By Celia Kitzinger, 26th July 2022
This hearing (COP 13452747 before by DJ Beckley at First Avenue House on 6th July 2022, via MS Teams) was originally intended to be a review hearing to consider how P, a man in his 20s with learning disability, autism and epilepsy, has settled into his new placement.
The plan had been to review P’s new placement six weeks or so after his move. The date of this hearing had been fixed with that in mind.
As it turned out, however, P had only moved to his new accommodation 12 days before this hearing.
Counsel for P (Jack Anderson of 39 Essex Chambers, via P’s litigation friend, the Official Solicitor) said that was too soon to be sure that the new placement is working out. “The whole point of a 6 week review period is to recognise that it takes time to see how things bed down.”
The Clinical Commissioning Group (now known as the Integrated Care Board) represented by Rosie Scott, also of 39 Essex Chambers, disagreed. The CCG (or ICB as it is now) submitted that P was “settling in well to his new property” and that a further review hearing isn’t needed. This should be the final hearing, said Rosie Scott. It should authorise P’s deprivation of liberty in accordance with his current care plans, subject to the usual safeguards, and bring the proceedings to a close.
In addition to the CCG/ICB (represented by Rosie Scott) and P (represented by Jack Anderson), P’s mother and father (I think they are divorced) and P’s sister were all, separately, parties to the proceedings as Litigants in Person.
The judge summarised the issue before the court like this:
“It seems to me the question is whether I conclude these long-running proceedings today, or whether – given this hearing was to act as a review and to consider how P has settled in and it’s only 12 days rather than 6 weeks after the move – whether I should list another hearing.”
Each party made submissions in turn and I’ll report them in the order they spoke in court: first counsel on behalf of the CCG/ICB, then P’s mother, father and sister (in that order) and finally the Official Solicitor.
Counsel for the CCG/Integrated Care Board (Rosie Scott)
Rosie Scott introduced this hearing by saying it was a “long running” case concerning a young man in his 20s with “severe learning disability, autism, and epilepsy” and “challenging behaviour”. He’s also registered blind and requires 2:1 24-hour care and support. Final declarations that P has no capacity in relation to litigation, contact, medication, care or residence were made, she said, in September 2020.
Previous hearings in this case (one of which I observed, on 27th August 2020) have concerned – in addition to issues of capacity – deprivation of liberty, provision of care, restrictions on P’s contact with his father, and covert medication (amongst other issues).
This hearing had been intended solely to consider how P has settled into his new placement.
His previous accommodation was not ideal because it had no garden and was near a main road. This had been noted at the hearing I observed nearly two years ago, but none of the participants back then thought there was any urgency to find a different place for P to live because P was accustomed to his flat, could move about it safely, and also because he finds change very difficult, and was facing other challenges, including eye surgery.
Almost two years later, though, this change of accommodation has been accomplished and (according to Rosie Scott) the move went “extremely well”. P was calm on moving day and seems settled in very comfortably.
There are “some teething problems, like anybody moving” – including “snagging, very common in a move, but all in hand”. This includes boxing in the shower attachments to render them “unbreakable”, creating a manual override on movement-sensitive lights, and ensuring that the curtains are appropriate.
P’s father had apparently raised a concern with damp at the property, claiming that this is why the previous tenants had left and the damp had been painted over instead of being fixed. Rosie Scott said there had never been any damp (although there had been a leak from a boiler overflow): “It’s certainly not been painted over, and it’s not why the last tenants left”.
There was also some discussion about the garden, which has 6-foot-high fences – so people in the garden can’t be seen from neighbouring gardens but can be seen from the upstairs windows of neighbouring houses. The relevance of this seemed to be a concern that P likes to be naked in the garden. “The purpose of being outdoors is Vitamin D and the experience of the great outdoors. It is not considered proportionate to cover over his garden like a tent or marquee – if he wants to be naked in his own garden, that’s up to him. He will be supported to wear clothes but it’s his choice.”
She ended her submission: “We say you could appropriately conclude the case today, given the move has gone well”.
P’s mother felt that “Ms Scott has covered everything” but added that “we’re not allowing him to go out naked. We insist he puts his shorts on at least. He will resist, but in the end, he puts them on.”
She pointed out that the transition (from the old flat to the new one) “didn’t go as we planned”. The Position Statement from the CCG lists some of (what she called) “the difficulties” she might have been alluding to here, though she didn’t spell them out. There was the four-week delay in moving which “accumulated through difficulties finalising the adaptations and a combination of smaller issues, such as the removal van being delayed by rail strikes and staffing difficulties (around the time of the proposed move).” Also, although it had been planned that P would visit the property several times ahead of his move, in fact he only visited on one occasion.
“Nobody said it will be easy,” said P’s mother. “It’s really difficult for P to move. Hopefully it will be just this move and no more in his lifetime. He was in the other area for 18 years and knows the area and was devastated to move. But he is getting adapted. It is still difficult, but we are hoping it will be okay.”
There was a short exchange between the judge and P’s mother:
Judge: How many times have you visited him?
Mother: Six times.
Judge: When was the last time you saw him?
Judge: Do you have any concerns? Is there anything you think needs sorting out for P to be happy and comfortable there?
Mother: The shower and toilet are being sorted so they are safe. We are trying to get him familiar with the area. We are taking him out for walks and drives. We are looking into taking him swimming.
Judge: Is there a swimming pool nearby?
Judge: And a difference between the CCG and the Official Solicitor is whether I should conclude matters today or list a further hearing in about six weeks. Do you have a view on that?
Mother: It is always nice to review the situation so I don’t mind if you are coming back to me in a month or two.
P’s father took a very different perspective.
“The information given by the CCG is, as usual, not correct,” he said. “P has not settled in at all properly. He had six panic attacks – they are recorded in [care company’s] reports. I wonder why the CCG keeps hiding things and trying to deny things recorded by the carers themselves. He had a very major panic attack the day before the move when they were packing up his things – it lasted for over one hour. On Saturday he had two major panic attacks – one at two in the morning and one at four in the morning. There are incident reports. A neighbour came down – they hadn’t told the neighbours about P’s condition – he was about to call the police. They had only told the neighbours that P was blind.”
P’s father also raised the matter of a complaint he’d made “about the way you [i.e. the judge] conducted the hearing” on an earlier occasion and there was reference to the Judicial Ombudsman and Lord Chief Justice. I gathered that P’s father had sought permission to appeal orders made on 17th May 2022. I didn’t attend this hearing and don’t know what it concerned but the Transparency Order for the (in-person) hearing on that date says “the Court will consider allegations made by the CCG in relation to [P’s father]”. I don’t know what these “allegations” were, but I think one of the orders was the Contact Schedule with a penal notice attached that limits his contact with his son. I understood P’s father to be saying that he had not attended this hearing because he had been refused permission to attend remotely. Permission to appeal the orders of 17th May 2022 had been refused. The judge said “I can’t deal any further with those matters today. I am focussing on P’s best interests”.
P’s father then said that “the move was done without preparation – the flat wasn’t ready for him”. He reiterated his concern that there were problems with damp and moulds (“it’s full of dampness”) which have been covered up with paint. He was also concerned that “there’s a prison rehabilitation centre 100 yards from P’s flat”.
Summarising his position, he referred to “the unprofessional way this case has been handled by the CCG and their lawyer”. He said: “All of these [problems] the CCG wouldn’t mention at all. So how the hell did it go well? This is the most ridiculous case I ever heard in my life with the way the solicitors and barristers are acting. And unfortunately, Sir, you always go with them in what is lies after lies, just to victimise the father.”
He saw the hearing that happened without his having attended as evidence that “You [i.e. the judge] wanted to go the way you want and the way the CCG wants. This is judicial misconduct by you and misconduct by the CCG and their solicitors. His mother doesn’t care. I’m the only one fighting for our son.”
The judge intervened.
Judge: I am not going to allow you to use these proceedings to attack your former wife.
Father: Forget about my wife. What about the things I said about you and the CCG? You have got my son out into a flat that is not fit for purpose. […] I don’t want my son to move to an area with a prison rehabilitation centre. It’s not safe, according to the neighbours. There’s a damp problem – and that’s denied by the CCG. It’s all covering and covering and covering. There are soft tiles in the garden – I took pictures to provide evidence. The tiles are not fixed or levelled – it’s wavy and P can trip on it easily. The toilet is broken. The shower is broken. The curtains only cover half the window – and P hates the light when he’s sleeping. They just want to get on with it, get him out of [previous accommodation] and finish with all these headaches. That’s why I told the Judicial Ombudsman.
The judge asked whether P’s father supported the Official Solicitor’s view that another review hearing was needed and he confirmed that he did.
P’s sister said she too would like a further review hearing. In part, this is because “it will take a little more time to see how P gets used to it”.
There’s also the continued work needed on the property – and she’d appreciate a hearing after some of the works have been done and when “communication with the landlord” is established and “we understand the landlord’s level of support”.
She mentioned the curtains, the shower, the lights, and the judge added “and the loo which is being refixed to the wall today. Anything else?”.
There were issues with storage space, she said, which needed sorting “so we can move stuff out of the way for him”. And there’s a problem with locking the front door: the door needs a security pad “similar to the one at the previous flat, so it would be harder for P to open”.
Counsel for P via the Official Solicitor (Jack Anderson)
Jack Anderson was brief and to the point: “The key issue,” he said “is whether a further review hearing is needed. The Official Solicitor submits the court should hold one. As a result of delays in the move of some four weeks, there’s only been a very limited opportunity to see P in his new environment.”
He had submitted a COP form to the court which had not reached the judge (“the court staff have been badly hit by COVID again,” said the judge, “which is why I guess the COP form hasn’t made its way to me”). It was sent and he read it (silently) while we waited. I don’t know what it concerned.
The judge said that given the snagging issues, the factual dispute about damp, and the fact that P had only lived in the property for 12 days, he had decided that he shouldn’t end proceedings today.
There were difficulties in fixing the date of the next hearing (“August is generally quite hideous for me,” said Rosie Scott; “I’m largely unavailable in August”, said Jack Anderson). I think the date for the next hearing was eventually fixed for 5th September – although as it turned out neither barrister could make the first week of September either.
A schedule was agreed for the date by which P’s father must file evidence about the (alleged) damp and other property issues and how he considers P has or has not settled in; subsequent dates were agreed for the Position Statements from the represented parties, and for a statement about P’s wishes and feelings.
It seemed that the hearing was about to end but P’s father intervened with new concerns that the care providers were not buying food for P (“when I visited him on Thursday and Sunday, he didn’t have gluten free bread, or water, or wipes. I had to buy it”). He said “the nearest shop is a 12-minute walk which none of them is willing to do”. The judge said he was not going to deal with evidence at the end of the hearing. P’s mother said she’d made sure the essentials had been purchased and that “they can order everything for delivery”.
Father: I would like to be able to buy gluten-free bread for my son.
Judge: The order remains as I made it in May.
Father: I would like to make changes to the order.
Judge: The order I made on 17th May stands.
Father: If I want to ask for changes how can I pursue that.
Judge: You need to take legal advice. I am not able to give you legal advice in this hearing.
The judge then ended the hearing by thanking the two lawyers (who would not be at the next – and hopefully final – hearing) for their “helpful submissions and advice and absolutely professional behaviour in the course of these proceedings”.
Until I started observing hearings, I had no idea that Court of Protection cases could run over several years and multiple hearings – sometimes dozens. I had no idea how intimately involved in the details of case management the Court can become. I do wonder whether this is the most effective use of judicial time (and the public purse) but sometimes there doesn’t seem another forum or any other appropriate mechanism for these matters to be resolved.
In this case, the hearing might never have happened if the parties had been able to agree in advance of the hearing and make an application for it to be adjourned and heard at a later date, on the grounds that it was simply too soon after P’s move for an effective review to take place. I imagine that the judge would readily have granted permission to vacate the hearing. Instead, it took place because the CCG/ICB maintained that the 12-day time period (in place of the six-week one previously agreed) was adequate for a ‘final hearing’. That turned out to be an expensive decision in terms of court time.
This hearing was also painful to watch (as was the earlier one in this case) because of the evident anger and distress of P’s father. I don’t know what “allegations” were made against him at the 17th May 2022 hearing, but I heard allegations in the previous hearing I observed about his removing P from his home without consent, and providing P with food considered to be inappropriate for him (on the grounds of possible gluten sensitivity, contested by P’s father at the time).
The issue of contact between father and son was something of a flashpoint at the August 2020 hearing – which took place at the height of the COVID-19 public health emergency. There was a penal notice attached to the contact schedule then too, and family members were prohibited from removing P from his home without two members of staff to assist. The rationale for this was, in part, because P would not tolerate a face mask and was unable to comply with social distancing.
P’s father found these restrictions intolerable. “It is not a crime I should be penalised for to have a meal with my son in a restaurant. I need the penal notice to be removed – it wasn’t fair for the CCG to persuade you to agree to it and it’s created grievances between parties for no reason. It became like a stupid thing to call the police every time I took my son out. It’s ridiculous. It’s against human rights, it’s against humanity.” (Hearing of 27th August 2020)
There had also been conflict over P’s diet: in August 2020 his father had bought him crisps, chocolate and pasta that wasn’t gluten-free. There is mention, too, in the CCG’s/ICB’s Position Statement for the 6th July 2022 hearing that P’s father had brought food to P’s property (including apples and Smarties) “but that staff threw away the food and none was given to [P]”.
As a family member of someone who lacks capacity to make almost all decisions for herself, I am acutely aware of how it feels to have the long arm of the state intervene into family life and take over daily decision-making on behalf of one’s relative. It can feel as though the vulnerable person has been kidnapped by the state – and I imagine it must feel even more acutely the case when that person is a child and someone who has never had capacity. At the hearing back in August 2020, this came through clearly from what P’s father said. Protesting against the restrictions on spending time with his son he said: “He’s our son – we need family time, that’s what you people need to understand” and “We have to have normal family time. These restrictions are not acceptable, Sir.” He referred to his own long history with, and detailed knowledge of, his son – all of which (he felt) was now being overlooked and erased: “I’ve been responsible for my son for 24 years. He wasn’t born yesterday. He didn’t become autistic 2 years ago”. (Quoted from the hearing in August 2020)
But this case is not straightforward. There have been breakdowns in relationships between P’s father and the care providers. There has been “animosity” and “conflict” between family members, and P’s mother and sister are concerned about P’s father’s involvement with P.
Watching this case brings home vividly how poorly equipped we are as observers to assess some of the rights and wrongs of these hearings. There is a lot I don’t know about this case – because I haven’t observed most of the hearings, I don’t have access to the bundle, and I have no way of deciding for myself which way the evidence points on most matters since I don’t have direct access to that evidence. Even if I did have all of this information, I’d be in the same position as the judge, but without his extensive legal training and experience. No more, no less.
I’m confident, though, that the judge made the right decision (and it was a decision supported by four of the five parties) not to make final orders today approving P’s deprivation of liberty, but to hold another hearing after there has been more opportunity to assess how P has settled in. As the judge said, despite – or perhaps because – these proceedings have already been running for a long time, anything else would simply seem like an attempt at premature closure.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia
 We are not allowed to audio-record hearings. All quotations from the hearing are taken from contemporaneous touch-typed notes and are as accurate as I can make them. They are unlikely to be entirely verbatim, though, despite my best efforts.