By Ahmed Hussain, 19 September 2023
This case concerns a young man who has recently turned 18. He is currently present on a paediatric ward despite having been ready for discharge back in August (about three weeks ago). This situation has arisen due to the lack of suitable placement options. Furthermore, he cannot live with his mother, as he did previously, because there was a serious deterioration in his behaviour and condition (autism and obsessive-compulsive disorder).
In desperation to get him off the children’s ward (where he assaulted a staff member and threw an object which hit a child), the hospital Trust has applied to the court for an order that he be moved to the Relative’s Suite within the same hospital. This is usually used for families whose child is dying. It will be unavailable to such families whilst the young man is living there.
The hearing
As a law student at King’s College London, much of my time is spent reading about the law in books and articles. Observing a Court of Protection hearing has ‘brought the law to life’ because I am effectively following people’s legal issues ‘in real time’ as they are decided before the court. I was also keen to watch practising barristers deliver their oral submissions in court as I could employ some of the techniques they use in my own advocacy, both in moots and in my future professional practice.
The hearing I observed was scheduled for 10:30am on 13 September 2023. However, the official start time was pushed back to 11:30am and the actual start time was well after mid-day. When the hearing did start, it was held in a hybrid format with the judge, Mr Justice Poole and counsel for the parties being present in London whereas I was observing remotely via a CVP (cloud video platform) link. This set-up worked well as I was able to clearly hear and see the court proceedings throughout.
Eloise Power for the applicant, University Hospitals Sussex NHS Foundation Trust began with an introductory summary of the case. The person at the centre of the hearing (P), the 1st respondent, was represented by Susan Wright. via his litigation friend the Official Solicitor. The second respondent was West Sussex County Council, represented by Michael Paget. In addition to counsel for the parties, there were other people present at the hearing. There was a barrister representing the Integrated Care Board (ICB), instructing solicitors for the applicant and respondent, the Divisional Director of Nursing, and the Assistant Director of Adult Operations. Most observers joined via video link; however, Brian Farmer from the Press Association was present in the press bench (see this media report: “Man staying in hospital’s children’s ward in West Sussex”).
The applicant was seeking a deprivation of liberty order so that P could be kept in the hospital now and moved to the Relative’s Suite. Mrs Justice Morgan in the previous hearing had expressed great concern about this move because it would mean families couldn’t use it, but Eloise Power for the applicant highlighted that the situation would be much worse if P continued to stay in the children’s ward. This is because six beds are currently out of commission to accommodate P and the Trust is considering closing the entire ward due to his presence.
The applicant was also seeking a two-part declaration. The first question to be addressed was who is responsible for commissioning P’s social care package when there was no medical reason for him to be in hospital and while he is waiting for discharge from hospital. The second question was whether it is lawful for the second respondent to cease commissioning P’s existing social care. The main area of contention between the applicant and the respondents was the issue of who should pay for P’s care if or when he is moved to the hospital suite. The problem was that he could not be moved until this was agreed and if he was not moved by Friday, the Trust was considering closing the whole paediatric ward.
To resolve the ‘stand-off’ which had occurred regarding the provision of care, the ICB who were not a party to the proceedings but were represented by Chiara Cordone said that they would be willing to commission care for P upon him moving to the Relatives Suite. They said (and the judge accepted) that they were making this offer without prejudice to their position, and it should not establish a precedent because, in their view, care should really be provided by the local authority.
Michael Padget, for the second respondent said that they had sourced a potential care provider who would be willing to provide both care and a suitable placement for P. They have given a provisional costing and risk assessment, but they have not created a fully worked-out care plan; they want to see P again before providing that.
At the end of the hearing, Mr Justice Poole delivered an oral judgment. He gave authorisation to deprive P of his liberty with the same restrictions that were in place before. These include supervision by staff at all times on a 2:1 basis, plus additional security arrangements, supervised toilet visits, the requirement that his windows be boarded up (which he asks for) and that the doors closest to the room are locked and he is not free to leave the room on his own. The judge said that care staff are limited to the use of de-escalation techniques rather than physical restraint to manage P’s behaviour. These restrictions were justified on the basis that they are necessary, proportionate and in P’s best interest. This deprivation of P’s liberty in the hospital will last until 11:59pm on 20 September 2023. This will be reviewed by the court on the morning of 20 September 2023 at a 10:00am hearing before Poole J.
It is expected that by this time, any move to the Relative’s Suite should have been made and the commissioning decision should have been made, and the adaptations to the community accommodation such as the windows being boarded up and door handles being secured, should be on track. If this has not happened, then the case can be reviewed.
Reflections
After the hearing had ended and the judgment was delivered, I reflected on what I had learnt. I am still a very new Court of Protection observer – this is only the second hearing I’ve observed – so I was able to consolidate my understanding of the Court and the various terms and roles associated with it. For example, I gained a greater awareness about the office of the Official Solicitor which acted as P’s litigation friend due to his lack of capacity to instruct a legal team. This means that the Official Solicitor can decide the instructions given to the barrister who represents P in court; in accordance with the Mental Capacity Act 2005, these instructions should be in P’s ‘best interests’.
One of my main observations during this hearing was that the style of advocacy adopted by the barristers was very inquisitorial due to the focus on working collaboratively for what is in P’s best interests. This contrasts with the much more adversarial style I have observed in criminal cases or when I have watched and taken part in moots at university.
I also learnt about the dire situation in social care in relation to secure placements. Unfortunately, the demand for a secure placement is far greater than the supply. This means that people who need this type of accommodation find themselves in wholly inappropriate settings. In May 2022 the Daily Mail reported that 62 children needed a secure placement, but there were only two available. These secure placements are incredibly important for children because they help to “keep children safe, restore stability to their lives and assess their needs and identify the supports needed in the future.” The hearing I observed was just the tip of the iceberg of a much bigger problem.
I am incredibly grateful for the opportunity to attend this hearing; I hope to attend even more in the future. I would also encourage others to attend a hearing because the work done in the Court of Protection, which is based on the Mental Capacity Act 2005, overlaps with a range of legal practice areas such as human rights, family law and medical law so there is bound to be something of interest for everyone.
Ahmed Hussain is a final year Law student at King’s College London. His LinkedIn profile is here: linkedin.com/in/ahmed-hussain-987b791b3 He tweets @ahmedhussainlaw
Photo by Izabelly Marques on Unsplash
Promoting Open Justice in the Court of Protection 