By Celia Kitzinger, 11th June 2023
Cases in the Court of Protection often run for years – especially in the county courts, which is means the majority of all hearings. So we often find ourselves watching a third, or a sixth, or an eighth hearing in a single case, without having observed any of the earlier ones. For example, the ‘covert medication’ case I wrote about here, began with an application to court in April 2018. The first hearing I watched was in June 2019; I watched another in September 2022 and have tried to follow it since the: hearings are still continuing.
With a series of hearings stretching over many months or years, these cases tend to have long and complicated back stories. On joining a hearing, I always have many questions like:
- Who issued the application to court and what do they want the judge to do?
- What are the decisions someone believes that P (the person at the centre of the case) is unable to make for themselves?
- What is P’s impairment or disturbance in the functioning of mind or brain?
- Has the judge made (interim or final) declarations that P lacks capacity to make any particular decisions?
- What are the ‘best interests’ decisions that need to be made, and what are the available options?
- Who are the parties and what do they agree about, and what do they disagree about, in relation to the questions above?
- What has been happening to try to progress the case so that the judge can make the final best interests decisions – and what’s holding things up?
- What’s the point of this hearing?
This is why introductory summaries, with information that answers these kind of questions – as recommended by former Vice President Mr Justice Hayden – are so important. Without these basic facts about the case, it’s really hard to follow a hearing.
In this case, though, I happened to stumble upon the first hearing in the case. Here’s how it was listed.
I chose it partly because it was listed before a “Deputy” District Judge (i.e. a part-time judge), and partly because its case number (beginning “14”) indicated to me that it is a newish case: last year, most of the case numbers began with “I3” and before that it was “12”. And of course, it happened to be at a time I was free and wanted to observe a hearing.
The hearing
I wasn’t sent a Transparency Order, so I haven’t seen a printed version of the injunction against me, but right at the beginning of the hearing the judge asked me if I’d been sent it, and then when I said ‘No’ he read out the “subject matter” of the injunction (the things I’m not allowed to report) and said (and I agreed) that it was the ‘standard’ Transparency Order.
The judge then did a sort of introduction – saying that the London Borough of Barnet (represented by Sarah Hellier) was the applicant, and that proceedings had been initiated following “safeguarding concerns, especially self-neglect and exploitation”, with “permission to bring proceedings granted on 9th May”[i]. The problem today, though, was that the Official Solicitor (the person who would represent the protected party – ET – at the centre of the case) “has not accepted the invitation to act yet” – so ET is unrepresented. This, said counsel for the applicant, was because the Official Solicitor had not yet received bank statements from ET’s mother, who apparently manages her son’s benefits, and had been asked for bank statements nearly a month ago so that the costs of the Official Solicitor could be sorted out.
Meanwhile, according to the judge, “the situation is quite desperate for him. He is refusing to engage with care. There has been no opportunity to assess his capacity but there is reason to believe that he lacks capacity in relation to care and support. He’s got no support with treating his diabetes. He’s not engaging with psychiatric services. His home is cluttered and filthy. I would appreciate it if we could make some progress today despite the absence of the Official Solicitor because there are significant safeguarding concerns”.
The local authority social worker was in court and was asked what attempts had been made to get ET to engage voluntarily with social services.
SW: The last contact was back in April. We tried again in May. He was running out of his property and we called out to him to see if he would engage with us and he said he was in a rush and to call back later. He’s never at the property when we call. There are concerns he’s been begging. He’s aggressive if you approach him in the community.
Judge: Has he ever been aggressive with you?
SW: No. He’s just refused to engage with me.
Judge: Has he been in touch with any health care professionals?
SW: No. He’s not had any psychological intervention for a very long time. The mental capacity assessment is not being progressed due to concerns about how he’s presenting. The Care Co-ordinator is experiencing significant challenges in engaging with him. We are very concerned about him.
Judge: I see. So the order you’re asking the court to make… You’re asking for an order granting permission to enter his property and use reasonable force if required to enable assessments to be conducted. A Care Act assessment, and Mental Health Act assessment, and a mental capacity assessment relating to making decisions about residence and care, and capacity to conduct proceedings, and then authorisation of deprivation of liberty if it’s required, with the intent that all those assessments are filed with the court.
Counsel for LA: Yes.
Judge: While appreciating your concerns with relation to ET’s welfare, I’m also concerned that this order is fairly draconian. Given that the Official Solicitor is not yet on board, your suggestion is that a time period is allowed for the Official Solicitor to object to this order on ET’s behalf.
Counsel for LA: Yes. Even if the Official Solicitor were here today, it’s very unlikely that the Official Solicitor would be able to make contact with ET, any more than we can. Given the range of professionals trying and failing to engage with ET, it doesn’t seem very likely that he’d agree to sit down with the Official Solicitor with a cup of tea and engage with the Official Solicitor on his views about this application. So, it’s really just a question of someone independent considering the proportionality of entering his home.
The judge asked whether requests to engage had been made in writing to ET. It turned out they had not. The judge’s view was that “before entering the property, make a written request for an appointment, with a date and time”. He said, “there’s got to be a further attempt first to deal with this by looking for ET’s cooperation” and “I would hope a more informal approach might work first of all”. If ET doesn’t respond positively to a written request to permit this, then the local authority can come back to court – and next time the Official Solicitor will (hopefully) be there to represent him (“I am concerned there’s no representation from either his family or the Official Solicitor”).
I got the impression that counsel for the local authority saw this as simply delaying the inevitable. She raised further concerns (the risk of “heart attack due to drug abuse”, his other health problems, and “hoarding with the risk of fire, rats, and environmental health issues”). She said: “In my client’s view, there is little likelihood of a capacity assessment taking place without a court order and with restraint in place, based on the information before you about ET’s non-engagement”.
The judge responded firmly and succinctly. “Notwithstanding what you say about ET’s vulnerability, he doesn’t have a voice today”.
The judicial refusal to make orders against a protected party with uncertain capacity and without representation in court is something I’ve seen before, in a case before Mr Justice Peel – who was also told that the vulnerable person was a risk of death, in that case from ulcerated legs (see “No decision without representation”).
The case will be re-listed for the first available date after 27th June 2023.
(UPDATE: I’m told the next hearing will be 21 July 2023)
The judge’s closing words were: “If as you anticipate, there’s still a failure to cooperate, there can be a proper discourse then with input on his behalf from the Official Solicitor. This is probably an abundance of caution, but given the lack of transparency on the matter of capacity, I think that has to be the approach”.
Reflections
The local authority has set in motion an application for an order which, if approved, would enable them to enter ET’s home, restrain him, and subject him to a set of assessments which (they believe) will be likely to lead him to be lawfully deprived of his liberty under the Mental Capacity Act 2005, or detained under the Mental Health Act 1983, while he is provided with the care and treatment he is assessed as needing.
Of course, this sounds, to use the judge’s words, “draconian”.
If ET were to recognise that he could benefit from care and treatment and voluntarily agree to all of this, then his quality of life would be enhanced. But he’s “refusing to engage” and apparently doesn’t want social services or psychiatry involved in his life. Unless he can be persuaded otherwise (and I’m sceptical that an appointment letter will have that effect), it seems that the judge will eventually (at the next hearing) approve an order which will lead to him being restrained and detained against his will, and provided with care and treatment whether he likes it or not.
Is this the right thing to do?
This is not an unusual scenario. People with addictions, hoarding behaviours, and mental illness who “self-neglect” are often unwilling to engage with social workers and mental health professionals. Simply accepting their refusals is obviously not always the right thing to do – and may even feel like “writing them off”. It’s important to make sure people have the relevant information about what help is available and how to access it, and to help them consider the costs and benefits of accepting or refusing that help. Research suggests that what’s key in this situation is to “find the person” – building rapport, agreeing a plan, going at the person’s own pace, engaging in person-centered work (“Working with people who self-neglect”) – but the problem here is that the social worker can’t engage with ET at all.
I understand that there is harm to ET in his current lifestyle – both because he’s not getting medical and psychiatric care he could benefit from and (apparently) because he is being exploited. There will be a different kind of harm caused to ET if the court order is approved – harm to ET’s autonomy and sense of freedom to live his life the way he chooses. To my way of thinking, the notion of ‘autonomy’ is also problematic in any version of it which says, in effect, either you do it voluntarily or else we’ll make you.
At best, we can hope that ET will come to realise that it was all for the best once (as seems likely) he’s found to lack capacity and is transferred to a placement for care and treatment in accordance with his best interests.
Postscript added 12th June 2023: A few people whose knowledge base in this area is greater than mine have commented on social media about this post, including Ian Brownhill who says: “This is interesting. It reads as though the local authority applied to the CoP to gain access to the property to do a suite of assessments, *including* a MHA assessment.” It does read that way, and that was my understanding at the time, but I’m now alert to the fact that I may have inadvertently conveyed that impression due to my own ignorance about the proper process for applying for an MHA assessment (which definitely was one of the assessments the LA wanted to do). I haven’t seen the draft order so I don’t know exactly what they were asking the judge to approve – and it may be that a separate application was made for the MHA assessment outside the context of this hearing: Ian Brownhill tells me that would be a s135 MHA warrant granted by Magistrates Court. Also Ian Brownhill says “Don’t think CoP could authorise to enter solely for purposes of MHA assessment. I could conceive a scenario under 16(5) MCA where a person might be assessed as a contingency.”
UPDATE: I have now received the PS from the local authority, which says: “The Council proposes at this stage an order from the courts to gain access to ET’s home to carry out a Care Act assessment, the aforementioned MCA and order for a MHAA to be completed by AMHP service. The LA can then set out its view on future best interests”. (PS received 7 July 2023)
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 440 hearings since 1st May 2020 and is a prolific blogger. She is on LinkedIn (here), and tweets @KitzingerCelia
[i] Quotations are based on touch-typed notes taken during the hearing and are as accurate as I can make them: we are not allowed to audio-record hearings. They are unlikely to be 100% accurate. I could not locate an email address for the lawyer representing the local authority and have not been able to request a position statement from her, so all the facts about this case are drawn exclusively from what I garnered from the hearing.
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