By Lorraine Currie, 20 October 2022
On 11th October 2022, I observed a hearing (COP 13582321, via MS Teams) before Sir Jonathan Cohen sitting in the Royal Courts of Justice.
This was my first experience of literally dropping in on someone else’s life.
I’ve previously attended a few hearings because of the involvement of the Local Authority where I worked as Mental Capacity Act (MCA) Professional Lead. For the past 15 years, my day job has been totally devoted to promoting the MCA and improving practice, particularly social work practice. I’ve also written a Court of Protection protocol for that local authority and played a lead part in legal planning meetings for numerous Court of Protection applications: DoLS challenges, Judicial deprivation of liberty applications and welfare applications.
I wanted to observe a COP hearing because I realise that my experience in this area is limited to the cases where I have been involved. I believe that I have helped to set a very high standard for the evidence that is required before an application to Court is made. I was keen to see a hearing relating to a case with which I’d had no involvement and to witness a hearing which may be about issues I hadn’t previously encountered.
So, on a professional level I didn’t come to this cold but as an onlooker I found it strangely unnerving.
I followed the Open Justice Court of Protection Project’s very clear and helpful advice about how to observe. I emailed just after 8.00 a.m. and then when I received no response, I emailed again at 10.00 and eventually (after Celia Kitzinger sent emails on my behalf to the RCJ, to the video hearings administrator, and to the judge’s clerk), I received three email replies with the link at 10.30, 10.34 and 10.42 for the 10.30 hearing.
This case (in my opinion) didn’t quite know what it was about.
It had a long history beginning back in 2020 when the local authority learnt that the young man at the centre of the case (P) planned to go to Pakistan and marry Z, who he would then sponsor to come and live in the UK. P is in his 20s has a diagnosis of learning disability from early childhood and (more recently) autism. At that point, P’s social worker was worried that P didn’t understand what marriage was and commissioned a formal capacity assessment, which confirmed that he lacked capacity to consent to marriage or sexual relations. This level of detail was not shared in the hearing but I was made aware of it later. During the hearing I was having to fill in the blanks.
There was a plan to provide sex and relationship education, but the COVID-19 pandemic and a failure to locate educational providers intervened and so it was sometime later when an education programme to support capacity in relation to sex and marriage was completed. A newly appointed expert then assessed P again and said that P had still not gained capacity in these areas.
It was stated that P lacked capacity in all other decision-making domains that had been assessed (including decisions about care and support, and internet-use), but that some further education may result in improvement in relation to some areas, but that education must be slow and at his pace.
Subsequent to the expert report, P had a heart attack. This was something which no one apart from the Judge seemed to think was significant.
Judge: And how does P’s unfortunate heart attack impact on all this? It happened eight days after [the expert] had signed off on his report – so where does that leave the report?
LA: It doesn’t undermine the report in any way
Judge: No, I realise that a heart attack doesn’t make anyone’s functioning any better, but it may be that the young man [the expert] reported on is not the same young man who suffered this unfortunate event. It may be that [the expert’s] view may be changed in the light of this heart attack. Or that may be completely wrong and it might have had no effect on P’s cognitive capacity.
LA: The court is not invited to say that P has capacity in any domain except the marriage one.
Judge: If it’s to be argued on P’s behalf that he does have capacity, how is the court to rule on it in the absence of an update from [the expert]. That’s my point.
LA: We can ask [the expert] to reassess him on that one point, consent to marriage, but we wouldn’t want to ask for reassessment across everything. We know from his parents that he found the process of assessment quite upsetting.
The Judge (and I felt the same) appeared to be somewhat puzzled as to why only two areas of decision making were singled out for the Court’s attention (marriage and sex) when five areas had been considered by the expert.
Counsel for the LA seemed to think that these other areas in which P had been found to lack capacity were of no significance to the court because they were not disputed. They were, she said, not part of the LA’s application: the assessments had been carried out only to give a sense of P’s functioning. Capacity of internet use, she explained, had been added as an issue for the expert to report on as it had become clear during the educational programme that this was an area of concern or ‘vulnerability’.
During all this to-ing and fro-ing, the parents of the young man sat in a quiet and dignified fashion listening to the comments. P himself was not present, but had a litigation friend (a friend of the family) who was.
It then transpired that P may potentially gain capacity to marry but is unlikely to gain capacity to engage in sex. This provoked a debate about whether marriage and sex were issue-specific or person-specific, which counsel for the LA and the judge seemed to take a different view on. They also disagreed about the implications of JB in the Supreme Court last year (A Local Authority v JB (by his litigation friend, the Official Solicitor)  UKSC 52.). When counsel for the LA gave an account of what the Supreme Court decided, the judge said, “I don’t think the Supreme Court said that at all”.
The judge was also puzzled as to why he was being asked to make a ruling about capacity for marriage when there was no longer a proposed marriage partner, Z being “no longer part of future plans”. “Why is the court being asked to consider making what is a hypothetical decision?”, asked the judge, saying he thought he would “need quite a lot of persuasion” to do so, given that marriage is “a completely hypothetical issue at the moment”.
Eventually it became clear that the LA wished to implement safeguards or ‘protection’ for P in his best interests (e.g. in relation to social media use) and in order to do so would need to know if it was a decision he could make himself or whether in fact, he lacked capacity for this decision. The Judge was persuaded by this argument, but it led us to a much stranger place (in my opinion): the question of deprivation of liberty.
Counsel for the LA seemed to want, on behalf of the LA, consideration by the Court for specific restrictions only i.e., those which were or may be contested. She did not at any time consider, nor was she aware (she said) of the content of the care and support plan and therefore by implication any wider restrictions in it, which might amount to a deprivation of liberty. Counsel for P however, acknowledged it was very important to consider whether the restrictions as a whole amounted to a deprivation of liberty.
I found it very odd that the full care and support plan had not been put to the Court but only what we might call edited highlights. Counsel for the LA said that “this isn’t a case where P is deprived of his liberty, so we don’t need the court’s authority on that”. The judge responded (quite rightly in my view) by saying: “I simply don’t know if there’s a deprivation of liberty. I mean, does he have a key to the house, can he leave when he wants, can he go out without an accompanying person? I simply don’t know what restrictions there are”. The Judge stressed that he understood the need for pathways but that these must cover the whole range of needs resulting in restrictions.
Even at this stage Counsel for the LA seemed to be surprised that (two years into proceedings) the Court wanted to now expand the issues and to see all the evidence about his care needs and the measures the LA think are required both to meet his needs and safeguard him.
So ultimately it seemed to me that
- The Judge was the person most concerned about delay
- He was concerned that the timetable of events hadn’t been adhered to and wanted to “get this ship shape and make sure the next hearing is an effective one”
- A new significant health matter (the heart attack) had arisen and not been addressed in the reports
- Some elements of care were giving rise to restrictions, but others had not been put before the court because of agreement about their necessity.
The Judge asked the parents if there was anything they wanted to say, and they gave their commitment to work with the doctor or anyone else to best support their son. The judge said: “I’m very grateful and I’m sure he’s very grateful for all your love and support. It makes a world of difference!”
I was left with the overall feeling that this case had snowballed out of all recognition. Perhaps an initial panic at a proposal to marry had rushed them to Court when they were not properly prepared. I suspect this snowball will continue to roll as matters relating to deprivation of liberty are now attaching themselves to it.
I was shocked that there are still misunderstandings about the correct test for sexual capacity and more shocked that a LA could present one or two selected restrictions to a Judge in the hope they would be approved without a picture of the totality of arrangements being gathered. It seems that P lives with his parents, therefore this would require a so called ‘judicial dol order’ should the restrictions meet the acid test (complete or continuous supervision and control and not free to leave).
Taking the issue of capacity to engage in sexual relations first, I think that I was shocked to hear the debate as to meaning and interpretation, discussed in Court. I would quite expect to hear argument as to capacity but not to interpretation at this level with Counsel and the Judge disagreeing about the Supreme Court decision. It made me wonder how P’s rights would be upheld if there was still such confusion.
I was most shocked by what appeared to be a total lack of understanding by Counsel for the LA that all restrictions in a care and support plan must be seen as a whole to consider whether this gives rise to a deprivation of liberty. The idea of taking one or two restrictions for a Judge to approve when the Judge was in total ignorance about what we might call the ‘concrete situation of the individual’. From what I heard, it sounds as though the acid test is met – and yet this appears not to have been considered by the LA. Why have they not followed the re X procedure to take the arrangements to Court prior to issues of marriage arising?
This does not bode well for the Liberty Protection Safeguards which will, unlike DoLS, encompass all settings. LAs need to scope the extent of cases they will need to authorise in the future and that includes those where there is total consensus that the arrangements are in the person’s best interests.
The case will be listed to be heard again in December.
Lorraine Currie is now a freelance Mental Capacity Consultant. She has over 30 years Local Authority experience, is a qualified social worker and in 2021 received the LGC Award for Outstanding Individual Contribution. Lorraine provides extensive training and is currently completing work with Neil Allen on the BIA to AMCP Conversion course. She tweets @CurrieLorraine