By Daniel Clark, 6 May 2024
Mrs F has a diagnosis of schizophrenia, and has been detained under the Mental Health Act 1983 on a number of occasions. She is currently residing in a mental health hospital. She is medically fit for discharge and subject to a standard authorisation under the Deprivation of Liberty Safeguards. The local authority wants her to move to a care home; her family want her to come home.
This case (COP 14229945) was heard before District Judge Davies, sitting remotely (via Cloud Video Platform) at Derby Family Court, on Friday 19th April 2024.
The applicant local authority, Derbyshire County Council was represented by William Balmer. Mrs F was represented by her son as her litigation friend. The NHS Trust was represented by Ben Troke of Weightmans. Mrs F’s husband also appeared as a litigant in person, and was added as a party to proceedings during this hearing.
This hearing
Counsel for the local authority explained that Mrs F previously resided at home with a care package of 3 hours a day, and 10 hours of respite a month. From the point of view of the local authority, Mrs F is ready to be discharged from hospital. A move to a care home had been assessed as being in Mrs F’s best interests, and her social worker had identified one that was suitable.
However, in a turn of events that sounded like it occurred in the run up to this hearing, the care home rescinded its offer. The social worker has identified two more potential care homes but, currently, “there is nowhere for [Mrs F] to go upon being discharged”.
Why the local authority had come to the view that moving to a care home (rather than returning home) was in Mrs F’s best interests was not clear, though brief reference was made to previous strain on her husband, as well as some “factual dispute” about her previous care arrangements.
On Mrs F’s behalf, her son submitted that it is in Mrs F’s best interests to return home: this is also the view of her husband. However, neither of them thinks that she is medically fit for discharge.
To add a further level of complexity, in contrast to everybody else, Mrs F’s husband thinks that Mrs F might actually have the capacity to make decisions about her residence and care.
The judge could not resolve any of the matters at this hearing. He was simply approving an Order that would allow the local authority to submit more evidence with regards to the other care homes, a balance sheet assessing their advantages and disadvantages, and a draft care and support plan. I know this because the judge, acknowledging that I hadn’t seen the order, asked Counsel for the local authority to go through all of the directions that the Order was making.
Given the level of disagreement present at the moment, the local authority sought for the matter to be re-listed for a one-day hearing in June. The judge, however, was very clear his diary was such that he could not offer a full day hearing until October or November, which was clearly too far away: Mrs F cannot stay in hospital until then.
The judge also seemed quite keen that Mrs F’s son and her husband should receive some formal legal advice. He pursued this line of thinking with Mrs F’s son in particular – but he did not seem very enthusiastic about this. The exchange went a little like this:
Judge: The one question I have of you is whether you intend on seeking legal advice on behalf of your mother. I think I know that an order was made allowing the Official Solicitor to be made litigation friend. Have you thought about that? There may well be legal aid to assist you putting forward your mother’s voice.
Son: I haven’t participated in engaging with that but I may take that up.
Judge: I think it’s a good idea. Mr Balmer [Counsel for Local Authority], you will know firms. You could share them.
Counsel for Local Authority: That’s already been done Judge.
I’ve never seen an exchange quite like this before, but I’m told that it’s not particularly unusual for family members to decline offers of legal representation (either for themselves or for P). Litigants in person sometimes believe that they can do a better job than lawyers at representing family members – because they know them best, because (unlike lawyers who are ‘hired guns’) they truly care, or because they feel disappointed and let down by lawyers in the past.
It might also feel as though the only way to ensure your mother’s voice is truly heard is by representing her yourself. As we know, such as in Laura Wareham’s case, the Official Solicitor sometimes takes a position that is contrary to the expressed wishes of the protected party.
On the other hand, the court process can be confusing and intimidating, despite the adjustments made by legal teams and the judge (see the Equal Treatment Bench Book). “Anna” has explained that being joined as a party helped her mum’s case “to be conducted in a positive spirit”.
However, acting as a litigant in person for oneself is very different to acting as a litigant in person as litigation friend for a protected party. There is a risk, which I think is what the judge was getting at, that Mrs F’s best interests may be hard to discern or advocate for in the absence of legal advice.
These type of difficulties are precisely why the Open Justice Court of Protection Project is keen to support many different people who want to observe hearings, including those who are acting (or who may be acting soon) as litigants in person. It’s very helpful to see the court in action before you’re thrust into its limelight.
I aim to observe this hearing when it returns to court in June.
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.
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