By Gill Loomes-Quinn, 28 April 2024
Grand Theft Auto – a series of action-adventure games – was at the centre of this hearing. The protected party (C ) doesn’t want restrictions on his liberty to play the video games – but is (his carers say) “unable to cope with the emotional impact” of them. Gaming “leads him to try and copy in real life what he sees happen in some games as the boundaries between fantasy and reality blur for him”. This includes assault and threats of physical and sexual violence against both his carers and/or the public. Work to increase C’s self-awareness of these issues has not been wholly successful.
And so the case (COP 12521181) was in court on Monday, 3rd April 2024 before District Judge Wylie, sitting in Lancaster. It was a case, about which judgments have previously been published (A Local Authority v C & Ors [2021] EWCOP 26; Re C [2021] EWCA Civ 1527) – which is what stimulated our interest in watching the hearing – but the issues facing the court in today’s hearing were entirely different to those addressed in the published judgment.
The protected party, C, is 30 and has Klinefelter syndrome and autism. He is said to enjoy sports, music and history. The application from the local authority was for a further 12 months authorisation of his continued deprivation of liberty relating to residence and care, following an objection by his Rule 1.2 representative.
Having read the previous judgments, it was really great to hear from C’s senior social worker, via Ben McCormack, counsel for C (by his litigation friend, his Rule 1.2 representative) about how successful the support arrangements were proving – thanks largely to the “fantastic job”[1] being done by his care provider according to an “unusually detailed care plan”; and of how settled and “improved” C’s quality of life had become, following a period between 2014 and 2017 of residence in a secure hospital with “very limited options”.
This hearing served as an important reminder to me that ‘life goes on’ for protected parties following a hearing or the publishing of a judgment; and that for many disabled people, the influence of the MCA 2005 legal framework, and often the Court of Protection, is long-term, and can cover a broad range of facets of a person’s life.
THE HEARING
Access
Having emailed the court with my request for the hearing link at 22:58 the evening prior, I spent the morning of 3rd April checking my email periodically to see if the request had been successful. I always find this process fraught and anxiety-provoking due to the opacity and seeming randomness underpinning it. On this occasion, however, being in contact with Celia alerted me to the fact that she had been successful and had received the link before me. She was also able to provide me with an alternative email to contact (for a court in Blackpool, for some reason). Following a protracted period of email exchange with a court administrator in Blackpool, I received both the link and the Transparency Order by lunch time and was ready for the hearing.
Transparency
The hearing started at 3:05pm with a discussion regarding the Transparency Order. Counsel for C via his litigation friend and Rule 1.2 representative (Ben McCormack) argued for amendments to the Order to bring it in line with the terms of the restrictions in operation in previous proceedings concerning P before the Court of Appeal in 2021. The proposed amendment would increase the scope of the restrictions to include: the identity of C’s litigation friend at the time and now (both of whose specific geographical location could potentially serve as a means of identifying C); the identity of the Local Authority; the names of P’s social worker, healthcare professionals and other carers; P’s age; and the name of any hospital in which he had received treatment. Ben McCormack argued that there had been no material changes in P’s life since 2021 to suggest that different restrictions would be appropriate now, and care needs to be taken to ensure P’s care package is maintained without disruption – particularly in view of the high profile previous judgments. These amendments were endorsed as ‘sensible’ by counsel for the Local Authority (Roger Hillman) and were approved by the judge.
Celia Kitzinger raised two questions relating to reporting the hearing and the risks of identification of the protected party: (1) whether it would be acceptable to refer to P’s age as “in his twenties/thirties” – in answer to which it transpired that his exact age of 27 was previously included in the Court of Appeal judgment from 2021. The information was therefore already in the public domain and so it could continue to be reported in these terms; and (2) whether reporting that the case was being heard before District Judge Wylie in Lancaster was identificatory (this was agreed not to be the case).
Celia asked her questions by turning on her camera and mike (observers usually have these turned off during proceedings) and speaking at an appropriate point in the proceedings (i.e., while no one else was speaking but before the hearing moved away from the theme of ‘transparency’ issues).
It’s self-evident that the role of members of the public present during a hearing is simply to observe, and to refrain from taking any active part or exerting any influence on the substantive proceedings Sometimes, however, especially in the absence of journalists in court, we have a role in ensuring the practical implementation of open justice. Celia’s intervention provided an example of how this role can assist the court in clarifying the scope and detail of the Order – thereby supporting the court’s policy commitment to open justice. This is increasingly common as observers gain the knowledge, skills and confidence to perform this role. For examples of observers’ engaging actively with the contents of the Transparency Order to ensure that both Article 8 (P’s right to privacy) and Article 10 (the public right to information) are appropriately balanced see: Daniel Clark’s blogs: “When P’s best interests aren’t in a Council’s financial interests”; “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“; and Claire Martin’s, “A most distinguished man”).
Issues before the court
After the discussion of ‘transparency’, Roger Hillman (counsel for the applicant local authority) opened with a proposed outline of today’s hearing. He suggested that after a short summary of the current situation from him, there would be a break in the hearing for the judge to speak (remotely) with C while everyone except C’s litigation friend and solicitor left the call. We would then rejoin at a prearranged time for any judgment to be handed down. This was accepted by the judge.
In the opening summary, I learned that a “commendable achievement” had taken place regarding C’s care since the placement commenced in 2017, following a period between 2014 and 2017 when C had been in a secure hospital placement with “very limited options”. Challenges attributed to C’s autism and learning disability, particularly his emotional dysregulation, have apparently been addressed via a detailed care plan “which is quite a volume in its own right”, and which focuses on “working with C to achieve outcomes for him and to involve him in identifying solutions”. C’s care provider was commended for doing “a fantastic job”.
Two ongoing issues in C’s case related to his objections to decisions restricting his access to the computer game Grand Theft Auto (GTA) (because of its apparent disruptive impact on his emotional wellbeing); and to his consumption of fat-intensive foods and sugary drinks (because of concerns regarding his weight). An amended care plan had been sent through and a Positive Behaviour Support (PBS) Plan is to be filed as well. This is to include recommendations about how to manage the implementation of the best interests decision concerning P’s food and drink intake, and what to do when P challenges this. Subject to this document being filed in 3 weeks’ time, Hillman asked that the court approve the care plan in its amended form (along with the restrictions), as appropriate, necessary, and proportionate; and to renew the standard authorisation (of the DoLS) for the next 12 months. He added that the current litigation friend could continue to be Rule 1.2 representative in the run-up to the next review in 12 months. He then invited Ben McCormack (counsel for C) to tell the judge something of the “preoccupations” of C and the subjects of his complaint. This was to assist the judge in her upcoming meeting with C.
McCormack began by indicating that, for C, this was a hearing where the court was going to decide whether or not he would be able to play GTA. Apparently “we know he wants to play GTA” but there is a “sophisticated analysis and justification” as to why this is not in his best interests as “it’s a game that triggered lots of disruption to the carefully calibrated care plan he’s got”.
The parties, including C’s litigation friend, agree that GTA is not in C’s best interests – so access to GTA is “not an issue between the parties” and “there isn’t a dispute between the parties to the litigation”. By contrast, however, C himself very much wants to play GTA: that’s “his preoccupation and likely to be what he wants to talk to you about”.
We then heard about why the care plan in a broader sense was said to be in C’s best interests. As background context, McCormack reminded the court (and informed any observers unfamiliar with the case) that C had been in hospital for three years; adding that it was “rare” to find someone with his sort of history to be now discharged and “living successfully in the community” with a “sophisticated and knowledgeable team” who “really understand what makes him tick”. C is “consulted” and “helps to design” systems that assist him to “navigate the difficult parts of his life”. The position of C’s litigation friend is that the care package is working well and although C is deprived of his liberty, this is in his best interests. The “tidying up of documents” [following today’s hearing] is not going to affect materially this position, and it is thought unlikely that any other hearings will be necessary. Referring to his position statement, McCormack suggested that “we think it would benefit P to feel that this was an end to the case”, and that if the judge were to agree that no further oral hearings would be necessary and that the care package is working well, “it would be helpful if you could make sure C is aware of it”. He concluded by asking if he could assist the court with “any further groundwork” for the judge’s meeting with P.
There followed some discussion between Ben McCormack and the judge, beginning with the judge enquiring as to the detail of C’s “food issues’” It turns out that P reportedly wants to lose weight but isn’t managing to do so [N.B., there is relevant literature indicating that “weight and body composition variations” are associated with Klinefelter syndrome, although this was not referenced in the hearing]. A referral to an NHS dietitian is apparently ongoing but currently subject to a waiting list. It is envisaged that the PBS plan will cover what staff should do when C “goes behind those rules” aimed at supporting weight management. However, counsel considers it unlikely that C will want to discuss this issue much with the judge.
In relation to the game C is prohibited from playing, the court heard that GTA is “not some backstreet, under-the-counter game – it’s a huge part of popular culture, one of the best-selling video games in the world”. C would have been able to see people talking about it and watch clips of people playing it on YouTube (emphasising to me the potential for social exclusion and marginalisation to result from seemingly intensely individual best interests decisions made in the Court of Protection). Then, before the court was cleared ahead of the judge’s meeting with P there was a brief exchange about how P had managed his previous interaction with a judge – in the hearing before Mr Justice Hayden reported here. Addressing the judge, counsel said that, when preparing for the current proceedings, P said he “rather hoped you were as good as the last judge he had”!
We were then asked to leave the video-platform while the judge met with P. We were told we would be sent an email when the judicial visit was finished and it was time to return.
Submission from the Local Authority
When we returned to court, Roger Hillman made his submission on behalf of the Local Authority. They are keen to see this “successful” placement continue and thrive, but note that life is not always “plain sailing or easy for C” as he has “mental health problems and problems with managing his emotions if they get the better of him” – including when he “mixes up reality with fiction or make believe as appears on the video screen”. It is for this reason that the Local Authority wants the court to rule that the ban on C’s playing of GTA continues. He conceded that “C may disagree and have his own opinion on that”, adding that “nothing is forever” and the decision “can be reviewed” in future, but as things stand, he hoped the court would say the care plan is a “reasonable and proportionate approach”. He therefore asked the court to approve that restriction in the care plan. This was followed by some brief discussion of the procedural formalities concerning the filing of the care plan and PBS Plan with the court and the judge’s authorisation of the deprivation of C’s liberty for the following 12 months.
Submission for C (via his litigation friend)
McCormack made his submissions on behalf of C, which echoed many of the points made by Hillman: C has an “ongoing interest” in accessing GTA and “nobody’s ruling it out forever”, but currently this can’t “be effectively managed” and is therefore a proper restriction of his liberty. Further, considering C’s care plan more generally, the position of C’s litigation friend was that while C ’s life is “tightly controlled in many respects”, when read as a whole, the court should approve the deprivation of his liberty as appropriately within the scope of Article 5 of the European Convention of Human Rights.
Judicial Decisions
After more discussion about the procedural formalities to follow today’s hearing, the judge concluded by saying that she would adopt McCormack’s proposal that a COP 9 form with either a final order or a request for a further hearing (in the event that an order could not be agreed by the parties) should be filed with the court, with deadlines of 24th April for the PBS plan and 8th May for the COP 9 or request for a further hearing being confirmed. She explained that she “had considered very carefully the detailed care plan”; adding that P “has a level of insight” into the issues caused for him by playing GTA – although “he said to me it was the fault of the staff rather than the impact of the game”. The judge’s view was that this is “proportionate and necessary” and can be recorded on the face of the order. She was “entirely satisfied it’s in P’s interests that the care plan should be approved and he shouldn’t have access to GTA, knowing he will be very disappointed” but “for now, it’s a no”.
Reflections
Today’s hearing was a reminder for me that the lives of the Ps we read about in the (relatively few) published judgments to come out of the Court of Protection continue beyond the proceedings that produce those judgments[2]. As in this case, a ‘P’ may find themselves the subject of court proceedings multiple times over the course of many years; and this caused me to reflect on how for many disabled adults, the socio-legal framework of mental capacity legislation can enmesh itself into their lives across a broad range of issues and domains over the course of a lifetime. In such instances, while a hearing such as this may function as a ‘snapshot’ into a person’s life, a longitudinal, holistic view of the law’s impact on life is also crucial.
Throughout the hearing I noted the juxtaposition of the technical, legal, somewhat ‘abstract’ framework of the Deprivation of Liberty Safeguards (DoLS) authorisation alongside the more ‘real world’ concern with access to the GTA game that was exercising P, described as the “point” of the hearing from his perspective. And it was certainly novel, to me, to see the court taken up with the question of access to a computer game
Gill Loomes-Quinn is co-director (with Celia Kitzinger) of the Open Justice Court of Protection Project. She tweets @GillLoomesQuinn
[1] Care has been taken to be as accurate as possible in quoting. However, as recording of court proceedings is prohibited, quotes cannot be guaranteed to be verbatim.
[2] See also: “The immediate steps in the aftermath of that judgment”: Increasing concerns, a TZ care plan, and judicial continuity
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