by Daniel Clark, 22nd January 2024
It is not unusual for the Court of Protection to hear cases in which a “conveyance plan” needs to be approved. These are plans about how a protected party (P) will move from A to B and are an integral part of keeping P safe while also promoting her or his best interests. You can read more about them in this blog by Ian Brownhill: How we get there: Conveyance plans in the Court of Protection.
In this case (COP 1418851T) the protected party, who I will refer to as Mr J, is an 81-year-old gentleman who has a diagnosis of mixed-type dementia (Alzheimer’s Disease and Vascular Dementia). He has not been engaging with his carers, and his physical and mental health have both deteriorated.
As a result, the local authority applied to the court for declarations that Mr J lacks capacity with regards to his residence and care, that it is in his best interests to move from his home to a care home, and that the conveyance plan designed to achieve that is in his best interests.
This blog is split into two parts. First, I will discuss the substantial matter before the court. Second, I will discuss how I made an application to vary the Transparency Order in this case, so that the local authority could be identified. This certainly a “win” for open justice, and I was impressed with how matters were handled by the judge.
This case was before District Judge Geddes, sitting remotely from Leeds Combined Court, on Tuesday 19thDecember 2023, at 2pm. The applicant local authority, Wakefield Metropolitan District Council, was represented by Aaqib Javed of Spire Barristers. Mr J was represented by his Accredited Legal Representative, Robyn Mayoh of Switalskis.
Mr J’s daughter was also present at the hearing, as was his social worker.
Matters before the court
Mr J was diagnosed with mixed-type dementia in 2017, and had been detained under section 2 of the Mental Health Act in 2018 following an increase in agitation and verbal aggression, as well as expressing thoughts of suicide. He was discharged from hospital and, after a brief period of reablement, was living independently at home.
He was re-referred to social services in 2021, whereupon a care package of one call a day was initiated. However, Mr J did not accept that he needed to be supported by carers, and he often became frustrated. At the time of the hearing, he was said to present as “dishevelled” (a word repeated during the hearing and in the local authority’s position statement), had been wearing the same clothes for a couple of weeks, and was unshaven. However, the social worker is quoted in the local authority’s position statement as writing that, “[Mr J] was always a well-dressed and smart man and would be distressed if he understood how he is currently living”.
Mr J is strongly opposed to moving to a care home because of his experience of his wife dying in one. There had been some talk about Mr J moving to a care home closer to his daughter but these plans did not go ahead. This was so that the local authority could consider less restrictive options.
Mr J’s Accredited Legal Representative (ALR), who visited him prior to the hearing, told the court that Mr J “wishes to remain where he is”. He recognises that there are door sensors in his property but he believes these are “part of a police conspiracy” – it was also explained that Mr J believes he is part of an undercover police operation, and had gone to town in the early hours of the morning in an attempt to meet with the Chief Constable. As she came to the case late in the day, his ALR had not had time to formulate a full position. However, while she did not endorse the order sought, she also did not oppose it.
Mr J’s daughter told the court that her brother is now scared of their dad because, after an occasion when Mr J was returned home by the police, Mr J threated his son and had “him up against the wall”. She began crying while addressing the judge, and I cannot even begin to imagine the pain and heartache that this family must be feeling.
By this point in the hearing, I had a good impression of the difficulties that Mr J was facing but this was mostly framed in the negative: what Mr J cannot do rather than what he can do; what he is like now rather than what type of man he has always been. Mr J’s daughter, on the other hand, made it clear that his current presentation is radically different to how he has previously lived.
She explained that “he does trust everybody, anybody on the street, he’s such a friendly chap”. She felt this exacerbated his vulnerability but it was also clear that Mr J has always been a very sociable man. She described him as an “elegant gentleman” who “loves to laugh and talk and dance. There’s no life for him at home now…He’s lonely, he wants to talk to people”. Mr J’s daughter supported the local authority’s application, and it’s easy to see why – hopefully, a care home will provide Mr J with the opportunity to socialise, and do what he enjoys.
The judge gave a brief ex tempore judgment in which she stated that, “I am going to order pursuant to section 16 that it’s lawful and in his best interests to be conveyed from his home to a placement…and authorise that conveyance plan as much as it amounts to a deprivation of liberty, and for him to reside at the placement and receive care there”.
This case will return to court at 12noon on the Tuesday 26th March 2024, where proceedings will likely be re-constituted as a s21a challenge.
Transparency matters: Naming Wakefield Metropolitan District Council
Ordinarily, we have to request the position statements of the parties after a hearing. Sometimes, if we recognise Counsel when we join the video platform, we can email them before the hearing starts, and hope they see the email in time.
Unusually, I didn’t have to do either of these things because I received the local authority’s position statement from a court administrator, who sent it prior to the hearing. This was very helpful and meant that I had a good grip of what had been going on and what the local authority’s position was before the judge had even joined the video platform.
I also (unusually) received the Transparency Order prior to the hearing starting. A Transparency Order is a legal injunction designed to allow the reporting of Court of Protection cases while also protecting P’s privacy. This usually entails (as the Order for this case did) prohibiting the publication of anything that may identify the protected party (P), where they live, their carers, or their family.
It is usual that public bodies can be identified: after all, they are funded by the taxpayer and cannot be held accountable in that local area if nobody knows what they’ve been doing. It would also usually be very difficult to identify somebody simply on the basis of knowing the local authority in which they live.
However, the Transparency Order included in the list of the information covered by the Injunction that, ‘a Local Authority is a party to these proceedings’. This is very unusual. It says on the front page (“the face”) of a Transparency Order that “any person” has “the right to ask the court to vary or discharge the order“. I therefore wrote to the judge to do just that, using a fairly standard form of words we’ve developed over many previous challenges to Transparency Orders which prohibit the identification of public bodies[1].
By this point, I already knew which local authority was involved in this case because Wakefield Metropolitan District Council was named as the applicant local authority on the front of the order prohibiting them from being identified. This is not good practice. A Transparency Order is a public document, and any person or organisation whose identification is prohibited should be appropriately anonymised in the Transparency Order (so, P’s initials rather than P’s full name, and “A Local Authority” rather than its name). That hadn’t been done correctly here – and it’s an error we’ve come across before in Transparency Orders in other cases.
I regularly share Transparency Orders with another member of the public, Celia Kitzinger (a core team member of the Open Justice Court of Protection Project who acts as our blog editor). This is because she needs to be sure that I have not included information covered by the Injunction because she too would be in contempt of court for publishing a blog post that breached the Transparency Order. As it stood then, I wouldn’t be able to send Celia the Transparency Order for this blog post because to do so would be to breach it.
As it happened, I didn’t need to worry about that. The judge had read my email asking for the Transparency Order to be varied to permit identification of the local authority, and she addressed it within the first few minutes of the hearing. Below are my notes of what she said:
“Before we go any further, I’m not sure whether the message was relayed [to Counsel] that there had been a request to vary the Transparency Order, quite rightly because it’s wrong, or at least appears to be wrong, in that it includes…a prohibition on revealing information that Wakefield is a party to these proceedings, which shouldn’t have been included ordinarily. Does anybody object to me varying [that section] to that draft order? [nobody objected] Okay…I put out a plea to practitioners again – just stop doing it. It’s always difficult for it to be picked up when gatekeeping draft orders and the more that are right, the less time we have to spend on them when there’s much more important things to be thinking about including the actual facts of this case.”
I was very pleased with this decision, and the way it was dealt with so quickly. I was quite struck that not only did nobody object to it being varied but that the other people on the video platform looked genuinely surprised that the Transparency Order had prevented identification of Wakefield in the first place.
For me this demonstrates that, when Transparency Orders prohibit the identification of a public body, it is quite possibly the case that this has been included without much thought for the implications. In other words, it isn’t part of a deliberate conspiracy to keep those public bodies hidden from public scrutiny. As we’ve said before[2], this degree of inattention to the details of Transparency Orders has a negative effect on open justice.
To write to a judge and ask for a legal document to be amended can (at least first time) be quite anxiety-provoking. This feeling is made worse when you know nothing at all about the case (which is quite common). It’s not surprising that most members of the public don’t feel able to do this. It’s therefore especially important that the practitioners who draft and review these documents do so with a view to checking that they meet the judicial aspiration for open justice. Without this, there can be a detrimental effect on transparency – even in the absence of conspiracy. I was impressed with the judge’s plea (or, perhaps more accurately, direction) to “just stop doing it!” She is, of course, quite right that P needs to be at the centre of the court’s thinking: including public bodies in a Transparency Order when there is no need to do so means that valuable court time is taken up addressing this issue.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.
[1] For some examples of previous challenges to Transparency Orders and examples of how we write to the judge to ask for orders to be varied, see these blog posts. “”; “I am very concerned … that the current situation is not tenable”: High-risk behaviour and questions about jurisdiction” “‘What God has put together, let no man put asunder’: A s.21A challenge and the limits of Power of Attorney”
[2] See for example paragraphs 25-27, “Anxious scrutiny or boilerplate? Evidence on Transparency Orders”
Promoting Open Justice in the Court of Protection 
2 thoughts on “Judge approves P’s conveyance (against his wishes) to a care home – and tells lawyers to “just stop!” routinely anonymising public bodies in draft Transparency Orders”