Struggling with transparency and a family under stress

By Celia Kitzinger, 9 June 2023

I’ve divided this blog into two parts.  If you can’t bear to hear me complaining (again) about the lack of transparency in the Court of Protection, please skip directly to Part 2, which reports on the substance of the hearing.  

I arrived late to the hearing (see Part 1) and I didn’t get to hear what the local authority had to say.  I heard only a few minutes of rather unilluminating discussion between the judge and counsel for the protected party. But I did hear from the protected party’s daughter and she was clear and frank and articulate, and what I heard caused me great concern.  That’s what’s in Part 2.

Part 1: Access issues (again)

Apologies to our readers.  It’s probably tiresome to read about the problems we have getting access to hearings.  It’s tiresome to have to keep writing about the access problems too.  It’s tiresome to keep living through the access problems – again, and again, and again.  I keep documenting them because until we get access to hearings sorted, we don’t have transparency.  Hearings are not “Public” – whatever it says on the listings – if we can’t get the link to observe them.  

I don’t think it’s a conspiracy to exclude us. I’m tired of having to say that too – but I do have to keep saying it because every time I describe access problems, I get a slew of responses, and about half of them (often from people involved in their own hearings in the Court of Protection or the Family Court) tell me that access problems are engineered by the court to prevent us from observing hearings, so that an oppressive and secretive court can continue its sinister, brutal and unfair decision-making unobserved.  I understand why they might think that, but I simply don’t think that’s true – not least because some of the hearings I’ve been admitted to without any difficulties at all are ones that have reflected extremely badly on the court (e.g. the covert medication hearings I wrote about here).  The other half suggest that it’s unreasonable of me to mention access problems because they are caused by court staff being over-stretched, lawyers and judges being exceptionally busy, and the court system being desperately underfunded.  Like I don’t know that. Like it isn’t blatantly obvious.

The point is that there is a strong judicial commitment to transparency – and our project is designed to support that judicial commitment.  So, if we know that transparency is not working, it’s important to say so. When we let everyone know that, and how, transparency has run into difficulties, we create the opportunity for people who run the court system – His Majesty’s Courts and Tribunal Service (HMCTS), the court staff, lawyers and judges – to figure out how to get it to work better.  If we don’t let them know what the problems are, there’s no opportunity for them to try to fix them.  

So, what happened with this hearing – which is clearly listed as “PUBLIC WITH REPORTING RESTRICTIONS”?

Here’s why, despite what it says on the listing (and despite the fact that I’m blogging about it), it wasn’t actually public.

• Only 55% of the hearing was actually held in public.  Having requested access via an email sent at 8.04am, I was told by court staff (at 8.59am) that “the judge has approved your request” and that I should receive an email with the link shortly.  I chased the link at 9.48am, finally received it at 10.17am, and it was 10.19am by the time I’d clicked on the link, entered the information required, and been admitted to the hearing.  The hearing ended at 10:42am – so, assuming it began on time, that means I missed 19 of its 42 minutes, which means that 45% of the hearing was closed to the public.  (I have no reason to believe there were any other observers.)
• When I joined, I had no idea what the hearing was about. Look back at the listing, it’s clear that – contrary to the Court of Protection’s own guidance for listing cases in county courts –  it doesn’t give any information as to what the issues are before the court (e.g. s.21A, deprivation of liberty, where P should live and so on). Nothing.
• It was very difficult to piece together what the hearing was about from what I heard in court.  As I joined, the hearing was in full swing with the judge saying something about “starting the whole roundabout again”^[i] and someone called “S Allan, Counsel for P” responding that “Things change and people change and it would go forward unless or until that happens, then yes it would be resolved.”  Clear as mud.  I perked up when the judge asked, “So what order are you inviting me to make?”  but the response was along the lines of “We’re content with the Local Authority’s draft order – limited further investigation and a date for a future hearing”.  Of course, I had no idea what the local authority’s draft order says, or why, or what further investigation she was content to be ‘limited‘.  Usually there’s an opening case summary, as recommended by the former Vice President Mr Justice Hayden (here), but if there was one in this hearing I’d obviously missed it, and nobody thought to interrupt the hearing to provide a couple of sentences of orientation to what the whole thing was about.
• On the basis of my reading of the listing, I think PM was the person at the centre of the case, and I think S Allan (who might possibly have been Sophie Allan at Kings Chambers) was representing PM as his litigation friend.  I googled “S Allan barrister” and sent an email via the Kings Chambers clerks, asking if it was her, and if so, requesting the Position Statement to help me understand what was going on (and also the Transparency Order).  I didn’t get a reply. I think her instructing solicitor was someone else whose name appeared on screen: Sonal Lala, so I emailed her with the same message.  I didn’t get a reply from her either^[ii].
•   I don’t think there were any other barristers in court, but Lynn Hull, who is a solicitor, seemed to be representing the local authority.  Looking at the listing again, PCC must surely stand for something-beginning-with-P County Council, who must be the second respondent – although Lynn Hull was at one point referred to as being “for the Applicant”, though I thought the applicant was the protected party.  It was all very confusing.  And then PM and KM, the third and fourth respondents (two “PM”s really doesn’t help!) are probably, I deduced, family members of (the first) PM.   I am a very experienced Court of Protection observer – I’ve watched more than 400 hearings, and I’ve learned a lot about how to ‘read’ listings and translate them into what I see on the ground.  But I was still baffled – and most members of the public would be far more at sea than I was.  All this detective work shouldn’t be necessary.  
• Nobody sent me a Transparency Order.  Nobody even referred to a Transparency Order.  So I’m not bound by any injunction from the court not to name people involved in this hearing, because nobody at any point has told me I can’t name the person at the centre of the case, or their family members.  I do now know the name of the person at the centre of the case, and the name of his daughter, and his granddaughter, because they were mentioned in the hearing.  I’m not going to report them because I’m a decent human being and I don’t want to violate P’s privacy – but it’s simply wrong that the court hasn’t sought to protect P’s privacy, and perhaps most especially that the Official Solicitor (and her legal team) have not sought to protect P’s privacy.  In the absence of any reference to a Transparency Order I am reporting on this case on the assumption that if there were an injunction against me (which there isn’t), it would be in the ‘standard’ terms, and so I will comply with that imaginary injunction.  But most members of the public don’t know what the ‘standard’ terms of a Transparency Order are, or even that they should have been sent one.

Part 2: What was the hearing about?

As far as I can piece it together (see Part 1 for an account of why this is all so difficult), this case began life as an application to deprive PM of his liberty.  

I’m not sure what PM’s living arrangements are, but the judge (HHJ Tolson) said at one point that the draft order makes reference to his being “accompanied by a carer in all visits to the community” – which would, of course, often constitute the kind of ‘supervision’ requiring DOLS-authorisation. 

There seemed to be a dispute about whether or not PM has the capacity to make his own decisions about where to live and what care to receive.  I think the local authority and Official Solicitor take the position that PM does not, or may not,  have capacity to make these decisions – or, indeed, to make his own decisions about his finance and property (among other things).  I think the family members disagree.  S Allan said: “I got the impression that [Daughter] feels there’s a partiality to the present assessment”, and it seems there’s now a disagreement about whether or not there should be a further assessment of PM’s capacity across a range of domains, via a s.49 report.  PM’s daughter made a lot of this clearer for me when she was invited to address the court.  She does not want her father to have any more capacity assessments.  She wants the proceedings to come to an end.

“I would like proceedings to come to an end.  Our father is doing extremely well at home – far better than the family expected.  But he’s absolutely miserable because of all the outside parties that have become involved in his life to the degree that they have.  He keeps apologising for the stress on the family, and we’re having quite a few tears over it.  He keeps saying he’s so sorry he got poorly, and this is all his fault.  I just feel it doesn’t matter what he says, or what he does, the other parties just constantly move the goal posts.  The stress is- I can’t begin to explain to you what this feels like.  We are all receiving medical help for the stress.  And it’s not stress due to my father’s illness – but due to all of this!  He’s an amazing man.  He just wants his life back. He wants to be PM as he always was.  He accepts he’s had a brain injury. He accepts help and guidance from the social workers.  He’s not resisting anything.  We just want to be a family.  And we are prevented from doing that, because at times when I’m not working and could be spending time with my father, I’m attending meetings, or filling in forms.  We as a family are helping him in every way we can. His stroke has shocked him.  He’s been shocked into seeing a solicitor and putting things in place, including Lasting Power of Attorney and – to our surprise – a will.  To be honest, we were only arguing about his capacity because we thought if he had capacity that would be the only way we could stop the Court of Protection from going on.  We are not legally minded.  We’re just a family.” (PM’s daughter)

The judge asked: “What is the difference between you and the local authority?”  She replied:

“I believe, Sir- Your Honour, that they are trying to gain control over every aspect of my father’s life.  I appreciate that these things are put in place for unscrupulous families who are not acting in the best interests of the patient, but that’s not the case here, and the court should consider the family dynamic.  Everyone who’s had dealings with us, from the professionals in the hospital since our father’s stroke, through to the rehab team and onwards – they all say we have a very close relationship with him.  The neuro- professional, I’m sorry I can’t remember her name, she said she’s come across very close families before, but never anything as wonderful and unique as our family.  We have a great relationship with his social worker. We are not unwilling to accept care. We have asked for certain things, like a bath plug to stop the bath from overflowing and sensors in place before a reduction in the care package. We are recognising that he needs support.  We are not saying, ‘don’t help him’ or “don’t put in care‘.”

The judge asked whether PM is in fact accompanied by carers in visits to the community, and his daughter replied that he was “not very accepting of that”.  She thinks “it’s a pride thing” – that he doesn’t want to be seen as “vulnerable”, and doesn’t want his (many) friends and acquaintances in the community to see him with carers. He is happy to go out with family members, though – and his daughter started to describe a recent visit to a golf course.

The judge tries to explain that the capacity assessment matters because “if he has capacity, he can decide for himself, but if he doesn’t, I have to decide for him”.  The daughter says that if her father “fails the capacity test” then “I just believe he’s going to have his whole life swept away. I don’t think the other parties are acting in his best interests. It’s making him so unhappy”. 

She starts to explain what her father has stated in his Lasting Powers of Attorney (presumably supporting evidence of her view that he values his autonomy), but the judge interrupts and asks whether the LPAs were made “recently”.  Yes, a week ago, she replies.  My heart sinks.  Given what I’m inferring about professional views of PM’s capacity now, I am sure there will be an issue about his capacity to make LPAs.  Sure enough, the judge says: “We’ll probably have to look at that in the context of capacity as well, as there’s an ongoing dispute at the time.  But don’t worry about it.”  Hm!  I’d be worrying about it if I were her.  If only, if only people would make LPAs well ahead of the time they might need them – before the brain injury, the stroke, the road traffic accident, the dementia diagnosis. 

Inevitably, the judge agreed that the requested s.49 capacity assessments could be done, and that there should be a further hearing at which there would be judicial declarations of capacity, and best interests decisions for PM in relation to decisions for which he is deemed not to have capacity.

The solicitor for the local authority asked for the draft order to be amended to permit investigations into PM’s finances, for the purposes of assessing his eligibility for legal aid and for the Official Solicitor’s fees.  She said the local authority had paid the fees of the Official Solicitor so that PM would be represented at today’s hearing “but would be reluctant to carry on with that”.  The judge started to object to this (“the family will feel it’s intrusive and the money will come out of a public pot one way or the other”) but abandoned this quite quickly: “yes, alright, you can have that order”.  And he agreed that capacity to manage finance and property could be added as another element of the capacity assessment.  

It was agreed that there would be half a day set aside for a final hearing. 

Final Reflections

Obviously, I don’t have anything like a complete understanding of what is going on in this case – I have no introductory summary, no position statements, and I missed nearly half the hearing.

What I did pick up is the sense of a family trapped in a set of legal proceedings they don’t understand and don’t want to be part of.   A beloved father has (it seems) had a stroke and been left with brain damage which is causing some difficulties with day-to-day living.  He is willing to accept some assistance, but reluctant to accept other kinds of help.  It sounded to me as though there are close family members who want him to be happy and are supporting him in his wishes, and maintaining his autonomy as far as possible.  They are not ready or willing to cede his autonomy to the ‘best interests’ decision-making processes of the state.

I think very few families are prepared for the way the state intervenes when a relative is deemed to have “lost capacity”.  I often hear people’s shock and disbelief that the state can “take over” decision-making, and that professionals are suddenly the ‘best interests’ decision-makers on behalf of someone they have known and loved for decades.  The effect, however well-intentioned, is often to undermine the family – the very support system that the newly disabled person is so dependent on.

I have experienced this in my own family following my sister Polly’s brain injury in a road traffic accident.  Professionals swept in and took over – assuming (correctly) that they had the right to make best interests decisions for her, and that they needed to do no more than ‘consult’ us.  They made decisions we thought were the wrong ones.  It’s been devastating for our family. And I am terrified of something like this happening to me too.

I have put in place all the right paperwork to protect myself.  I have a Lasting Power of Attorney [LPA] for Health and Welfare and for Finance and Property registered with the Public Guardian.  I have an Advance Decision to Refuse Treatment [ADRT], and an Advance Statement.  I have written a document to be handed to any judge who is responsible for hearing my case in the Court of Protection in the future, explaining the things that matter to me, and what I do and do not want the court to do in considering my best interests.

Listening to the 55% of this case that was open to the public, I realised again the power and authority of the state to intrude into a family’s life together.  It wasn’t the fault of the judge (he seemed rather sympathetic to the daughter) nor – from what I could see – was it the lawyers who were to blame.  It’s simply the way the system works. I suspect the system was working as it should, with the right assessments being ordered and the right matters being considered, in line with the law: the Mental Capacity Act 2005.

That’s the tragedy for some of us.  Contrary to what many of the people who respond to our blog posts claim, I don’t think the court is riddled with corruption or that the lawyers and other professionals involved in hearings are (generally) deliberately lying to the judge or misrepresenting the situation, or even, as this daughter said, “trying to gain control over all aspects of my father’s life”.  It’s not (for the most part) about personal motivations of scheming professionals.  The system is working, slowly and inefficiently, in the way it’s set up to work.  The law says that once a person is deemed to have lost capacity to make their own decisions then (in the absence of advance planning tools like LPAs and ADRTs – and sometimes despite them) decision-making power and responsibility falls to professionals.  Not to family members.  That’s the law of the land. And by the time most people discover that, it’s too late to do anything about it.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has observed more than 430 hearings and written over 100 blog posts.  

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^[i] _{As usual, we are not allowed to audio-record hearings, and so these quotations from the hearings are based on contemporaneous touch-typed notes and are as accurate as I can make them, but are unlikely to be verbatim.}

^[ii] _{After getting this blog post up on the site for automated release the following morning, I found an email message from the solicitor (sent just before 10pm) saying that she was checking whether the OS was happy to share the Position Statement or not.  I pulled the blog post from publication for 24-hours in anticipation of being (possibly) able to check my facts against that statement. Having not heard back from her subsequently, I am going ahead with re-scheduling this blog post, and will add a “Postscript” if the Position Statement is subsequently sent to me, and make any corrections to my understanding of the case at that point.}