By Deborah Airey, Amanda Hill (Anna), Jordan Briggs, Nikki Bowsley, Febienne Green, John Harper, Daisy Long, Gill Loomes-Quinn, Claire Martin and Tom McBride (co-ordinated and curated with an introduction by Celia Kitzinger), 18 October 2023
Note: This blog post was ready to publish on 24 July 2023 but publication has been delayed until today because we wanted to ensure that all witness evidence was complete before we published anything. The hearing was adjourned on 31 July 2023 due to illness of one of the advocates with the father not yet having finished his witness evidence, and without witness evidence from either the grandmother or the mother. The hearing resumed after the court break on 9 October 2023 and the family have been giving evidence over the last few days. Evidence is now complete. Our decision to delay publication until all the witnesses had finished giving evidence is discussed in two earlier posts: see A judicial embargo and our decision to postpone and Fact-finding hearing: “Little short of outright war”. Because I felt uneasy about publishing this blog post back in July as originally planned, I selected out an edited version of just the Introduction and published that alone – along with an account of why I felt unable to publish the whole thing. So if you think you’ve read the Introduction before, you probably have – and that’s why. I’ve retained the same Introductory text here (with just a few minor amendments and corrections) because I originally wrote it to introduce the 10 blog contributions that follow, and I want to maintain the integrity of the original design of this blog post. You could read the Introduction again to refresh your memory about the background to the hearing – or just skip to new material which starts two paragraphs above the first subheading indicating the beginning of the blog contribution by law student Tom McBride (1. From abstract legal principles to emotion in the courtroom).
Introduction
Fact-finding hearings are relatively rare in the Court of Protection – certainly before Tier 3 (the most senior) judges. We’ve previously published only one blog post about a fact-finding hearing (before HHJ Tindal, here: “Abuse and coercive control? A fact-finding hearing and exoneration”) – plus another about a fact-finding hearing that was abandoned (before HHJ Lopez, here: Fact-finding, ‘magnetic importance’, and the consternation of colleagues: A final hearing adjourned).
Fact-finding hearings arise when one party makes allegations against another that are of significance and will impact upon decisions that need to be made – like where the vulnerable person at the centre of the case (P) will live, or the contact they will have with family members.
In this case, the ICB (Integrated Care Board) is making serious accusations against the family.
They say the parents have been intimidating, threatening and challenging to staff and used rude or abusive words to them (thereby breaching injunctive orders from a previous hearing).
They say both parents and the grandmother have tampered with G’s medical equipment, including the equipment used to deliver oxygen, suction and feeding, and that they’ve placed G at risk of harm by interfering during her medical care.
There are counter accusations from G’s father, supported by the mother and grandmother. He says that staff at the care home have placed his daughter at risk of harm by failing to provided proper care. He says they’ve not properly maintained her airway and lungs, her oxygen supply, her tracheostomy, or feeding tubes. He says they’ve failed to ensure she has adequate equipment which is properly set up, and that they’ve failed to maintain her personal hygiene, have used unsafe secondary ventilator settings, and failed to administer essential medications.
These are all very serious allegations – both those by the Care Home and ICB against the family, and those by the family against the Care Home.
The outcome of this hearing will be that the judge, Mr Justice Hayden, will decide the facts of the matter – and those “facts”, as determined by the judge, will have a profound impact on future decisions made for G: on where she lives, who cares for her, and the time she spends with the three closest members of her family.
G is 28 years old with a progressive neurological condition. She is in a low awareness state, has a tracheostomy and ventilator, and requires skilled 24/7 care. She moved from Hospital (where she’d been for the previous 14 years) to a Care Home in mid-August 2022. Clearly, things have not gone well in the last 11 months.
Her family wanted her to come home rather than move to a care home, but in a previous judgment (in December 2021) Hayden J ordered she should move to the Care Home because an immediate move home was “fretted with risk” and “might set G up to fail” so that that “she would have no further chance to return to her parents’ care“. The move to the Care Home was intended, initially, as a step-down from hospital care “to smooth out the transition to any return home” (from the December 2021 judgment, Re G [2021} EWCOP 69).
An unusual feature of this case is that G’s father has made audio-recordings on his telephone when he has visited his daughter in the Care Home. Some of these have been played in court. They provide powerful contemporaneous evidence of what was said on particular occasions – listening to them helps to determine who said what and whether or not (for example) a family member was screaming or shouting at staff, whether they were “rude”, how long it was before someone reported a fault with equipment, and so on. Memories and records of these events provide one source of evidence. The recordings provide another. There are also contemporaneous – usually handwritten and initialled- care records maintained by the Care Home, which provide another source of evidence about what happened. Some of these care records have been displayed on screen in the course of the hearing.
The hearing is taking place in a courtroom in the Royal Courts of Justice. There is also a video-link and some people are participating remotely. This includes G’s grandmother and some of the witnesses.
The lawyers are all in the courtroom and the barristers are easily recognisable as such because they are wearing wigs. If you join a few minutes before the hearing starts, you’ll often see them putting them on (sometimes their jabots, too) – and complaining about them being “itchy”. Their instructing solicitors sit behind them, usually alongside their clients. Both parents are in the physical courtroom. So are some observers (right at the back) – and sometimes the PA journalist, Brian Farmer, appears for parts of the hearing. He wrote an article about the case after the first day of the hearing which appeared in The Independent: “Parents and grandmother accused of ‘tampering’ with woman’s medical equipment”.
The barristers addressing the judge (so-called “Leading Counsel” in this case) are:
- Nageena Khalique KC for the ICB and the Care Home
- Sophia Roper KC for G (via her litigation friend the Official Solicitor)
- Parishil Patel KC for G’s father
- Joseph O’Brien KC for G’s mother
If you click on the links, you’ll see photos of them – though they look a bit different dressed up in court (“robed”).
The grandmother does not have a legal team. She appears as a litigant in person, which is why she is able to cross-question the witnesses – whereas the lawyers do the cross-questioning for the other members of the family.
Other people visible in court if you join by video-link might include:
- Olivia Kirkbride, Junior Counsel for the ICB and the Care Home
- Benjamin Harrison, Junior Counsel for G via her litigation friend the Official Solicitor)
- Francesca Gardner, Junior Counsel for G’s father
- Nicola Kohn, Junior Counsel for G’s mother
They are “junior” only in the sense that they are not (yet) KCs – “Kings Counsel” – i.e. those barristers (or solicitor advocates) and who’ve been recognised for excellence in advocacy, who are seen as leaders in their area of law, who generally take on more complex cases requiring a higher level of expertise. Junior counsel have a very important but less visible role to play in this hearing, and they support senior counsel (the KCs) in court – for example by finding the correct material or references as witnesses are examined, allowing senior counsel to focus more on formulating their questions.
The witnesses – so far including the Safeguarding Lead, some health care workers, the clinical lead from the care home and some nurses – are sometimes in the physical courtroom, and sometimes on the remote link. There are more witnesses to come.
Each witness is ‘sworn in’ or asked to make the (non-religious) ‘affirmation’ that they will tell the truth. Each has submitted one or more written statements and is asked to confirm they are true – or make any corrections. Then they are questioned about what they’ve said to “test their evidence” – and sometimes their statements are compared with what they or others wrote at the time in the care home records, or with an audio-recording. It’s clear from watching that this is a very stressful experience for them. The judge is trying hard to reduce their stress and explain to them how the process works.
The evidence and questions are focussed around a few specific events. For example, there has been a focus on a couple of occasions when G’s oxygen was not reaching her and there are different views about how that came about. Another concerns an occasion when G was transported from hospital back to the care home with a cracked piece of ventilation equipment: the nurse says it was a “hairline crack”; the father has a photograph (which was displayed on screen) showing a piece of equipment completely broken through. On another occasion, the parents returned late from a day out with G and the night nurse asked them to hand over G at the front door rather than admitting them into the Care Home: she alleges that G’s mother shouted at her and (deliberately?) injured her foot with the wheelchair by continuing to push G’s wheelchair into the building.
In this blog post, ten people who’ve watched part of the hearing (none of us has managed to watch all of it) write about their experience. For some, it was the first time they’d ever observed a Court of Protection hearing. Others are seasoned veterans. Some have a legal background – as law students or paralegals. Many have personal or professional experience in relevant areas – e.g. as a disabled disability rights activist, a Safeguarding Adults Practitioner, a family member and litigant-in-person of a different P in another case, a trainer for court witnesses, and a psychologist. What is gathered here is a kaleidoscope of different responses, from a range of perspectives, from members of the public who watched this hearing and reflected on it.
For me, the ten accounts gathered here demonstrate unequivocally the value of transparency in the Court of Protection. They demonstrate, in particular, why transparency should not be limited to journalists and “accredited lawyers” (as is the case under the Family Transparency Pilot at the moment). These are accounts by members of the public about their experience of seeing justice being done, at first hand, and their reflections on that.
Bear in mind that these reflections were written after the first four days of a projected nine day hearing (added note: which has in fact continued, so far, for 14 days, with at least two more days to come, for final submissions) They cover only some of the witness evidence relied on by the ICB and nobody had – at the point this pieces were written – heard any witness evidence from the family. This is a hearing in progress – and it’s possible that we may all change our minds about some matters, or develop different (perhaps more nuanced) perspectives as the hearing progresses. These are simply snapshots of the hearing-so-far on the particular dates and times when the observers were watching it. We will be publishing a second blog post like this one with diverse views from people who have watched the second half of the hearing – and probably some more sustained reflections from observers commenting on the hearing as a whole.
1. From abstract legal principles to emotion in the courtroom
By Tom McBride
This was my first time observing a Court of Protection hearing. Having just finished my second year studying law at University, I’d had a few brief encounters with the concept of the court: I knew it was set up by the Mental Capacity Act 2005, and that it makes decisions on behalf of those who lack the mental capacity to do so for themselves. Overall, however, my understanding was entirely abstract, and lacking in depth; my university course had so far favoured a rigorous education in the more traditional legal disciplines like tort and contract over an exploration of more contemporary (though no less important) topics like the Court of Protection.
As a result, I’m not sure what to expect as I wait at my desk to be admitted to the Microsoft Teams meeting on the morning of Friday 21st July 2023 (day 4 of the hearing). After a few minutes, I’m let in, and I watch through my laptop as the courtroom slowly fills up. This was a hybrid hearing, taking place in a physical courtroom whilst simultaneously being viewed by online observers (and one party, plus some witnesses) via Teams. The screen, split up into three different video feeds (showing the witness box, the judge’s chair, and the remainder of the courtroom), gradually becomes busier as barristers, witnesses, observers and staff enter through a door in the corner of my screen. I hear bits and pieces of hushed audio through microphones set up in the courtroom, though nothing is clearly audible. Initially, I assume this is because the remainder of the microphones are yet to be turned on; later, I learn that it is in fact only this microphone which works, which becomes apparent to me when a barrister asks a witness to speak more loudly so that her audio can be picked up.
It’s not long until Mr Justice Hayden crosses my screen, disappearing from the edge of one video only to reappear in another as he sits down, and the hearing commences. We’re launched straight into the action as a barrister begins to cross-examine the witness, a healthcare worker previously involved in an encounter with the protected party (G)’s father, in order to determine the sequence of events that had taken place during the interaction. At times, the cross examination is tense: the witness has difficulty recollecting certain events; the barrister disputes whether certain statements are true; and questions often revolve around small yet significant details, like G’s oxygen saturation levels or the likelihood of administering certain treatments to a patient. Factoring in occasionally choppy audio, piecing together the interaction becomes a daunting task, and I’m left with a sense of uncertainty which lingers long after I stop observing the hearing.
And yet, in the midst of the confusion, one thing does remain perfectly clear: the proceedings in this court are deeply personal, and deal with matters touching upon core elements of the human experience.
Occasionally during the cross-examination, Mr Justice Hayden redirects questioning towards how the witness felt in the presence of G’s father: the emphasis should not be on what he did, but how he made her feel. His motivation for doing so is to maintain the focus of the hearing on what might be best for P. The question at the heart of this case, we are reminded, is to determine what is in the best interests of a young woman who is unable to make this decision for herself.
At one point, we listen to a recording of the interaction. Amid several panicked voices and frantic hospital alarms, we hear a father’s soothing voice as he tries to calm his daughter during what is an undeniably stressful medical situation. The judge acknowledges that G is not yet at the end of the process of neuro-degeneration, and might be able to recognise her father. The witness admits that G occasionally responds to her father’s attempts to placate her. On this occasion, she says, she became visibly less anxious in his presence. Once again, we are reminded of the humanity of those involved in the hearing (not least the young woman at its very centre) and the significance of the matters at stake.
My experience of observing was a moving one, and this wasn’t something that I’d expected. Maybe I was naïve. Or maybe I’ve just spent too long studying law in the abstract, blissfully ignorant of the highly emotive matters raised in courts like these on a daily basis.
After observing the hearing for a few hours, I’m left with no sense of certainty as to what course of action would be in G’s best interests. What I am left with, however, is an urgent sense of hope that the judge is able to get it right.
2. A disability rights perspective: When ‘service user voice’ is like walking a tightrope
By Gill Loomes-Quinn (@GillLoomesQuinn)
I have lots of experience of observing Court of Protection hearings, having previously spent time in the Court of Protection (CoP), at First Avenue House in London, as part of my PhD research; and then observing in my role as co-director of the Open Justice Court of Protection Project (including observations before this judge). This means that I have prior experience of observing how the court engages with the lives of disabled people deemed to lack mental capacity to make specific, often significant, personal decisions. I am aware of the (sometimes draconian) outcomes of Court of Protection proceedings, and the ways in which these can constrain and circumscribe the fundamental rights and freedoms of those at the centre of such proceedings. I have also observed Court of Protection judges go to considerable lengths to ensure that the ‘protected party’ (as the person at the centre of a CoP case is typically called) is given opportunities to participate in proceedings, and that decisions they make reflect that person’s values, wishes, feelings, and beliefs.. And, as a disabled person and user of social care myself, I inevitably interpret my observations through the ‘lens’ of my own experiences of health and social care services, and the treatment of disabled people by wider society.
The part of the hearing I observed (on the afternoon of Friday 21st July 2023) examined the evidence of a nurse working as part of G’s care team. Unsurprisingly, it was difficult to join the proceedings at this point – after three and a half days of witness evidence had already been presented – and make sense of the details, and this was exacerbated by the fact that (to me, at least) the sound quality via the remote link was suboptimal. But what quickly became apparent to me was the complexity of G’s care needs and the gravity of the events around which the parties were in dispute.
I was especially concerned by an exchange between the witness and G’s grandmother concerning the management of G’s ventilation, when the oxygen supply had apparently been found by G’s grandmother to be off, and the witness was being questioned as to assertions that G’s grandmother may have been responsible for this – seemingly with the alleged aim of casting aspersions on the abilities of the staff to care for G. It is hard to think of a need more profound than that of ventilation, and the potential catastrophic consequences of failure in this regard highlight G’s vulnerability.
I was therefore surprised by the demeanour of the witness when answering questions – particularly those of G’s grandmother. I say ‘particularly’ firstly because a prolonged exchange between the witness and G’s grandmother took up most of the afternoon’s proceedings, and secondly because I would perhaps have expected a demonstration of more emotion – and ‘care’ – when discussing such potentially serious events with a member of G’s family. Giving evidence in court is likely to be a daunting and stressful experience, and witnesses may not perform in the witness box according to their everyday character or demonstrate the ways in which they may typically interact with G while caring for her. However, the witness came across to me as glib and often defensive in her manner; as well as having a poor, under-prepared, recollection of the events in dispute. For example, when asked if G had particularly ‘complex’ care needs, representing challenges that may lie outside of the witness’s prior experience, she answered in the negative – indicating (in tone and body language as well as word choice) that G’s care was quite routine and within her skillset. It was only on further and more specific examination by G’s grandmother that she acknowledged a novel aspect of G’s care routine – i.e., moving between the ventilation circuits in bed and in her wheelchair. It worried me that she seemed to show such a casual attitude towards complex care needs. I found the witness’s seemingly unfounded certainty and lack of reflexivity profoundly troubling and it reflected on the social context underpinning the incidents being discussed.
It is hard to put into words the everyday ‘tightrope’ reality of relying on paid strangers to meet one’s basic needs. My own situation is in many ways far removed from that of G and her family – G has clinical needs, and (from what I could ascertain during the hearing) intellectual and communication impairments that I do not; and much of the time I am able to advocate for myself, so my family is fairly minimally involved in my social care. However, elements of what I observed touched some rather sensitive nerves.
My reflections on the hearing centred mostly on what it revealed about the power relations between ‘service users’ and our families, and the paid staff and service providers on whom we rely for our treatment and care. Hearing the witness talk about the incident with G’s oxygen, I was struck by how easy it appeared for her to maintain the belief that a grandmother might deprive her disabled granddaughter of oxygen purely to make a point. I observed how certain she appeared in her assertion that she had undertaken routine checks when coming on shift – as she put it: “I can’t understand because I always check the oxygens, always, especially G…” and later “…and if someone else is in the room I always get them to check it”. I recognise that stress can encourage defensiveness, but in someone with such a degree of responsibility for a profoundly vulnerable disabled person, I would hope for a more rigorous, robust, and reflexive approach to practice, and an ability to consider that a mistake may have been made.
I also put myself in the position of G’s family. I was reminded of times when I have been anxious or unhappy about aspects of my care. I have had carers who have made me uncomfortable and scared in my own home; and while service providers advertise “person-centredness” and “choice and control”, I know from experience that it is possible for ‘professionals’ to pathologize discomfort, distress, anger, and fear; and to locate any ‘blame’ for the breakdown of care packages in the people who use services, rather than those who work within them. And I am painfully aware that I need them exponentially more than they need me – that is not a comfortable position from which to be seen to be ‘making a fuss’. I felt these power dynamics underpinning the proceedings on Friday, and while I am obviously aware of how little I know of the facts of this case, and how abstracted that knowledge is, I imagined the incidents discussed in court in the context of this fundamental power imbalance and saw things stacked against G and her family.
I find the opportunity to observe CoP hearings such as that of Friday afternoon invaluable in helping me to incorporate into my own disability rights politics and activism the experiences of disabled people and families – in very different circumstances to my own but experiencing intersecting, overlapping oppressions, walking the same ‘tightrope’ as me, though wearing very different shoes. I know that such insights make my activism more inclusive and socially just than it would otherwise be, and I consider that a moral imperative.
3. A safeguarding perspective
By Nikki Bowsley
I am a Safeguarding Adult Practitioner and I have been attempting to observe a hearing in my area of interest, safeguarding, for several months and have until today, been unsuccessful for a number of reasons including not getting a response to my request to observe, hearings being vacated, and my own work commitments not allowing me the time.
After a speedy response to my request (sent to the Open Justice Court of Protection Project rather than the RCJ) to observe the case being heard at 10am on Wednesday 19th July 2023 (the second day of the hearing) I received an MS Teams link and joined the proceedings.
Having never observed a Court of Protection case before, I was fascinated by the questioning of the witnesses by the barristers and the judge’s role of ensuring that witnesses understood what was being asked, keeping barristers on track and to time, and taking on board all the information being presented in order to help him with his own decision-making.
The hearing itself was complex with allegations of family members tampering with G’s medical equipment and being aggressive to staff caring for their daughter (or granddaughter) and although I only managed to observe a snapshot (3 hours) of the case as a whole, which was running over a number of days and which is not yet complete, I feel I gained a valuable insight.
In my role as a safeguarding adult practitioner, I provide safeguarding advice and support for health practitioners working across a variety of health services including community nursing, general practice, and rehabilitation units. We have had a number of cases where clients have been under the Court of Protection, and I have recently supported a practitioner in completing healthcare plans requested by the court. Observing the court proceedings for this case gave me a clearer understanding of how those individuals deemed to be incapacitated are supported via best interest decision making.
4. A Bar course student perspective
By Deborah Airey (@airey_deborah)
On Tuesday 18th July and Wednesday 19th July 2023, I unexpectedly found myself with an empty calendar. As I was keen to use the time productively, I decided to observe a Court of Protection hearing. I scanned the Open Justice Court of Protection Project twitter feed (@OpenJusticeCoP) and came across this case due to be heard by Hayden J.
I was drawn to this hearing in particular as it was starting that morning (Tuesday 18th was Day 1 of the hearing) which meant I would understand the context.
Moreover, as the case features four King’s Counsel (KC) I considered it an excellent opportunity to observe expert cross-examination.
As it was the eleventh hour, I contacted Celia Kitzinger directly and was provided with the Microsoft Teams link. Subsequently, I observed the first two days of the hearing and found the case insightful. There are four comments I wish to make.
First, counsel for the applicant provided an introductory summary. This was not for the benefit of counsel or the Judge as they were familiar with the matter. Rather, Hayden J emphasised that it is important for observers to understand the case. As a first-time observer in the Court of Protection, this provided useful context to the hearing and allowed me to follow the examination and cross-examination of witnesses.
Second, I was impressed with the video and audio quality of the hearing. As the hearing was hybrid, some parties and witnesses attended court in person and some attended via Microsoft Teams. From my perspective as an observer, this worked effectively as the parties could see and hear the witnesses and vice versa. Where the audio was unclear, questions and answers were clarified by counsel or Hayden J. This meant that no one was disadvantaged by the hybrid nature of the proceedings. Although those observing online initially could not see the witnesses giving evidence in person, this was remedied by the second day of the hearing. As a result, online observers were able to see Hayden J, most of the advocates and all witnesses giving evidence. This brought the case to life and made it easy to follow. Moreover, there is only one Teams link for the entire proceedings, allowing ease of access over all the days of the hearing.
Third, the cross-examination by counsel, notably Parishil Patel KC, did not disappoint. As a Bar Course student, I have recently completed the cross-examination module. Although this was in the context of a criminal trial, cross-examination was used in the Court of Protection to the same effect, namely, to challenge the reliability of witness evidence. This is precisely what I observed.. Parishil Patel KC asked concise questions, followed up when witnesses did not answer the question asked, and challenged inconsistencies in the evidence. As a result, this was an invaluable learning experience for any aspiring barrister.
Finally, and most importantly, I was struck by the humanness of the case. During my LLB degree, I studied medical law, so I had some awareness of the subject matter. However, as this was an academic study, I had limited experience of the emotional aspect. In opening the proceedings, Hayden J acknowledged that this case is ‘incredibly sad’. This comment demonstrated from the outset that although Judges make legal decisions, they are also human. Furthermore, the emotions of some witnesses ran high during cross-examination when much of their evidence was undermined. Importantly, Hayden J reassured the witnesses that it is the role of counsel to ‘test the evidence’ and ask difficult questions. Once again this demonstrates the humanity and sensitivity of Hayden J. It is important for the public to see this side of Judges as it aids understanding and adds credibility to judicial decisions.
Overall, I would encourage anyone, but particularly Bar Course students, to observe a Court of Protection hearing. Not only is it an excellent learning opportunity, but it is vital that the public have the opportunity to see how these important decisions are made.
5. An opportunity to watch cross-examination in practice
By Febienne Green (febiennea1999@gmail.com)
I had the opportunity to remotely attend a Court of Protection hearing in front of Mr Justice Hayden, sitting at the Royal Courts of Justice on 20th and 21st July 2023 (the third and fourth day of the hearing). I witnessed four healthcare professionals giving evidence and being cross-examined in a fact-finding hearing.
It was especially interesting to see the cross-examination skills utilised throughout the hearing both by counsel and by a Litigant in Person.
From one barrister, I witnessed the methodical breaking down of a witness’s evidence to both guide the witness towards the barristers’ intended point whilst simultaneously making the witness’ evidence seem unreliable. During a line of questioning regarding intimidation from the father towards healthcare staff, the barrister established what the father was doing in the room with his daughter, the answer being – holding her hand. His questions included ‘is holding his daughter’s hand, intimidating?’ and ‘is comforting, intimidating?’ thereby establishing his intended point that the father was not intimidating and that the witnesses evidence was unreliable.
This made an interesting comparison with another barrister’s use of limited and succinct questions to quickly establish the existence of a positive professional relationship between a family member and healthcare staff therefore completing his line of questioning.
Finally, I was impressed by the cross-examination conducted by a Litigant in Person (P’s grandmother), who displayed a thorough analysis of the electronic and paper bundles. She utilised nurses’ notes to guide the witnesses through questions regarding multiple accounts of tampering with medical equipment. She established who was in the room at certain times and therefore whether it would have been possible to tamper with medical equipment unnoticed.
As I aspire to practice as a barrister, I found observing this hearing especially interesting, due to its demonstration of cross-examination skills by five parties, four of which were legally represented.
6. A view from the Royal Courts of Justice: Attending in person
By John Harper (@JohnLHarper_)
I observed this hearing on Thursday 20 July 2023, in person, in the Royal Courts of Justice, Court 45. (It was Day 3 of the hearing.)
It was very easy to observe in person. I arrived at the RCJ in plenty of time, I checked with the desk in the main hall whether I am okay to observe this hearing and asked for directions to the courtroom. I knew from the RCJ Daily Cause List which is linked to from the Open Justice Court of Protection Project home page that the hearing is in Court 45. I then waited outside until all parties were let in by the court usher just before 10.30am.
I am a Healthcare Litigation Paralegal and aspiring barrister. Court of Protection is an area of law in which I would hope to build a practice when at the Bar. I therefore wanted to observe this hearing because it involves eminent KCs and fascinating issues. In particular, I was interested in seeing how the advocacy differed from other areas I have seen during mini-pupillages such as personal injury.
This day of the hearing involved evidence from nurses and healthcare staff involved in P’s care. While watching the proceedings, I focused on the following: (1) How explicitly will importance be given to P’s welfare and best interests? (2) How will the fact that “the processes of the Court of Protection are essentially inquisitorial rather than adversarial” (Cheshire West and Cheshire Council v P [2011] EWCOP 1330 [52]) impact the barristers’ examination of witnesses? (3) In a hearing which is dealing with such sensitive and serious issues, what will the atmosphere be like in court?
Here are my thoughts on each point in turn.
1. The protected party is at the centre: As this is a fact-finding hearing which relates to conduct between G’s parents and healthcare staff, I expected the importance of putting the protected party at the core of matters to be merely implied. This was not the case. Rather, it was constantly clear that G’s best interests were at the heart of this hearing. This was most noticeable during Ms Sophia Roper KC’s examination of each witness. As she appeared on behalf of G (by her litigation friend, the Official Solicitor), the thrust of Ms Roper’s questions addressed whether and how the alleged “tampering” and intimidatory conduct of the parents have impacted the ICB staff’s ability to care for G. Ms Roper’s examinations, which came after all the other parties’, always served as a potent reminder that at the centre of the issues before the court lies an individual for whom it is crucial to ensure the best quality care is upheld. The importance of putting focus on G was further highlighted by Hayden J. One example which struck me was when a witness admitted that it was hard to tell how G responds to care when her parents are present compared to when they are not. Hayden J brought the witness back to her previous comment about being able to “bond” with G and suggested to the witness that that surely is a two-way thing which implies involvement from G. The witness agreed and was then able to expand on her answer about building a relationship with G – how it is easier on days the parents do not visit. Hayden J’s comment reassured me that the court is adamant to put G at the focus of matters, painting the most complete picture of her in order to come to the most informed decision on the issues in hand.
2. Cross examination in an ‘inquisitorial’ court: I do not think the form of the barristers’ examinations differed greatly from other (adversarial) jurisdictions I have observed. This, I thought, may be because the hearing is dealing with alleged breaches of an injunction. As such, this possibly means that counsel for the parties against whom the accusations are made must adopt a more adversarial approach than would otherwise be needed. I thought Mr Parishil Patel KC (who is acting on behalf of G’s father and undertook the majority of the cross-examination) treated each witness with respect and courtesy, but also with forensic rigour. For example, when he had to push for an answer from a witness who addressed a question other than that which was asked, Mr Patel would bluntly say “you’ve not answered the question I asked” and “that’s a different question. Can I ask you to answer to the question I’ve asked?”. He also explicitly challenged some accounts given in the witness statements (e.g., “that’s not right, is it” or “that’s not correct, is it”). Even though these remarks put the witness under pressure, in my opinion this robust examination was appropriate for Mr Patel to represent his client to the highest standard as it allowed him to accurately and effectively pinpoint inconsistences in the witnesses’ statements.
3. Atmosphere in court: The demeanour of counsel and Hayden J surprised me. They were all dealing with serious issues concerning an extremely vulnerable patient, but the mood in court did not always match that same seriousness. For example, when Ms Roper asked the remote witness whether she could see her on the video-link, she replied “yes, I can see you there in the corner” to which Ms Roper quipped “that’s where they keep me.” I thought such instances of humour were a really positive aspect of the hearing because they relaxed the witnesses and provided everyone a brief respite before sensitive details of the witnesses’ accounts were once again explored. I understand that others may hold different views on occasional banter in court. For example, in one hearing P’s daughter felt it undermined the impartiality of the court’s process by displaying how ‘pally’ some professionals are with one another, leaving others (and her) feeling like outsiders (“Remote Justice: A Family Perspective”). On the contrary, I believe that familiarity benefits the court’s process. In the small world of the Bar, practitioners will be against each other time and time again and will undoubtedly develop firm friendships with opposing counsel. Rather than seeming “pally” and therefore risk ostracising others, intermittent informality can actually help them feel more welcome, calming a witness’s nerves and preventing observers feeling like they are intruding on a strictly private matter. I can attest to the latter. Also noteworthy are the exchanges Hayden J had with each witness after they gave evidence. Two examples I noted were,
- He told one witness that, although he must listen to many people in this hearing, her voice has been heard as loudly and as clearly as anybody else’s.
- He commented to a witness nurse how lovely it is to hear her speak so eloquently and warmly about G’s care, and that it is no doubt a good thing that G has been able to experience that with her.
These remarks were sincere, personable and reassuring. Moreover, Hayden J rotated his whole body each time towards them on screen (and away from the lawyers in the courtroom) – giving them his full personal attention. This undoubtedly made a visual impression to all that each witness was valued.
I took away a great deal just from the one day I have observed of this hearing thus far. In sum, I learnt that (1) should the type of hearing require it, the advocacy from counsel can put witnesses through their paces and firmly challenge their evidence; (2) not every second of the hearing must be of utmost seriousness and that occasional informality can make the process seem more human; and (3) above all is the constant effort from all parties to place P at the centre of discussion.
7. A different voice – cross-examination by a family member
By Anna (@AnnaJonesBrown)
I didn’t quite know what to expect when I asked to observe one afternoon, Friday 21st July 2023, Day 4 of a 10-day hearing before Mr Justice Hayden. I’ve observed COP hearings before but not one like this, with cross-examination of witnesses.
The case is a very sad one, with family and care workers accusing each other of not caring for P properly. The afternoon I observed, there was just one witness, a nurse involved in the care of P. I watched with interest as three barristers representing different parties, all in the same physical court room as the witness was, taking turns to question the witness. But what really took me by surprise was the representative of the fourth party questioning the witness, appearing remotely – it was G’s grandmother (N), representing herself as a Litigant in Person (LIP).
I was an LIP in my mother’s hearing. I’ve described the experience in a blog post here: ‘Deprived of her liberty’: My experience of the court procedure for my mum – and I am writing under the same pseudonym I used when I wrote that post, because I am bound by the court’s Transparency Order in relation to anything I say publicly about my mother’s case.
My role involved having an opportunity to speak in the hearing and make sure my family had a formal voice in proceedings. But I didn’t have to cross examine witnesses, so I was really interested to see what would happen.
What a cross examination! N had clearly prepared diligently and thoroughly for this case. I don’t know what career N had before, but to my lay person’s eyes she could have been a qualified barrister.
Despite the fact that she must have had a lot of emotions whirling around inside her, she stayed calm and focused. She used the witness’s name frequently, a touch which made the relationship between the two of them personal: they had come across each other many times before. She forensically went through the evidence, gently but effectively challenging the witness as to a number of events and how they had been recorded. The fact that she had been present at those events herself no doubt added to her knowledge, although the same could not be said of the witness, who frequently seemed unable to recall the events herself. N had expert knowledge of the complex medical interventions which G needed. She never once seemed angry or upset, despite the fact that she herself had been accused of tampering with her granddaughter’s medical equipment. When she was pushed by the judge, for example to be clear about what her question was, she remained polite and courteous, always calling him “My Lord”. At one point when the witness was having difficulty finding the evidence, N asked “Do you need a bit of time (Name)? ” and then “You seem to want to accuse me”, very matter-of-factly. I find it hard to believe that I would have stayed so reasonable in those circumstances. It was very impressive!
From reading the judgment from an earlier hearing in this case, I knew that G’s family now have very restricted contact with her as a result of a previous court order due to problems with their behaviour, including N’s behaviour. It’s easy to develop an opinion of what the family is like from reading a judgment like that.
All I can say is that I saw a woman who seemed to care deeply about her granddaughter, who came across as completely credible and who wanted to see her granddaughter looked after as best as possible.
Hearing somebody from the family cross-examine one of her granddaughter’s carers, as opposed to a cross-examination through the filter of a legal professional, brought home the fact that the case is about real people and real people’s lives, with profound consequences for them.
My opinion is only based on one afternoon observing an extremely complex case and it has made me appreciate (yet again) the difficult job a judge in the Court of Protection has to do.
8. A Litigant in Person attempts cross-examination: Telling your story and access to justice
By Jordan Briggs (@JordBriggs)
I observed cross-examination in this hearing during the afternoon of Thursday 20 July 2023 (Day 3 of the hearing). I saw the cross-examination of two nurses – witness one (“N1”) and witness two (“N2”) – both by professional barristers, and by a litigant in person (G’s grandmother).
I am a paralegal working in the Court of Protection department of a London law firm, and will undertake a specialist Court of Protection pupillage with Doughty Street Chambers in October 2024. I have previously observed COP hearings and blogged for the OJCOP Project, including on cross-examination. Here, I will limit my reflections to the nature and purpose of cross-examination, to supplement my remarks in the blog I wrote arising from the William Verden hearing.
As background to allow analysis of what follows, I remind (or inform) the reader that, conventionally, cross-examination has three purposes. First, to elicit evidence in support of your own case. Second, to undermine the witness’ credibility or evidence. Third, to challenge disputed evidence.
Sometimes multiple purposes are discharged simultaneously. For example, a question might cast doubt on a witness’ evidence (i.e. purpose two) and, in so doing, create conceptual space for us to prefer the evidence offered in support of our own case (i.e. purpose one). Nevertheless, these purposes are advanced in professional cross-examination.
With this in mind, I will briefly analyse a few examples of the cross-examination conducted by the barristers and by the litigant-in-person. In summary, whilst the barristers discharged two of cross-examination’s conventional purposes, the litigant-in-person did not. This risks an inequality of arms and unequal access to justice, albeit a minor risk in this case.
First, the barristers. The barristers deployed commonplace tactics to undermine witness’ credibility – eliciting that the witness had not directly perceived an event, meaning their account of that event should be given less weight. For example, on behalf of the father, Parishil Patel KC addressed N1 on the re-hoisting of G. N1 said re-hoisting would have been done safely. Mr. Patel KC asked “You weren’t in the room for re-hoisting, were you?”. The witness answered “No”. This was done to suggest that, because N1 did not directly witness re-hoisting , we might doubt her account that it was done safely. This opens the door to our believing the father’s account; that re-hoisting was unsafe.
Similarly, on behalf of the mother, Joseph O’Brien KC addressed N2 on the checking of G’s oxygen. Mr. O’Brien said “In your witness statement, it says the oxygen was checked. Did you check it?”. The witness said “No, no, I wasn’t in the room, but I was under the impression it was checked”. Mr. O’Brien said “Let’s be more precise. ‘Being under the impression’ either means it was always done [that way] or you were told it was done [in this instance]. Which was it?”. The witness said “It may well be that I presumed”. This was done to suggest that, because N2 did not witness oxygen being checked, checking might not have occurred at all. This supports the mother’s allegations of mismanagement.
We turn to the litigant-in-person, namely G’s grandmother. She was polite, calm, focused and clearly knew her way around the bundle. But her cross-examination was very different from those conducted by the barristers. For example, G’s grandmother addressed N1 on G’s oxygen circuit. The grandmother said “Can you remember who set that up, [witness one]”?. N1 said “No”. The grandmother said “I remember you saying ‘That was me’. Do you remember that?”. N1 said “No”. The grandmother said “Well, I remember that”. N1 said “Okay”.
What was the purpose of this questioning? I think it crystallised when the grandmother asked “Can you understand that I might have been concerned about that – that, even though someone experienced had set up [the oxygen circuit] it was still incorrect?”. To me, this implied the grandmother was using cross-examination to tell her story, or to seek its validation. In other words, the grandmother was sincerely worried about what she perceived had happened to G, and sought validation that her response was not irrational.
The same inference could be drawn when the grandmother draw attention to a photograph in the bundle, displaying a red wound on G’s skin. The grandmother referred to witness one’s evidence, saying “You said that the skin looks slightly discoloured. Would you say it looks slightly discoloured?”. N1 said “it looks excoriated. I might have used the wrong wording.” The grandmother agreed, then took the point no further.
If the grandmother felt the hearing was a podium from which to tell her story, I can sympathise. However, this tactic does not automatically get one’s desired outcome in litigation. There is some evidence suggesting that judges can be persuaded by narrative stories, such as those litigants-in-person can provide (see: “(Dis)passionate law stories” by Blix and Minissale in Journal of Law and Society). However, there is also evidence that judges can overlook litigants-in-person’s stories because litigants-in-person lack the ‘discursive competence’ of trial lawyers (see: “The importance of being heard” by Tatiana Grieshofer in Language and Law). In this case, I felt the latter was a risk. The grandmother’s cross-examination was less piercing and convincing than the barristers’, which made her case feel rather weak. Sometimes, such inequality of arms creates a risk of unequal access to justice (i.e. if you can’t put your case persuasively, a judge might not give it the weight it deserves). However, in this case, I think the risk is minimal because the grandmother’s concerns were shared by the mother and the father (who were legally represented) and because, wholly characteristically, Mr. Justice Hayden treated all parties in this case with respect and dignity.
Nevertheless, the difference between the barristers’ and the grandmother’s cross-examination was stark. It provides an opportunity to reflect on the three conventional purposes of cross-examination, and on the need for heightened judicial circumspection to minimise inequality when litigants-in-person attempt to perform the art.
9. Do your homework or shoot your own credibility down in flames
By Daisy Long (@DaisyDosses)
I am a former social worker – now director of DCC Interactive which is an independent training and development organisation: I’m also a Visiting Fellow at Bournemouth University. Over 25 years of practice and teaching, I have been to courts of various descriptions and trained many professionals in preparing for the experience of providing statements.
There are two key things that I always make sure I do. First, I do my homework. Preparation for giving evidence should never be optional and I always make sure I revisit my own statements and know what evidence is going to be put to me as far as is possible. Speculation and presumptions never go down well with our colleagues in the justice system. Second, I always show my ‘working outs’ in any statements I make. I often joke in the training room that it’s a bit like long division at school (pre-calculator days!): the working outs are the important bits, the bits that show you are credible, balanced in your view and which support the credibility of any professional judgement being offered.
Unfortunately, the witness I observed on this occasion seem to have done none of these things and it was a masterclass in looking defensive and unprofessional, the very things we focus on preventing in the training room! Training is available from us and other quality providers – I would encourage anyone who is going to court for anything as a professional to seek some out!
I observed the hearing before Mr Justice Hayden on 21st July 2023 from 10am until 4pm (Day 4 of the hearing).
The biggest reflection for me from this part of the hearing was the value for health and social care professionals of doing your homework before giving evidence as a witness in the Court of Protection.
I watched a witness being cross-examined – a nurse involved in G’s care. Her evidence was scheduled to last for just an hour but as it turned out lasted all day.
The witness didn’t appear to have done her homework and the barristers were taking no prisoners around that. A key message I give to trainees is “always be prepared and show your workings out” and this was a master class in how not to do it!
While the witness was clearly anxious about being sat in the box, she also was unprepared and was unable to answer basic questions which slowly chipped away at any professional credibility that she may have started with that morning.
The witness described difficulties in practice – saying that family members are ‘difficult’ ‘intimidating’ and ‘aggressive’. She has accused Dad of tampering with vital medical equipment and therefore not acting in P’s best interests, which if true is a serious claim on behalf of the care-provider. However, what became clear, through the course of the multiple hours the witness was examined, was that no one had actually seen anything, and that the conflict between the parties meant that presumptions and inferences had dictated actions rather than a factual account of what had actually taken place. Was the equipment on in the first place? That was a very real question and the witness said first that she had checked, then that someone had assured her it was on. The audio recording in which she was exclaiming that it was off was played, and it seemed that she hadn’t seen what she said she had, and when she stated that her staff had said the equipment was on, the barrister for G’s father (Parishil Patel) rightly queried whether that meant she trusted her staff more than G’s family members – a daunting position to be in when in the witness box.
As one of the barristers bluntly pointed out when the witness stated that in her opinion the family member had tampered – ‘it is not a matter for your opinion: did you or did you not see him tamper with the equipment?’.
This cross examination was obviously difficult for the witness. We watched her slouched on the stand, contradicting herself, denying statements which were available in audio-recording evidence, and she seemed to me to become angry several times at the line of questioning, and I think I saw her pointing forcefully at the barrister in one of her responses in the morning examination (though two other observers I’ve checked this with didn’t see that).
Her evidence really didn’t provide reassurance that she was credible or competent in her statements or claims, and although the witness was not on trial (it was a civil case and she is not a respondent or party in her own right), the lack of preparedness and professionalism overshadowed any actual points she may have had. I am curious to hear from other witnesses to balance what is currently a pretty damning view of a nursing team and their ability to work alongside families who take an active role in their relative’s care and support.
A good statement and accurate case records are worth their weight in gold, for making sure the protected party’s best interests are kept at the centre, and also for our own accountability and defensibility as professionals. This hearing was a blueprint for how to shoot your own credibility down in flames.
10. Troubling witness evidence
By Claire Martin (@DocCMartin)
I am a clinical psychologist in the NHS. I work with older people, including people living in care homes. So, I was interested in this hearing as I knew (having read the two previous judgments) that G was very likely now living in a care home and there would be exploration of what exactly was happening in G’s care.
I observed the hearing for most of Thursday 20th and the afternoon of Friday 21st July 2023 (Days 3 and 4 of the hearing). I observed five witnesses (and took detailed notes for the latter four of those witnesses): a Safeguarding Lead, three registered nurses and one senior health care assistant, all of whom were part of G’s care team at the care home.
In my view, the care home team’s witness evidence was roundly dismantled by counsel for G’s parents, and by G’s grandmother (who is a Litigant in Person). I was astonished at how easily it was shown that the witness statements, for key occasions in contention, did not align with contemporaneous notes at the time. And further, that the witnesses had not properly checked this, either before signing their witness statements or before they appeared in court. The cross-examinations that I observed suggested to me that the ‘system’ around G may have colluded (not necessarily consciously or deliberately but as a result of staff culture) to implicate the parents and the grandmother as disruptive agents. I don’t think they expected their records to come under the level of scrutiny that a court hearing brings to bear – and as I watched the hearing unfold, the credibility that they started with slowly dissolved.
Here are some examples taken from the cross-examination of witnesses by counsel for G’s father, Parishil Patel KC.
Nurse A witness evidence – Thursday 20th July 2023
Counsel for father (Parishil Patel – PP) asking Nurse A about an incident transporting G back to the care home from hospital, when there was a crack in G’s equipment that ensured oxygen reached her tracheotomy. The court was shown a photograph of the cracked equipment, so the fact that it happened was established in court:
PP: He told you there was an issue about transporting G back with a broken port and said ‘I don’t know if I can speak to you or someone else’.
Nurse A: I can’t recall.
PP: You said ‘I will go and see [manager] and come and find you’.
Nurse A: I remember saying ‘I will get a manager to speak to you’.
PP: What he didn’t say was that YOU personally had put G’s life at risk.
Nurse A: That’s how I perceived it. I don’t know who else he would have been accusing – it was me who brought her back with my two colleagues.
PP: Can I suggest to you that was what you perceived rather than what he said to you.
Nurse A: I can’t recall exactly what conversation was used.
PP: What we were told was that [G’s father] then went to G’s room.
Nurse A: Yes.
PP: And you went back into the office.
Nurse A: Yes.
PP: And then [manager] came down to see [father and mother].
Nurse A: Yes, I think she did.
PP: And what she told them was that you’d been left upset by the conversation with them and needed a bit of time to compose yourself and couldn’t work on the unit at that point and that you said he’d accused you of putting her life at risk and was hostile and intimidating.
Nurse A: Yes, I felt intimidated by him.
PP: Is that your perception?
Nurse A: Yes.
PP: You were probably upset that they thought you and your team had put her life at risk.
Nurse A: Can you repeat?
PP: You were upset, weren’t you, because what was being said to you, and what [father] wanted to say to [Manager] was that something serious had happened in relation to the respiratory port.
Nurse A: Yes
PP: And because you were upset you perceived [father] as being hostile and threatening and intimidatory to you.
Nurse A: He wasn’t aggressive. It was more- He spoke calmly, but it was the things he was saying to me. It was the accusation of putting G’s life at risk. I remember being taken aback and I couldn’t speak. I was quite taken aback. I don’t think I said anything much to him. I said ‘I’ll get a manager to speak to you’.
PP: You’ve had a lot of interaction with [father and mother]
Nurse A: Yes.
PP: And your relationship is quite cordial and civil.
Nurse A: Yes, I’ve had quite pleasant interactions with them.
PP: And general chit chat, and what they’d been up to.
Nurse A: Yes. I will always try to keep atmosphere bright for G.
This exchange was interesting to me. In her witness statement, Nurse A had said that the father was ‘intimidating and hostile’, yet on the witness stand she said ‘he wasn’t aggressive – it was more- He spoke calmly’. She acknowledges that it was simply the raising of the serious concern (about G’s equipment being faulty on a journey from the hospital – a potentially life-threatening situation for G) that she found upsetting.
It left me wondering exactly how – if it WAS the case that G’s equipment had been faulty – the father could possibly have raised his concern without the nurse’s feelings about the concern taking precedence, as the manager’s response indicated.
Senior Health Care Assistant (SHCA) witness evidence – Thursday 20th July 2023
(Cross-examination about the same incident as Nurse A was questioned about above. Parishil Patel referring to the SHCA’s witness statement)
PP: You are about to receive a plan of the building.
SHCA: Yes, I have it.
PP: Look at the bottom set of rooms. … That’s where they were standing when you were in the dining room.
SHCA: Yes.
PP: It has doors. Were they closed or open?
SHCA: Open
PP: What you say is that you heard [father] talking to [Nurse A]. You say his ‘tone of voice was very hostile and intimidating’.
SCHA: Yes.
PP: When we heard from her today, she said the tone was NOT intimidating, although she felt intimidated.
SHCA: I can’t speak for her.
PP: Does that change your evidence?
SHCA: No. I can’t comment on how she felt when he was talking to her.
PP: It didn’t change your perception.
SHCA: No.
PP: You wrote this statement in January this year.
SHCA: Yes.
PP: You then wrote a second statement … in April, three months later.
SHCA: Yes.
PP: When you wrote the second statement, did you check any records or look at any documents?
SHCA: Erm I was looking through my previous statement, yes, and relevant documents.
PP: Right, because when you refer to THIS incident in April your account is different: ‘He was forceful and blunt’.
SHCA: Yes
PP: That’s not the same as intimidating and hostile, is it?
SHCA: I think it can be the same.
PP: Would you say there’s anything wrong with someone making a direct, forceful point?
SHCA: It depends on how it’s delivered. If it makes people feel uncomfortable, then it’s not okay, no.
PP: That’s different – that’s how it’s being received – would you agree?
SHCA: No. The way I heard it, it was intimidating to [Nurse A].
Again, what I observed was the focus being on how Nurse A felt (as Parishil Patel said, ‘how it’s being received’) rather than what actually happened – either the original concern about care or the manner in which it was raised. I continue to wonder when, in this care home, a relative can ever raise a concern in a direct way without that being received as ‘intimidating and hostile’?
Nurse B (20th July 2023) and Nurse C (21st July 2023) witness evidence
Both Nurse B and Nurse C had written in their witness statements that they had seen things that, under cross-examination, it turned out they had not seen and it transpired were assumptions:
Nurse B
PP: I am going to ask you to turn to your witness statement at [reference]. When you wrote it, did you look at other contemporaneous records?
Nurse B: I think I had before I wrote it. I didn’t have it with me when I wrote it.
PP: The events of 9th December 2022. You were on shift looking after P.
Nurse B: Yes, with a colleague.
(Parishil Patel described an occasion when P had to be taken to hospital by ambulance, and P’s father arrived soon after. Nurse B had referred to this occasion in her witness statement – in particular to the oxygen provision to G, which was in contention. )
PP: You talk about what happened when [father] arrived at the hospital. Is it the same oxygen cylinder as in the ambulance?
Nurse B: I don’t know as I was doing the handover with the doctor on site.
PP: So, you can’t tell us if she was on same oxygen cylinder as at [the care home].
Nurse B: They are connected to paramedics’ oxygen in the ambulance, then reconnected when we arrive, but that will be the hospital oxygen.
PP: I want you to focus on what happened, rather than procedure.
Nurse B: Okay.
PP: P had been struggling with SATs all day.
Nurse B: Yes, that was one of the reasons we were sending her in.
PP: So, the ambulance is called. At that point is she on the oxygen she has been on?
Nurse B: No. She was on the wall oxygen until paramedics came. We wouldn’t change that until we knew the clinical decision.
PP: At some point the paramedics put her on the stretcher – or you?
Nurse B: It would have been our staff. I was with Nan [P’s grandmother] as she requested to speak to staff.
PP: What you say is ‘once she was ready to be transferred, staff completed all usual checks prior to transfer’.
Nurse B: Yes, we check. We have all the equipment needed to take to hospital. It’s not the daily checklist.
[…]
PP: You say [in your witness statement] that her oxygen was checked at this juncture. Did you check it?
Nurse B: No, I wasn’t in the room.
PP: So, this is what you’ve been told?
Nurse B: Yes, I was under the impression.
PP: Either this is normally what happens or you were TOLD it did happen?
Nurse B: It may well be that I presumed. That is what we do when we transfer a patient. It would have been the paramedics who would have put the oxygen on.
PP: So even though it is your care staff transferring her to stretcher, are you sure that it was the paramedics responsible for changing her oxygen?
Nurse B: You’d have to ask the paramedics.
(The judge clarified where Nurse B was at this point (not in the room with G).)
PP: Am I right in saying that the rest of paragraph 11 is what you’d assumed again, rather than direct knowledge?
Nurse B: Well … I would keep an observation as a duty of care
PP: Please be careful – I am talking about being in the room before she goes in the ambulance. You were not monitoring her SATs machine.
Nurse B: No, not in the room. But I was in the ambulance.
Judge: Can I take you through this very carefully so I know what you are saying precisely. Were you told- did you see … or not … the procedures?
Nurse B: No, the other checks I was presuming they would have-
PP: So ‘would have’ is not ‘did’. Did you SEE the usual checks prior to transfer?
Nurse B: No.
PP: The oxygen you said was checked at this juncture – did you see it was checked?
Nurse B: No.
Nurse C
PP: You said before lunch that [father’s] modus operandi is that he points out what’s wrong because he’s tampered with the equipment. … You say that there are occasions in which the family pointed out there was less water than there should be [in the cup of the oxygen equipment] and that they tampered with it?
Nurse C: I’m not saying deliberately, but if they checked the cup then…
PP: What do you think they’ve done, taken a syringe?
Nurse C: I don’t know. There’s no accounting for it.
PP: So, what have they done? It is your field [of expertise]
Nurse C: I don’t know. I can’t accuse someone can I?
Judge: Well, you are doing. You are accusing them [unclear]
PP: How is it you say they take the water out?
Nurse C: A syringe.
PP: Have you seen them do that?
Nurse C: There are syringes about.
PP: P is always on observations, isn’t she? Have your staff members ever said that they suspect they have used a syringe to take the water out?
Nurse C: No.
PP: So, this is speculation.
Nurse C: Yes
All in all, I was astonished that what looked to me like speculation and assumptions, and witness statements that weren’t supported by contemporaneous notes had been put forward as evidence in a court hearing.
For me, the evidence of all four care home staff seemed unreliable and this casts doubt on the claim that family members are tampering with equipment.
If, in fact, family members ARE tampering with equipment, then the unreliability of the staff evidence is very dangerous to G.
Either way, I found what I observed over these two days very troubling indeed.
*****
This hearing continues with more evidence from staff at the care home, and from P’s father, mother and grandmother. We hope to publish future blog post covering these developments, as well as the final submissions from the parties and the final judgment.
Celia Kitzinger, who curated and introduced the 10 contributions above, is co-director of the Open Justice Court of Protection Project. She has observed more than 450 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets (or X-es) @KitzingerCelia
Footnote: All material purporting to be direct quotation from the hearing derives from contemporaneous notes made by individual contributors to this collective blog post. Everyone has tried to be as accurate as possible, but because we are not permitted to audio-record hearings, they are unlikely to be 100% verbatim. Where possible we have cross-checked quoted material against the notes of one or more other observers.
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When is the judgement in this case expected ?
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The case is still being heard. The plan is to hear closing submissions on 14th and 15th November – and the judge will make his decisions after that. I think I heard him say by mid-December.
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