By Celia Kitzinger, 3rd July 2023
The words “What God has put together, let no man put asunder” are from the Bible (Matthew 19:6). It means that marriage is a holy thing and humans should not break a marriage apart.
The deeply religious man who uttered these words in court was powerfully expressing his dismay that his wife is deprived of her liberty in a care home about an hour’s drive away from the marital home where he still lives. And it seems there’s nothing he can do about it.
He wants her to come back home – and she wants that too.
But the local authority says that there is no possibility that the care she needs can be provided at home: it’s beyond what the community district nurse could offer and beyond what they would ordinarily fund.
The husband holds Lasting Power of Attorney for Health and Welfare – together with the couple’s son, who is also a party to the case. Both husband and son hold clear expectations that this gives them the right to decide where their wife/mother (the “donor” of the power of attorney) lives. They have good reason for believing that. The government’s own website says: “As a health and welfare attorney, you make (or help the donor make) decisions about things like: daily routine, for example washing, dressing and eating; medical care; where the donor lives“.
But as we have seen in other Court of Protection cases about where someone should live, what sounds straightforward in theory can be quite complicated (and distressing) in practice, and attorneys may not actually have the powers they think they do.
This is especially so when an attorney makes a decision that is different from what the person at the centre of the case wants (as for Anna’s mother), or (as here) when the attorneys seemed at times to be disagreeing with the legal representative for their wife/mother about what was in her best interests.
This case provides another example of the limits of the powers of attorneys when it comes to making decisions about where someone lives.
It’s important reading for everyone who holds a Power of Attorney for Health and Welfare for a parent (or anyone else) and for all of us who, like me, have made and registered our own forms appointing someone we trust with LPA if, in the future, we lose capacity.
This is a long blog post. Here’s how I’ve organised it.
- Background
- The parties
- Varying the Transparency Order (This is about reporting restrictions and how they affected this case. You can skip it if you’re not interested without losing much.)
- The March hearing
- The June hearing
- Judgment
- Final Reflections
1. Background
This case (COP 14015808) began life as a s.21A deprivation of liberty challenge at the end of 2022 and there have been about six hearings since then.
I’ve watched two of them – both before DJ Mackley sitting remotely at West Cumbria Court House: one on 23 March 2023 and the other (which turned out to be the final hearing, with an oral judgment) on 12 June 2023.
At the end of last year, the protected party, Mrs M, was living in a care home in the small coastal town where she and her husband had lived for years. After a hospital admission, that care home said that they were no longer able to care for her: they could not meet her needs for 24-hour care. She remained in hospital while the Trust and Local Authority (Cumbria – now Cumberland – County Council) searched for a suitable alternative. She wanted to return home, and her husband wanted to have her back home, but it seems there is no suitable ‘package of care’ to make that possible.
Meanwhile, the public bodies were unable to find a care home that would enable the couple to remain geographically close together. The judge authorised them to expand their search to cover a wider geographical area, and they then located a care home an hour’s drive away. Given that Mrs M had been ready for discharge for some time, it was decided that it was in her best interests to move there, despite the distance from her husband. The move had taken place just a few days before the first hearing I watched, in March.
2. The parties
Applicant
Mrs M, the protected party, is the applicant via her Accredited Legal Representative, (Philippa Curran). She was represented in court by Ben McCormack of Garden Court North Chambers. She was also present at both court hearings, in bed in her care home with her husband by her bedside. He occasionally consulted with her – but she seemed to be asleep some of the time.
People sometimes wonder how seriously ill individuals like Mrs M can have instructed lawyers to bring applications to the Court of Protection (and how they can afford to do so). The law says that anyone who is deprived of their liberty under a Deprivation of Liberty (DoLS) authorisation in a care home or a hospital has the right to have these arrangements reviewed in court to make sure their human rights are not being breached (Section 21A of the Mental Capacity Act 2005). These ‘s.21A’ cases are very common, and usually come about because the person is indicating by words or behaviour that they are objecting to their current care arrangements – in Mrs M’s case, by saying that she wants to go home.
Non-means tested legal aid is available (so everyone in this position can afford to bring a case) and the application is usually brought on the protected party’s behalf by their Relevant Person’s Representative (RPR), their Accredited Legal Representative (ALR) or – less often, and only if the RPR/ALR don’t do so and the person is objecting – by the Local Authority which authorised the deprivation of liberty[1].
Although the application is prompted by the fact that the person is objecting to where they are living, or the restrictions on their liberty in that place, the application is sometimes for those arrangements to continue as before, despite what the person wants. That is because, when a person is deemed to lack capacity to instruct their own legal team (as is the case for Mrs M), their legal representatives – their “litigation friends” (often the ‘Official Solicitor’, here the Accredited Legal Representative’) – must act “in their best interests”, i.e. taking account of the person’s wishes, feelings, values and beliefs but also recognising that what people want for themselves isn’t always what’s best for them, so sometimes taking a position that is different from the protected party’s own position. (See “Litigation friend or foe?”).
Respondents
There are four respondents:
- Mr M (husband to the protected party) – as a litigant in person (i.e. without legal representation). Relatives are not automatically made a party – either as ‘next-of-kin’ or as the holder of a Lasting Power of Attorney, so he must have applied to become a party at one of the earlier hearings.
- Mrs M’s son – also as a litigant in person; like Mr M, he must have applied to become a party.
- The Local Authority, Cumbria County Council (now renamed Cumberland County Council), represented by Craig Smith, who I think is an in-house local authority solicitor. They are a party because they are the “supervisory body” who have formally deprived Mrs M of her liberty.
- The Trust, University Hospitals of Morcambe Bay NHS Foundation Trust (UHMBT), represented by Rau Rowan, their in-house solicitor (I think). They had been joined as a party because Mrs M was a patient in one of their hospitals until four days before the first hearing.
3. Varying the Transparency Order
The Transparency Order is a legal injunction served on everyone involved in or observing the hearing. It includes a list of information that we are not allowed to report. In its standard form (check out the template) it prevents people from identifying the person at the centre of the case, and their family, and where they live.
The original version of the Transparency Order I was sent was in the standard form except that in addition to the usual reporting restrictions it specifically prohibited me from naming Cumbria (now Cumberland) County Council. I raised this with the judge at the first opportunity – just before the beginning of the first of the two hearings I observed – when he checked that I’d been sent the order.
As I have often done before, and will no doubt do again when orders prohibit identification of public bodies, , I asked for the order to be “varied” (i.e. changed). The Transparency Order says on the front page that you “have the right to ask the court to vary or discharge the order”. It’s often difficult to find an opportunity to do this in the course of a hearing, because judges don’t routinely ask if you want to and you’d have to interrupt the proceedings to make that point. It was easy in this hearing because the judge took the time to check I’d received the order and thereby created the opportunity for me to raise my concern.
Since the hearing hadn’t started yet, I didn’t really know what the case was about – beyond the fact that it was a s.21A because it said so in the listing. I supposed I might have stumbled upon a really unusual case with very specific features which meant that identifying the local authority might lead to identification of the person at the centre of the case (which is what the Transparency Order is designed to protect). So, I said that I understood that perhaps there were compelling reasons, in this particular case, why the local authority shouldn’t be publicly named but (a) it’s unusual to prevent observers from naming public bodies – funded with our taxes and accountable for their actions to the public; and (b) the case is being heard at West Cumbria Court House, so anyone reading the listings and the blog would be very likely to assume that it was Cumbria County Council in any case. (Those general points apply to pretty much any hearing in the regional courts and I recycle them repeatedly!)
The judge expressed a “provisional view” that he didn’t see why that restriction had to be in place and then sought the views of the parties.
Counsel for Mrs M (Ben McCormack) said[2] he “wasn’t involved in the drafting of the order, so I don’t know why Cumbria’s identity is protected. It’s not usual”. He added that “unless the court also anonymises the court where you are sitting, and I dare say you too, it is easy to work out the authority from the other information in the case. There’s only one local authority that covers that area. Our view is that there’s no reason to anonymise Cumbria and it isn’t serving a purpose to do so. There is a need to protect the identity of Mrs M, but there is an obvious and competing imperative of open justice”. He also pointed out the anomaly that the Trust (University Hospitals of Morecambe Bay NHS Foundation Trust) was not covered by the Transparency Order. I hadn’t noticed that: in fact, at that point, right at the beginning of the first hearing I’d watched in this case, I wasn’t sure who all the parties even were, so that was a helpful point to make. It could have resulted in the Trust being added to the Transparency Order as a second public body I was prohibited from identifying, which could have been important if – as might have been (but turned out not to be) the case, publication of the geographical areas covered by these public bodies posed a serious risk to P’s privacy.
Counsel for the Local Authority (Craig Smith) said he too had not been involved in drafting the order and said “I don’t think I can express views beyond those of Mr McCormack”.
Counsel for the Trust (Rau Rowan) said they had “no view”.
Mrs M’s husband said (with some exasperation, I thought): “I have no objection to the Transparency Order disappearing altogether”.
Mrs M’s son expressed his view forcefully. He reminded the judge that he had raised this issue before. “I was absolutely disgusted that they were able to hide behind this cloak of confidentiality. It’s a matter of public interest to know what the heck is going on with the Trust and the Local Authority – especially what went on at [the former care home], where staff went directly against doctors’ orders and caused my mother’s deterioration. I wanted this in open court for the whole world to see. If the gagging order can be lifted, and lifted right now, I’d be more than happy”.
The judge explained that the only change he was contemplating related to identifying the local authority – “but the remaining orders would remain in place to protect Mrs M”.
The son questioned this: “Just one quick thing there. She’s not gaga, she’s not nuts. On a good day she’s bright-eyed and bushy-tailed. Could you ask her if she’s happy to waive her anonymity so people can find out what the heck is going on?”.
The judge responded by saying that the Transparency Order was a legal issue “which is one in which Mr McCormack represents your mother’s views, via [her Accredited Legal Representative]”.
Ben McCormack said that he “wouldn’t want Mrs M to be put on the spot about that” and that there would be “significant implications of having no Transparency Order”. He was not making submissions to discharge it, and it was important (he said) for the son to know that the variation proposed only allows for naming the local authority, not the former care home, or Mr and Mrs M, or their son.
At the end of the hearing, the judge ruled on the matter, saying “there can be no good reason why the local authority ought to remain anonymous in any reporting of this case. I vary the Transparency Order only to that extent. The remaining provisions of the Transparency Order remain in place and there should be nothing that leads to identification of any other party – only the local authority and the Trust can be identified”.
The judge then addressed me: “Professor Kitzinger, thank you for raising the matter of the Transparency Order. It’s not something that’s crossed my horizon before, but I will look at the Transparency Order again in other cases when I’m asked to approve a Transparency Order because you’re entirely right that where there can be transparency, there ought to be”.
I’ve described this process in some detail because I’ve talked recently with several observers who tell me that, looking back, they would have liked to ask for the Transparency Order to be varied in the hearings they watched – most especially so that they could name the public bodies involved. Based on my 450-plus observations over the last three years, it seems to me that – although they are still definitely in the minority – prohibitions on naming public bodies are on the increase. This is a worrying trend for transparency.
If there is a journalist in court, they will almost always ask for a Transparency Order to be varied to permit identification of public bodies. But there is rarely a journalist in court – so it falls to us public observers to pluck up the courage to do it. It’s really helpful when a judge like DJ Mackley in this case, creates an opportunity for us to do this, and also indicates a provisional view (especially of course one that supports the observer’s request for a change!).
My experience in this hearing was actually fairly typical. Even though I’m acutely aware that my questions about the Transparency Order take up court time and hold up the hearing, judges (almost always) treat transparency as of sufficient importance to permit this – and nine times out of ten, the Transparency Order has been varied to reflect the changes I asked for. It’s quite common for the lawyers (and even the judges) not to know quite what the Transparency Order actually says until we raise questions about it – and when they look at it properly, they often share the observer’s view that it needs changing. When raising concerns, I try not to behave as if I’m challenging a ‘secret court’, but rather making the request for a variation in the spirit of collaboration with a court committed to transparency. It seems to work.
I wonder, though, whether Mr M and his son realised that they, too, could ask for the Transparency Order to be varied – or discharged altogether. From what they said in court, it sounds as though they want to be free to speak publicly about what has happened, including the court process. They are both apparently “frustrated” and “upset” about what’s been happening in the Court of Protection. It appears they believe that “the court process has been simply a means to safeguard the NHS or care homes against a damages claim”, and has acted as “cover for otherwise unlawful action” (quoted from the Position Statement on behalf of Mrs M). Other families have applied, successfully, for discharge of a Transparency Order prohibiting identification of the patient and other family members (e.g. Laura Wareham’s parents and Michelle Davies’ husband) – both in situations where they wanted to speak out about alleged failings in the care and treatment of their loved one. I don’t know if such an application would have been successful in this case, but I hope someone informed this family that they could make such an application.
Public observers like me who attend and blog about hearings always have a partial and limited perspective on the case. We don’t know the background story (and that story may be disputed by the parties). We haven’t, usually, attended all the hearings and we don’t have the full bundle of documents before the court – at most, only the position statements. We are approaching the hearing as ‘outsiders’ to the case and that means our view of the case may be quite different from the view of the family directly affected by it. To the court, it may feel like transparency to have an observer in court who blogs about it. To the family, it can just feel like yet another cover-up, an illusion of transparency, as the court hoodwinks a (probably) well-meaning but (definitely) misguided observer into believing that due process has been followed. I know this because some families (not in this case) have told me so. It is one reason why I would like the court to consider granting to families, and not just to observers, the freedom to speak publicly about their case.
4. The March hearing
The first hearing I observed (though there had been four or five earlier hearings) was on 23rd March 2023. As is usual in court hearings, the various parties each got a slot to state their positions, starting with the applicant, and then each of the respondents in turn.
Counsel for the applicant, Mrs M
Ben McCormack (counsel for Mrs M via her Accredited Legal Representative) gave a characteristically detailed summary of events so far. He said that Mrs M had been fit for discharge from hospital for some time, and that on 19th March she moved from hospital to a care home an hour’s drive from the marital home. This isn’t what she wants. Both Mrs and Mr M want her to return home – but nonetheless (he said) it is good news that she is out of the hospital, where she had been since Christmas.
The issue before the court now is whether it is in Mrs M’s best interests to remain in the care home, or whether it’s in her best interests to return home. Since she’d been discharged to this care home under a pathway entitled ‘Discharge to Assess” (funded by the Trust), counsel took the view that the decision should await the outcome of that assessment – and also for the assessment as to whether or not Mrs M is entitled to Continuing Healthcare (CHC) funding from the Integrated Care Board (ICB).
Counsel for Mrs M didn’t explicitly say that Mrs M has been assessed as lacking capacity to make her own decision about where she lives and the care she receives, and I don’t know what impairment Mrs M has that has caused her inability to make decisions in these areas. I have to take it on trust that she has been assessed as lacking capacity to make these decisions for herself – because if she has capacity, then she would be free to make her own choices and the court would have no jurisdiction. I am confident, however, that these assessments have been done. Nobody was disputing capacity.
“The big question is: can this woman, who wants to go home and be with her husband, who is coming up to 80, can she spend the time she has left at home with her husband as she’d like to do. We’d like to give her the answer: ‘Of course you can! Let’s make it happen’. The problems are first, physical. The family home is small. She needs a hospital bed, a hoist, a commode, a specialist chair – so there needs to be a clear view as to whether that’s physically possible. The second problem is commissioning. Will one or other of the public authorities involved pay for the care and support she’d need at home, over and above what the husband can provide. He can do a lot, but would also need some professional help. We got a preliminary answer ten days ago. The Trust’s position was ‘we don’t think the equipment will fit in, and she needs to be turned every two hours, and nobody’s going to fund that in the home’. So, it was rather doom-laden. So, we could say, ‘well, this is where we are, and it’s very unlikely she’s going to be able to go home’. Or we could say, ‘she’s been discharged so she can be assessed on the ‘Discharge to Assess’ pathway, and there still a game of ping-pong between the Local Authority and the ICB about what her needs are, and work is still ongoing, and in a few weeks’ time the court can ask for a better understanding of her needs. That’s the option we urge upon the court today.” (Counsel for Mrs M)
Counsel for Mrs M asked for another hearing in 8 weeks’ time, adding that if the parties were able to find a way for Mrs M to move back home sooner than that, they should be able to implement it (“we should not sit around twiddling our thumbs until the time of the next hearing”).
He also said: “Mrs M regularly says she feels she’s done something wrong and she’s being locked up for it. Her husband says it would help to hear from the court and from me that she’s done nothing wrong and that we’re all trying to work out a solution and find out how she can come home. It’s my obligation as her lawyer in court to make that absolutely clear”.
Counsel for Cumbria County Council and Counsel for UHMB Trust
The two other represented parties did not have any disagreements with the position outlined by Counsel for Mrs M. The Trust agreed that it was “precipitous to determine where Mrs M should live before the Discharge to Assess process is complete”. There was no dispute about the level of care Mrs M would need if she went home (two carers, four times a day, plus overnight care, and use of a hoist), and the Local Authority agreed that if everyone agreed on a way to get Mrs M home within the next 8 weeks (before the next hearing), they would move ahead on that.
Judge to Mrs M
Before inviting the unrepresented parties – Mrs M’s husband and (then) Mrs M’s son – to address the court, the judge spoke to Mrs M.
“Mrs M, one of the things I’ve been told today is you’re worried you’ve done something wrong, and that you’re being punished and kept prisoner. I’m the judge making decisions. You haven’t done anything wrong at all. You’re there because everyone’s trying to make sure that you’re kept well and your health needs are met. You’re there so we can get all the information I need to make a decision. You’ve told me you want to go home, and if the support can be put in place to get you home, that’s what will happen.”
I didn’t see any response from Mrs M, and I think the judge may not have been sure she’d taken in what he’d said. He turned to Mr M and said, “Please reassure her on behalf of me that she’s done nothing wrong at all, and we all want the best for her”.
Mr M
The judge explained to Mr M that the next stage was “getting the evidence together to get information about what her needs are, and we’ll get a better picture of what those are now that she’s not in a hospital environment.” He thanked Mr M for submitting a “very helpful” position statement and asked whether he wanted to say “anything today about the plan and how we go forward”.
Mr M expressed huge frustration with the process, and argued that he could manage his wife’s care at home. He said, “It’s been suggested that she needs to be turned every two hours to alleviate the possibility of sores, and I’ve been asked how would I do that on my own. Very simply. I use the two-sheet method to roll her one way or the other. It doesn’t take a lot of effort or ingenuity. I can do that every two hours without a problem. I’ve done similar for her in the past. To have looked after her since 1999 and now to be told I can’t do that is, quite frankly, a slap in the face. There are so many people involved now that I can’t do anything without them looking over my shoulder to check I’m not doing anything wrong. Please just give me a chance!” He also said that there would be plenty of room for a hoist in Mrs M’s room at home “by putting her television on the wall and freeing up that space, because that’s where a hoist could sit quite happily”. So, his view was that he could provide for the shortfall in home care by caring for her himself, and that the space was adequate for the equipment needed.
The judge acknowledged Mr M’s frustration and said that once the assessment of Mrs M’s care needs was completed, Mr M could set out what he could offer and the public bodies could set out what would be available if she went home – “and if they think care can’t be provided at home, you will get the opportunity to say why you disagree with them…. It may not come to that. Maybe people can agree, but if not, it will come back to court and then I will have to make a decision.”
Mrs M’s son
Mrs M’s son was very critical of what had happened in the past which (he said) had resulted in this situation in the first place. Both husband and son, it seems, have significant concerns that Mrs M hasn’t been given mobility exercises and physiotherapy that would have helped her to be in a position to return home. Counsel for Mrs M had mentioned this “family view” in his introductory summary, but had also said that there was “a clinical view that physiotherapy wouldn’t be of any use and would be uncomfortable for her”.
The son wanted an independent opinion from a professional physiotherapist with no connection to the ICB or Trust. “The reason we’re in this position is that she can’t walk. She could walk when she went into hospital 18 months ago. But due to lack of a funding scheme, there’s been no physiotherapy.” He described Cumbria County Council as “hell-bent on not picking up the tab for care, and deflecting funding back on to UHMBT”.
The judge said, “you’ve explained this to me on a number of occasions. I have to look at where we are now. It is not the jurisdiction of the court to look at how we got here. I can’t – and I’m not going to – go back through all the history of what has happened. I do appreciate how difficult you find the situation, but I have to move things forward.”
As an observer, I have to say I have heard this kind of exchange many, many times. Families have witnessed what they consider to be failings of care and want the public bodies (and often individual social workers or care home managers or other professionals) to be held accountable for those failings. It is vanishingly rare for judges to engage with these concerns. The “move things forward” line is absolutely routine, and reflects the scope of this jurisdiction. Families regularly feel silenced and angry about this and it contributes towards some people’s sense that the Court of Protection is “ignoring” their allegations of neglect or abuse. What they see is what they sometimes describe as “collusion” between the judge and the professionals, or outright “corruption” from the court. By contrast, what I see is the court focussing on what it is supposed to do by law, which is limited to establishing when people lack capacity and making ‘best interests’ decisions for their future. That circumscribed work does not begin to engage with the history of concerns families often bring to court.
On an independent expert physiotherapist, the judge said: “There is no application before me today, from anyone, to say there ought to be an independent physiotherapist – and it’s not needed because some further work is going to be done”.
Counsel for Mrs M said that there was a professional assessment from a physiotherapist at the hospital a couple of weeks ago and the professional opinion was “don’t do it to her; it will hurt and it’s not going to work”. There is a physiotherapist at the care home she’s just been moved to, and another assessment will be carried out there shortly. “If we get a different response, then physiotherapy will start”.
The son’s frustration was palpable. This is the story he wants “the whole world to see” (and the reason he wants the Transparency Order discharged[3]). It’s a story about neglect and poor care.
Closing
The judge ended the hearing by saying that he needed to know what the alternative options were before he could make an informed decision about what is in Mrs M’s best interests. This would require “professional assessment of what her needs are, and how those needs could be provided in different alternative scenarios. For example, if she were to go home – even if that’s not the professional recommendation – what support could be put in place? And I did raise previously if there’s support and training for Mr M that could help him provide that support”. He encouraged parties to “approach this in an open-minded way”. He also raised the issue of “whether or not Mrs M’s wishes regarding her religious beliefs were being properly addressed”. The case would be listed to be back in court at 2pm on 12 June 2023.
5. The June hearing
As in the first hearing, each party got a turn to state their position, beginning with counsel for the applicant, then counsel for the local authority, followed by Mr M (speaking on behalf of both himself and his son, who wasn’t present for the June hearing), and then counsel for the Trust. After that, the judge gave an oral judgment.
Counsel for Mrs M
Counsel for Mrs M (Ben McCormack) was, as he said, in a “difficult” position.
Since the last hearing it had been confirmed that Mrs M is not eligible for continuing health care (CHC) funding. Tests had shown that Mrs M now has bilateral fixed contractures of her hips and knees, which make it highly improbably that she will make any recovery with her mobility. And no care home closer to the marital home that is able to accept Mrs M has been found.
Ben McCormack said he had spoken up “quite loudly and forcibly” for what Mrs M wants – i.e. for her to go home. But “the court can’t put her in the small remote town where her husband lives unless there is somewhere there to provide appropriate care and support. Mrs M’s needs for support significantly outstrip what can be available to her in her own home. The evidence is that she needs repositioning every four hours. She needs someone coming in every day. Whether you phrase it as ‘living at home is not an available option because the court couldn’t countenance it without appropriate care’ or ‘living at home is available but so far from being in Mrs M’s best interests that we cannot recommend it’ – either way, residence in a care home is the only option. I’m her advocate, but I have to accept the reality. There has been an exhaustive search and only one care home was found that could meet her needs and was able to accept her – and that’s [the care home she is in now]. So that brings us to a position where I suppose her ALR may say, ‘okay, there might be nothing today, but might there be something better around the corner?’. Her ALR has come to the conclusion that sadly there isn’t. This doesn’t mean the court process hasn’t worked. The court has thoroughly interrogated the issues. It’s sad and upsetting, but it doesn’t make the court proceedings that tested whether this is the only place she could live redundant. It’s been productive, even though the answer is that there’s nowhere better. There’s been a really thorough consideration of whether there is anywhere better than what Mrs M has at the moment, so in those circumstance, the ALR says that the evidence forces the conclusion that the court can proceed to determine s.21A on the basis that there isn’t anywhere else.”
He added two further points.
First, the local authority should, he said, keep under review the question of whether there is a better place for Mrs M to live that’s closer to her husband, and that should be added to the order.
Second, Mrs M’s husband and son had apparently said that they had not been appropriately consulted as her attorneys and they are reported to be of the view that Mrs M remaining in residential care was always going to happen and that the court process has been simply a means to safeguard the NHS or the care homes against a damages claim. This view (said Ben McCormack) is “misplaced”.
I agree. Based on what I have seen in this – and many other – hearings, I believe the court would have been very likely to approve a placement in a care home nearer to her husband, if that were an available option. But it isn’t.
Ben McCormack acknowledged that Mrs M had wished to delegate decision-making to her family – not to leave it with professionals or with the court. The LPA document she signed was registered with the Office of the Public Guardian (OPG), so there is good evidence that it exists, although it has not actually been located and shown to the court. The judge queried why the signed LPA document was not available: “It’s open to anyone – certainly for parties – to make an approach to the OPG and get a copy”. “We asked”, said Ben McCormack, “and the OPG said ‘we’ll disclose them to the attorneys, but not to you’.” Nonetheless, and despite the absence of the actual documentation, he added, “our working presumption is that Mrs M did make an LPA in September 2018 that is valid and gives her husband and son decision-making power on behalf of her welfare, including where she lives”.
A key matter that arises, assuming that Mrs M’s husband and son are indeed her Health and Welfare Attorneys, and that they continue to be of the view that it is in her best interests to return home, is how it is that the court can arrive at (and enforce) a different decision to them about what is in her best interests. And how can it be lawful to deprive Mrs M of her liberty in her current care home in the face of refusals from her two attorneys – when there is a so-called ‘no refusals requirement’ to make that deprivation of liberty lawful?
Ben McCormack addressed these questions carefully and in depth, both in court and via an Appendix to his Position Statement, to which I am greatly indebted in my version of the explanation below – which draws heavily on his text.
The explanation is rather convoluted, but once you’ve worked your way through it, it does make logical sense. It goes like this.
- Schedule 1 of the Mental Capacity Act provides that a care home or hospital must obtain authorisation from the relevant local authority (the “supervisory body”) before it can lawfully deprive someone lacking capacity of their liberty.
- The local authority then arranges six assessments to determine whether or not the “qualifying criteria” for the Deprivation of Liberty Safeguards (DOLS) are met.
- One of those six assessments addresses what is called the ‘no refusals’ requirement.
- There is a refusal – and so the ‘no refusals’ requirement is not met – if depriving a person of their liberty “would be in conflict with a valid decision of a donee or deputy for the relevant person”.
- A ‘donee’ means ‘a donee of a lasting power of attorney granted by the relevant person’ and a decision of a donee is ‘valid’ if it is ‘in accordance with Part 1 of this Act’ (i.e. the Mental Capacity Act)
- If the court decides that it’s in Mrs M’s best interests to reside in a care home, and if Mr M (the donee of the lasting power of attorney) decides it’s in her best interests to live at home, then his decision would not be ‘valid’ because it would not be in accordance with Part 1 of the Mental Capacity Act – which says that a person can be deprived of their liberty if, by doing so, they are “giving effect to a relevant decision of the court” (s.4A(5))
- The court also has the power to revoke the Power of Attorney where the decision of the court is “preferred” to the decision of the attorney or where the attorney has behaved (or proposes to behave) in a way that is not in the protected party’s best interests (as decided by the court).
What I take from this – and it makes me feel somewhat panicky as someone who has appointed as my LPAs family members I trust (far more than I trust a judge) to act in my best interests – is that if my attorney makes a decision on my behalf that the judge doesn’t agree with, her decision will be automatically invalid. And my attorney risks being stripped of all authority on the grounds she’s not acting in my best interests (as the judge sees them).
I have to say that I don’t think the Court of Protection exercises this draconian power lightly. I’ve seen how donees of Lasting Power of Attorney are treated with respect in court (including in this case). And obviously there are cases – not this one! – where family members are abusing their powers and acting in ways that are clearly not in the protected party’s best interests, so it’s important that the court has the power to revoke an LPA.
But still…. the government’s simplistic message that “as a health and welfare attorney, you make (or help the donor make) decisions about things like […] where the donor lives” is clearly not as straightforward or unqualified a message as they make it sound.
In conclusion, Ben McCormack, acting for Mrs M (via her Accredited Legal Representative) asked for an order that it was in Mrs M’s best interests that she should remain deprived of her liberty in her current care home. Exactly what she didn’t want. “The facts really force that conclusion”, he said. “There is nowhere else to go to source alternative possibilities. We’re stuck with what we’ve got. The care home where she is now living and is settled is not perfect, but it’s the only thing realistically on the table”.
The judge expressed some concern about the fact that he didn’t have a copy of the signed document from Mrs M appointing her husband and son with Lasting Powers of Attorney, “not least because I can see a situation where a change to a care plan at any point in the future may lead Mr M and [Son] to take the view that they have a valid LPA and they don’t agree with the change and may seek to take that further. And if I need to consider whether there is or is not a valid ‘no -refusals’, it’s quite important to check that the document covers where she lives. I suspect it does cover it, but I think there’s a lot to be said for evidencing it”.
At this point Ben McCormack, who looked quite flushed and uncomfortable, asked if he could take his jacket off. He was without air conditioning and it was (he said) “35 degrees in here”. Permission was granted.
The judge raised two other issues: first he hadn’t met with Mrs M and wondered whether she would like that (apparently ,she’d not requested a meeting with the judge); and second, while appreciating that Mrs M’s religious beliefs were not the focus of the hearing, he didn’t want to lose sight of the fact that access to church attendance had been raised at the start of the case, and he’d not heard whether, or how, that had been resolved.
Counsel for the Local Authority
Craig Smith, for Cumberland (formerly Cumbria) Local Authority, said that Ben McCormack was “clear, detailed and balanced in his approach”. The local authority agreed that a care home with a nursing element attached – as in the current care home – was the best way to meet Mrs M’s needs.
“I am conscious of her husband dealing with quite an inconvenience in terms of contact and in terms of not closing doors, and seeing if a closer placement could be found, we as the local authority are content to keep under review the availability of placements that might be closer to Mr M. […]. On the matter of the LPA, we haven’t seen the LPA documents. At best we have an on-balance indication that there is an LPA in place, but in terms of how that plays out at the end of the day, if the attorneys seek to make a decision counter to the decision of the local authority or the court, that would have to come back to the court for further determination. On the issue you’ve raised about church, it’s been discussed with the social worker and the issue of pressure-care would need to be considered in terms of taking her to church”. (Counsel for the local authority)
Mr M
The judge began by checking whether Mr M had had the opportunity to discuss the situation with his son. Mr M confirmed that he had, and that “we’ve reached a position which we are both agreed on”. The judge asked him to say what that was.
Mr M’s delivery was measured, clear, dignified, and courteous – but uncompromising. He is obviously bitterly angry and disappointed about what he believes has been done to his wife. He has also read the Mental Capacity Act 2005, and believes that the law was broken in depriving his wife of her liberty at the beginning of the process.
Mr M: “At this point in time, due to the lack of mobility my wife has, there is little point in her coming home, due to the extra needs she now has. So, we agree that [the current care home] is the best place for her at this point in time. That doesn’t negate the anger and frustration that this whole process has caused. We started this process because my wife wanted to come home. A DOLS that I didn’t even know had been granted had been imposed on her. Read the Act. The ‘no refusals’ matter had not been considered. In order for a DOLS to be granted, a next-of-kin, spouse, or legal guardian or a Power of Attorney holder has to be in agreement with the DOLS being in place. It seems a bit odd that someone who doesn’t know my wife, doesn’t know our home situation, can decide without any reference to the family or to the Power of Attorney holders that this would be done. I didn’t know we’d arrived at a police state where someone’s rights could just be taken away from them, without consulting with them, or with next-of-kin. I was in the hospital every day. They could have spoken with me. The DOLS was not legal because nobody consulted us. People kept saying it was in her best interests – well, let me remind you that 20 months ago she was walking with a zimmer frame. They have taken her mobility away from her. Was it the intention of the legal process to do this to my wife? Because if it is, congratulations, you’ve succeeded. But if it isn’t, then why so much delay? If she’d been given physiotherapy in hospital when I first asked for it, she would still be mobile. How can it be in her best interests to be made more disabled as time goes by? Nobody, I mean nobody, has bothered to tell me what the thinking is. They say the Act give them the right to do as they please. She’s appointed LPAs to represent her, and it feels we’re not being listened to either. [Son] is of the opinion that authorities in [Hospital] need to be brought to book and realise the damage they have done to her and to the family unit. How you can say this is in her best interests defeats me. I was refused permission to do her physiotherapy exercises with her – I’ve been doing them with her for years! If I hadn’t, she wouldn’t have been on a zimmer frame when she went into hospital, she’d have been disabled a lot sooner. This court case has defeated the purpose of my wife’s best interests – it’s been a time-wasting exercise. All you’ve been doing is checking the boxes were ticked to make sure nobody can be sued. You’ve covered your own backs. You’ve made such an enemy out of my wife, myself and our son that any more discussion is pointless. She’s now in a position where she doesn’t have any choices left. How is it in her best interests to be like this? So, please, next time, involve the family before you put a DOLS on somebody. It is not right or proper that you bludgeon your way into a family like this. I have little or no faith in this process. All this prevaricating and dalliance has resulted in my wife’s mobility being reduced further. We spent £4,5000 buying a wheelchair-accessible vehicle that she never gets to use. We were forced to do so by [former care home] who wouldn’t countenance the way I was transferring her from wheelchair to car. So come on, tell me, what’s the purpose?”
Judge: The purpose of the court process has been to try to identify whether there was a way your wife could be cared for at home. That’s why I pushed for the local authority to provide evidence-
Mr M: When the first DOL was forced onto her, and she had such an adverse reaction to it and created a scene, why was she not allowed then to see if she could manage at home?
Judge: I cannot consider the previous decision-making of the local authority and the health authority. It is not proportional. I understand how strongly you feel about this – but it’s not the remit of this court, not the jurisdiction of this court, to deal with whether actions taken by professionals has had an impact on [your wife] and her ability to return home. I can’t make a comment on that. It would be unfair and would be without having all the information.
Mr M: I understand your position and I understand your viewpoint. With regard to the church, I have church responsibilities in [place near family home] and I can’t drop everything to care for my wife 24/7. I come at 2pm on Sunday. The whole point of living in [town where family home is] was that we could get to our own church. When my wife was in [former care home] they only allowed her to go once to church and then they wouldn’t allow her to go again – because we went out for a meal as a church. They put obstacles in my path to take her to church. Our church is still in [town near family home] and it’s too far for her to travel. When we arrived here at this care home we were told there was a church service. There wasn’t. But there is going to be one this Thursday, and thereafter, which I think is a step in the right direction. What God has put together, let no man put asunder. The stress of this court case is tearing our relationship to shreds. I had a collapse on 7thMay – a stress related attack of vertigo that landed me in hospital for four and a half days. Is this what the legal process is designed to achieve? I accept that she has limited capacity in some things, but not in others. This is the lady that I love, that I married, for good times or bad. And this has been hell, for her and for me.
Judge: Mr M, I’m really sorry to hear this. You have my full sympathy. It should be a matter of record as to the degree of devotion and love you’ve shown Mrs M throughout these proceedings. No one can doubt your commitment to her. It’s abundantly obvious to all. Can I ask two more questions. The first relates to the LPA. At a previous hearing, I said it would be possible for you, or [Son], to obtain a copy of the documentation from the Office of the Public Guardian.
Mr M: [Son] started the process but got met with a brick wall on three different occasions. His health has now deteriorated. So, then I contacted the OPG and I got a stone wall. They kept telling me to refer to what it says in the documentation. I need someone to tell the OPG to get off their backside and respond. I’ve emailed and tried phoning to no avail.
Judge: We will have some wording in the recital of the order that you should have some assistance with obtaining the LPA documentation. My second question, you heard me ask Mr McCormack if he considered there would be any merit in my meeting with your wife.
Mr M: (brief inaudible consultation with wife, who shakes her head). My wife is shaking her head. She’s a bit fed up with the whole process and meeting you would only prolong the agony. She still wants to come home, and I want her to come home, but because of her condition it’s not safe, even with four carers a day, and my vertigo. It is a nice offer, thank you.
Judge: I don’t want to cause you any further distress or pain, but do I understand that you and [Son] would prefer me to make a decision without any further delay, and you’re not challenging at this time the Standard Authorisation keeping Mrs M in the care home.
Mr M: At this time, no. But on the LPA, just to be shut out of the circuit when she appointed us to help her look after things. What is the point of having an LPA if you just ride roughshod over everything?
Judge: Anything else?
Mr M: (sighs). So much. But it would just be covering old ground.
Counsel for the Trust
The lawyer representing the Trust (Ranu Rowan) had very little to say since Mrs M “is no longer under our care”. She commented that in terms of the LPA, “we looked on our hospital files, and all we found was confirmation from the OPG that the appointment was in place”.
Counsel for Mrs M (again)
As is usual, the applicant counsel was invited to speak in relation to anything said earlier by the other parties, and Ben McCormack addressed the husband’s complaint that his views (as next-of-kin and LPA) weren’t obtained during the DOLS procedures. He had before him the paperwork from the best interests decisions and “it’s recorded that the best interests assessor spoke to Mr M, and also he acknowledged that he was an LPA”.
He read out some extracts from the forms and it did sound as though Mr M had been consulted. On the first form, the assessor had written that Mr M was “very displeased as to how the move [to the care home] had been handled” but recorded that when asked “how he would cope if Mrs M returned to the family home” he’d “acknowledged that she’d need more care than he could provide, and agreed reluctantly that it would be best for her to stay in the care home for now”. There is a second form with “the same point described in slightly different language – it’s not been cut and pasted across. It sounds like a separate consultation with Mr M, again referring to him as the husband-slash-LPA”. Counsel concluded: “So it’s not fair to have on record that the family were not consulted. It is just as well that you have in mind the documents in the court bundle, F11 and F34 of the earlier bundle filed. They were powerful points that Mr M made. Nothing detracts from the feeling that he has that they felt disempowered by the process, but I’m afraid it isn’t true to suggest there was no consultation with them. There is evidence of a proper consultation with Mr M. I did draw that to your attention in February, too. I don’t want to be confrontational about it, but I am aware that we have an observer, and Mr M made his points so powerfully that I think the court needs to have accurate facts.”
This was interesting. When I’ve supported families in Court of Protection cases about clinically assisted nutrition and hydration (as an offshoot of my work for the Coma and Disorders of Consciousness Research Centre) they’ve often told me that there was no proper consultation with them about what the person would want, no ‘best interests’ meetings focusing on this particular treatment, no discussion about treatment options. Often, in those cases, there really wasn’t – or at least nobody has been able to locate any record of any such consultations, which seem to start only once someone makes an application to the court. So, I was entirely convinced by Mr M’s compelling account of not having been consulted in relation to deprivation of liberty – and surprised to learn subsequently from Ben McCormack there was evidence that he had been.
The discrepancy between what the records say about consultation and what Mr M said in court, is not, I think, likely to be the result of anyone telling lies or deliberately deceiving the court. When families are under a great deal of stress, they may not fully take in, or remember, these conversations. In my experience, families are often unaware, at the time, of their legal import – which only becomes evident to them retrospectively. I imagine it’s unusual for someone to explain the situation along the lines of: “there is a legal requirement for me to complete an assessment for your wife in order for her to continue to remain in the care home and ‘deprived of her liberty’. As part of that assessment I need to ask you formally whether you want to register your ‘refusal’ to agree that it is in her best interests to be deprived of her liberty by remaining in the care home. What will happen if you formally register a refusal is…. What will happen if you choose not to refuse is…..” Most families don’t understand the legal framework on DOLS. Many health and social care professionals don’t fully grasp it either – especially not its relationship with LPAs. As a result, what later appears on forms can assume a significance and importance that was not appreciated at the time.
In addition, I think there can be a tendency to conflate the fact that decisions have been made that run contrary to family wishes, with a view that family wishes have not been elicited, or not heard, or not taken into account. Sometimes, that’s so – of course (and I have family experience of that, here). But the brutal reality is that family members can be properly consulted, and their views fully elicited and put into the balance of best interest decision-making, and the outcome can still be a decision that is not the decision the family wants.
The anger expressed by Mr M and the son in this hearing resonates for me with what I often hear from families involved in court cases. The Open Justice Court of Protection email-inbox, and our twitter feed, is often on the receiving end of correspondence describing the allegedly “criminal” activities of the courts. Judges are said to have acted unlawfully, contrary to the Mental Capacity Act 2005. Courts are alleged to have breached international human rights conventions. In my experience, the views of these correspondents often have an ethical, rather than legal, basis. People are incredulous that it can possibly be lawful to do what the court does: withdrawing life-sustaining treatment from someone family members believe would want to live; compelling someone who doesn’t want a medical treatment to have it; authorising carers to forcibly restrain people, or to deliver medication someone doesn’t want covertly, by deception; separating family members; preventing family members from seeing each other; keeping someone who wants to go home in a care home against their wishes. They believe that if they appeal – to the Ministry of Justice, to the higher courts, the Court of Appeal, to Europe, there will be some redress, because this cannot – surely cannot! – be within the law. The fact is that these kind of court orders can be lawful. Law and ethics are not the same thing. Sometimes, as I know from personal experience, the law is simply against you[4].
6. Judgment
The judge’s decision didn’t come as a surprise. As it turned out, there wasn’t anyone – including family – who thought that Mrs M returning home was in her best interests, given her current support needs. The application was agreed between the parties.
Despite the agreement, the judge hesitated about whether he could make the decision today – in the absence of one of the parties (Son) and without having seen the paperwork concerning the LPA – but he came to the view that “I take into account the clear distress and needs of this family that this case needs to be resolved today. Further delay would not bring benefit – but the opposite. It would cause stress not just to Mr M, but to Mrs M as well”.
The judge referred to the key social worker’s evidence about Mrs M’s health and care requirements (not disputed by anyone) and her conclusion that it was in Mrs M’s best interests to remain in her current care home, and that there was no realistic alternative option. That evidence, put forward by the local authority, was broadly accepted by all parties.
He said that if the attorneys had objected to Mrs M remaining in the current care home, then the ‘no-refusals’ requirement would come into consideration. But Mr M “has told me in a clear and articulate way that he and [Son] do not seek to challenge Mrs M remaining in the care home today. He has told me on this occasion and on previous occasions how he considers Mrs M has been let down by the Health authority and by the local authority thereafter – due to decisions in relation to her physiotherapy that he believes led to a deterioration in her health that makes him unable to meet her needs, even with a support package, if she were to come home. He makes clear that had different decisions been made, we would not be in this position today.”
The judge said: “All parties are in agreement that these proceedings should come to an end. The s.21A challenge to deprivation of liberty is not pursued. All the requirements for the Deprivation of Liberty Safeguards are fulfilled.”
Then he added some comments about additional matters.
“In relation to Mr M’s assertion that the family was not properly consulted about DOLS, I do observe there are documents which do indicate that at the very least Mr M was asked for his views as to Mrs M remaining in care provision – and his view was that until there were resources and a training package in place that she should remain there. I am not going to delve into how those discussions took place, and whether there should have been more information provided. Also, Mr M has a very deep and enduring devotion to Mrs M and there will need to be ongoing proper consultation with him in relation to Mrs M, and her care package, going forward. There needs to be a weather-eye kept on whether it might become possible to move Mrs M closer to where Mr M lives. Long travel may be taking something of a toll on Mr M. If he becomes physically or emotionally incapacitated, this will have an impact on the time he can spend with her. I can make no order, but encourage an active eye on this. It does seem to me that Mrs M’s wishes include wanting to be with her husband, and also her faith and religion which play an active part in her life and have done for many years. I invite the LA and the Care Home to do their best to make sure she can take an active part in her religion and access some religious services.”
The hearing ended with this exchange between the judge and Mr M.
Judge: It is with a real degree of sadness that I cannot make an order that your wife comes home. I hope you understand the reasons – I know you do. I wish you all the best, and please pass on my best wishes to [Son]. Thank you for the way you’ve put your case and arguments today, and in previous hearings.
Mr M: I’d like to thank the court for taking the time and energy to air these issues. But I’d like to point out that the process takes too long. My wife’s health has deteriorated during this time – the time taken has negated the possibility of her coming home. A speedier decision would have been better.
Judge: I understand and acknowledge the disappointment you must feel.
7. Final Reflections
It was a moving and upsetting experience to watch these two hearings. At the heart of it all were simply two people, a married couple, who wanted to be together. And it wasn’t possible to make that happen. They were, in the Biblical terms invoked by Mr M, “put asunder” in what must feel like a violation of their marriage.
I kept reflecting on how this could be any of us – and the tragedy is that there doesn’t seem to be anything we can do, nothing we can put in place, to ensure that we don’t find ourselves in this position in future. Perhaps only the very rich, who can pay for nursing at home beyond the level that the state is able to provide, are exempt from enforced separation from a loved one.
I recognise that the family feels angry and upset by both the process and the outcome. I would too. And yet everything I saw in court pointed to the deep concern of the parties, and the sympathetic engagement of the barristers and the judge with the position the couple found themselves in. I think they really tried to fix it. I was impressed with the care and sensitivity with which Ben McCormack, in particular, addressed challenging issues in the case – not shying away from difficult facts, but choosing his words carefully and acknowledging their impact on the family. And the judge, too, displayed warmth and sensitivity. It felt like a ‘humane’ hearing – but obviously the outcome was one that caused immense distress.
Maybe earlier physiotherapy might have supported Mrs M’s continuing mobility as her husband believes, but the reports from physiotherapists seem clearly to indicate that wasn’t so. And in any event, it was now too late – there seemed to be agreement that Mrs M would not be able to walk again and overall required a level of care that couldn’t be managed at home. A deteriorating physical condition or degenerative illness is what many of us (or our spouses/partners) may face in the future. I saw from these hearings that when that happens, couples may end up being separated, despite the best intentions of the court. I saw (again) that once a person loses capacity, they can be placed in a care home against their wishes and the wishes of their family. I saw (again) how limited the powers conferred by a Lasting Power of Attorney can turn out to be. It’s a thoroughly depressing scenario, but it’s difficult to see how the outcome of this case could have been different, given the circumstances.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 450 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia
[1] I’m told by lawyers that where there’s a Lasting Power of Attorney in place, that person is normally appointed as the RPR and so it would be the LPA in their role as RPR who would bring a s.21A case to court. Case law suggests that this may depend on whether there’s a conflict of interests – e.g. if the LPA made the best interests decision for P to move to the care home and is of the strong view that the care home remains in their best interests, then they may not be best placed – indeed may be reluctant to – make a s.21A application (Re. AJ [2015] EWCOP 5). That doesn’t apply here, though, since there is no obvious conflict of interests between what P wants (to go home) and what the LPAs believe is in P’s best interests (also, to go home). In practice, I’ve watched lots of s.21A cases and I’ve never seen the donee of an LPA as applicant in a s.21A case. In this case, I’m not sure how it came about that an ALR was appointed, because I didn’t attend the first hearing.
[2] We are not allowed to audio-record court hearings. My quotations are as accurate as they can be, based on contemporaneous touch-typed notes, but are unlikely to be 100% verbatim.
[3] I think in fact under the terms of the Transparency Order, he can speak or write about his concerns with his mother’s NHS treatment, so long as he does not identify his mother as having been at the centre of a Court of Protection case or refer to the COP hearing in any way. I don’t know whether he knows this, or if anyone has explained it to him.
[4] My wife, Sue Wilkinson and I, received a court judgment against us which we believed then, and believe now, was entirely lawful, but profoundly ethically wrong. It was a Family Court decision from the then-President of the Family Division of the High Court, Sir Mark Potter (Wilkinson v Kitzinger [2006] EWHC 2022 (Fam)) who ruled that our (lawful, Canadian, same-sex) marriage was not a valid marriage in England and Wales. This was – obviously! – before the government passed the Marriage (Same Sex Couples) Act 2013, which retrospectively made our marriage lawful from the date of its inception in August 2003. The law finally caught up with the ethical position on equality that we’d been advocating.
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