By Avaia Williams, 8th March 2023
The person at the centre of this case (DS), a man in his early thirties, has been living in an acute hospital ward for over 14 months. That’s not due to a difficult-to-treat medical condition, or to a detention considered necessary under the Mental Health Act 1983 or a deprivation of liberty under the Mental Capacity Act 2005, nor is it due to long term chronic illness. No, DS has been living in hospital because suitable alternatives have not been available.
DS was admitted to hospital with a fractured leg in early December 2021. He has a profound learning disability, spastic quadriplegic cerebral palsy and he does not communicate with words. The court has already made declarations that he lacks capacity to make decisions about his residence and care. His leg has healed and (although he’s had a few subsequent health issues), his doctor has declared him medically fit for discharge from the hospital.
DS cannot return to the placement he was at before he was admitted to hospital because they had already served notice on him, several months previously, citing the behaviour of DS’s mother (AW). After attempts to find a domiciliary care provider to enable DS to return home to live with AW failed, another residential placement was located, but subsequently withdrew. A new residential placement has now been found, but they will only accept DS if there is a Working Together Agreement in place setting out expectations of conduct. (Working Together Agreements are quite common in the family courts: check out this template for an example of how they can look.)
So far, the situation has been (since mid-December last year) that AW does not agree to the plan for DS to live in this new placement. She has not signed a Working Together Agreement and has been reluctant to enter into negotiations around this. An injunction against her, to require of her the behaviours to which she will not voluntarily agree, is now being considered by the court.
I was watching this hearing – the first one I’ve observed in the Court of Protection since the lockdown – due to my interest in practicing in this area as a barrister. I have a wide legal interest, but much of this concerns matters of mental capacity, mental health, and public law, matters which are all regularly present in the Court of Protection. I am currently in the process of applying and interviewing for such roles and felt that revisiting such hearings would be beneficial.
I hoped to gain further insight into the procedural aspects and legal requirements of the Court of Protection, known as Rules and Practice Directions. This hearing was an exceptionally relevant one for such an insight as it concerned argument of a breach of these rules. Additionally, I hoped to gain a greater appreciation of advocacy within the Court of Protection.
The Hearing
The hearing (COP 13679387) before District Judge Brown sitting at Bristol Civil & Family Justice Centre was heard remotely on 2nd March 2023.
The applicant – who was also in court – was AW, the mother of the man at the centre of the case and also his Relevant Person’s Representative (RPR). She was represented by Richard Alomo of No5 Chambers.
DS was the first respondent and was represented (via his litigation friend, the Official Solicitor) by Oliver Lewis of Doughty Street Chambers.
The relevant local authority (Devon County Council) was represented by Emma Marie Harrison, solicitor advocate within the Council.
The Integrated Care Board (NHS Devon ICB) was represented by Ellen Lloyd of Bevan Brittan LLP.
Counsel for DS
Counsel for DS (via the Official Solicitor [OS]) gave a useful introductory summary to the case, drawing attention to the fact that this would be beneficial to those observing the hearing.
He expressed concern that DS was still in hospital and said that 14 months is “an enormous amount of time for anyone to remain in a medical setting when it’s not medically indicated”. He explained that a previous offer of a care placement had been withdrawn due to AW’s behaviour, with the placement commenting that “the potential reputational damage is too great”: “in effect, saying ‘we’d love to offer DS a place, but it’s just too risky for us because of the conduct of his mum’”[1].
Following this, the ICB (with the support of the OS) had found a suitable placement (“the Home”). However, the Home will only provide DS with a place if AW signs a Working Together Agreement (“WTA”), i.e. a bespoke agreement between the placement and AW to collaboratively work together in DS’s best interests, outlining specific expectations about conduct and what will happen if these expectations are not met. AW has not accepted any such agreement and, counsel submitted: “our impression is that she will not countenance signing or entering into any negotiation as to its content”. It was, said counsel:
“... a surprise, an hour ago, to receive a position statement [from counsel for the mother] saying there are procedural mistakes about today’s hearing, and she might be able to sign a Working Together Agreement. The OS position is that it would be much, much, much better to continue this hearing and focus on DS and his needs by working together, rather than the court making injunctions. But unless AW is able to sign the Working Together Agreement today, to enable DS to be discharged, then the court should make the injunctions sought.” (counsel for DS)
District Judge Brown, in response, made her own views very clear:
“If there could be an agreement by way of the WTA then that would be preferable. If the court seeks to make an injunction or requires an undertaking, that has the potential for undermining professional relationships and future care plans for DS. But everyone here recognises it’s not in DS’s best interests to remain as a patient in an acute setting where he is not having his social needs met or a home-style-type or normal type of setting.” (Judge)
DJ Brown offered the parties some time for further discussion outside of court if they felt that “compromise might be possible”, but added that she was “not willing to leave this open-ended today” since “there has already been considerable delay for DS”. That offer was declined by the mother, whose counsel reported that “her primary position is that DS is not ready for discharge. Her second position is that if he is ready for discharge then he should return home” with her.
Solicitor for the ICB
The ICB said they wanted AW to agree to the terms of the WTA and, given that “previous agreements had been implemented and breached soon thereafter, we would want her to give an undertaking to the court that she would abide by the agreement”.
The ICB was clear that “returning home is not an available option for the court. The ICB is not willing to offer such a package. It is not safe or sustainable for DS”.
The Supreme Court has ruled (in N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22) that the Court of Protection may only choose between available options, and that it does not have the power to order a CCG (now ICB) to fund a care plan proposed by parents or to order care providers to that which they are unwilling or unable to do.
Counsel for the Local Authority
The LA has (said counsel) “a very minor role in the proceedings” and is “not taking an active role”.
However, the LA did raise a single salient point at this stage, that being that if an injunction were to be granted as sought by the Official Solicitor, then AW’s position as DS’s RPR could not remain in place, because its conditions “would make it impossible for [her] to carry out her role as RPR”. If an injunction were therefore granted, the LA proposed that a paid representative is put in place to take over this role and AW discharged (and they would like a recital to that effect in the order).
Counsel for the applicant – DS’s mother
Counsel for the mother argued that there were significant procedural failings, specifically in relation to §10.10 of the COP Rules relating to interim injunctions such that no injunction could lawfully be served today.
In particular, the respondents had failed to set out their injunction application on the COP 9 form and “the only application here in the bundle is one which is asking AW to give an undertaking to the court”. He continued:
“My client is entitled to have properly set out – which we say we haven’t – the terms of the order being sought, and, more importantly, the evidence in support of that application so that she can respond accordingly. The only application here alludes to a requirement by the proposed placement for a Working Together Agreement and an order by the court to abide by that. That is not a proper evidential basis for an injunction order – with the consequences that are likely to befall my client if she is found to be in breach of that order.” (counsel for AW)
Additionally, counsel for AW argued that the previous placement being withdrawn was not solely due to AW’s actions – rather, there had been suggested amendments to the care plan. “It would be wrong to leave the court with the impression that all this fell apart because of the allegations made against AW”. (What became abundantly noticeable at this submission was Oliver Lewis’s eyebrows shooting up.)
It was submitted that a properly defined ‘stand-alone’ draft order should be before the court “so there’s no misunderstanding about what AW is being asked to do”. Instead (he said) there was “a mishmash of the prohibitory and mandatory, along with what might be considered restrictions on contact”. In conclusion, it was submitted that “[t]he application is in a mess at the moment”.
Response from Counsel for DS
In respect of the injunction, counsel for DS submitted that all the elements of the injunction argument had been presented in the other documents served on AW, and there was no need to put these all into a single document:
“Injunctive directions within a case management order are fairly standard in the Court of Protection. There are two ways of doing it – either like that, or the other way is with injunctions in a separate documents. It can happen either way – even at Tier 3. It often turns on judicial preference, and if the court would prefer two separate documents, that can be accommodated.” (counsel for DS)
In respect of the direction that it’s now in DS’s best interests to move to the Home, counsel acknowledged that the proposed placement may not be perfect (one problem is that it is 100 miles away from where his mother lives; another is that it was rated as ‘requires improvement’ by the CQC).
“It may not be perfect, but like in many cases, perfection is the enemy of the good […] It is in DS’s best interests to be discharged somewhere, and we now have a somewhere. I urge the court to bite the bullet. The price tag is either a signed Working Together Agreement or the protective ring (if I can use that phrase) of injunctive relief so that the care home can provide for DS’s care in a sustainable and safe way.” (counsel for DS)
Judgment
DJ Brown delivered a succinct and clear judgment. She pointed out that DS has spent 14 months in hospital and that although his mother has an issue about whether he is fit for discharge, the consultant who examined him on 17thFebruary 2023 considers that he is fit for discharge and that the few remaining physical concerns can be dealt with in the community. (The reactions from the parties, again, was very noticeable to me. AW was clearly shaking her head in apparent disagreement at this point). The Judge continued:
“On the evidence before me, he is fit for discharge and there is before me ONE option. AW’s primary position is that it’s not in his best interests to be discharged to the Home but when he is discharged he should be cared for at home. But a home care package is not an option before me. AW has said she will use an unspecified care provider and there is no care plan before me from AW and no information as to how 24-hour care will be provided...” (Judge)
At this point AW physically raised her hand on camera and, without approval to speak, she starkly stated “There is!”. The judge responded, “Mrs W, I am giving my judgment. If you have comments, make them to your representative please,” before continuing with her judgment:
“The court cannot force a party to provide an option, so the only choice the court has is to either do nothing, or to discharge DS to the Home. The Home will only offer a place to DS if AW were willing into enter into a Working Together Agreement, which sets out the framework for contact and the way in which care will be provided for DS at the Home. Up until today, that Working Together agreement was not being considered by AW and she wasn’t willing to consider the Home but only a family home placement. That led to the application being made by the ICB. The difficulty is that it’s unclear to me how a court could force a party to give an undertaking, so it seems to me that application is somewhat misconceived – albeit that the intention behind it is very clear: the potential provider requires certain reassurances to be able to provide care for DS.”
So, the first question is whether it is appropriate to make a decision for discharging DS to the Home. If yes, secondly, would an injunction be necessary to ensure this was effective?”
On the first question, the judge said it was clear that remaining in hospital was not in DS’s best interests, despite “observed reactions of Mrs W” which led the judge to believe that AW’s view seemed to be that it would be better for DS to remain in hospital rather than to go to the Home. The judge was clear that she did not agree with this and having read the transition plan and reports about his needs, she was satisfied that discharge to the Home was overwhelmingly in DS’s best interests.
As to the second question, DJ Brown ruled that since there is no legal authority to force AW to consent to a WTA, the only choice would be either an injunction, or no order for DS to go to the care home. Although counsel for the mother had raised several procedural irregularities, including failure to complete a COP 9, DJ Brown was clear that the court has the power to dispense with these requirements where circumstances justify it – particularly in this case where all the substantive arguments and evidence that would have been on the COP 9 were present in other court documents that had been served. Effectively, DJ Brown was saying that to require this information to be extracted from documents already seen by the applicant, and pasted into a new document, would serve no useful purpose, would create unnecessary delay, and would be disproportionate considering the best interests of DS.
DJ Brown was satisfied that there was evidence of AW’s disruption to previous placements and that the court was obliged to protect the placement at the Home. The only way this could occur was to make an injunctive order, based on the terms set out in the Working Together Agreement. She asked for some rewording of this so as “to make it clear as to the exact behaviour that is prohibited”. She also asked for the contact arrangements to be treated separately, with the injunction saying that AW “is to abide by the contact arrangements as set out in the care plan”, so that if there’s a change in these arrangements agreed with the care home, then the injunction wouldn’t need to be amended. “Its purpose is to give the Home reassurance that AW will behave in a reasonable manner with members of staff and will abide by the care plan, and it will limit other contact outside of the weekly update.”
This is an interim placement and parties will continue to work to find a better placement closer to AW. The next hearing is listed for 2:00pm on 25 May 2023. At that hearing, both DS’s placement and the interim injunction against his mother will be reviewed.
The mother sought (and was refused) permission to appeal this decision – and although she retains the legal right to appeal directly to the High Court under Rule 20 of the COP rules it would have to be shown that there is a real prospect of success or there is some compelling reason to allow the appeal.
Reflections
The hearing lasted no more than 90 minutes, but some very significant decisions were made in this short time. As somebody hoping to practice as a barrister in Court of Protection cases, this was extremely eye-opening and added a new dimension to my understanding of the Court of Protection.
My interest in mental capacity law has only been furthered by attending this hearing. In particular, the arguments regarding procedural minutia, which are entirely mundane to many, were very interesting to see in practice. Often, these rules are in place to direct representatives as to what they must do and not do, adherence is largely agreed and they are rarely disputed other than in the appeal courts, and so being able to witness the submissions of Richard Alomo, representing the mother on this matter, added another layer of interest for me to this hearing.
Furthermore, CoP cases are very emotive, it is therefore not too surprising that AW made a small outburst challenging the judgment that DJ Brown was giving. These outbursts happen all the way up to the Supreme Court, including this heart-rending example from the Charlie Gard case (at 09:06-10:06). It is always interesting to witness is how judges respond to these and, with credit to this judge, she handled this very empathetically but also firmly. This is typical of judges of the Family Division in my experience, too. As somebody who regularly attends cases before the criminal courts, I experienced a drastic difference between this judge’s reaction to an outburst and those of magistrates and judges of the Crown Court, who certainly do not take as kindly to any interruptions and somebody making an outburst like this would rapidly be remonstrated with or ejected from court.
My interest in working professionally in the Court of Protection has been fuelled by being able to observe this hearing and I look forward to the review hearing on the 25th May 2023.
Avaia Williams is a student on the Barrister Training Course at BPP Manchester and founder of the Nightingale Rights Initiative. He is hopeful of practicing professionally in the Court of Protection and has a wide interest in public law. He regularly tweets @AvaiaLaw
[1] Quotations are as accurate as possible, given that we are not allowed to audio-record hearings. I am grateful to Celia Kitzinger who also attended this hearing and helped with the quotations.
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