The ‘voice’ of P in a s.21A hearing: Reflecting on lost opportunities

By Gill Loomes-Quinn, 24th November 2023

On the afternoon of Monday 6^th November 2023, I observed a hearing before Deputy District Judge Weereratne, sitting (remotely) at First Avenue House in London, in the matter of Case No: 14157245 – MG (by her Litigation Friend, the Official Solicitor) v London Borough of Harrow. 

Having emailed the court on the previous evening to request a link to the hearing and a copy of the relevant Transparency Order, I received both of these at 12:01pm. I also emailed counsel for the Official Solicitor (representing P), Ms Rebecca Handcock of Field Court Chambers, after the hearing, requesting a copy of P’s position statement which I received very promptly. The following account is based on my contemporaneous notes from the hearing along with the position statement^[1].

The Hearing

The hearing began with the judge inviting counsel for the applicant (‘MG’ by her Litigation Friend, the Official Solicitor) to provide an introductory summary of the case before making submissions – i.e., setting out what the court is asked to do in MG’s best interests. 

The Applicant (Counsel for MG):

The hearing concerned a s.21A MCA 2005 legal challenge brought in respect of a 90-year-old woman (‘MG’). Papers referenced in the position statement indicate that she has cognitive impairment associated with dementia in Alzheimer’s disease (atypical or mixed type), although other DoLS paperwork refers to “undiagnosed dementia” and MG herself does not accept that she has a mental disorder. This is one of several key issues about which there seems to be lack of currently available information or uncertainty in this case. MG is currently residing in a care home and objects to the Deprivation of Liberty Safeguards (DoLS) Standard Authorisation under which she is detained in the home. The position statement indicates that she wishes to return to her own property – about which much fundamental information is currently unavailable; including its precise address, the details of MG’s rights of occupation and of any charges for which she is liable and how these are currently being paid, as well as its suitability in respect of MG’s current access needs. It seems that MG is focused solely on a return to her property (rather than, say, a move to another form of supported accommodation) but that she accepts the possibility of carers visiting her if this were considered necessary. 

            MG was born in Spain but has lived in England for the majority of her life, where she married an English man and seems to have had children, although it is unclear exactly how many children she had. I learned during the hearing that a son and daughter had passed away, but that a nephew had sought to apply for deputyship, being prevented from pursuing this due to the cost. As seems to be a theme in this case currently, little was known about MG herself, with the bundle of documents before the court being described as small – even for a s.21a application “in its infancy”. It was suggested that she may have been moved to the care home following a hospital admission having had little prior involvement with the Local Authority. What does seem to be clear is her objection to the placement in the care home, which is described as “consistent”. 

            A further uncertainty to be resolved concerns MG’s language skills and preferences. It was reported that she has recently been communicating in Spanish, and her fluency in English is one of the issues that needs to be “bottomed out”, as she may prefer to speak Spanish, and this should be offered for the purposes of assessing her capacity. This is one of several reasons given by the Official Solicitor in support of the submission that evidence as to capacity in this case is currently insufficient (as it is unclear whether all practicable steps have been taken to assist MG in participating in the assessment – as required by s.1(3) MCA 2005). Other reasons include uncertainty as to diagnosis (s.2(1) MCA 2005), and uncertainty about the relevant information put to MG, and how she demonstrated an inability to retain, use, or weigh this relevant information in decision-making concerning where she should live (s.3(1) MCA 2005). 

            In respect of what should happen, the Official Solicitor suggests the adoption of a “sequenced approach”, beginning with the ascertaining of MG’s occupation rights to find out if a return home with appropriate care package would be possible, before exploring other forms of care. In the meantime, the Local Authority has been asked how the current placement (the care home) might be made less restrictive (as required by s.1(6) MCA 2005), e.g., by facilitating access to Spanish-speaking or other ‘ex-pat’ activities; although it was emphasised that the Official Solicitor does not “want to presume” as to MG’s preferences. Three third-party disclosure orders were suggested, with the aim of clarifying and augmenting the picture regarding MG’s medical history and current status, from:

1. The current placement
2. The GP
3. The relevant Hospital Trust

There was then discussion regarding an order in draft. The incompleteness of the existing s.49 (MCA 2005) report dealing with the assessment of P’s capacity was outlined, including the absence of key details such as the questions asked of P and whether they had also been offered in Spanish. 

Counsel was mindful of Practice Direction 14e (PD14e) which deals with the ordering and compiling of s.49 reports – noting particularly that there had been, as yet, no contact with the relevant Hospital Trust and it was uncertain whether the Trust would be able to complete a report (in the timescale required). There was also an “anecdotal” understanding that the Trust was currently refusing reports required with no prior notice and an assertion that the Trust was being very affected by the ongoing junior doctors’ strike. Particularly relevant here is Para. 7 of PD14e which states that “wherever practicable”, prior to applying for the court to order a s.49 report, the applicant should “use their best endeavours” to make contact with the relevant person in the Local Authority or Trust to make them aware of the application, its purpose, and any questions or issues to be addressed within the report. 

The position of the Official solicitor was that there was insufficient evidence on file for a final declaration. A pragmatic solution was proposed to the matter of the s.49 report in the form of the appointment of a Special Visitor. In the end, it was suggested in any case that the issue of the s.49 report could be “parked” until further information about MG’s situation was available. 

The Judge:

The judge asked a series of questions of counsel for the Official Solicitor:

Has the solicitor been to visit MG?

Yes, there was a meeting with the instructing solicitor on 18^th September 2023.

Are there any instructions based on that meeting?

There was no attendance note. The question about whether MG would prefer to communicate in Spanish was not raised.

At the meeting, did MG say clearly that she wanted to go home?

Yes, and she described her home, her neighbours, and her care needs. 

The judge then indicated that it was possible to proceed on the basis of s.48 MCA 2005 (interim orders and directions), and that it seemed appropriate to have further reports – particularly regarding language preferences. She added that she knew from a previous case that the appointment of a Special Visitor was taking up to 8 weeks. 

The Respondent (Counsel for the Local Authority):

The Local Authority, represented by Vani Chenganna, has no objection to the ordering of a s.49 report. It agrees with the draft order and the measured approach suggested. A referral has been sent for a functional assessment by an occupational therapist, and to look at the suitability of the property (a three-bed rental). Apparently, there have been difficulties in accessing the property. There is also a lack of information about MG’s finances, and a stack of papers and envelopes is visible through the front door of the property.

            There was a question from the judge about the existence of any family. It was here that counsel explained that while MG’s daughter and son had predeceased her, her nephew had previously applied for deputyship but that the cost of this had proved prohibitive. 

The Order:

There followed detailed discussion concerning the contents of the draft order, including details of the DoL Standard Authorisation and the assessment that formed the basis of the reason to believe MG lacked capacity according to s.48 MCA 2005. A condition was to be added to the Standard Authorisation that MG’s current placement should keep a record of her activities and access to the community. There was also consideration of the period of time for which MG’s social services records should be disclosed, with the judge ordering that this should extend to six months prior to her hospital admission – i.e., mid 2021.

The question of whether the nephew should be joined as a party to the proceedings was then addressed – it appeared that while he had not filed the relevant application for this, he would like to be joined as a party. Apparently, he had not expressed a view as to her care needs but would like her to be moved nearer to him. While counsel for the Local Authority had no instructions on this point, it appeared there would be no objection. The judge pointed out that the court did not know about his dealings with his aunt or their relationship and asked for it to be put in the order that he be invited to attend the next hearing. 

Other details to be included in the order covered provision for “rolling disclosure” from the Local Authority within seven days of any scheduled Round Table Meeting (thought to be “more proportionate” than requiring disclosures every month). The evidence required from the Local Authority about MG’s home and its suitability for a possible return was described as a “significant piece of work”, including occupational therapy assessments and those of MG’s finances. A statement of MG’s wishes and feelings was to be contributed by those instructing counsel for the Local Authority; and the question of her preference for communication in English or Spanish was also to be included in the order. The judge also asked if the Local Authority could include a paragraph in evidence concerning the nephew’s views which would likely help the Official Solicitor too. She was told that this “should be fine”. 

The hearing concluded with discussion about the listing of the next hearing (around 25^th January), and the court’s agreement to extend the Standard Authorisation to the next hearing. It was agreed that the draft order would be filed by 4pm tomorrow (allowing time for the Official Solicitor to see it). The judge noted the existence and contents of the Transparency Order (which I had received along with the link to access this hearing). The parties then thanked the judge and the hearing concluded at 3.45pm. 

My Reflections

First and foremost, observing this case caused me to reflect on the ways in which the State can become involved in the most private and personal areas of our lives when our mental capacity is questioned. The MCA 2005 provides a framework for such involvement. However, despite the existence of a legal framework in force now for nearly two decades; and the relative predictability of a loss of capacity given factors such as old age and its correlation with mental impairments such as dementia, this case illustrates the reality that for many people, encounters with the State through engagement with mental capacity law are experienced as ‘sudden’ – e.g., following a hospital admission. 

I am struck that the uncertainty and lack of information characterising many such encounters may be avoided or mitigated through mechanisms provided in this same legal framework – by the taking of steps such as appointing someone (or people) one trusts to act in one’s best interests via a Lasting Power of Attorney (LPA); or making an Advance Decision to Refuse Treatment (ADRT), along with an Advance Statement recording your values and care preferences for the future. I do not know whether MG had made an ADRT (and it does not seem to be relevant to the matter before the court here). And it is, of course, unclear whether the apparent absence of an LPA was a conscious decision or an omission on MG’s part. However, an Advance Statement, while not legally binding, could have provided useful guidance to those now responsible for making decisions concerning her residence and care.

I have written and spoken elsewhere about the roles of advance decision-making in preparing for a future loss of capacity. Observing this case has caused me to reflect again on how utilising such advance processes may have enabled access to key information for those professionals and family members now responsible for supporting MG – representing an opportunity now lost for her (previously capacitous) ‘voice’ to speak to the issues with which she is now faced. It was clear throughout the hearing that the court and the parties involved in the case have considerable concern for ensuring that MG’s ‘voice’ is represented throughout the proceedings to the greatest extent possible. Reference to language preferences and the foregrounding of MG’s stated preference to return to her property are indicative of this. But it seems that this case may represent an example of a failed opportunity for advance planning to place the ‘voice’ of a person deemed to lack capacity more centrally in decisions affecting their life. 

Gill Loomes-Quinn is co-director of the Open Justice Court of Protection Project. Her PhD research (a socio-legal study of the Mental Capacity Act 2005 and its impact on the “voice” of disabled people) included an ethnography of the Court of Protection which sparked her passion for open justice. Gill tweets @GillLoomesQuinn. 

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^[1] _{Please note that while my notes are as accurate as possible, the recording of court proceedings is prohibited. Any quotes included here are therefore not necessarily verbatim.}