By Hartej Singh Saund-Matharu, 19 September 2023
In my first observation of a Court of Protection (CoP) hearing – and first blog – I will take you through who I am and my interest in the Court of Protection, the background of the case my experience of the hearing, and my analysis/reflections of the outcome of the hearing. Professor Celia Kitzinger also observed this hearing and shared some of her notes with me (referenced accordingly). My experience of the hearing, and my thoughts about it (as opposed to my observations of it) are italicised and in blue.
Introduction to the author
I am Hartej Singh Saund-Matharu (he/him), a recent first-class law (LLB hons.) graduate from Cardiff University. I am currently studying the Bar Course at the Inns of Court College of Advocacy with the help of an Exhibition and Frank & Burris Gahan Scholarships from Inner Temple.
My interest in the CoP first arose from studying the law of capacity and consent in my Healthcare, Ethics & the Law module. Having done previous work experience in care homes and hospices, I had observed the outcomes of the decisions made in the CoP from a clinical level and was intrigued to understand the legal perspective on CoP matters. Further to this work experience, I accrued over five years of NHS work as an administrator in GP practices. A primary care perspective on CoP matters gave me better insight into the relationships between public bodies such as Trusts, Integrated Care Boards (ICBs) (albeit they were only CCGs [Clinical Commissioning Groups] when I was last in this job) and local authorities (LAs). This job also helped me understand medical terminology, which oftentimes can be lost to lay persons. Consequently, after an invite to the National CoPPA conference in Cardiff last year, I was enlightened about many of the recent developments and issues in the CoP by speakers such as Senior Judge Hilder, Mr Justice Hayden, Mr Ian Brownhill, Ms Emma Sutton KC and Mr Thomas Jones, just to name a few. In particular, I was introduced to Professor Kitzinger of the Open Justice Court of Protection Project who gave us lots of insight into the transparency issues that face public observers wanting to attend CoP hearings. (This will be discussed further at the end of this blog.)
As a barrister, I am looking to practice in family (specifically child protection) and CoP law. It is those parties who are vulnerable and who may not have the capacity to consent that I wish to aid via participation in decision making on their behalf (of course, even as opposing counsel). The majority of my mini-pupillages have been in child protection law in South Wales, although I am open to (and looking for) any experience working with vulnerable/disabled clients, particularly in the CoP.
Background/experience of the case
This case, Re HJ (COP 14131686), was listed for 10:30am on 13 September 2023 before Poole J in the Royal Courts of Justice (RCJ).
I emailed the RCJ for the link to this hearing at 8am and received a timely response by 9:20am. Both Professor Kitzinger and I joined the MS Teams link at 10:30, to be greeted by a clerk, who informed us that Poole J had several other hearings that morning and Re HJ would be heard at 11:30am. We were informed that the hearing would now be via Cloud Video Platform (CVP) link due to the ICB solicitor, Mr Ed Pollard of Browne Jacobson not being able to attend in person. We were informed that a Transparency Order [TO] was in place and that we would subsequently be sent it by the clerk.
In the meantime, both Professor Kitzinger and I emailed counsel for their Position Statements (PSs) and the Transparency Order (TO). Personally, I only received a reply from Ms Ellie Ward from Capsticks, who represented the Applicant. This was at 11:15am. However Ms Ward advised me that I would only be able to view her client’s PS once the TO had been signed. In particular, she requested a reply to confirm that I had ‘read, understood and agree to abide by the [TO]’. This was promptly done and subsequently the Applicant’s redacted PS was sent at 11:25am. I, of course, agree that PSs should be redacted prior to sending to public observers. On discussion, and only on discussion, with Professor Kitzinger, I learnt that signing of a TO was contrary to standard practice – I would not have known otherwise. Contrary to Ms Ward’s exact phraseology, no signing, whether digitally or on paper, is normally required – just an agreement in writing as previously quoted. Professor Kitzinger informed me that it was a ‘standard TO’ . It was at this point that I learnt that the applicant’s counsel was Ms Eloise Power from Serjeant’s Inn Chambers, and that the applicant was the University Hospitals Sussex NHS Foundation Trust. The First Respondent (R1) was HJ (the vulnerable person at the centre of the case) who was being represented by their litigation friend, the Official Solicitor (OS), a paralegal from Biscoes, and Second Respondent (R2) was the West Sussex County Council (CC) (i.e., the LA). On scanning this PS before the hearing was to start 5 minutes later, I read that: “The applicant sought that the protected party (P) was to be temporarily moved from the paediatric ward to the relatives’ suite (normally reserved for EOL patients) due to safeguarding reasons. P has only just turned 18 in the past week and suffers from autism and obsessive-compulsive disorder. Security measures had been put in place for P’s and hospital staff/other patients’ safety too.” The counsel for R2 sent Professor Kitzinger their PS at 11:30, but I didn’t receive a reply.
Professor Kitzinger, at 11:20, informed me that the LA opposed the application to determine ‘which public body or bodies bears responsibility for commissioning of HJ’s social care and whether it is lawful for the Council to cease to commission HJ’s social care’ on the grounds that “[t]he Administrative Court is the appropriate forum for the Trust to challenge the Council public law decision”.
In all honesty, at this point, I was feeling very overwhelmed and beginning to become more anxious. Whilst I did not assume that every party whom I emailed would send me their PS as a public observer, and they are under no legal duty to do so, having to jump over hurdles at such short notice before the hearing or to be ignored completely does not benefit open justice and transparency at all. Bear in mind that at this point, I had still not received the CVP link or the TO from the Court themselves and was very anxious as to whether they were going to send it. Alas, the clerk (as I can see from the email thread) asked other clerks or court staff to send the link, and they passed it between each another until finally, at 11:47 we received the link. I joined immediately, only to have to wait until 12:00 for the hearing to start. This is quite a stark difference in timing from the original listing of 10:30. With all the emailing to counsel and the Court, being advised that the new start time was 11:30 and having to wait anxiously for emails which inevitably are sent last minute, is not a constructive way to interact with public observers. All I could do was try and read the PSs, research the areas of law that may be mentioned in the hearing or do other work. That being said, I, of course, acknowledge how busy the judge and lawyers are and that this is not at the fault of anybody – it is just how the court operates. So, if this happens to you, just know it isn’t intentional and everyone is working as hard as they can!
Thankfully, the audio and video worked well at this point and Poole J, before the hearing, confirmed that all the public observers had received the TO. In fact, he stated (as I paraphrase), that ‘I have been informed that the public observers have received the TO but if there are any public observers that haven’t, please inform the court now’, to which there was silence.
On reflection, after discussion with Professor Kitzinger, this seems to be a more facilitative and expedient approach to confirming receipt and compliance with the TO compared to if a judge individually asks the observers to say ‘yes’. There were some issues with the way the video was being cast – the actual courtroom was not pinned, and the Court made little effort to mute any other public observers. The Court also forgot to unmute the hearing for a short period after we had joined.
Ms Power helpfully provided an introductory summary to the hearing (as recommended by the now former Vice President of the CoP), specifically mentioning that it was mostly for the benefit of the public observers. Ms Power introduced the counsel present who comprised of herself for the applicant NHS Trust and her instructing solicitor as Ms Ellie Ward, Ms Susan Wright of Garden Court Chambers for P (with the instructing OS being Ms Tasha Bibby, a paralegal from Biscoes – P wasn’t present himself; Ms Chiara Cordone of 39 Essex Chambers representing the ICB (who are not a party to the proceedings) and Mr Pollard as the instructing solicitor (who was, as I mentioned, the reason for the CVP link), and finally Mr Michael Paget of Cornerstone Barristers representing the LA. Representatives from the LA, ICB, and NHS Trust were also present. P’s mother (who normally attends the hearings) was not present. Nor was P’s father (who doesn’t normally attend).
In particular, the key issues which were highlighted by Ms Power orally from the applicant’s PS were:
- In circumstances where P has no medical reason to be in hospital, which body (or bodies) bears responsibility for commissioning P’s social care package while he is awaiting his discharge from hospital.
- Whether it is lawful for the second respondent to cease commissioning P’s existing social care.
- It is reiterated that the parties should not allow the commissioning issue to distract attention from the main challenge of finding a suitable placement for H. Finding a suitable placement for P is an absolute priority. P has exhibited very challenging behaviours in hospital such as assaulting a member of the nursing team. Dr H, Consultant Psychiatrist, recommends a specialist placement in order to reduce the anxiety and challenging behaviour and explains that remaining in hospital is unlikely to be helpful to P.
- The applicant Trust looks forward to receiving an update on potential providers and hopes that some meaningful progress has been made since the last hearing.
- A Deprivation of Liberty Order and a best interests decision are needed.
The latest development is that a possible placement has been identified and is going through the commissioning process (and will need adaptations – boarding up windows and changes to door handles).
In sum, the underlying issue is discharge to an appropriate placement – since as Poole J later said, “if there were an alternative placement we wouldn’t be here at all, because he’d be moving into it”.
In the submissions by Ms Power, which were often counterpointed by Mr Paget, it became clear that Poole J focussed on speeding up the arrangements for transfer as much as possible, and encouraging the parties to sort out between themselves who would commission the care, thereby avoiding having to make a declaration himself. This focus seemed to be as a result of developments with possible placements now in hand.
This approach is pursuant to the notable case of N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22. The important principle that stems from this case is that a Judge cannot order any public body to exercise a discretion.
Professor Kitzinger, helpfully provides paraphrased transcripts of interactions between Poole J, Ms Power and Mr Paget. (As usual for these blog posts, these are based on her contemporaneous touch-typed notes and are as accurate as possible, given that we are not allowed to audio-record hearings, but cannot be taken to be verbatim).
Power hopes that P can be moved on Friday – in which case it would be ‘disproportionate to move him to the family suite’, so he’d stay on the ward until then.
Poole J: If he’s to remain on the ward until Friday, at least, then the court is asked, is it, to authorise the deprivation of his liberty there, for that period with the restrictions previously authorised to remain?
Ms Power: Yes, and should say that for the duration of P’s stay on the paediatric ward, the status quo can continue. However, that does not extend to provision of care if P is moved to the relatives’ suite. So, we have a lacuna if P is moved to the relatives’ suite. And if he’s not to be moved to relatives’ suite, we’ll have to close the paediatric ward.
Poole J: He can’t go to the relatives’ suite until something is sorted out about the care package. He can’t go to a placement because there isn’t one. He can’t go home. So, you are asking me to decide that it’s in his best interests to stay where he is. The Supreme Court has said in previous cases involving children that the scarcity of placements is “a national scandal”. This is a very similar situation isn’t it.
Ms Power: I respectfully agree. It is a national scandal and there’s a limited amount any of us in this courtroom can do to address that.
I found this ‘national scandal’ argument to be shocking and quite compelling. It seems to be a reference to the case of In the Matter of T (A Child) Appellant UKSC 2019/0188, a case in which the issues were:
- In circumstances where insufficient places are available in registered secure children’s homes, is the exercise of the inherent jurisdiction to authorise a child’s placement in unregistered secure accommodation lawful?
- If it is, what legal test should the courts apply when determining whether to exercise the inherent jurisdiction?
- Is a child’s consent to the confinement of any relevance when determining whether to exercise the inherent jurisdiction?
The facts were:
The appellant, T, was a 15-year-old child who was subject to a care order. The local authority, CBC, wished to place T in secure accommodation. Since there were no places available in registered secure children’s homes, CBC applied to the High Court for orders under its inherent jurisdiction authorising T’s placement in non-statutory accommodation. T had consented to the restrictions on her liberty in the placements sought and submitted that the orders restricting her liberty were, therefore, unnecessary.
The High Court did not consider that consent to be valid, and duly made the orders sought by CBC. T seeks to challenge those orders. She does not object to the placements or the restrictions on her liberty but wishes to be recognised as capable of consenting in law.
Case summary In the Matter of T
The Court of Appeal dismissed her appeal. T now appeals to the Supreme Court.
And it was held:
The Supreme Court unanimously dismisses the appeal. It holds in particular that the use of the inherent jurisdiction to authorise the deprivation of liberty in cases like the present is permissible but expresses grave concern about its use to fill a gap in the child care system caused by inadequate resources.
Press summary: In the matter of T (A Child) (Appellant) [2021] UKSC 35 On appeal from: [2018] EWCA Civ 2136
Judge asks whether Friday is realistic – it sounds as though it isn’t.
Poole J: Mr Paget, Friday has been mentioned as a suggested date for P to move. I think the court is invited to authorise his deprivation of liberty in his present circumstances, then it is hoped that arrangements can be made for transfer into the community. How realistic is that?
Mr Paget: I am not able to say that to the court. [The Care Provider] has not provided us with a care plan to be able to commission. I hope just as much as Ms Power, or her clients do that this happens by Friday.
Judge tries to speed things along by adjourning and putting pressure on Care Provider
Poole J: Is it possible to contact [the Care Provider] now and ask them when the care plan will be sent? You could say that the High Court is mid-sitting and wants to know. The court is looking for some levers it can pull to get what everyone wants as the right outcome.
(Whispered conversation between Paget and person behind him – possibly the instructing solicitor or CC representative?)
Mr Paget: We have been using soft powers to encourage [Care Provider] to produce these documents, but it won’t result in him being able to move by Friday we don’t think.
Poole J: (to Ms Power) What’s the end date by which the Trust will accept his continued stay in the paediatric ward before it says “no longer” because the twenty-bed ward would be shut.
Ms Power: Friday. I have asked my client to reflect on what the position would be if a firm move were confirmed for Monday. If the court were to rise while enquiries are made of [Care Provider], should it not merely be asked about the care plan, but also about the timeline for adaptations. Which do seem relatively minor.
Poole J: Yes, if just boarding up the windows. This is a case of pressing urgency. The issue then is if P is to remain at hospital for want of any alternative …. I don’t want to address that. But I will need to. I shall I do that at 2pm.
Ms Power: If P’s stay is to be prolonged or open-ended, I fear I must submit it would become necessary to look substantively at the application for moving him to the relatives’ suite […] to avoid the catastrophic outcome of closing a 20-bed ward. And we are seeking declaratory relief in relation to who bears the cost.
Mr Paget begins his submissions:
(Mr Paget explained the process – details of P are given to the providers. The providers decide whether they have capacity and whether they are suitable given P’s needs. If so, providers work up 3 documents (i) costings; (ii) risk assessment; (iii) fully worked up care plan. Those documents are then considered by a panel, and if the panel agree it’s the right placement, then they draw up a commissioning agreement. In this case, the provider has submitted provisional costings and a risk assessment, but not, as yet, their care plan. They want to see P again tomorrow before providing it. It had been hoped that would happen yesterday – but it didn’t; and the risk assessment only came through at 5.30pm.)
Poole J: So, from here, what’s the expedited timetable?
Mr Paget: As soon as the care plan is provided, we will convene the panel.
Poole J: But when will that be? They haven’t said?
Mr Paget: No. We hope we can do that this week.
[…]
Poole J: I would benefit from knowing when [the care provider] can do that, because then dominoes will fall rapidly into place.
Mr Paget: Procedurally yes, but the adaptations- they hadn’t told us how long those will take.
Poole J: Are they bespoke?
Mr Paget: Yes.
Poole J: In children’s cases of a not dissimilar nature, these have been done within 24-48 hours – the whole process.
Mr Paget: We are alive to the urgency of process. We don’t want to discharge to placement that will fail.
Poole J: No, but the current situation is a failure. […] Well, there we are. It’s not clear when the placement will be available – if it will be available.
The Court then adjourned for lunch. I think there may have been a problem with sound for me on return, as I missed some of the early part of what follows (and rely on Professor Kitzinger’s notes).
Conversation in court after lunch and before the judge returned.
Ms Power: (to Mr Paget) “Go first if you have an update” (can’t hear what Paget says)
Ms Power: “End of next week?! That would not come as welcome news to my client.
That’s too long. Why don’t you say that to the judge and then I’ll probably need a moment to take instructions.”
Poole J returns.
Mr Paget: reports that the panel will have the care plan and will meet on Monday (remotely) and will make the commissioning decision “immediately thereafter” and “the care provider will adapt in that week, ready for transfer, and assembling the care team, ready for transfer on 25th September.”
Poole J: That’s a week on Monday.
Ms Power: We invite the further use of soft power to speed it up a bit. Perhaps if the care plan could be provided by 2pm on Friday rather than at close of play, the panel could convene on Friday afternoon rather than hold it up until Monday. It may seem a small thing but then adaptations could be made over weekend….
Poole J: I am not here to make directions about how soon adaptations can take place. That is not my role. I have my answer as to what the projected timetable is. Mr Paget can tell me whether it’s worth pressing further, but this should be done outside court.
[…]
Poole J: Care plan, yes on Friday and panel on Monday morning. Well, Mr Paget, the court would be gratified to know if the care plan can be provided by 2pm instead.
Mr Paget: (sounding slightly irritable) They are abundantly clear on the situation. Asking them again won’t get a different decision.
Judge rose to enable parties to discuss it at around 14:45.
I was getting rather anxious at this point, having potentially missed a significant development and having to wait further to hear this case that was meant to start at 10:30 and last for an hour. On reflection, the lunchtime adjournment seemed beneficial to P given this development. I was shocked to see and hear how firm Mr Paget was with Poole J, but on reflection, I understand that counsel must be firm and advocate ‘fearlessly’ as described in the Code of Conduct. My anxiety persisted as Poole J had asked to restart at 15:00 but this had not happened until 15:14 – of course, the public observers could only wait patiently whilst we could not hear what was happening in the court and if they had started and it left us looking at the Court coat of arms. It had been my thinking that the court staff had caused some technical issues for us by forgetting us, but thankfully this was not the case. I began to understand that hearings can be multiple successive dynamic interactions in real time. Poole J’s role in this case was very important due to the developments and changes in position over the course of the hearing, as he had to allow adjournments for any necessary actions to take place. Poole J is evidently a judge who is committed to creating space for parties to sort out the problems themselves, whilst giving them a steer as to what is needed. In this way, I thought Poole J was very strategic in court, and that he used the court powers very well to facilitate and enable progress – rather than simply wielding power or lamenting the limits of his power.
On return at 15:14:
Ms Power: A certain amount of harmony has broken out. The ICB is prepared to commission care for P on the Relatives’ Suite, so the subject matter of my application falls away.
This is significant. Again, it seems that this adjournment was particularly beneficial to P and the court – my thoughts on adjournments in general have become more positive as a result. The ICB does not generally have the power to commission care in cases such as these and therefore could be viewed as acting ‘ultra vires’ but in the best interests of P (of course with caveats). This pragmatism and harmony between the parties is duly noted in Poole J’s summing up, which I reproduce as accurately as possible below:
Summary Ruling from Poole J
I’m concerned with [P] [and with regards to the TO]. He turned 18 only last week, so he is an adult. He has relatively recently been diagnosed with autistic spectrum disorder and obsessive-compulsive disorder. He did live with his mother, but a significant deterioration in his condition and his behaviour led her to be unable to care for him at home. She has not attended today by choice. She has attended previous hearings in this case. The protected party’s father is aware of the proceedings, he has so far chosen not to participate in them. He [P] was admitted earlier this year to hospital in July and briefly detained under s2 of the Mental Health Act 1983 and he was discharged from that detention on the 24th of August 2023. His behaviour has put himself and others at risk. He was involved, as I’ve heard today, in an assault on a member of staff at the hospital and whilst at home he ran in front of vehicles on a public road. I’ve read the assessment of him by Dr H, who I believe took the decision to discharge him from detention under s2 in August.
The paediatric unit, where he is currently accommodated, is a 20-bed ward. I am told that six beds are out of commission due to P’s presence. I was told at the opening of this hearing, that the Trust is considering moving patients out and indeed even closing the ward due to his continued presence there and the risks that that presents both to him and the others. That would be an extraordinary consequence of the unavailability of suitable adult care for him in the community.
He does have complex needs and the case has been before the court on six occasions, since the 25th of August – as many as 5 times last week when this case was before the court. And I’m afraid that it appears to me there was during that period no concrete progress. Today at the hearing after further enquiries, the LA, told me through Mr Paget counsel, that a care provider who has already been identified by them and who had indicated that it was willing to provide care for P at a placement in the community, needed until close of play, which I took to be 4pm on Friday 15th September, to produce a detailed care plan. That and other necessary documentation, if provided to a commissioning panel, that could meet on Monday and make a decision on Monday. Adaptations would be required for the planned accommodation for the placement. And I have been told that they can be completed by the end of next week, such that the placement could in principle be available if commissioned for P to transfer to it on Monday 25th September. That is the planned timetable. It isn’t in any way a guaranteed timetable, for example, the commissioning panel has still to make a decision about commissioning the community placement.
I’ve encouraged the LA through Mr Paget to have a Plan B and he assures me that they have as much in mind and actively consider alternatives. The Trust position at the opening of the hearing, was that it was highly reluctant, to say the least, to continue to accommodate P. The Trust could simply just discharge P into the community because he has no medical and that includes physical or mental condition. There is no medical reason for him to remain in hospital. It is purely because of the lack of anywhere else for him to be accommodated that he continues to reside there. The Trust then would be extremely reluctant for the reasons I have already articulated for him to continue residing in the manner in which he does at the paediatric ward at the Trust hospital. However, it would continue to accommodate him, notwithstanding the cost to other patients and their families and to him, but not indefinitely, and the Trust is very concerned about the timetable that I have already referred to. It has accommodated him for nearly 3 weeks already, with the costs – I don’t mean just financial costs – but the consequences for him and others that I’ve referred to. So, it is unappealing for the Trust to face another 12 days of that.
An alternative which had already been noted was to move P to a family suite within the hospital. That is a suite where families of terminally ill patients can stay close to them at the hospital or in the hospital grounds. Mrs Justice Morgan said that she was ‘dismayed’ by that prospect, as would anyone given the consequences for the families of those other patients. However, this is a case where there are many disagreeable consequences of various decisions that could be made. I have to be concerned at present with P’s best interests. He lacks capacity, there are grounds/reasons to believe he lacks capacity, as previous judges have foun,d and I do again, to conduct this litigation and make decisions about his residence and care. Therefore, the court has to consider and put itself in his shoes and consider what decision should be made about residence and care in his best interests.
After standing the matter down for some time, the court has been told that the ICB, which I think I am in right in saying is not a party to these proceedings, but appears and I’m very grateful to it, that the ICB is willing on a pragmatic basis, itself to commission care for P upon him moving to the family suite within the hospital. They have thereby unlocked the possible provision of that care because previously, if I can be excused for putting it this way, there has been something of a standoff between the parties in relation to the commissioning of care within that particular setting. The condition is that it is done without prejudice to the ICB’s position, that it is in fact the LA’s responsibility to commission such care. It is also and without prejudice to any other cases. The ICB is anxious to report that this is not a precedent to other cases but a pragmatic decision taken in the individual circumstances of this case. The third qualification is that the ICB is not in a position to monitor and deploy the package. It is willing to commission and will rely upon the other parties, but with the LA feeding into it to monitor and deploy the package of care. I repeat that I am extremely grateful to the ICB for unlocking that part of this difficult case. In those circumstances, the Trust is willing to continue to accommodate P in the hospital, but with a view to him transferring to the family suite once preparatory work has been done. This will allow an opportunity also for the OS to make contact with P and for P’s own wishes and feelings about the move to the family suite to be ascertained. I am told, and have no reason not to accept, that P himself is keen to make that move, but the OS has not had an opportunity to make contact with him to discuss that particular issue. In these circumstances, I’d argue that general liberty to reply in relation to this order on short notice and so, if necessary, if for example there was an extreme adverse reaction from P to the proposed move to the family suite, depending on the circumstances, the matter could be brought back before me if available for further application and review.
In any event, I should review this case again reserved to me on the 20th of September because by that time, firstly any move to the family suite should have taken place and I could be updated on that,. Secondly, the commissioning decision should have been made in relation to the community placement and I can be updated on that. And thirdly, it should be clear by then that the adaptations necessary to the community accommodation were on track and that the placement should be available for P to move into on the 25th of September. In the alternative, if that is not on track, I can review the case and make the appropriate orders if necessary. In order to accommodate that hearing, which will be a remote hearing at 10 o’clock on the 20th of September before me, which I will list for 1 hour, updating evidence will be required from the LA and the Trust and I give permission for the OS to adduce any further evidence by way of attendance notes for example, which should be provided by 4pm on the 19th of September.
I have to consider the position in the interim in relation to P’s deprivation of liberty. Previously, at the court hearings I’ve alluded to, authorisation has been given for the deprivation of P’s liberty with a number of restrictions that are set out most recently in the annex to Mrs Justice Morgan’s order of the 8th of September 2023. They include, as I’ve already referred to, supervision by staff and a 2:1 ratio at all times in his room and other security measures. They also include monitoring during toilet visits, windows of his room are boarded up – that is not for any reason other than at his own request because he becomes distressed when the room is not at the ground floor, at the view he can see through the window and so prefers to have the windows boarded up. The doors closest to his room on the ward are also locked. He is not free to leave the ward unaccompanied. There is no permitted restriction in relation to physical restraint, so the annex reads ‘no physical restraint to be used at present with P verbal de-escalation to be instead used’. Items that he could use to harm himself are removed from his possession. In terms of those restrictions, there is no doubt that they amount to deprivations of his liberty to which he is unable to consent and they are is imputable to the state. I am satisfied that the continuation of those restrictions within the hospital, whether on the paediatric ward or on the family suite are necessary, proportionate and in his best interests. In particular, I have in mind that there is nowhere else for him to go and that he has become in fact more calm and settled of late with these provisions in place, that they are permissive, that in some ways he welcomes the feeling of security and that physical restraint is not amongst the restrictions which are permitted.
I therefore do give the authorisation of the deprivation of his liberty within the hospital, either on the paediatric ward or the family suite and I do so until 23:59 on the 20th of September where I’m due to hear and review this case earlier that day. It is unedifying for public authorities to dispute with each other in litigation, the responsibility of the care of a highly vulnerable young adult and for resources to be taken up in litigation when what is needed is a collaborative pragmatic approach. What I’m pleased to report, is that that is the approach that has been taken today and the pragmatic agreement as to how to move forward has been reached after discussions today.
I acknowledge that that has not always been easy for the parties involved, who are mindful of more general principles, but I am grateful to them for the work that has been done today. I would also like to record my thanks for all the staff that have been involved in the care of P – not an easy job and it appears that they are doing an excellent job and that he has become more settled as a result of that. I am grateful to the Trust and to the staff for all they have done to care for P and continue to do so.
This summing up is a testament to the skill of Poole J – it could easily have become much more confrontational and a rather oppositional hearing with a frustrated judge feeling powerless to do anything about it. This pragmatic harmony seems to be the best-case scenario for P on the facts, especially considering P has just turned 18 and is still on the paediatric ward where he has been a risk to others. It is important to note that P’s wishes were also to move to a room on the ground floor (i.e. the relatives’ suite) as he gets triggered by looking out of the window, hence why they were boarded up. So, the ICB’s intervention has facilitated P’s wishes being included in the best interests decision.
Following the summing up, a question was raised about the TO and whether where P lives or might be cared for might become apparent if specific security measures were described, and an amendment was made.
It is important to note that this amendment was prompted by an intervention from a journalist, Mr Brian Farmer. Open justice in the CoP relies not just on journalists making demands for their Art. 10 ECHR right to freedom of information, but also on journalists recognising the risks when putting certain information into the public domain and raising this with the judge.
At the end of the hearing, I received another email from Ms Ellie Ward, who wanted to confirm that I was present for the amendments to the TO and understood its terms. She informed me that, cnce the amendments were formalised, she would send the amended TO to again. I am yet to receive this new TO.
The next hearing is listed at 10am for 1 hour on Wednesday 20 September 2023 before Poole J.
Post-Hearing Reflections
It is evident that this was a difficult hearing for the parties. I have learnt that even despite the parties coming to the court because they have not been able to resolve the dispute out of court, Poole J guided them into finding this resolution, even if this is because of N v ACCG and the court’s inability to create new options for P, meaning the court can only choose between the available ones. This extends to the court not being able to order any party to create new options.
It is also apparent that there is a problem with the availability of accommodation for young people. I agree that it is a “national scandal” and am hopeful that this is a consideration that every CoP judge and lawyer has at the forefront of their minds when considering the best interests of P in cases such as this one.
I discovered that CoP hearings are never as they are listed. This is the sixth hearing I have attempted to observe online as a public observer. At the other five, either the matter was dealt with on paper, or in person without a remote link (contrary to the listing), or was listed incorrectly or the link to join was not sent and my email request was not even acknowledged. This hearing was a bigger time commitment, much more than the hour or two that I was expecting. If you plan to observe any CoP hearings, expect the unexpected and make sure you: 1) have a relatively flexible day and 2) have work that you can stop and start easily whilst waiting. I expected there to be some delays between 30-60 minutes, given my experiences within the family court. However, I did not expect there to be more delays given the revised start time. I cannot fathom the costs that this must involve given there were four barristers and four instructing solicitors.
My question to practitioners is: How do you respond and negotiate these delays if you have another hearing scheduled for later on in the day? Is it anticipated that hearings such as these will be lengthy and so your schedule is blocked off or is your duty in this situation to inform the court of the next hearing? How do you deal with such a degree of uncertainty (and stress/anxiety) on a daily basis?
I feel that despite all my previous experience within the NHS and with vulnerable patients, I was thrown into the deep end with this hearing. It was an invaluable experience that showed me the difficulties of the parties working together for the best interests of P but without compromising their duty towards their client. It’s a fine balance to be struck depending on the instructions given to counsel by their client and that was evident with the inflexibility of the LA. However, this hearing has also showed that the overriding objective to act in P’s best interests is the reason why the ICB used their discretion to extend their powers. This “pragmatic harmony” (the judge’s phrase) is not at all what I was expecting when I first joined the hearing, but it has brought me some solace that P’s wishes can be enacted and hopefully, depending on the outcome of the next hearing, can be facilitated up to the point he is under the care of the community care provider.
If I can, I will aim to observe the hearing at 10am on 20 September 2023 and any subsequent hearings, although I appreciate that five hearings were held last week for P and the court hopefully should not need many more hearings as P is soon to go to the community care provider. In any case, I will aim to observe more hearings in future, and I would strongly advise other aspiring barristers – and anyone else interested in the Mental Capacity Act 2005 and best interests decision-making – to do so too.
It is definitely worth noting that despite my anxieties throughout the hearing, observing was highly interesting, productive, and informative. My anxieties can probably be put down to my relative inexperience observing CoP hearings and being thrown into the middle of a case with only a basic understanding of CoP law. So please don’t be put off if you want to observe! I have gained a deeper respect for the court staff and CoP lawyers/judges, especially their patience and pragmatism.
I am extremely grateful to Professor Kitzinger for all the advice and assistance she has given me throughout this process.
Hartej Singh Saund-Matharu (he/him) is a Bar Course student at the Inns of Court College of Advocacy, first-class Law (LLB Hons.) graduate, and recipient of two Inner Temple scholarships. He is an aspiring Court of Protection and Family Law barrister. He has accepted an offer for pupillage at 30 Park Place commencing in September 2025. His LinkedIn is https://www.linkedin.com/in/hartejsinghsaundmatharu/
Photo by Casey Horner on Unsplash
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