judge effectively reminded advocates that observers were attending when he welcomed observers at the outset. Especially after such a reminder, there was no good reason why an opening summary did not follow.
To my mind, opening summaries transform observers from mere spectators into helpful scrutinisers. Without a basic understanding of the facts and issues in the hearing, observers cannot tell whether important issues are given due weight, or whether the court is exercising its power appropriately. With a basic understanding, however, observers are empowered to hold the court and its actors to account.
Accordingly, while the absence of an opening summary did not inhibit me today because I could read online blogs on the case, its omission in other cases risks undermining the comprehension and utility of public observers.
The facts of this case justify my protracted focus on open justice. P is a young lady who, without having had her lack of capacity firmly established, is being subjected to highly restrictive conditions that are agitating her and resulting in harm to persons around her. Effectively, the state is expending its scarce resources to coercively restrict the autonomy of somebody whose decisions, while perhaps reckless, cannot yet be attributed to a mental disorder.
The idea that the state could privately so restrict is frightening. Accordingly, cases like these are precisely those in which open justice becomes a functionally important principle, as a means of holding courts to account for their treatment of vulnerable persons. That is why the three barriers to open justice in this case merited such close, balanced reflection.
Jordan Briggs works as a Paralegal and is a trained, unregistered Barrister. His previous blogs on legal matters include a brief history of legal aid and a 3-part series on the government’s response to Covid-19 and the rule of law. Jordan has previously published blog posts for the Open Justice Court of Protection Project including “Advocacy in the William Verden hearing” and “Covid vaccination and a Christmas visit”. He tweets @JordanBr1995