By ‘Anna’ (daughter of a P), 22nd March 2024
The first hearing I ever observed in the Court of Protection was on 3rd May 2022, nearly 2 years ago now[1]. It concerned a woman in her nineties (TW), in a care home following discharge from hospital after a fall. She wanted to return home and the judge authorized a “trial” of living at home.
Because it was the first case I had observed, TW’s story stuck in my mind and I often wondered what had happened to her. Celia Kitzinger observed a couple of later hearings in 2022, from which it seemed that the return home was working out well. But then this month, another member of the Open Justice Court of Protection Project core team spotted this listing (thank you Daniel Clark!).
Luckily I was free that morning, so now I was about to find out what had happened in TW’s life.
Before writing about this latest hearing, I will provide a brief summary of that first hearing and what happened in the two subsequent hearings blogged by Celia Kitzinger. I will then reflect on what this case shows about the COP and the importance of a strong advocate.
Background (from 2022)
Back in May 2022, TW was a woman in her early nineties, who had dementia and diabetes. She had no contact with remaining family members, but was supported by a long-term friend (M) who – like TW– was not a first-language English speaker. M also held Lasting Power of Attorney for both Health and Welfare and for Property and Finance for TW. TW had lived in her own flat until May 2020, when she had a fall and was firstly admitted to hospital, and then subsequently to a care home. But she desperately wanted to return home. Her attorney (M) approached the local authority on 8th December 2020 to explain that T would like to return home. At the hearing I observed in May 2022, she was still at the care home she didn’t want to be in and the hearing was to discuss arrangements for her to have a trial living at home. TW’s counsel, Christine Cooper, called the situation a “Kafkaesque nightmare”. M made an impassioned plea for her friend: “I am appalling the long time it’s taking [the local authority] to decide T can go home, since she decided in her second week at [the care home]. It’s her will to be at home. She understands that, in later days, she probably won’t be there, but at the moment she’s distressed to be in that place where she’s not happy at all. I can’t describe how she’s feeling. Please allow her to trial home for her own peace of mind in the latest years of life.”
In the following hearing on the 3rd June 2022, there were still ongoing discussions about the arrangements for TW to return home and whether it was in her best interests to do so. The blog Celia wrote stated that “The judge recognised that a return home “will carry with it some risks” but considered these manageable and acceptable when weighed against T’s consistent wish to return home.” He ruled that TW would go back to her flat on 17th June 2022 and at the next hearing he would “consider everyone’s views on how successful that’s been”.
At the hearing on the 9th July 2022, TW had finally returned home and none of the parties were disputing that it was in TW’s best interests for the trial of living at home to continue, even though there were still issues around funding and managing her care. At the time of the hearing, TW was actually back in hospital but the plan was that she would soon be discharged back home. A final hearing was listed for 31st August 2022.
Yet, here we were with another hearing in March 2024, with the same case number. What had happened to TW in the meantime and why was her case back in court?
The hearing on 11th March 2024
I received the link to the hearing very soon after requesting it first thing Monday 11th March. I was able to gain an understanding of the latest situation because His Honour Judge Beckley asked TW’s counsel Jamie Mathieson to provide a summary for my benefit (as a public observer, and in line with best practice in accordance with guidance from the former Vice-President of the Court of Protection, Mr Justice Hayden). I also received the position statement from Jamie Mathieson that same day, after I requested it following the hearing, which complemented what I had heard in court.
There were a number of people in court apart from the judge and TW’s counsel. There were solicitors representing TW and the local authority (LA) , although not counsel for the LA, and TW’s social worker. M was also present, and unlike the first hearing I had observed, this time she had her camera on. She had clearly become used to participating in COP virtual hearings and didn’t mind her face being shown.
The situation since the last hearing is as follows: TW is now nearly in her mid-nineties and has been assessed as needing 24 hour care. She had lived in her flat for a year until mid-2023 and it had worked well until various problems became too difficult, including using the stairs. So she moved to a care home in August 2023. She was living there, and COP proceedings had nearly concluded, when concerns were raised by her Accredited Legal Representative (ALR) and by M that her care was not as it should have been. For example, the home was not using bedrails to protect her from falls and they were not facilitating enough access to the community. Her best interests were being investigated when she had a serious fall on the 29th December 2023, resulting in her being hospitalised with several fractures. We also heard during the hearing that she had contracted Covid while in hospital.
Despite being assessed as fit for discharge since mid-January 2024, as of 11th March, she is still there. Her counsel said that, “to use the colloquial term”, it is now a case of “bed-blocking”. The issue is that TW’s ALR and M have both ‘lost confidence’ in the care home. In fact the LA has subsequently conducted a safeguarding investigation and found that TW’s fall was caused by neglect. As the position statement sets out, the home did not have enough protections in place to prevent TW from falling. So the LA also does not feel it would be in TW’s best interests to return there.
Jamie Mathieson’s summary for me turned into his oral submission to the court. He explained that following weeks of delays resulting in TW spending longer in hospital than she should have done, things had moved very quickly in the week before the hearing and a new placement at a different care home had been found. They had assessed her and said that they could offer her a place. TW wants to leave hospital but does not want to return to the original care home so a new placement would be broadly in accordance with her wishes and feelings. A new order was being sought to approve the new placement. An outstanding issue was that there needed to be an updated transition plan and an interim care plan, which included how to manage the risk of falls. The social worker had agreed for this to be prepared in 24 hours and the plan was for TW to be discharged to the new home by Thursday 14th March.
Once TW had moved to the new care home, there would have to be a new s.21A appeal (to authorise her deprivation of liberty.) There would be risks around social isolation. Although TW had lived in the UK for many years, she was an EU national and English was her second language. As her Alzheimers has advanced, she has largely reverted back to using her birth language. Her flat is in the process of being sold and M is hoping to use some of the funds for one to one care with a carer who speaks her language. The s.21A appeal would be at a final hearing. So, in summary, all of the parties were agreed about the next steps.
The judge spoke next. He said that the suggestions in the draft order were “sensible and straightforward”. He said that he was disturbed to hear about her fall at the care home and the safeguarding issues. He was pleased that a new place had been found for TW. He then asked M to speak.
M started by saying that TW was upset that she was still in hospital. She asks why she is still there and that she is a “prisoner” there. M said that she was working but had made time for the hearing. She said that she could go and get TW’s belongings and prepare her room at the new home. She wanted to reassure her that she will have company and someone she knows when she arrives.
The judge thanked M for her help and asked if TW’s belongings were still at the previous care home. M replied that they were, and that she would go and fetch them. She also raised the point that one issue to be resolved was the risk of falls. In hospital TW had not had any falls. But in her time at the care home she had fallen three times. She said “I don’t blame anyone, accidents happen but something was wrong”. The judge replied that the bed rail was an issue. She also fell when unsupervised, getting up from a chair. So the new care home has to minimise the risks of falls. He agreed that it would be good if the sale of TW’s property could provide funds for a birth-language speaker to help care for her.
M then stated that she hoped the sale of the property did go through, to cover outstanding debt for the “taxman” and the solicitors. But there would be enough funds left over to cover her care.
The judge then asked the LA’s legal representative to speak. He stated that he agreed with the submission of TW’s Counsel and also thanked M for her support.
The judge then outlined his conclusions. He stated that it was clearly in TW’s best interests to leave hospital and move to a new care home, although the risk of falls needed to be minimised. He thanked the LA for their commitment to preparing a transition plan and new care plan within 24 hours (to enable the discharge from hospital). The judge approved the draft order and hoped that TW would be able to leave hospital and move to a new care home on Thursday.
There then had to be agreement on the next hearing, which would be to approve the s.21A appeal, and after some discussion it was agreed that this would be a one hour virtual hearing at 3pm on the 7th May 2024. After about 30 minutes, the hearing was over.
Reflections
TW and M
It was interesting for me to re-read the first blog that I had written in light of this new hearing. There were echoes. Once again, TW had been admitted to hospital after a fall, once again she was somewhere that she did not want to be and once again M was fighting for her friend. But in the meantime, TW had spent 12 months living back in her home, as she had wished. Reflecting on what M had said in the quote above from that first hearing, that TW “understands that, in later days, she probably won’t be there”, that point had clearly been reached in mid 2023. At least the COP had facilitated her chance to live in her home once again. I hope that she finds peace of mind in her new care home and is cared for well.
One aspect of this hearing that stood out for me compared to the first hearing I observed was that apart from Judge Beckley, none of the participants were the same – except for M. The legal representatives had all changed and there had been no social worker at that first hearing. But M was still there, fighting her friend’s corner. She had clearly been involved throughout the intervening years. From the things that were said during the hearing, she had been involved every step of the way, including at round table meetings. It seemed as though she had been an integral part of every discussion and had raised concerns about her friend’s care at the care home. Each of the legal representatives, for TW, for the LA and the judge, thanked her for her time and effort. It brings home the fact that whilst professionals can cross paths with a P at various times, their attorneys, usually friends or family members, are a constant in that person’s life. I reflected on what Celia had written after that first hearing we had observed together:
“…..we should appoint as attorneys people who not only know and love us, and know our wishes well, but people who also have the stamina, strength and skills to stand up to challenging behaviour from public authorities (and/or – as I’ve seen in other cases – from professionals).”
And also what Judge Beckley too had said during that first hearing:
“The role that people who agree to be attorney for people who lose capacity is a very significant one”, he said. “My thanks to you for undertaking that. There is recognition from the judges of the Court of Protection for the work undertaken by attorneys”.
The choice of who we ask to act as our Lasting Power of Attorney is very significant. And it is not a role to be undertaken lightly. Clearly TW had made an excellent choice.
The tone of the hearing
The tone of this hearing was very different to the first hearing I had observed back in May 2022. That had been quite combatative, as P’s counsel and the LA had not been in agreement as to next steps for TW. In that first blog, Celia Kitzinger had described the “occasionally clearly critical (or even acerbic) nature of the exchanges”.This had delayed TW’s trial of living at home. In stark contrast, this hearing was conducted in a spirit of agreement, as is more usual for a COP hearing. The COP proceedings were positive in trying to esure the best outcome for TW and had indeed been called upon to intervene both by her ALR and M, her LPA.
Changes in COP listings
Back in 2022, Celia had written this about s.21A (deprivation of liberty appeals) hearings being listed on Courtserve: “….there are lots of s.21A hearings to choose from in the Court of Protection, although only First Avenue House London and the Newcastle hub routinely include this descriptor in the listings.”
Since becoming a core team member of the OJCOPP in June 2023, I am now routinely involved in listing COP hearings on X (Twitter), on the website and now on Facebook too. I would say from my experience that the majority of COP cases listed include either the terms “s.21A” or “deprivation of liberty”. So that is a major change in how cases are listed in two years.
That previous hearing listing had also said: “PRIVATE HEARING NOT OPEN TO THE PUBLIC”. Today, the wording used is mostly along the lines of: “Public Hearing – With Reporting Restrictions” (although a blog was recently published about hearings still wrongly being listed as private here.)
All listings tend to carry a notice along the lines of “Open justice is a fundamental principle in our courts and tribunals system, and will continue to be so as we increase the use of audio and video technology.”
Remote hearings are very common, making it easier for members of the public and professionals to observe the COP in action. The OJCOPP now run monthly webinars supporting people who want to observe. Whilst initially COP hearings went online because of the pandemic, many hearings are still online, and in my opinion it has had a real benefit for open justice.
Conclusion
Much has changed for TW since that first hearing I observed in May 2022. The COP has had a positive impact on her life, enabling her to spend 12 months living at home and now ensuring that she can hopefully be discharged from hospital to a care home that will care for her well. The tone of this hearing was very different to that first one, everyone agreeing and working together to ensure that TW’s best interests are acted upon. It was a very positive example of the COP in action. It was also a positive example of open justice. And it allowed me to observe what a good friend and attorney M has been to TW.
‘Anna’ is the pseudonym of a woman whose mother was a P in a Court of Protection s.21A (challenge to a Deprivation of Liberty) application. She is a core team member of the Open Justice Court of Protection Project. She is particularly interested in family experiences of the Court of Protection and increasing understanding of the Court of Protection for families. Anna is not using her real name because she is subject to a transparency order from her mother’s case. She is hoping to change this.
[1] I wrote a blog about my first experience of observing: 3rd May 2022 A section 21A hearing: Impressions from a veteran observer and the daughter of (a different) P in a s.21A case. Celia also wrote two further blogs about the case when it returned to court a couple of times shortly afterwards: 3rd June 2022 “What good is it making someone safer if it merely makes them miserable?” A contested hearing and delayed trial of living at home; and 9th July 2022 Trial of living at home, successful so far
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