By Josie Seydel, 23rd January 2023
On Tuesday 17th January 2023, with encouragement from Celia Kitzinger (thank you!) I decided to observe my first hearing in the Court of Protection. I have been studying the Mental Capacity Act (MCA) 2005 online, (with e-Learning for Healthcare run by Health Education England NHS) as part of my return to practice as a Practitioner Psychologist, and re-registering with the Health Care Professionals Council (HCPC), after a 5-year career break. I have found studying the MCA 2005 surprisingly enlightening and interesting but like so much of my personal experience of study it only really comes alive with ‘real world’ application.
I actually had no idea that it was possible to observe a Court of Protection hearing and had made the false assumption that these were not open to the public until I was pointed towards the Open Justice Court of Protection Project (by following up on case law referred to in the course). Since the pandemic, many hearings are now online, making them even more accessible. I am not very ‘techy’ so my biggest anxiety was actually about joining via MS Teams and using the software correctly and not accidentally putting on my microphone or camera during the proceedings, but it all went very smoothly and I was able to listen to the whole hearing without any technical issues, even on my ancient laptop.
The hearing before Sir Jonathan Cohen (Case COP 11895778) concerned a 29-year-old man (P) described by counsel for the applicant local authority (in her introductory summary) as having Autism, a Learning Disability and, at times, ‘challenging behaviour’ (one example was given of him ‘ripping his clothes’ when distressed). I had no other background information about the case and none was specifically given. I also had to intuit who was who at the hearing as the barristers were not introduced as part of the opening summary and I wasn’t familiar with them, or court hearings in general to know. However, the Judge was obvious and fulfilled my stereotype! P’s father was expected to attend also. When the judge observed that “we don’t yet have the benefit of P’s father here”, someone explained that he was often late, and it wasn’t unusual for him not to be present at the start of the proceedings.
The case has, I believe, been on-going for some time (possibly years). At this point, P is receiving 24-hour care in his own home through a care agency. It appeared from reports made by the Local Authority in charge of his care, that he is generally doing well – occasionally going out to the shops or to the park – but his regular, day-to-day activities and access to regular outings (such as day-care centres, education and recreational activities) were not detailed, and the Judge was concerned about this and requested that these be recorded and brought to his attention before the next hearing.
After some further discussion about P’s general care and welfare, safeguarding issues were raised and requests made for additional powers to be granted to the Local Authority in charge of P’s care. Initially, knowing nothing of the case, I was confused as to the nature of these issues and thought they were about P himself, but it became clear that they actually concerned P’s father. He was described as often ‘kicking off’ and becoming verbally abusive to staff, at times requiring the threat of, or actual intervention from, the Police. This, it was explained, was distressing to P and to staff caring for him, and there was concern about how to set clear boundaries with P’s father without creating a further breakdown in his relationship with P’s carers.
At this point, 30 minutes late, P’s father made his virtual entrance (by telephone). His behaviour in court vividly illustrated the problems the staff must be facing when he visits P. For the next 12 minutes he produced a torrent of ‘colourful’ language directly insulting the judge, alongside allegations of staff abusing P, not washing him, not feeding him properly and denying the father access to his son. The Judge remained calm and did not display much of a reaction (apart from one brief wry smile and raised eyebrows) despite some pretty offensive insults!
The Judge asked P’s father to desist and to stop interrupting, but he seemed incapable of doing so. The Judge warned him that he would be removed from the hearing if he continued to behave in this way and indeed, after a brief, but very feisty 12 minutes of attendance, court staff removed him from the (virtual) hearing.
Despite his challenging attitude, I was concerned that P’s father had raised some very serious allegations and that these might be lost amongst the necessity of dealing with his difficult behaviour in court and towards the Judge. I was assured, in an email later with Celia, who has been following this case for some time, that at least some of these concerns had been raised before and dealt with at previous hearings (though clearly not to the father’s satisfaction). It is an important part of the considerations of this case that, despite his contentious approach, P’s father has a right to be heard and have his concerns treated with due consideration. Disregarding his concerns would be a serious breach of justice, yet his offensive and threatening behaviour clearly needed addressing.
The Local Authority asked the Judge to endorse a risk management plan enabling staff to terminate the father’s contact with his son if he becomes abusive towards staff. They made clear that they were not seeking a penal notice in connection with this. The Judge endorsed this. It seems that the father’s contact arrangements will be further reviewed at a later (final) hearing and in the light of a third party Disclosure Order for a police report about the father’s behaviour toward staff, which was also approved by the judge.
It concerned me that P’s father did not have legal representation (I’m not sure why, but I made the assumption that this was for financial reasons) and that he could benefit from some emotional support and assistance so that his actions and behaviours do not actually become detrimental to the welfare of his son, which I think appears to be the crux of this case.
At this first hearing I think I was given quite a spectacle. I have a great deal to learn still about the case, the Mental Capacity Act and legal processes, but this was a really beneficial, though-provoking and useful experience and I feel very grateful to have been an observer. My appetite is definitely whetted for more.
Josie Seydel is a Chartered Counselling Psychologist, based in Devon, with a background in forensic, adolescent, in-patient, and complex mental health care.