By Celia Kitzinger, 5 June 2023
Nobody’s case should be described as ‘bog standard’ because everyone is unique, each family is different, and the Court of Protection makes decisions for specific individuals based on their particular circumstances and their personal values, wishes, feelings and beliefs. Nonetheless, ‘bog standard’ was the phrase I found myself using – and was later called up on – when I spoke to Anna about her mother’s forthcoming court hearing.
Anna’s mother, Mrs Jones (not her real name) is a widow in her eighties and has a dementia diagnosis. Anna and her siblings (and Mrs Jones’ social worker) had agreed that Mrs Jones was no longer safe at home and moved her into a care home, initially for a period of respite for six weeks. At the care home, Mrs Jones was assessed as lacking capacity to make decisions about her care and residence, and a best interests decision was made that she needed 24-hour care. A standard authorisation of Mrs Jones’ deprivation of liberty was granted shortly afterwards.
According to the local authority (and her family), Mrs Jones is generally doing well in the care home. She’s eating and sleeping well, accepting support with personal care, socialising with staff and residents, and she enjoys listening to music and joining in with communal activities. However, when asked if she’s happy in the care home, she generally replies by saying that it’s “like a prison”, that she doesn’t need to be in a care home, and that she wants to return home.
This court hearing, nearly a year after she was admitted to the care home, was a “Section 21A” challenge brought by Mrs Jones (via her litigation friend the Official Solicitor), challenging her detention in the care home as an unlawful deprivation of her liberty, on the grounds that it was not in her best interests.
For Anna, the involvement of the court was a momentous and frightening prospect. She found the language and concepts used very upsetting. As she later wrote: “whereas the law regards [our mother] as being deprived of her liberty, we, her family, believe that she is a vulnerable adult who is somewhere safe, protected and well cared for” (Anna’s blog post about the experience is here.)
Like most family members, Anna didn’t know ,when all this started, what the Court of Protection was, or how her mother could possibly have instructed a legal team, without her mother knowing anything about it. She had been told that the court case was between her mother and the local authority that was depriving her of her liberty, and that the family was not formally involved. If they did want to be involved they should consult (and pay for) their own lawyers. How could that be right?
Anna had not even been informed directly about the case. She’d learnt about it through her sister, Mary, who is also their mother’s attorney for both Property and Finance and Health and Welfare – appointed by their mother through a solicitor via Lasting Powers of Attorney forms, properly registered with the Office of the Public Guardian. So Anna also wanted to know how it was that Mary’s decisions on behalf of their mother could be challenged like this? She also felt there was an implication that Mary, and her siblings, had done something wrong by moving their mother to a care home – especially as the family had used deception to get her there, and subsequently sold her house to pay for the care home fees, something Mrs Jones was very upset about. But the family had done what they all agreed was best for their mother, with the involvement of the social worker, and with Mary as their mother’s attorney making the decisions. How on earth had this ended up in court?
Looking back on her experience a few months later, Anna put it like this: “When I first received an e-mail inviting me to attend a Section 21A COP hearing relating to my mother, my first reaction was anger (how have we got this far without the family being directly consulted?) and panic. What was the process? How would the family be involved and our voices heard? What was this secretive Court of Protection (COP) that was going to be involved in making fundamental decisions about my mother’s life?” (here)
So, when Anna got in touch with me via the Open Justice Court of Protection Project, I found myself trying to explain to someone who was clearly upset and angry about the situation, what was involved in a challenge under s.21A of the Mental Capacity Act [MCA] 2005.
What is a Section 21A challenge?
These challenges are very common in the Court of Protection. They take place when there’s a standard authorisation restricting a person’s liberty under the Deprivation of Liberty Safeguards, and the person is objecting (through words or behaviour) to their placement. When this happens, there’s a positive obligation on local authorities to assist the person to challenge their deprivation of liberty (Re AJ [2015] EWCOP 5).
The starting point is Article 5 of the European Convention on Human Rights (incorporated into domestic law by the Human Rights Act 1998, s. 6 (1)) which says that everyone has the right to liberty and security of person and that no one shall be deprived of their liberty save in specific cases (which includes cases involving persons of unsound mind) and in accordance with a procedure prescribed by law.
Article 5(4) provides: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful.” (Article 5(4) European Convention on Human Rights)
Since Mrs Jones was complaining that her placement was like a prison and saying that she wanted to go home, the s.21A challenge was exactly the right thing to do legally. Nothing I heard from Anna gave me cause for alarm or led me to believe that there was necessarily any criticism of Anna, Mary or the other family members.
I’ve watched dozens of cases in which people with dementia (or other “impairment[s] of, or .. disturbance in the functioning of, the mind or brain” s. 2(1) Mental Capacity Act 2015) have objected to being deprived of their liberty, with the result that their Relevant Person’s Representative has then brought a case on their behalf (e.g. here and here). Sometimes the outcome of the case is that person is supported to return home, at least for a trial period to see if it can be made to work. One of my favourite judgments where this happened is Westminster City Council v Manuela Sykes [2014] EWHC B9 (COP) (also reported in the media, e.g. here and here). It didn’t work out – she was back in the care home after only a few weeks, but at least she was given the chance. More often, another care home is found that better meets the person’s needs – for example, in a different part of the country closer to family, or in the countryside rather than a city (or the other way around), or in an area populated by others of their own ethnicity/language/religion, or with other residents closer to their own age. Sometimes people are able to move to a less restrictive environment, e.g. a care home rather than a nursing home, or supported living accommodation rather than a care home. In the cases I’ve watched, it’s also common for the person to stay in the same accommodation but with some restrictions removed and enhanced opportunities to engage in activities that matter to them.
Talking with Anna before the hearing
From what Anna told me about her mother, it seemed as though the care home had many advantages as a place for Mrs Jones to live.
Anna and her siblings were very happy with the quality of care provided and reassured that she was safe and (mostly) happy there. They were relieved that there were no more concerns about her unsanitary living conditions at home, about scorched clothes from cigarette burns, wandering into town, or leaving the cooker alight and causing a fire hazard. And where could her mother move to now anyway, given that her home had been sold?
The current care home specialises in caring for people with dementia. It’s also very close to Mrs Jones’ former home, so it’s in an area she knows well. Mrs Jones is now familiar with the staff and the care home building. Her family were anxious that the court would decide to move Mrs Jones to different accommodation – and that would be contrary to what they believed was in their mother’s best interests. Anna later wrote: “With our lifelong in-depth knowledge of her, we believed she was in the right place for her well-being and safety: she had got to know the staff, she didn’t try and leave and we thought it would be cruel and distressing for her to move”.
Anna told me that her mother would simply make the same complaints about not wanting to be in a care home, where ever she was placed. It would be hugely destabilizing for her mother to be moved and any move risked losing all of the advantages of her current placement. I could see her point.
And anyway, Anna asked, how was it possible for the court to come in and overrule Mary, who was their mother’s lawfully appointed attorney – when Mary had made every decision after full consultation with, and agreement from, her siblings about what was in their mother’s best interests?
I struggled to explain the legal relationship between Powers of Attorney, the Deprivation of Liberty Safeguards, and s.21A of the Mental Capacity Act 2015 to Anna. I’m not a lawyer and this isn’t an area of the law I’ve been engaged with myself. I did know, however, that even properly appointed attorneys cannot simply deprive someone of their liberty without that person having the right to challenge it, and it seems important in human rights terms that this should be so, and that the state (in the form of the Relevant Person’s Representative and an Accredited Legal Representative or the Official Solicitor) should assist the vulnerable person to challenge being deprived of their liberty, and that a judge should be the decision-maker when this situation arises. But I hadn’t noticed that – as Anna pointed out to me – the information available to attorneys overwhelmingly suggests that attorneys do have the right to make decisions about where the (no-longer capacitous) person should live and the care they receive.
I explained that the Court of Protection is not “adversarial” – that it’s (usually) a largely collaborative process, with parties working together to find the best solution for the vulnerable person at the centre of the case. I thought, on the basis of what Anna had told me, that there was a good chance that the court would actually agree with Anna and her family that it would not be in Mrs Jones’ best interests to move her from the care home. I suggested that Anna and her siblings should consider ways in which their mother’s experience at the care home could be made better for her – less like a “prison”. Were there things she would like to do that she’s not doing (or not doing very much) at present? How could Mrs Jones’ quality of life be improved in her current place of residence? Anna and her family came up with some ideas, which Anna included in a document she placed before the court.
Anna was very concerned that the family had not been involved in the process up to this point and wanted to participate in the court hearing as a litigant in person (i.e. representing herself and without having to pay for a lawyer[1]). We discussed the difference between participating simply as an ‘interested person’ (a daughter) and playing a full part as a litigant, and Anna felt strongly that she wanted the latter role – and that this was something she could do for her siblings (and for her mother), speaking on behalf of them all, especially Mary who was exhausted by having been the person taking most of the day-to-day responsibility for their mother over the years, and did not want to have to take this on. I reassured Anna that, in my experience of watching hundreds of hearings, it was usually straightforward for a family member who wanted to be joined as a party to be able to do so. (I had no experience of anyone trying to get a family member joined as a party against their wishes.)
In preparation for becoming a party to the case, as a litigant in person, I supported Anna to observe some Court of Protection hearings so that she had some idea of what to expect. Anna even blogged about some hearings (here, here and here). We wanted to watch a hearing before the judge that would hear Anna’s mother’s case, but didn’t succeed in finding one in the time available. But Anna watched other judges with s.21A hearings and found them surprisingly approachable: in particular, District Judge Eldergill “made me feel very welcome and that it was not an imposition asking to observe“, and she found the tone of his hearings “positive” and “non-adversarial“. One of them concerned the powers of the person with Lasting Power of Attorney. Another hearing – concerning COVID-19 vaccination – involved a litigant in person (the protected party’s mother) and Anna saw the judge (HHJ Brown) as “fair and even-handed with someone presenting their own case for a family member“.
Meanwhile, during the period that Anna was watching hearings and preparing for her “litigant in person’ role, it seemed from what Anna told me that Mary was experiencing some pressure from the lawyers to accept being joined as a party – although this clearly wasn’t what she wanted.
Before the hearing, Anna emailed the lawyers saying that she wanted to be a party in the case (and explaining that Mary did not). She also submitted to the judge a five-and-a-half page single-spaced document outlining the shared family perspective on what would be in Mrs Jones’ best interests. It is a moving document, providing a biography of her mother’s life: how she was brought up in a large and fairly impoverished family, with a strict religious background; left school at 14 to work in a factory; had a long – but not always happy – marriage until her husband died in 2019; and the relentless onset of dementia from the time of her diagnosis in 2016, since when Mary has gradually taken on more and more responsibility for managing her mother’s affairs, including her finances, upkeep of the home, buying aids like a mobile phone designed for people with dementia, arranging to have a commode fitted, and dealing with emergencies (such as when Mrs Jones was picked up by an off-duty police officer, or when she left the cooker alight and activated the smoke detector). It vividly captures Mrs Jones’ personality – her fierce independence, her inability to accept that she has dementia, her conviction that she doesn’t need any care, that she’s going to get better, and her sense of shame at being “in care”. Anna expressed the view that her mother should stay in the current care home (“a really lovely place to live” where she is “generally happy”) and she ends the document with suggestions about how her mother’s quality of life could be improved there (e.g. more time in the garden to feed the birds, which she’s always loved doing, and smoke; trips out to the hairdresser in town; and ways of addressing her spiritual needs, such as visits from the Parish Priest).
Finally, I also explained to Anna that her mother’s wishes and feelings – even though she has dementia, and even if, as seems likely, she doesn’t have mental capacity to make her own decisions – would be taken very seriously by the court in making decisions about her.
The hearing
The hearing for Anna’s mother took place (remotely) in June 2022 before HHJ Hildyard.
I applied to observe the hearing in the usual way, by contacting the listing court.
However, I would not normally have applied to observe this hearing if I hadn’t known the background to it. That’s because it had been wrongly listed as a “Dispute Resolution Hearing” and as “IN PRIVATE – NOT OPEN TO THE PUBLIC”. The listing included the following “Practice Direction 3B paragraph 3.4(1) – A Dispute Resolution Hearing is not an attended hearing for the purpose of Practice Direction 4C”. Since talking to Anna, I knew that it was not a Dispute Resolution Hearing and so I simply asked for (and received) the link. But it is a concern that hearings are wrongly listed in this way. This hearing should have been listed as OPEN TO THE PUBLIC. The error was a transparency failure: it did not support the judicial aspiration for transparency.
The key people in court, in addition to the Judge (and me as the only observer) were:
- Asma Nizami, the barrister representing the applicant, Mrs Jones, via her litigation friend the Official Solicitor, and her instructing solicitor
- Noleania Stowe, of Pathfinder Legal Services, the solicitor representing the respondent local authority, and a social worker
- Mary – as an ‘interested person’ both as Mrs Jones’ daughter and as the attorney for both health and welfare and finance and property
- Anna – as Mrs Jones’ daughter and as an applicant to be joined as a party
The judge began by running through the Transparency Order (i.e. the reporting restrictions) which were in the usual terms. I could not write anything that might identify Mrs Jones, or any members of her family, or where any of them live. To do so is contempt of court. The judge specifically addressed Anna and Mary, saying that “you aren’t legally represented so I want to make sure that you understand that this hearing is confidential, as in there must be nothing to identify the people involved. Those are the rules”[2].
She then specifically addressed Anna, saying: “You’re here to be joined as a party. You’re welcome as far as I’m concerned”.
She asked the barrister representing Mrs Jones whether she had “gone through the draft orders with [Mary] and [Anna] so that they understand what you are asking me to do”. No, she hadn’t: “The legally represented parties had a pre-hearing discussion, but not with [Mary] or [Anna].” The Official Solicitor’s Position Statement states:
“As [Anna] is not currently a party and the parties do not yet have permission to disclose information to her, no information pertaining to the application has been disclosed. The parties were intending to file a consent order seeking permission to notify all of [Mrs Jones’] children of the application… The draft order was not filed as it became apparent that the children were already aware of the application”.
No doubt this is all correct legal procedure, but I can entirely understand how the lawyers’ decision to proceed to a court hearing in the full knowledge that all four of Mrs Jones’ children were aware of the application, but without providing them with any information, could only add to the family’s stress and anxiety about the case. I got the impression that the judge would have preferred it if there had been some pre-hearing discussion with Mary and Anna. As she said later, “somebody might have asked me for disclosure in advance”.
Joining Anna as a party
This was the part of the hearing that was – in my experience – rather unusual (not ‘bog standard’ at all!). I haven’t previously seen a public body seeking to join a family member as a party contrary to that person’s wishes.
The judge turned first to what she called the “preliminary” issue of whether Anna should be joined, as she wished, as a party to the case. She checked her understanding that “[Mary] you don’t want to be a party but you’re prepared to set out a brief statement as you hold Power of Attorney for Health and Welfare and Property and Finance?” (“yes”); and “[Anna], you’d like to be joined as a party?” (“yes”)[3].
She then complimented Anna on having sent “an extremely detailed and very helpful document about your mother” which “gives the court a much fuller picture than it might otherwise have, and I’m very grateful to you for it. This is your Mum, and I can see the care and love emanating from the papers”.
Judge: Have I understood correctly that [Mary] is quite exhausted and really wants to put you in the driving seat, albeit you will consult about the decisions with [Mary] and she will be directly involved in that.
Anna: Yes, that’s completely it. I’m prepared to represent the family.
Judge: If you were joined in these proceedings as a party, you’d be fully entitled to see all the papers, and I would make orders so you can have access to all the documents and round table discussions. It’s important for me to check I’ve understood the family position as you haven’t got lawyers.
Anna: Yes, thank you.
Judge: Ms Nizami, it came a tad late, but I have had Position Statements from you and Ms Stowe for the local authority, and you are in large part in agreement. But on this preliminary issue, you say, on behalf of the Official Solicitor, that it’s not necessary for [Mary] to be a party. But Ms Stowe, you say she does need to be a party. Now, I can understand the sensitivities and difficulties for [Mary] in being a party. Why do you say she needs to be a party? In light of the sorts of directions I can give with disclosure and all of those matters, why should I be making [Mary] a party when it’s – to put it as ‘against her will’ might be a bit on the high side, but it’s certainly not her wish.
The position statement for the local authority says: “Whilst the Respondent understands that [Mary] does not wish to be joined as a party to these proceedings, it is the Respondent’s view that it is preferable for her to be joined as a party as she holds the LPAs for property and financial affairs and health and welfare. [Mary] has played a key role in the care planning and decision-making for [Mrs Jones] and her input in these proceedings would be extremely beneficial”.
In court, counsel for the local authority said:
“The position of the local authority is that she’s the LPA and so a key player in determining decisions. At the time the care planning was undertaken, she informed the local authority that the home was to be sold, and has now carried out the sale. [Mrs Jones] has made a number of statements to social workers about returning home, and if it’s necessary to get evidence about why the home was sold, then [Mary] has evidence about selling of the home. She was the decision-maker. At the time the house was sold, [Mrs Jones] had no knowledge her home was being sold”.
At this point, Mary looked a bit weepy, and Anna tried (unsuccessfully) to intervene. I can absolutely understand how this version of events must have felt to the family.
Counsel for the local authority continued by saying that “to answer any questions fully about what was done, it would be in the best interests of the proceedings for [Mary] to be joined as a party, or some other mechanism found to ensure we have answers to questions”.
Judge: As you say, it can be done by other means. [Mary] can be asked to set out in writing anything in particular that’s relevant to these proceedings. It doesn’t mean she needs to be a party. You haven’t really addressed my question. Why does she need to be a party if she doesn’t want to?
Counsel for LA: She makes all the financial decisions in relation to her mother. In terms of benefiting this hearing, there’s a lot of information that could come directly from [Mary].
Judge: It could all be provided in other ways, couldn’t it.
Counsel for LA: Yes. The LA position was that we wanted the court to make a decision about that.
Having noticed that Anna was trying to come in and say something earlier, the judge invited her to speak now.
Anna: Mary and I have always discussed everything. She’s never made any decision without consulting me and other members of the family. I’m very confident that I could provide the same information as she would.
Mary: I concur with that Anna has said. I have always consulted everyone with regard to all decisions about my mother – financial decisions, and her care to be honest.
Counsel for the Official Solicitor: Information can be provided without [Mary] becoming a party. This is not a situation where someone needs to be made a party when they’re reluctant to be made a party. The OS position is that it’s appropriate to proceed with [Anna] being a party and the court can make appropriate directions allowing [Anna] to disclose to [Mary]. There’s no indication that [Mary] is unwilling to cooperate. So it’s appropriate to have [Anna] as a party, and [Mary] as an interested party.
Judge: Well, if nobody has anything else to say, I agree with you, and see no reason why [Mary] at this point needs to be a party. If any information is required of her that’s not available by other means, the court has case management powers. My decision on the preliminary point is that [Anna] should be joined as a party and [Mary] is an interested party, and I will be making directions for cross-disclosure between themselves. […]. The problem we now have is that we have a party – Welcome [Anna], you are now a party – who is entitled to see the documents for this hearing, but hasn’t been sent them. Somebody might have asked me for disclosure in advance.
The judge then offered Mary and Anna a choice of either remaining in court while she – the judge – read aloud the order that the lawyers for the OS and the LA had agreed, or, alternatively, a break of 15 minutes to read the draft order. Anna said they would be happy to go away and read them.
Before adjourning, the judge raised another issue with counsel for the Official Solicitor. “There are also practical suggestions about how to improve life for their mum at this home, and they all sound to me extremely good ones. When we reconvene after [Mary] and [Anna] have had the chance to read the order, I would like you to be able to say to me that these matters have been directly raised with the home – or not, as the case may be – and then I can make any further observations. There is no disagreement that she should remain at the care home at the moment, and for some months. Can there be arrangements made for her to get out into the garden over the summer? I don’t know how many times she does get into the garden. Can you get into the detail please.
Counsel for the OS said: “We hear what you say. Paragraph 4, roman 8, of the Draft Order says we are asking the local authority to take into account the suggestions from [Anna]”. “Yes,” said the judge. “But that is in August. Can something be done sooner than that?”
And then the court adjourned so that Anna and Mary could read the Draft Order, and so that counsel could contact the care home about the suggestions Anna had made about supporting her mother to get out into the garden more, and other quality of life issues.
The Order
When the hearing reconvened, Anna said she had two questions about the order.
One was “whether any of the lawyers had actually met my mother in person”. The answer, in brief, was “not yet”, although the solicitor for the OS would shortly do so, and she would file attendance notes about the meeting which would be available to all parties. This led to the judge reflecting on whether she, too, would meet with Mrs Jones, or indeed invite her to attend the court. “She’s got some strong wishes, and it’s really important that they’re taken into account and perhaps most important of all that they are properly heard”.
Anna’s other question was whether, since she was now a party, she was expected to share in the cost of the psychiatrist who was to be appointed to assess Mrs Jones’ capacity to make her own decisions. (There were already two reports from a social worker finding that Mrs Jones lacks capacity to make decisions about care and residence, but the OS had identified some “flaws” with these assessments and wished to appoint another assessor). As it turned out, the report was being requested under s.49 of the Mental Capacity Act 2005, which meant it would not cost anything to the parties.
Counsel for the Official Solicitor then reported back that there had been a discussion during the break about the suggestions Anna had made in the document she’d submitted to the judge for improving Mrs Jones’ quality of life, and the local authority “has no objection to the suggestions”. The judge responded robustly.
“I want to know what steps have been taken and will continue to be taken. […]. I will have conduct of this case, and I’ll be very disappointed at the next hearing if these matters haven’t been addressed, or attempted to be addressed. I understand the difficulty with going to the hairdresser if she won’t use a wheelchair, but going to the hairdresser has been a very important feature of her life, so I would expect this to be given effect long before October [the date of the next hearing]. Sometimes this kind of detail is overlooked, and detail can make quite a difference on the ground”.
She then gave a brief oral judgment:
“This is a s.21A challenge to a standard authorisation in relation to [Mrs Jones] who has, since July last year, been residing at a home where she’s under constant supervision, so the ‘acid test’ in Cheshire West is met. I have heard submissions from lawyers – for Mrs Jones through the Official Solicitor, and for the local authority. I joined [Anna], her daughter. Also present was [Mary], another daughter who holds LPAs both for health and welfare and for property and finance. It is abundantly clear from the papers that the court is not in a position to make final orders. There needs to be an up-to-date capacity assessment, and consideration as to whether current arrangements should be varied. On an interim basis, I am quite satisfied that [Mrs Jones] lacks capacity to make decisions about her residence and care, and to conduct proceedings. I will make various directions orders to produce evidence that’s required before the next hearing. [Mrs Jones] herself has been very clear she’d like to return home. Her home has been sold, but the court must consider whether there is any other realistic alternative to her current placement, at the same time as looking at ways of reducing restrictions and enhancing the quality of her life there. I adjourn this case until 6th October at 10am.”
After the hearing
The second hearing never took place because after the second of two subsequent Round Table Meetings, the parties reached agreement, and the judge approved a final agreed court order and vacated the hearing. Agreement between the parties is a common reason for hearings to be vacated (see Last minute vacated hearings in the Court of Protection).
Anna says: “There remains a standard authorization in place, depriving mum of her liberty and authorizing restrictive measures in the care plan. However, as a result of the case, conditions have been put in place, specifying actions such as ensuring mum’s cultural needs are met. This is a positive outcome as a result of the case.” You can read Anna’s account of the court case and her suggestions for how things might have run more smoothly in her blog post: ‘Deprived of her liberty’: My experience of the court procedure for my mum.
Final comments
This wasn’t a ‘bog standard’ Section 21A case for Anna to be involved in because she had no ‘standard’ by which to assess what her family was going through. For her this was a unique and challenging experience.
This wasn’t a ‘bog standard’ Section 21A case for me to watch because I saw – for the first time – a public body argue for a family member holding Lasting Power of Attorney to be a party against her wishes, and I saw how the judge dealt with that and decided that this was not necessary. But more than that, I learnt from Anna how what was, from my perspective (and I imagine from the perspective of the lawyers involved) an otherwise fairly ordinary case can be experienced by family members as hostile, accusatory, and frightening.
In her blog post, Anna makes some positive recommendations for improving family members’ experience of Court of Protection hearings – focussed especially around transparency and communication. Her blog is essential reading for Court of Protection practitioners – and it’s also a useful resource for other family members caught up in Court of Protection proceedings.
New podcasts
Anna and Mary have also now contributed podcasts to raise awareness about their experience at the Court of Protection.
A series of three podcasts, part of Conversations about Advance Care Planning with Clare Fuller, explores:
(1) the interplay of Lasting Power of Attorney and Deprivation of Liberty Safeguards (with Anna)
(2) the impact of attending the Court of Protection (with Mary)
and
(3) the terminology and legal framework that underpin the Mental Capacity Act, Lasting Power of Attorney and Deprivation of Liberty Safeguards (with Victoria Butler Cole KC)
The first episode (with Anna) is released on 5 June 2023, and the second and third will follow on 12 June and 19 June 2023 respectively. You can access each episode and accompanying resource on Clare Fuller’s website or via your usual podcast platform.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project and a prolific blogger about Court of Protection hearings. She is on LinkedIn (here), and tweets @KitzingerCelia. (Also Anna has just started tweeting as @AnnaJonesBrown and would appreciate a follow if you’re interested in her story.)
[1] If a family member is the Relevant Person’s Representative (RPR), they are entitled to non-means-tested legal aid, meaning they could get a legal team (for free) to represent the person in court. Usually, if someone is an LPA, they are also appointed by the local authority as the RPR. It’s not clear to me why, in this case, Mary was not the RPR. This is something to bear in mind in making LPA appointments. A donor should pick someone who would be willing and able to act as RPR in future, if needed. It would have been useful for the family in this case if Mrs Jones had also appointed Anna as her LPA (a point Anna makes in her podcast).
[2] Quotations are taken from contemporaneous touch-typed notes. They are as accurate as I could make them, but are unlikely to be 100% verbatim. Note that it’s the Transparency Order that prevents Anna and Mary from speaking under their own real names about what happened with their mother, because of the risk that this might identify her. Family members are often surprised to learn about the restrictions this places on their own freedom to tell other people – including even other family members – about what’s going on. This is often not discussed with families in advance. The standard Transparency Order can be varied – you just need to ask, and explain why it is in the vulnerable person’s best interests for it to be changed – and it’s easiest to do this early on, at the beginning of the case. You can ask for it to allow you to tell some other people, or (indeed) everyone – while either continuing to keep the person’s identity confidential (e.g. talking to journalists but not letting them use your name or the vulnerable person’s name in print). Or you can say you want to publicly name the person. For some examples of cases where judges agreed to allow the person at the centre of the case to be named, take a look at these blog posts: “Waiving anonymity to promote care home visiting rights”; “Application to name a protected party in the context of ‘jigsaw identification’”; “Medical treatment for people with learning disabilities”.
[3] The judge referred to, and addressed, the sisters pseudonymised here as “Mary” and “Anna” as “Mrs X” and “Mrs Y” – but I’ve used “Mary” and “Anna” to help readers follow the story line.
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