Access to the community for P: a s.21A deprivation of liberty hearing

By Anna (daughter of a P), 27th September 2022

This case concerned P, who is in a care home, but who must want to leave as this is an appeal made by him under Section 21A, challenging his deprivation of liberty.

I am particularly interested in Section 21A applications as my mother is a P in such a case, and it can be hard for families to understand the process involved. 

I deduced from what I heard in court that this was a Directions hearing to approve orders, including obtaining a Section 49 report[1].

The hearing was listed on the First Avenue House daily hearing list as follows: 

Tuesday 20th September 2022 3pm

DJ Eldergill 

First Avenue House (remote) 

COP 13978517 DJ -v- London Borough of Barnet

Section 21A Deprivation of Liberty 

Directions, 1 hour, Remote 

I knew from previous times that I should send an email to to ask to observe and, if necessary, call 020 7421 8718 in the event of problems. 

The hearing proved fairly easy to access. I sent an email to the court asking to observe. I then received a reply asking me to confirm my reason for wanting to observe the hearing. I replied that I was a party to a Section 21A appeal involving my mother. I also stated that I was involved with the Open Justice Court of Protection Project

I didn’t receive a transparency order but I was sent an email asking me to confirm that I understood that I should not publish anything that might enable P to be identified, or where P or family members live, without the permission of the court (which I could ask for); that I would not record the hearing in any way, and finally that I would not to share position statements or other documents without the court’s permission (which I could ask for). Otherwise, I could be held in contempt of court. I wrote back to state that I understood, but also to confirm that I understood “record” to be by sound or video, as I would be making notes by hand. I didn’t hear back so I assumed that was OK (especially as I had done it before). I chased the link 10 minutes before the hearing. 

I received the MS Teams link only 5 minutes before and I think that this was because it was doubtful that the hearing was even going ahead.  

I joined the meeting, which was already attended by five people (including the clerk). The clerk opened the meeting and the hearing began when Judge Eldergill joined. He checked that the necessary people were present and stated that an observer was attending (me) and that I knew what the restrictions were. I think I heard that he asked if P was joining, but was told no. Everybody had their cameras on, except me. The judge then started the hearing. 

I gathered from what Judge Eldergill said at the start that the parties had been in some discussions before the hearing. The hearing would probably only last 10 minutes – I imagine that this was why there was no background to the case given to me as an observer, as it wouldn’t have been an appropriate use of time. The judge explained that he had read the Position Statements and the hearing could have been vacated but for the fact that he wanted a discussion about a particular point, which was access to the community for P. He then asked about this. 

Counsel representing the Local Authority (I assume, as it wasn’t clear who was who) explained that the care home has been in lockdown for two weeks due to COVID (implying that normally residents who were capable could leave the home to go into the local community). He explained further that P was sociable, but on his own terms.  He liked participating in musical events at the home and liked going into the garden. 

Judge Eldergill stated that P had mentioned wanting to be able to go to a restaurant (and there was also some mention of P being able to go to a bank). He referred to Paragraph X (of the Position Statement) which stated that the Home was concerned about P going out alone because he was at risk of absconding. However, the judge raised a point about the seemingly low likely risk of this happening, given that at another paragraph, it stated that P uses a Zimmer frame and so clearly has mobility issues. 

The solution suggested by the Home was that they should take P out and the Judge was concerned about care home staff time and how practical this suggestion was. He then asked whether there should be an amendment to the draft order to ask or require (I’m not sure which) staff to take P out. The Judge continued that the Court could attach conditions to the order re Section 21A and this would be the type of thing that would be attached (and so suitable wording should be agreed). 

Counsel for the Local Authority suggested something along the lines that “the Home will support P going into the community”. 

The Judge suggested that he wanted something more specific. 

Counsel for the Local Authority explained that the home was big, with its own café and a big garden. It was also very close to local amenities. 

The Judge proposed that a program of outings could be agreed which would take them through to the next hearing in December. 

Counsel representing P (I assumed) wanted the order to enable some flexibility but agreed that in principle it was a good idea to amend the order, outlining how P should have access to the community. 

The Judge then referred to the fact that P has been recorded as stating that the home “feels like a prison” and that he “was a prisoner”. So, he wanted to improve P’s situation in the time period before making a final decision (about the Section 21 A appeal).  It was agreed that the Court wants access to the community for P to be specified in the main order. 

At this point the judge asked if somebody could talk to P’s brothers about taking P out from time to time in order to reduce the pressure on the staff in the care home. He then went on to state that the background was a bit vague but that it seemed as though P might prefer to be in….  I didn’t quite catch the exact words but it was some sort of sheltered / supported accommodation (rather than a care home, I think, was the implication). Therefore, a point should be added to the order requesting the S49 report, to obtain information about whether P could become disorientated and therefore what the appropriate type of accommodation should be. 

The Judge then spoke to me directly to say that he was leaving the hearing and I should leave at the same time, to enable the parties to continue their discussions. 

My observations 

Although this was a short hearing, and technically about wording in an order, it established an important principle and was useful to me in various ways. 

First, as in my mother’s case, the Judge was clearly concerned that steps were taken straight away to improve the quality of life of P rather than waiting for another hearing. P wanted access to the community and the judge wanted to ensure that this could start happening as soon as possible. 

This raised another point about the practicalities of this happening, and how much time the care home staff would have to do this. As well as being concerned for P, the judge was concerned for the care home staff’s time too. I hadn’t fully appreciated before my mother’s case, now reinforced by this one, that the Court of Protection can make orders requiring Homes to take residents out into the community, as well as making other adjustments as appropriate.  How this can be organized and monitored to ensure it happens is another matter, as I have learned from my mother’s case. 

Second, it was interesting for me that the judge raised the possibility of the family going out with P. It sounds a reasonable request. However, I know from my experience that a lot already falls on families and it can be hard to draw a line between the State and the family providing support and care. Families are strange beasts and there can be many reasons why a family’s role can be limited. 

Third, the judge was concerned to support P’s autonomy. In this case P was quoted as saying that the care home is “like a prison” and this reflects the exact words my mother uses and it made me realise that it is an expression that Courts must hear all the time. My mother’s case is unique, as are all cases, but I’m learning that there are similarities that judges must come across frequently.  

Finally, I was struck again by the spirit of cooperation between the parties present, and Judge Eldergill doing his best to ensure that P’s wishes were at the heart of the discussions and accommodated in the best way possible. 

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] Through section 49 of the Mental Capacity Act 2005, the Court can order (most typically) the NHS body responsible for the area where P lives to produce a report even if it isn’t a party to the Court proceedings. A section 49 report is often considered as an alternative to a report by an independent expert. Whilst reports by independent experts can be obtained by the parties at private expert rates, no provision is made within section 49 in relation to fees or expenses incurred by the body directed to produce the report, and so the cost is therefore borne by the body directed to produce the report. See “What is a section 49 report?”

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