By Amanda Hill, formerly ‘Anna’ , 3rd September 2023
When I saw this case listed, I didn’t fully appreciate the complex issues it would cover, especially about the difficulties of ensuring that somebody who is used to going out independently can do so safely – and the role that technology might play.
At the heart of this case is a woman I’ll call Sarah (I find the term P too anonymous and I like to try and visualise the person behind the letter P). Sarah is a 41-year-old woman diagnosed with Asperger’s syndrome (a form of autism), bipolar affective disorder, atypical anorexia nervosa, obsessive compulsive disorder and severe anxiety. She’s living in supported living, and she’s been accustomed to having a good degree of autonomy, including being able to go out into the community by herself.
However, there are now concerns about a man she has met who may have “groomed and sexually exploited” her, and it has been suggested that she may lack capacity to decide on contact with others and engage in sexual relations. This is the third time over the last few years that she has been exploited by a man. An initial assessment by her social work team was that Sarah “was unable to understand, retain and use/weigh relevant information relevant to the decision” to engage in sex. There is now an ongoing criminal case against the man and concerns for her safety.
After this, and without court authorisation, the local authority increased the 1:1 provision of carers, and prevented her from going out in the community alone. She objects to these restrictions on her freedom. Observing these hearings highlighted to me the practicalities of managing the difficult balancing act between the principle of autonomy at the heart of the Mental Capacity Act 2005 and the principle that vulnerable people in society must be protected.
The case (COP 14088706) was listed with the subject matter as ‘Capacity to Consent to Sexual Relations’. I don’t have much knowledge about the law in relation to capacity for sex (I’ve learnt a lot writing this blog post) and it wasn’t because of the topic that I chose to observe this hearing. Rather, in my role as a core team member of the Open Justice Court of Protection Project, I am focusing on hearings in the South East Regional Hub where the lead judge is HHJ Owens and, as she was the judge in this hearing, I thought I would observe it. The hearing did cover other areas that I do have a particular interest in, such as the role of Litigants in Person and Deprivation of Liberty – and, having previously focused largely on s.21A cases, because this is what my own mother’s case was about, I’ve discovered that I can learn a lot through observing COP cases concerning a variety of different issues.
I’ve observed two hearings in this case: one on Monday 17th July 2023 and another on Wednesday 9th August 2023. I received the Position Statements (PS) for both hearings from Oliver Lewis after the hearings, which greatly enhanced my understanding and which I have drawn upon when writing this blog. In fact, without them, I don’t think I would have really understood the case at all.[1]
1. Hearing of 17th July 2023
Access was straightforward and I was sent the Transparency Order in advance. The Clerk gave me access to the video-platform at 1.55pm (for a 2.00pm hearing). There were already a number of people attending. I could see Oliver Lewis of Doughty Street Chambers who was Counsel for Sarah via her litigation friend, the Official Solicitor (OS); Sebastian Elgueta of Garden Court Chambers who was Counsel for the Local Authority (LA); and two people who I learned were Sarah’s parents. Various other people joined after me, including the solicitor for the LA, the solicitor for the OS, a trainee solicitor and Sarah’s social worker. Sarah was not present, either at this hearing or the following one, I don’t know why. This means that we didn’t hear her voice directly. The clerk asked everybody in turn (including me) to confirm that they could see and hear him. I turned my camera and microphone on so he could see me, and I replied I could. Then I switched my camera and microphone off.
Then something happened that quite surprised me. Before the judge joined the platform, Oliver Lewis spoke directly to Sarah’s parents (who I shall call Dr and Mrs G) and because they had not taken part in pre-hearing discussions, asked them if they would like to be joined formally as parties to the case. They asked him to explain what that meant. This is something I know a bit about, as I asked to be joined as a party for my mother’s case, as I wrote about here. I was interested to know how it would be explained. Oliver Lewis explained that Sarah was a party to the case and had a litigation friend to represent her. They, her parents, were currently not parties to the case and so were not automatically entitled to receive all the information relating to the case (“the bundle”) or have their opinions heard. If they were joined as parties, they would play an integral role in the proceedings. Dr and Mrs G said that they would like to be joined as parties. Oliver Lewis explained that it would be up to the judge whether they needed to fill out an application form or if the judge could decide that they could be parties without the need to fill in the form. He then went on to explain that the hearing was about appointing an independent expert to determine capacity for “a range of capacity issues”. Mrs G said that the explanation was “very helpful”.
He then explained that the expert could cost between £2,000 and £3,000 and the cost would normally be shared between the parties, so that was a potential disadvantage to becoming a party. But if they didn’t have the means to contribute, they could ask the judge to excuse them from paying. (NB: In that case, the cost would be divided between the LA and Sarah, who is in receipt of Legal Aid). Oliver Lewis apologised to the parents for the “technical” nature of “all this”.
At 2.05pm the judge joined and made some introductory remarks about this being a formal hearing in a courtroom (even though it was online). She said that there was an observer present and reminded everyone about the Transparency Order preventing Sarah from being identified.
She next addressed the issue of Sarah’s parents becoming parties to the case, explaining (as had Oliver Lewis) that they would not be entitled to see all the documents if they were not joined as parties. Dr G said “We would like to ‘join’, if that’s the right word, but we are worried about the cost”. I thought at this point he was referring to the point made before the judge joined about the cost of the expert. However, in her reply, the judge referred to them not needing formal legal representation and that the court could assist Litigants in Person. She said “You are known as a Litigant in Person and we have an obligation to help you”.[2] The parents stated that they did want to be joined as parties. The Judge said it was clear that the parents have a personal interest in Sarah and what happens to her and she could see the benefit of them being involved. She waived the requirement for a formal application and said they would be joined as parties from that point on. As they had not been parties before the hearing, they had not seen “the bundle” of documents – so she asked Sebastien Elgueta to explain what the hearing was about. He apologised for not having formally submitted a draft order, and he then set out what would be in it.
As far as I know, there is no easy leaflet or resource for families on becoming an LIP in the Court of Protection, which I think would be really useful. I certainly wanted to feel fully informed before I became a Litigant in Person.
Some points about the style of the hearing
There were some IT issues during this hearing. At one point, Sebastian Elgueta dropped off the call (later apologising for the “IT meltdown”) and the judge rose for a few minutes and left the video platform. While we were waiting for her to return, Oliver Lewis spoke to Dr and Mrs G: “Are you OK? Is there anything you want to ask?” I thought this was very thoughtful of him. The judge and Sebastian Elgueta re-joined the call a few minutes later. Oliver Lewis gently pointed out to the social worker that she was not on mute. HHJ Owens was also very sympathetic to Sebastian Elgueta about his IT problems. The way that this episode was handled indicates the generally amiable spirit that the case was conducted in, which I think helped discussions in what are very difficult circumstances.
As a family member myself in COP hearings, I was interested in how the parents were treated. At points, I suspect reference to sections of the Mental Capacity Act 2005 would have been difficult for the parents to follow. At one point Dr G stated that Sarah’s mental health would decline if “getting an assessor (if that’s the right word)…..” took a long time, showing that language very familiar to professionals can be more difficult for lay people in the court to understand. That’s why it’s so important to explain things simply for parties who are lay people, something that can be lost with the time pressure of a hearing. Overall, I thought the parents were treated very well in the hearing, particularly by HHJ Owens and Oliver Lewis. Interactions were personable and done in a way to put people at ease. Even I was made to feel welcome as an observer. In my experience, this is a common feature of the COP, although obviously it is dependent on the personalities and style of the legal teams and the judge.
The substance of the hearing: Capacity to engage in sexual relations
Given that this case raised potentially very serious issues, the judge explained that she had had a gatekeeping concern which she took to the Vice President of the COP in early June 2023. There were question marks about Sarah’s capacity to make decisions about contact[3] with the man she was seeing (whom I shall call Mr Grey) and the risk he posed (which was information that would come from the police). The position of the Official Solicitor was that there seemed to be uncertainty as to what exactly the LA were asking the court to approve at this hearing, but the OS was concerned about how much Sarah’s autonomy was restricted in order to protect her. Sarah wants to continue to see the man, even if it is with a support worker.
Reading the PS of Oliver Lewis on behalf of the OS, I understand that the OS agreed that on the basis of an assessment done by a social worker, there was sufficient evidence to cause the court to have reason to believe that Sarah lacked capacity to engage in sexual relations. However, the OS disputed that there was good enough evidence to override the presumption of Sarah’s capacity in other areas, such as decisions relating to her residence, to consent to her ‘de facto’ deprivation of liberty, or to make decisions about contact with others, including Mr Grey.
So, although the hearing was listed as “Capacity to engage in sexual relations”, it became clear that it was about capacity to make decisions in various other domains as well. The OS was seeking to ensure that the LA’s view that Sarah lacks capacity for sex wouldn’t lead to an unlawful restriction of her rights in other areas. It seems that the OS was trying to ensure each domain was considered appropriately. And it was all urgent as imposing new draconian restrictions on someone’s liberty, such as an increase in 1:1 support hours for Sarah (to 105 hours from 48 previously) can’t be justified unless they’re absolutely necessary.
Therefore, the OS submitted on Sarah’s behalf that “there needs to be a comprehensive capacity assessment carried out by an independent expert (if there is no person in the local Trust able to do a report under s.49, and enquiries are being made) to assess capacity to make decisions about (a) residence, (b) care, (c) contact with others, (d) engaging in sexual relations, and (e) contraception”.
On behalf of Sarah, Oliver Lewis said (in his PS): “It is unfortunate that (Sarah’s) freedoms on a daily basis are proposed to be curtailed because of the sudden appearance in her life of (the individual). The Official Solicitor invites the court to scrutinise the necessity and proportionality of the proposed care arrangements.”
It was also stated that the individual is the third man who seems to have posed a risk to Sarah as a vulnerable adult in the last few years.
I wasn’t entirely sure what ‘Capacity to engage in sexual relations’ covers but it is a fundamental principle of the Mental Capacity Act 2005 that each person is presumed to have capacity unless it is established that they lack capacity ( s.1(2)) and a lack of capacity to make a decision cannot be established simply by reference to some ‘condition’ that a person has (e.g. mental illness) (s.2(3)(b)). It must be shown that the “impairment of, or a disturbance in the functioning of, the mind or brain” (s.2(1)) causes the person to be unable:
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means). (s. 3(1) MCA 2005)
The courts have warned about setting the bar for capacity for sex too high since this could operate as an unfair, unnecessary and discriminatory bar against mentally disabled people. It’s also been stated that the person must understand the salient information but it is not necessary for them to understand all the peripheral detail (LBC v RYJ [2010] EWHC 2665).
What counts as ‘relevant information’ depends on the decision being made and the circumstances of the case. In relation to sexual contact, a recent decision by Lord Justice Baker in the Court of Appeal (A Local Authority v JB (Rev 2) [2020] EWCA 735) found that the relevant information includes: the mechanics of sexual intercourse, the fact that both people must have capacity to consent (and must in fact consent), that pregnancy is a reasonably foreseeable consequence of (heterosexual) intercourse, and that there are health risks involved such as sexually transmitted diseases, the risks of which can be reduced by use of precautions such as a condom.”
This is for capacity to consent on a “generalised” basis. The Supreme Court in Re JB also made clear that different consequences would arise if there was a person-specific decision to be made, such as in the case of Hull City Council v KF [2022] EWCOP 33 (see also this blog post: Capacity to have sexual relations with a specific partner: In the matter of Hull City Council v KF [2022] EWCOP 33; and the very useful Mental Capacity Guidance Note from 39 Essex Chambers.
The following issues were also discussed during the hearing.
- Appointing an IMCA for Sarah. Oliver Lewis proposed that an independent mental capacity advocate (IMCA) be appointed for Sarah as “even if her parents love her very much”, Sarah might not want to discuss her sexual relations with them. The judge agreed and said it could be “vice versa” too. I found this a very human exchange. I learned afterwards that IMCAs were introduced by the Mental Capacity Act 2005 (ss. 35-41) and their role is to support and represent the person in the decision-making process.
- Sarah’s mental health. At various points during the hearing, issues were raised showing concern for Sarah. Her parents said they were worried about the impact on her mental health of more delays in the assessment. Also, it seems that Sarah has to be accompanied at all times by a carer, even going to a café, and her parents were concerned that this was depleting her financial resources as she had to pay for the carer’s travel and coffees. Later in the hearing, after the judge had left to consult her listings team, Sarah’s solicitor returned to this point and suggested that the care should be provided within her existing care package. The parents confirmed that it was actually the additional cost of the coffee and meals for the carers that she was obliged to pay for. There was also a discussion about whether the police would be called in a particular situation, which was proposed by the LA in the draft care plan. Sarah’s parents said that she was terrified of the police as she had been chased by them once and she had found it very traumatic. On one occasion, they said, it had resulted in her being sectioned. The judge talked about necessity and proportionality of calling the police and it was removed from the care plan.
- Urgency vs practicalities. It was clear that getting the care needs assessment (and a care plan proposed) was urgent as this had implications for the DOL. This was partly for Sarah’s mental health but also for her protection. After much discussion, HHJ Owens authorised 21 days for the identification of the expert to determine capacity, so that they could be appointed by the judge, and for a new care plan to be drafted in time for the next hearing on Wednesday 9th August 2003.
2. Hearing of 9th August 2023
On requesting the link the evening before the hearing, I was surprised to get a quick reply from the Administration Officer, telling me that HHJ Owens had asked her to let me know that there was a doubt over the start time but they would clarify the situation the following morning. Mid-morning the following day, the Administration Officer got back to say the hearing was to be in two parts: the first part, to start as listed at 2pm and to last 45 minutes, was going to be an “injunction application subject to reporting restrictions” and then the second part of the hearing was to last 95 minutes, being the “main COP proceedings, again subject to reporting restrictions”. I checked whether I could observe both parts and was told I could.
I was shortly sent the link and a new Transparency Order (TO). The difference between this one and the previous one was that not only could I not identify P, the protected party (Sarah) but also not the man who was to be the subject of the injunction (Mr Grey).
Injunction application
I clicked on the link a few minutes before 2pm and was soon admitted to the hearing. This time I could see the clerk and another person in a physical court room. The clerk again asked me to confirm that I could see and hear him, which I did, before turning my microphone and camera off. Unlike the previous hearing, nobody else joined until 2pm and then nearly everybody else joined at once. I soon gathered that this was because there had been a pre-hearing meeting attended by most of the others. Most people were using the Cloud Video Platform and included:
Oliver Lewis representing Sarah via her litigation friend, the Official Solicitor (OS)
Avril Rushe, Counsel for the LA (replacing Sebastian Elgueta, who was at the previous hearing).
Dr and Mrs G (Sarah’s parents and Litigants in Person)
There were also two instructing solicitors, Sarah’s Social Worker, and a mini-pupil with Dr Lewis.
There was also a man who had joined by telephone: Mr Grey.
Each person in turn was asked to confirm they could see and hear the Clerk. Then, at 14.08, HHJ Owens, the judge, joined the hearing.
Once again, the judge started by telling everyone that they should behave as if it was a physical hearing, that there was a TO in place and there should be no recording of any sort allowed. She stated that there was an injunctive order affecting this hearing, Mr Grey was not to be identified, there was a police investigation under the Sexual Offences Act going on in the background which was outside her jurisdiction.
This was a very stern warning given by the judge and my impression was this was so that the police investigation would not be compromised. HHJ Owens asked Mr Grey to confirm that he understood he was the subject of injunctive relief, and of the TO, which prohibits identification of Sarah and himself. She also mentioned that I was a member of the public and an observer, that I had been sent the TO and had observed the previous hearing – but I wasn’t asked to confirm this orally.
In her introductory summary, Avril Rushe explained that this was an application for an injunction against Mr Grey under s.16 of the Mental Capacity Act and the jurisdiction of the Court of Protection (COP) was the test of whether it is just and convenient for an injunction to be made against Mr Grey because he was a risk to Sarah. There was an ongoing police investigation against Mr Grey for alleged sexual assault against Sarah. He is on bail with a condition that he is not to contact Sarah, which is due to expire at the end of August and that may be extended. However, the bail conditions by the police were less robust than those that could be imposed by the COP, so they are asking for a court injunction against Mr Grey. There had been a wide-ranging injunction proposed originally but they were now proposing a “pared back” injunction as that would be more proportionate. This was that Mr Grey:
- Must not speak to, call, text, email, or contact via social media (etc.) Sarah or any person involved in her care
- He must not enter any property he believes Sarah would be in.
An open injunction was asked for (I gather this means with no fixed ending).
HHJ Owens asked about prohibiting Mr Grey from contacting Sarah via a third party.
Avril Rushe said that this was not being sought because there was no evidence of Mr Grey attempting to use a third party to contact Sarah.
The judge then stated that there was no current evidence, but what if that changed? She then asked Avril Rushe if Mr Grey could make oral submissions to the court and Ms Rushe confirmed that he could and that he had not seen the new terms of the proposed injunction.
The judge then asked all parties involved in the main Order to speak and said that after that she would hear from Mr Grey.
There was then a discussion because Oliver Lewis had not been sent the version of the Order that the judge had in front of her, so the judge offered to read out the new version of the Order that she was being asked to approve:
The proposed injunctive relief Order warns Mr Grey that he will be in contempt of court, which means he could have his assets seized, be fined or sent to prison (or all three, as she emphasised). Once the court has heard from all the parties and oral submissions from Mr Grey, the court decided that it is in Sarah’s best interests not to have any contact with Mr Grey and that he must not speak to, email, text or contact Sarah or any person involved her care and must not enter any property she is likely to be in, and the injunction would last until further order of the court.
She then asked if there was anything else on behalf of the OS. Oliver Lewis asked that full names be included rather than abbreviations in the order, to avoid any confusion for Mr Grey. HHJ Owens said that would be no problem and with the TO in place that would avoid issues with identification.
HHJ Owens then asked Dr and Mrs G if they wanted to say anything about the injunctive application and they replied “No, thank you”.
The judge then turned her attention to Mr Grey. She went through what he was being prohibited from doing and he replied “I won’t speak to her, I won’t have anything to do with social workers, I won’t be going to her home or place of work so I agree with them”.
HHJ Owens then stated that “It goes a little wider than that”. She reiterated that he should not speak, telephone, or attempt to contact Sarah in any way whatsoever, including Facebook, even via friends and in indirect form.” She also asked Avril Rushe whether as well as the social workers, should it be specified that Mr Grey be prevented from contacting Sarah’s parents? Avril Rushe confirmed that – and HHJ Owens stated that she would change the injunction accordingly.
She then returned to Mr Grey.
“And Mr Grey, any premises where you believe she might be. So, if you believe she could be anywhere, you must walk away”.
Mr Grey said “I understand”.
The judge then confirmed that the order would be “indeterminate” and he replied “Yes, I agree, as it’s not going to happen”.
HHJ Owens then said “That’s good, but the Order says that you mustn’t do it” and once again she outlined about contempt of court and what that entails.
She continued “So, Mr Grey, thank you for agreeing to this. I am satisfied that it is in Sarah’s best interests not to have contact” and then referred to wording that would be slightly different to the draft order.
She stated that “Mr Grey is prohibited from attending any further public hearing” so as to protect Sarah.
Mr Grey was then disconnected from the hearing and the Clerk confirmed that he was no longer present.
At this point, HHJ Owens suggested to Avril Rushe that she would need a sealed copy of the order sooner rather than later so she would rise to re-write it, and ask the COP hub to issue it so that it could be issued to Mr Grey as soon as possible. Avril Rushe confirmed that this would be “greatly appreciated”. HHJ Owens rose at 14.32.
She came back at 14.53. This time there were no discussions between the other attendees as everyone waited, some with cameras on and some with cameras off. On her return the judge confirmed that she had “perfected” the injunction, emailed the draft approved order to the hub and rang them to ask them to do it quickly and for the TO “to be appended”. She finished with that hearing by thanking everyone for their patience but “I thought it was important to deal with it now”.
At this point the court moved on to the “substantive hearing” about welfare.
I had never observed a hearing where an injunction had been placed on somebody, not least when they were present. I was conscious of how the need to keep Sarah safe and as quickly as possible was paramount, to the extent of HHJ Owens ensuring the injunction could be served immediately. The judge was very clear to Mr Grey about what would happen if he ignored the injunction.
Committal hearings for contempt of court in the COP are rare but the Project has blogged about a few (e.g. A committal hearing to send P’s relative to prison – and the challenges of an in-person hearing; Committal hearings and open justice in the Court of Protection).
Case management
This second part of the hearing essentially comprised two elements: the appointment of an independent expert acceptable to all parties and Sarah’s care and support plan.
Appointing an independent expert
The first element was non contentious. An independent expert (Dr Camden-Smith) had been identified who had agreed to do the assessment and provide a report for the beginning of November 2023. I learned from the PS that the letter of instruction would be written within a week of the court “agreeing the identity of the expert”. There was some discussion about what would be included in the letter of instruction, including asking the expert to diagnose whether Sarah has a learning disability – which is important because she does not currently have such a diagnosis and is therefore excluded from some health services such as sexual education.
The OS’s PS shed further light on what exactly the expert was being asked to report on and the following paragraph caught my eye: “In addition to the capacity assessment and review of diagnoses, the Official Solicitor seeks from Dr Camden-Smith an opinion as to steps the carers and the family could take to encourage Sarah to engage with activities for a sustained period, so that she builds her skills and has meaningful activities to look forward to on a weekly basis. This would decrease the risk that she rides around on buses on her own where she has now been groomed by three different men.” This underlines to me how important the role of the independent expert is and how much finding the right person counts as the impact on Sarah’s future, both in terms of freedom and safety, is immense. It also highlights to me the vulnerability of women like Sarah, who strive to live freely but may not appreciate how at risk they are.
Later on in the hearing, the judge scheduled a further hearing for 19th December 2023 to consider the report from the expert. But this meant that what should happen in the meantime had to be considered. Avril Rushe outlined that the LA was asking the judge to make best interests decisions under s. 48 of the Mental Capacity Act 2005, as there was ‘reason to believe’ that Sarah lacks capacity to engage in sexual relations (which would be confirmed or not by the expert’s report). The OS did not contest this and it was indeed ordered by the judge at the end of the hearing.
A new care and support plan
The second element, Sarah’s care and support plan, proved to be a much more contentious issue. In order to try to protect Sarah when the incident with Mr Grey had occurred, the LA had increased the number of hours of 1:1 support from 48 to 105 per week, without the authorisation of the court. Sarah’s social worker had subsequently produced a new care and support plan outlining a gradual reduction in hours from 105 to 79 and eventually back to 48. But the OS was not happy with the plan and Oliver Lewis seemed somewhat frustrated with the way the case had been managed so far. He said he and his solicitor were confused about “what is written in the care plan, what is being delivered and what is being proposed”. He wanted the LA to draft a new care and support plan that was much simpler than the current draft which was in the bundle. He went as far as to say that he and his instructing solicitor could not understand what the care and support plan was. “It’s a mixture of thoughts and intentions but does not set out needs and how care is to be put in place to meet those needs, so that the OS can understand and Sarah can understand”. The judge appeared to agree that the plan could have been written better as she said later that “The document as a whole….is not clear”. And Avril Rushe representing the LA acknowledged that some of the details needed to be ‘fleshed out’.
Oliver Lewis outlined that Sarah is a person who greatly values her independence and autonomy and is now distressed that she doesn’t have freedom. She has said “I want my freedom back”. There was concern that unless the situation was resolved quickly, it could have serious consequences for Sarah’s mental health, something both the OS and Sarah’s parents were very concerned about. She had previously been sectioned under the Mental Health Act and everyone wanted to avoid this happening again. But what could be done to protect Sarah whilst giving her as much freedom as possible?
“Find my Device”: A technological solution?
The proposed solution surprised and slightly shocked me, even though I can see why it was being considered: the use of technology via a GPS tracker. The idea was that Sarah’s whereabouts could be tracked, allowing her to go out independently but with a type of security blanket. Some of the 1:1 hours allocated could be used to monitor the tracker. This solution was supported by the LA, the OS and Sarah’s parents, even though there was disagreement as to the practicalities of how the tracker would be used.
The social worker had met with technicians to discuss what was possible. It would show whether Sarah was near to places she had gone to with Mr Grey (his home and a particular pub) where she may be at risk. But it would not show if she was at risk in a new location. There was also a major concern about her using public transport to get to day activities or to spend time. It was agreed that Sarah had been groomed by three men on the bus over the past three years, and the LA wanted Sarah to be “chaperoned” on public transport, but the OS and Sarah’s parents felt that the use of technology would be the least restrictive option and more proportionate.
Oliver Lewis proposed that the use of an app such as the android “Find my Device” could be the simplest to use. He stated something along the lines of “ …as many parents all over the world know – and I’m not equating her as being a child – but the Find my Device app could be adjusted so she does not switch it off”. Before the hearing, he had discussed with Sarah’s parents how it might work and that it could be used as a bargaining chip, as a price Sarah would have to pay to go out alone. “That might work”. The OS thought 48 hours of care should be returned to as soon as possible, as this is in line with the wishes and feelings of Sarah. With regards to the risk, the carers could use the extra hours to monitor her phone rather than going with her, and see if she goes to places where she is at risk. He said that it shouldn’t need much time for the technology to be sorted out.
Urgency vs practicalities – again:
There was then some discussion about how soon a new care and support plan could be completed and when the next hearing to consider it should be listed for. The OS wanted it as soon as possible given Sarah’s deteriorating mental health. But there were practical difficulties, given the social worker’s availability to draft the plan as well as the judge’s annual leave and whether judicial continuity was essential. The eventual decision was that the next hearing would be listed for 4th September 2023 and HHJ Owens would hear it. (In the event, that hearing was vacated. I’ll keep a look out for when it next returns to court.)
In reaching this decision, the judge considered what was realistically feasible. She stated that there was a “tension between an ideal world and what was practicably achievable”. She directed the LA to provide a revised section of the care and support plan covering the use of technology. She stated that “None of us know what the impact of the injunction will be, regarding Mr Grey and Sarah” and- as had been flagged by Oliver Lewis in his PS – Sarah “reacts well to people in authority telling her what the rules are. The Official Solicitor suggests that it would reduce the risk of [her] seeking out [Mr Grey] if the judge or social worker phrases the best interests decision as a rule, by telling her “You must not try and find [Mr Grey]”. This may have the desired effect and would be a better way of ensuring that [Sarah] does not try to seek a meeting with [Mr Grey[.”
In consideration of the injunction, the LA was asked to reflect on what was proposed regarding technology as a replacement for 1:1 support or a partial replacement. The judge stated “none of us understand what might be practically achievable” as tracking on a phone only indicates location. But 1:1 support on public transport might function as a considerable restriction. Technology may answer that, as if it shows she is spending hours on a bus and at risk from men, then it might enable action to be taken so that she is discouraged from doing that. So, a key sticking point was not resolved during the hearing and it will be very interesting to see what is proposed in the revised care and support plan.
One final point needed to be confirmed: Oliver Lewis asked HHJ Owens to confirm whether she was authorising the deprivation of liberty. HHJ Owens replied that, as she had alluded to, yes she was, there was a significant interference with Sarah’s right to liberty. Whether that would alter with a new care and support plan, there was still the issue of surveillance by technology, so it probably still would be. She asked whether he was raising the issue due to funding, as if there was no DOL, it alters funding.
Oliver Lewis replied that there was no funding issue, as this was not a deprivation of liberty in a care home (which would be covered by the DoLS regime in Schedule A1 of the MCA, for which P is granted non means tested legal aid), but a community deprivation of liberty in a supported living placement (for which legal aid is available on a means tested basis) and means-tested legal aid was in place. After some final technical discussions, the hearing concluded.
Final Reflections
The whole exchange about the proposed use of technology to enable Sarah to have more freedom to go into the community alone really made me think. As Oliver Lewis stated, many parents have become used to using smart phones to track where their children are. I also know families who use it to track where other family members are, even to the extent of knowing when to have dinner ready for. Or single friends using it to ensure that somebody has arrived home safely. Or family members living with dementia using “airtags” so that their families can see if they have started “wandering”. I have also read of smart phones sadly being used to enforce coercive control. It seems as though tracking has become somewhat normalised in today’s world, for better or for worse. I wonder, how does this fit in with the law, especially with regards to the concept of Deprivation of Liberty? And the concept of “freedom”?
I also discovered something new about DOL. I had thought that it was restricted to hospital and care home settings, which can lead to s.21A appeals, as had happened in my mother’s case. But deprivation of liberty in the community was something I hadn’t heard of.
I am very interested in finding out what steps will be put in place to help keep Sarah safe whilst giving her as much freedom as possible – and whether the injunction served on Mr Grey achieves its objectives.
Anna was the pseudonym of a woman whose mother was a P in a Court of Protection s.21A application. Since March 2025, Amanda Hill is allowed to reveal that she is Anna, because the Transparency Order covering her Mum’s case has been varied (changed). Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social).
[1] I am also grateful to Celia Kitzinger for substantial feedback on earlier drafts and assistance in making sense of this case.
[2] The Equal Treatment Benchbook sets out this obligation https://www.judiciary.uk/about-the-judiciary/diversity/equal-treatment-bench-book/
[3] I have learned that capacity for sex and capacity for contact are separate and are assessed separately. It’s quite often found that P has capacity for sex, but not capacity for contact and this poses problems
Promoting Open Justice in the Court of Protection 