Observing a s.21A hearing and the importance of correctly drafting a Lasting Power of Attorney

By Anna (daughter of a P), 3rd August 2022

This case concerned P, living in one care home but with a proposed move, against her wishes, to another. I found it particularly interesting in terms of the reach and limits of a Lasting Power of Attorney.

The hearing was listed (on the Open Justice Court of Protection website) as follows: 

Monday 25th July 2022

DJ Eldergill 

First Avenue House (remote) 

2pm COP 13832291 AJ -v- LB Waltham Forest (1 hour) 

Section 21a Deprivation of Liberty 

For access, email: courtofprotectionhearings@justice.gov.uk

(Tel 020 7421 8718)

I have already written about the experience of gaining access to this hearing and my thoughts about that (“Accessing a Court of Protection hearing as an observer”).  

In this blog post, I will write about the hearing itself and my experience of observing it. 

The hearing lasted 30 minutes. 

After the hearing, I emailed both barristers to ask for a copy of their position statements. I received a copy of the applicant’s statement (the Local Authority) the same day, but have not received the position statement from P’s litigation friend, the Official Solicitor.  After pursuing it on my behalf, it was sent to Celia Kitzinger, who has drawn on it in editing my blog post for accuracy.

I have to say that reading the applicant’s position statement afterwards shed light on a lot of what had been discussed in the hearing. I tried to follow what was being said during the hearing, but I think I made some assumptions that turned out to be wrong and realized this once I had read the position statement. This shows the importance to me of being able to read position statements in order to gain a much better understanding of the case. 

For this blog, I will first note what I learned from observing the hearing and will then supplement that by what was learned from the position statements, before finally making my key observations. 

Joining the hearing

Having received the MS Teams link for the 2pm hearing, I logged on 10 minutes before to ensure I was in good time. 

I’d been told that the hearing might not be going ahead, because the parties were working towards a consent order. Luckily, having logged on, I stayed in the waiting room and at 2.05 the meeting was opened. There were a number of other people already in the hearing when I was admitted, and I was the last to join before the judge, so it seemed to me as though there had been some sort of pre-meeting, probably to do with working towards the consent order. 

The clerk welcomed everybody and asked if they were ready and then said that she would join the judge. 

I had planned to email the barristers at the beginning of the hearing to ask for their position statements but, as it turned out, I wasn’t clear at first who the barristers were. I pulled up the list of participants but it was just names plus the words “external” or “guest”. Twelve people were participating in total,  but apart from the couple of times the clerk spoke, the only people with cameras on were the judge (DJ Eldergill),  Carol Knotts and Amos Waldman.  As they did most of the talking, I assumed that they were the barristers and after the meeting I googled them and sent emails asking for a copy of their position statements. If I hadn’t observed or been involved in a COP hearing before, I think I would have been a little confused about who everybody was. 

On a practical point, I had planned to type my notes as I observed as a means of speeding up my note-taking, but as the hearing started, I realized that it would be quicker for me to write by hand. I tried my best to keep up but am conscious that I missed out some things due to my speed. The hearing was being recorded and transcribed for the court, but of course I was not allowed to record it myself, and observers don’t have access to the recording or transcription. However, I am going to use the position statement to fill in the detail where necessary.

The first thing that happened after the judge joined was that he mentioned there was an observer, and named me. He asked me to confirm that I understood the confidentiality of the case and that nothing I did should enable the person being discussed (“P”) to be identified. I confirmed by voice, camera off, that I understood this. I haven’t received a copy of a Transparency Order.

For my benefit, he then gave a brief summary of the case, which he stated was a Section 21A application. This is the gist of the summary he gave. 

The protected party at the centre of this case, (“P”), is currently resident in a care home, which I gather is near her old permanent place of residence. The issue at hand is whether she should stay in that care home or be moved to another one (S) to be close to her son (“MS”), daughter-in-law (“AS”) and grandchildren. P herself has said that she wants to go back to her old home (the house she used to live independently in). 

Three of the parties – the Official Solicitor (representing P) and her son and daughter-in-law, who P appointed with Lasting Powers of Attorney (LPA) for Health and Welfare, believe that it is in her best interests to move to the new care home, which is close to them in “X county”. 

The local authority position is that it would be in her best interests to stay where she is. The case is to decide which care home she should reside in. 

A return to her own home, which is what she would prefer, is not an available option.

Counsel for P via the Official Solicitor explained that a Round Table Meeting had been held before the hearing and that the Official Solicitor believes it is in P’s best interests to move to the new care home (S).  There were currently two places available at “S” care home but they were not being held for P and therefore time was of the essence if the judge decided that she should move to there. 

DJ Eldergill did not report,  as part of his summary, what “impairment of, or… disturbance in the functioning of, the mind or brain” (s. 2(1) Mental Capacity Act 2005) P was said to have The word “dementia” was mentioned later in the hearing, and reading the applicant’s position statement later confirmed that P has dementia. 

I assume (though it wasn’t explicitly said) that P has been deemed to be not able to make the decision about where to live (i.e., she cannot “understand”, “retain” or “weigh” information relevant to that decision, s. 3(1) Mental Capacity Act 2005).  So, a decision needs to be made in her best interests.  

The position of the parties

I completed a lot of my understanding on reading the position statement. 

The applicant for the case was actually the local authority (unlike in my mother’s case, where it is my mother).  The protected party, P, is the first respondent and MS and AS are the second and third respondents (so the son and daughter-in-law are official parties to the case as litigants in person i.e., they did not have lawyers representing them).

Local authority

The applicant (the Local Authority) is I assume representing the point of view of the social worker, which is that P should stay in her current care home because force would need to be used to move her and it would be very distressing for her. It was reported that P is very clear that she does not want to move to the new care home.  She is quoted as saying that if her family want to see her more often, then they should move nearer to her.  She is “adamant” about not wanting to move. As the local authority position statement says: “Given P’s explicit objection to the move, in [the social worker’s] opinion it would be disproportionate to move P given that significant coercion or restraint would be necessary”. She would be “extremely distressed and unsettled, given her expressed views”. 

Official Solicitor 

However, P’s litigation friend, the Official Solicitor, believes that it is in her best interests to move to the new care home, even though she doesn’t want to.  The Official Solicitor is balancing P’s wishes and feelings against P maintaining contact with her family, and the fact that contact will be easier if she moves to the new care home.  The arguments for and against the move are (says the Official Solicitor) “very finely balanced” – but family contact has swayed the Official Solicitor who also “hopes that any such move will not lead to a breakdown in the relationship between P and her son, given his support for the move”.

I don’t think I had appreciated before that the Official Solicitor, who is appointed to represent the protected party, can take a position which is opposite to what that person says they want. This is because the Official Solicitor isn’t supposed to represent the incapacitated person’s wishes and feelings, but merely to elicit them and take them into account in making a best interests decision.  Many of us want to do things that others consider not to be in our own best interests.  When we have capacity to make our own decisions, we can do that.  When we are deemed to have lost that capacity, then decisions are made for us in our own best interests – which may be very different from what we would choose for ourselves.  (For more information see Alex Ruck Keene’s blog post: “Litigation Friend or Foe” and Jenny Kitzinger’s reflections on whether this is the way the law should be, drawing on a case she observed over many hearings: “Should P’s litigation friend instruct P’s lawyer to promote P’s wishes and leave best interests decision-making to the judge?”). 

MS and AS

It was then highlighted that P’s son MS had provided a statement for the court (at the last minute I gather) but due to technical difficulties (and this was not a criticism of him) not all of the paragraphs were visible in the document. 

I ascertained that it was not possible for the judge to make a decision today. My notes aren’t complete at this point, but I believe there was a question of a request for a judicial visit to P. (I later understood from the position statement that there was always going to be another hearing after more evidence had been gathered).  

The issue of timing was then discussed.  The judge explained that he worked 90% as a judge but 10% of the time in academia. Unfortunately, he explained, August would be taken up by his academic work. (I subsequently looked him up on LinkedIn and saw that he is a Professor of Law at UCL university, London).  He thought that it would be hard for another judge who had not been involved in the case previously to do the judicial visit, so this would have to be delayed until September (therefore delaying a final decision until then). 

The LPA documentation

At this point the judge raised a legal point – that the complete LPA documentation seemed to be missing from the bundle and that indeed the bundle seemed quite “short”. Ms Knotts confirmed that it was indeed short. At this point Ms Bashir (who I assume was the solicitor instructing Ms Knotts) spoke to say that she was new to the case (covering for a colleague) but she could check to see if there was a complete copy of the LPA in her bundle. 

MS, P’s son, confirmed that he had only sent the first two pages of the LPA and so the judge asked him to send full copies. 

The judge also asked MS to check the LPA to see if any reference had been made by P along the lines of “In case of incapacity I do not wish to be admitted to a care home”. The judge specifically asked “Do you remember if P wrote anything like that?”. MS replied “I’m not sure, I would need to check”. At that point P’s social worker (as I understood her to be once I had read the position statement) interjected to say that she had a full copy of the LPA and there was nothing in there about a care home. DJ Eldergill then asked MS if his mother had any savings, to which MS replied “No she doesn’t”. 

I believe that the following point made by the judge is really important and interesting and I will comment further on it below. 

The judge then made important reference to a precise point of law which unfortunately I didn’t catch. He explained that assuming that the LPA document the social worker had consulted was the only one in existence, then P hadn’t expressed a written wish, in the LPA documentation, about a care home. 

He referred to Section “L?” that there can be no (words not captured) if a person had not given their consent. He then referred to Paragraph 20 of Schedule A1.  He said it was open to MS and AS to withdraw their consent to P residing at her current care home and then the “standard authorization falls away”:  then they can give their consent to her residing at the new care home, closer to them.

His next words were very pertinent to my mother’s case and seemed to be at the crux of the issue of the authority granted by a doner of an LPA. DJ Eldergill stated that P had appointed her attorneys to make a decision, and a judge can only interfere if he thinks they are not acting in her best interests, in which case he can remove them as LPAs. He also said that a different judge could come to a different view that they should be removed as LPAs (implying if they felt MS and AS were not acting in Ps best interests.)

He then asked for thoughts (on his reasoning I suppose). 

Mr Waldman stated that the local authority would be funding both homes, I imagine to highlight that from a financial perspective the Local Authority was neutral as to which home P resided in. I later read in the position statement that the cost to the Local Authority would be the same whichever care home P lived in, so that confirmed to me that cost did not have a bearing on the decision, which in my opinion is a good thing. (I don’t know what the discussion would have been if there had been a vast difference in cost for the Local Authority). 

The judge asked the participants if they would like 30 minutes to discuss the best way of moving forward and Mr Waldman stated that they would prefer a few days, as some of the legal personnel dealing with the case were new to it. The judge asked the participants to discuss this between themselves. (Presumably this would be after the hearing, which is why I was asked to leave the meeting at the end of the formal hearing – see below)

The judge then asked his clerk to find a time in his diary when he could visit P at her current care home. He suggested that he would need a half day in September for the judicial visit (including travelling time), before a 2-hour final hearing in later September. The clerk found 3pm on 7^th September (for the judicial visit) and 10.30am for a hearing the week after. The clerk mentioned “Box days (?)¹” with reference to the diary and the judge said that he would have to “clear that with the senior judge”. He then said (partly for my benefit I thought, but also for all lay people present) that there were 40,000 applications a year (to the COP I assumed) and only six judges to try to get through the backlog. Therefore, he needs permission to do a hearing or allocate additional time (on a “box day”). He then confirmed there would be a 2-hour final hearing, in person at First Avenue House, in mid-September 2022, and asked if everybody agreed to that. 

DJ Eldergill then asked for it to be “clear”: Does everybody agree that only residence in a care home is a realistic option? 

There was then some comment about the family home that I didn’t catch. I think it was along the lines of the family home had been signed over to the children and the rights of occupation of P. The judge asked MS even if his mother had signed the home over to the children, was there the expectation that she would be able to live there?  MS explained that there were discussions about the size of the home (I got the impression it was too big a house and the question was whether she would be able to manage it) and whether she would move closer to them. 

The judge then said “to be blunt, most people who sign properties over to children do it to avoid tax or so as not to have to pay for care home fees, but the understanding is that they would be able to reside there”.

In response, MS replied that he had been paying the mortgage for the past 15 years as well as paying all the bills. 

The judge appeared satisfied with these explanations, as without further comment he asked Mr Waldman to confirm next steps. 

There was then a discussion as to the setting for the next hearing, and whether it should be at the care home so that P could attend or whether it should be remote. At this point P’s solicitor spoke, and said that P had not expressed a preference as to attendance at the hearings. The judge said that he wanted it to be an attended hearing as “final hearings should be in person if possible”. 

The discussion of timings of future hearings would be incorporated in the order. Mr Waldman then asked about the need for an “advocates meeting”, along with the solicitors. The judge said that this could be an allowable expense, because it could result in an agreement that would result in the final hearing being vacated. But then there was a concern expressed that this would exclude unrepresented persons and it was asked whether a Round Table Meeting would be better to agree a final order to which the reply was “yes”. (Subsequently I googled  “advocates meeting” and came across an explanation in the very useful downloadable pdf: A Basic Guide to the Court of Protection.)

At this point the judge asked me to leave the meeting as the hearing was over but the parties would then carry on their private discussions. It was 14.36 when I left, so the hearing had lasted just about 30 minutes. 

My key observations 

I would like to concentrate on certain aspects of this hearing. 

First, the role of the LPA. It struck me from this case, and from being involved in my mother’s case, that how the LPA is drafted is crucial. My mother’s involved a trip to a solicitor, but another I have been involved in was simply a form completed online. This case shows how important it is to clearly think about arrangements for future care and specify them if necessary. According to the position statement, MS and AS hold Lasting Powers of Attorney which expressly provide for their involvement in deciding where P should live. This presumably is why the judge said it was up to them, if they were deemed to be acting in P’s best interests. Families should make sure that the views of loved ones are known and expressed in the LPA to carry legal weight.  Many families probably think that holding LPA for health and welfare means the LPA can always decide on a person’s behalf, but from my mother’s case I know this isn’t true. 

I really wish that at the time we had completed the LPA with my mother we’d realized the importance of the Preferences and Instructions section of the form. That is addressed in an earlier blog (Lasting Powers of Attorney by Heledd Wyn) which I wish had been available to us. Maybe, in an ideal world, the wording on the form would be changed from “most people leave this section blank”, which implies it’s not important! 

I’m also conscious that I haven’t done an LPA myself and nor have most of my friends (all middle-aged). You never know when something could happen and it really is something that should be done sooner rather than later. 

Observing this hearing made me think about my mother’s situation and ongoing case. We are quite happy with the care home that mum has been placed in and I have read that it is inadvisable to move somebody with dementia from a place where they’ve been living for a while, and are settled, to anywhere else. This view is obviously dependent on the current care home being of good quality.  I read this article which I found on the internet whilst doing some research: “Expert warns of risks of moving people living with dementia“. Even though my mother says she wants to move, hence the Court of Protection case, there seems to be evidence that moving her would be difficult for her and add to her symptoms. This is in fact one of our arguments for saying she should stay where she is. So, it was interesting for me to see that this had not been raised as an issue at this hearing and obviously each case is different. 

I really appreciated the summary by the judge, and his welcoming approach. I did miss a quick explanation of who was who and their roles though. I don’t know whether this is normally done or not. 

I was struck that continuity of personnel can be difficult and have an impact on time taken to settle cases. Certainly, there seemed to be some new people involved in this case, whether through holidays, COVID-19 etc. 

I was impressed that the judge wanted to continue his involvement in this case to ensure continuity. I was also struck by the demands on a judge’s time, especially if they have wider activities, as DJ Eldergill does. And the number of cases and backlog shocked me. I found it interesting that diary scheduling is done in the hearing and this highlights the important role of the clerk. 

The voice of P seemed to be absent in this hearing and it seems to me that a judicial visit to the care home would be beneficial to her. I thought it was good that the judge was making time to visit her in person rather than trying to do it by phone. 

The overall tone of the meeting was very positive, non-adversarial and there seemed to be a large degree of agreement between the participants. The judge was very welcoming and the overall impression from everybody was wanting to do the right thing for P. 

Ideally, I would like to attend the final hearing, but due to geographical constraints I won’t be able to. Remote hearings for me make observing a hearing much easier. I was glad I was able to attend and observe this one as I learned a lot from it. 

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.

^1, ‘“Box work” is when a judge works on cases to make orders which do not require a hearing. Often this will involve giving directions in preparation for a hearing or asking parties to provide additional information before making a final decision.‘ (Thank you to Nicholas O’Brien @CoramNickOBrien for tweeting this response to the blog post.)