By Celia Kitzinger, 5th December 2023
Matters exercising the judge in this hearing, on Tuesday 5th December 2023, were:
- British Sign Language: Most of the time P is being cared for by people who can’t communicate well with her, as she’s profoundly deaf and a British Sign Language (BSL) user, and they can’t use BSL.
- Capacity: Convincing evidence about P’s capacity across a range of decisions was missing, despite the fact that the judge was being asked to make final decisions that she lacked capacity
- Transparency: I had asked the judge to engage with this after observing a previous hearing in May 2023 and this was his first opportunity to do so with the parties.
This is the second hearing I’ve observed in this case (COP 12446297 before HHJ Godwin). I blogged about the previous hearing, in May 2023, here: P loses bungalow option due to assessment delays – and described it as “a thoroughly depressing hearing”.
At this hearing there was some good news. Despite the title of my earlier blog post, based on a report from the advocate for P during the hearing, it turned out that P had now moved into the bungalow it was thought had been lost to her. And she’s “very happy” with her new residence, which she’s “decorated and furnished it to her taste” and she’s engaging in “a range of activities” and “everything is going well”[1].
The parties were the applicant Local Authority (represented this time by Hannah Meredith-Jones) and P (represented via her litigation friend by Clare O’Shea). They had agreed a draft order for final determinations and invited the court to conclude the proceedings.
That didn’t happen, due to the judicial concerns raised above.
1. British Sign Language
There seems to have been no concrete progress on this since the last hearing.
Back then, on 31 May 2023, the judge expressed his concern with ensuring that people could communicate with P, but it turns out that still – six months later – most of the people interacting with her on a daily basis are not able to use British Sign Language (BSL) “with the result that she feels frustrated”. This is because “staff did not attend for tuition and their registration was terminated” (said the judge).
The following exchange took place.
O’Shea (for P): Staff weren’t missing courses because of being lackadaisical but because for example they were on night shifts prior to the mornings of the course. This particular course has a strict ‘two-strikes and you’re out’ policy, so there’s no point trying the same course again because the same thing will happen. We’ve been looking at using an online course, but that would effectively mean staff doing training in their own time. Staff must be trained in BSL – everyone is aware of that and we need to sort this out.
Judge: The local authority here have a duty, don’t they, to meet her needs as a person who is profoundly deaf. And to have her looked after for most of her waking hours (and when she’s asleep) by people who can’t communicate with her is not meeting her needs. This has been going on now for 12 months. It needs to be addressed.
The British Sign Language Act 2022 recognises BSL as an official language of England, Scotland and Wales – the same status afforded to Welsh and Scots Gaelic. The Act means that the government must promote BSL and make it easier for people to use it in their dealings with government agencies and public bodies. The Equality Act 2010 also covers BSL users because it imposes on service providers a legal obligation to make reasonable adjustments in communicating with them; and where BSL is their first or only language, those adjustments will very often be the provision of BSL interpreters. Figures from the British Deaf Association suggest 151,000 people use BSL in the UK, 87,000 of whom are deaf. It’s pretty shocking that the local authority (which I can’t name, see [3] below) is failing P – and also presumably other deaf people in care in its geographical area – in this way.
2. Capacity
I was dismayed – and so it seemed was the judge – to find there was also no progress on an expert capacity assessment.
The most recent assessment of P’s capacity to make her own decisions about care, residence, litigation, contact and internet use was a year out of date at the last hearing – and the judge described it as “fairly perfunctory”. At this hearing, the capacity evidence was a year and a half out of date because nothing further has been done.
This is surprising given that, at the May 2023 hearing, Ms O’Shea reported that the capacity evidence had“been sort of parked” pending a decision about a possible move to a specialist deaf placement which then hadn’t materialised: she was (she said then) “kicking myself for not progressing it”. The judge encouraged her to do so and she replied:
O’Shea: Your Honour, I absolutely hear you loud and clear. I will make an application for an independent expert report.
Judge: The sooner that application is made the better.
O’Shea: I will go back through my file. I did a search previously. I will look for an expert who can assist with the capacity assessment first….
So, six months later, I expected an updated capacity report. So did the judge. But there wasn’t one.
Instead, the parties had put in front of the judge a draft Order inviting him to conclude the proceedings, which included a declaration that P lacks capacity to make all the decisions under consideration. This was submitted to the judge without the expert report that Ms O’Shea had undertaken to commission.
“This is frankly not something I am prepared to do” said the judge, “without there being recent capacity assessments. So there we are. That’s why I’m not prepared to release this matter.” He referred particularly to actions P had taken when she’d received a sexually inappropriate message on social media. She had spontaneously blocked the person who sent it to her, taken a screen-shot of the message, deleted it, and then reported it to one of her carers. “ In the light of that recent event, I’m concerned to be asked to make a final declaration that P lacks capacity in relation to making decisions about relationships, contact with others, internet and SIM cards – and to make this final declaration without a recent expert capacity assessment. It’s not acceptable and I’m not prepared to do it”.
He asked both lawyers why there was no expert capacity assessment. It seems from what they said (quoted below) that neither of them considered it necessary, despite the judge having made a direction for expert capacity evidence to be obtained.
Meredith-Jones: The local authority is saying that capacity assessments may well intrude on P’s life. She’s settled, she’s happy.
Judge: That may be the case, but a final declaration of the Court of Protection that she lacks capacity is also likely to intrude into her life.
O’Shea: There was previously a direction for expert evidence, but at the time – this was wholly my error – I understood my client to be in receipt of legal aid, but in fact she was privately funding, and in terms of the financial impact on P in proceeding with any expert evidence, there would be a financial impact. She is now receiving legal aid but would be liable to make a contribution of several thousand pounds. The primary goal of identifying suitable accommodation has been achieved. The bungalow has been secured for her despite seeming to be in jeopardy at the last hearing and-
Judge: Funding has never been drawn to my attention until today. The local authority is asking for final declarations about capacity under s.15 and the court isn’t satisfied with the evidence. […] It’s not for the parties simply to say “oh this is going to be an expensive exercise and we’ll just ask the court to make a final declaration that she lacks capacity”. That is not the way in which this matter should be resolved.
O’Shea: I can only apologise to the court.
Judge: It just beggars belief that the court could be asked on the one hand to agree a capacity assessment in these fields is required, and then to ask the court to make final declarations without those assessments being done.
O’Shea: I hear you loud and clear. I can only apologise.
Judge: It must be a matter for the court to determine how funding is to be dealt with and the court should have been approached earlier.
O’Shea: I apologise once again. P will have to pay her half of the expert report.
Judge: Unless the local authority take a different view, and in light of the way this matter has been dealt with, they may take a different view…
O’Shea: There were other factors at play. It isn’t felt she’s prejudiced if we’re now to proceed with an expert report. She’s now more settled and not dealing with the move. The litigation friend was very mindful of the situation with capacity. The litigation friend is not disputing capacity. The parties agree on the capacity evidence – but it’s the court’s decision so we will progress with commissioning an expert. The Legal Aid agency will expect me to provide a number of quotes.
Judge: Wasn’t there someone identified previously?
O’Shea: Dr B, yes, who may still be available and we will get a costing and get that sorted. I will reiterate to legal aid that expert evidence is seen as necessary.
Judge: I previously indicated that there’s a s.48 reason to believe she lacks capacity but making final declarations under s.15 is quite a different matter. And in light of her approach to the social media incident, I think particularly an up-to-date assessment is required.
O’Shea: It may be that there is someone suitable within the local authority-
Judge: That’s unlikely. Enquiries were made previously as to who was available to conduct assessment in BSL. In light of her deafness, it’s got to be someone who can communicate with her and assess her properly, and I can’t see that anyone in the local authority is in a position to do that.
3. Transparency
I almost didn’t get to watch this hearing because there was what the court staff referred to – when I enquired – as “a typographical error … on the production of the list”. The case number for this case is COP 12446297, but it had been listed as COP 12446897 (so one digit was different). This meant that it didn’t come up when I searched for it using an electronic search facility, and so I wasn’t sure it was happening without correspondence with the court to check. It’s a small thing, and undoubtedly an error that’s easy to make, but it’s devastating for open justice and nearly stymied my attempt to follow up on this hearing.
There were other transparency issues too.
I’ve reproduced below the letter I sent to the judge (via the Cardiff court staff) shortly after the hearing of 31 May 2023.
It’s a measure of the serious commitment of the Court of Protection judiciary that, at the beginning of the hearing on 5th December 2023 (the 3rd August hearing having been vacated), the judge addressed the issues I had raised.
First, he asked the applicant to provide a brief summary, as recommended by the (former) Vice President of the Court of Protection. This was very helpful.
Then he asked both lawyers to address the matter of why the Transparency Order prevents me from naming the local authority. Their accounts for why it was (in their view) necessary involved communicating new information about P’s life which I hadn’t known before (and which I’ve decided it’s best not to report here, though I don’t think the Transparency Order prevents it). There is a particular concern to keep her current address out of the public domain. Both lawyers were clear that naming the local authority might lead to identification of P’s place of residence – although Ms O’Shea referred to this as “a long-chance risk … in the albeit unlikely event of an individual trying to identify where she lives”. I can understand their concern and I understand why the protection of P’s Article 8 privacy rights should be a key factor – notwithstanding that the wording of the standard Transparency Order (as used in this case) does not contemplate “long-chance risks” or “unlikely events” relating to the identification of P, but rather prohibits publication of anything “likely to identify” P or where P lives.
I was perturbed however that Ms O’Shea seemed to be of the view that there were no Article 10 (freedom of information) rights to counter-balance P’s Article 8 rights. She said there was “no pressing reason why the local authority should be named” and “no positive indications” for naming this public body.
Had I been invited to address the judge (I was not) I would have pointed out (as I did in my email) the presumption that public bodies should be identified unless there are reasons to the contrary. Naming them is the default and there shouldn’t need to be a search for “pressing reasons” or “positive indications” for naming them. The fact that they are public bodies, paid for by our taxes, and accountable to the citizens of a democratic country, is sufficient in and of itself. In this case in particular, though, I think in fact there is a positive indication for naming the local authority – which is that it’s been the subject of judicial criticism at both hearings and there is evidence that it is failing to meet its obligations under the Equality Act 2010. That positive indication should, in my view, have been set in the balance against the Article 8 privacy rights of P and the risks she faces if her accommodation is identified.
Having heard the positions of both lawyers, the judge made the decision to maintain the Transparency Order in the form he had originally issued it (i.e. to prevent me from naming the local authority). I can see there is a basis for this decision, and it’s important that – due to my intervention – the arguments for and against transparency have been aired in court. It’s not simply a ‘default’ bit of secrecy (such as I’ve witnessed in some other hearings e.g. Varying reporting restrictions to name Kent County Council in “shocking” delay case ). Nonetheless, in this kind of weighing exercise, there are costs whatever decision is made – either costs in terms of risks to P’s privacy and safety or costs in terms of public accountability. Given the decision that the judge made, I’m concerned that the public – particularly those living in the geographical area it covers – cannot know that this local authority has been criticised by the judge and that it (and the relevant Health Board) is implicated in a case of delay in providing accommodation, suitable carers and an adequate assessment for a disabled person. The cost of avoiding any possible risk to P’s address being discovered (as a consequence of publicising name of the local authority) is that the local authority evades public accountability.
In his brief judgement, HHJ Godwin made clear that he was conducting an Article 8/Article 10 balancing exercise based on the information available to him (which is much more than the information available to me). I am not suggesting the judge’s decision was wrong and I don’t intend to appeal it. I am, however, reflecting on some problems I experienced with the way the lawyers approached the matter and with the inevitable consequences of decisions like this in terms of public accountability.
I hope to be able to observe the hearing in February 2024 and report back on developments.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia
[1] Quotations from the hearing are as accurate as I can make them on the basis of touch-typed contemporaneous notes. We are not allowed to audio-record hearings, so I’m unlikely to have got everything entirely verbatim.
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