Giving P “one more roll of the dice”

By Claire Martin, 20 July 2023

This case (COP 1381929T, 17^th July 2023) is about whether Mr B can move back to his own home, with or without his wife, Mrs B. They live together in a care home at the moment. 

I received the link for this hearing – as well as the Transparency Order! – in the morning for a 1.30pm start. It’s so helpful to have the link in plenty of time. 

The judge, His Honour Judge Whybrow, sitting in Hull was also extremely facilitative. The hearing started a little late and while I was waiting in the virtual lobby, the judge came on the link and spoke to me. He said that there was a short delay and the hearing would be starting soon. 

Then, when the hearing started, he asked me to put my camera on and to confirm that I had received the Transparency Order (yes) and whether I knew anything about the case (no) and whether a ‘short exposition’ would be helpful (yes). 

A Faltering Start

There had to be a break almost immediately because when HHJ Whybrow turned to Mr B (the applicant in this case, via his Litigation Friend, his Relevant Person’s Representative), who was on a link from his care home, he couldn’t hear him. Mr B was talking animatedly, but his audio was off. And then when the audio was on, the connectivity was poor in the room where Mr B was. 

The judge said he would leave the hearing for a time whilst the care home sorted out the link. 

Mr B was still on screen and we could hear a person (I think a care home member of staff) speaking to Mr B explaining that the connection wasn’t good in the room he was in and they would need to move to another room. I heard Mr B say ‘Forget it’: he looked irritated and then he started to stand up. His link then cut off. 

When we started again not long afterwards, Kelly Hutchinson (representing Mr B) said that he had become ‘agitated’ and ‘fed up with the process’. Their paralegal had called Mr B but ‘now he doesn’t wish to engage, saying that if anyone wants to speak to him they can visit him’.  

Counsel for Mr B then considered various options: 

• to proceed without Mr B’s presence
• to proceed later the same afternoon after Mr B had had the opportunity to ‘calm down and see if he will join later on’ 
• or an in-person hearing to be arranged. 

HHJ Whybrow said that it was ‘unfair to proceed with [Mr B’s] absence’. And that ‘in-person is not an option. He hasn’t left the care home for 3 years.’ 

The second option was chosen and it was agreed to reconvene about an hour and a half later, at 3.30pm. The judge advised that a ‘dummy run at 3.15’ with Mr B should be done, to ensure that he was properly connected. HHJ Whybrow asked me if I would like to observe later so I turned my camera on and said that I would be there. 

Just before leaving the judge asked: “What are the issues today though?”

Kelly Hutchinson explained that today’s issues were about best interests for where Mr B should live and receive care. He has ‘strong wishes and feelings – but he can’t consent. We need a court decision’. She also said that there is a question of ‘whether there should be a recording in the order [that] Mr B is not to drink alcohol and not to access places to purchase alcohol’. 

The Court Reconvenes

Mr B was not on the link. That didn’t surprise me. He had seemed mightily fed up when he left the link earlier. 

Kelly Hutchinson said that Mr B had returned to his room with his wife and this has ‘exacerbated his agitation’. She said the options were ‘to adjourn and see if he can join, or to proceed today. [Mr B] has wished for the matter to be drawn to an end. There have been difficulties engaging Mr B – it may be that his participation can’t be facilitated’.

But Mr B’s participation had been on offer at the start of the hearing! He was sitting waiting to speak and did so when the judge addressed him – quite animatedly. What a shame it was that the sound hadn’t been turned on for him and that he had been set up in a room that was apparently not good for connectivity to the internet. 

Why is the case in court? 

Since I was on the link, HHJ Whybrow gave a very helpful summary of the case,: 

“Dr Martin is here – she’s observing and brief summary would be helpful. The application was made on behalf of [Mr B]. … The main issue is whether or not Mr B should be able to return home – he has a strong wish – or whether he should be retained in the current care home. One complication is that his wife, Mrs B, is also in the same home and they share the same accommodation. There is already approval for Mrs B to remain there even though she herself would rather move home. She sees matters the same as her husband. Her own needs, her agitation is much greater than her husband’s. Her best interests are to remain where she is. The court has previously approved this. There is no likelihood that, even if he were able to go home, he would want to go home without Mrs B. This is the most touching part [of the case] – they are very close. There is something of a dynamic. Mrs B is more forceful and dominating, Mr B steps into line with her requests. Even if he was tempted to go home, she would prevail upon him not to go. They have been in the care home for three years and retain their home in [place] to return to. They haven’t left the care home and don’t want to go out, even into the garden. It’s very unusual …. It’s a stark situation. They want to go home and are not willing to countenance any middle ground – they are convinced they are going home. Dr Martin that is a brief summary.”

I quickly formed the impression that the judge felt compassion for Mr and Mrs B, as well as some bewilderment at the absolute position that they take in relation to their situation. 

Mr B was not in court though and a decision about how to proceed was needed: to continue without Mr B or not. 

Both counsel (Kelly Hutchinson for Mr B and Holly Littlewood for East Riding of Yorkshire Council) were of the view to continue. 

The judge had a different view:

“I can understand the strong argument for saying the case should finish today. The evidence is all in. Mr B hasn’t hitherto taken part to any meaningful extent despite saying he wanted to. Today unusually he tried to take part. He was talking but no one could hear due to the tech [I thought that was a generous interpretation of the issues!]. I know they [Mr and Mrs B] want the case to finish – they believe it is a conspiracy by the NHS and they want to go home and they are excited there will be a decision. Against that I am concerned that the professional evidence is all very much against them going home, that the risks are too great and, given that Mrs B is staying there, I can’t see that Mr B would want to go. I can’t see it is right for Mr B to see the outcome like this without the chance to take part in proceedings. I think [counsel] has been blindsided by proceedings. If [the paralegal] had been with Mr B it might have been different. He has been hampered because of tech and then lost patience and given up hope. I am very conscious that today should be centred around Mr B being able to take part and listen. I am very uneasy about finishing proceedings today Ms Hutchinson. There are two options – one to adjourn and come back next week, the other to go ahead and make a decision and give Mr B the opportunity to rehear it if he wishes to take part. On balance the former is the best option – the second is too subtle.”

In any event, it was decided that Kelly Hutchinson’s paralegal colleague would be with Mr B next week and they would try to have a hearing that includes him then. 

The Local Authority, said Holly Littlewood, was ‘concerned about adjournment … that said, if you think one more opportunity, then the Local Authority would not stand in the way’. 

HHJ Whybrow emphasised: “I am decided it’s right to adjourn. The sole ground is that we need to hear the wishes and feelings of Mr B. We need to give him one more roll of the dice. Mr [paralegal] needs to be there, rather than relying on the staff“.

Hooray for HHJ Whybrow, I thought.  

The next hearing for Mr B will be Monday 24^th July 2023 at 3pm. 

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin

_{Note: Quotations are taken from contemporaneous notes and are as accurate as they can be given that we are not allowed to record hearings. For the avoidance of doubt, the image accompanying this blog post is a stock image and is not a photograph of the couple at the centre of this case.}