By Hita Jadeja, 28th August 2024
I observed a hearing on 24th July 2024 (COP 13879770) before His Honour Judge Whybrow who was sitting remotely (via Cloud Video Platform [CVP]) as a nominated Court of Protection judge at the County Court and Family Court at Kingston upon Hull.
The protected party (P) in this case is a young lady in her twenties. The case has a long history dating back to 2022. This hearing related to her capacity to engage in sexual relations, reviewing some of the restrictions in her care plan, and considering next steps in relation to commencing college.
P’s barrister (instructed via her litigation friend) was Mr Tom Hughes and the relevant Local Authority (LA) was represented by Mr Simon Batt, in-house solicitor.
Before I write about the hearing itself, I will share my experience in terms of access to the hearing, and provide some background to the case.
Joining and position statements
The hearing was listed for 11.00am and I received the link and transparency order (TO) in good time.
There was a short delay before the hearing started. HHJ Whybrow apologised and explained that it was due to a judicial visit. P was present alongside her support worker. Others in attendance included P’s solicitor, social worker and her litigation friend.
The judge asked if I could switch on the camera, introduce myself, say why I was observing – adding that he knows that I don’t have to explain why I was observing. He also asked me to confirm whether I had received the TO. I was fine with explaining why I was observing – although I was a little surprised to have been asked to do so as I’ve never before been asked.
There was a problem though, because when joining the remote CVP hearing, I selected the ‘observer’ option. I’ve always done this, since ‘observer’ is an accurate description of my role, but selecting this option means (I now realise) that it’s not possible to switch on your camera or mike. So, unlike when joining the MS Teams platform, I could not see the option to switch on the camera and so I started speaking until the judge said, “are you there”: I replied “yes”, and I was asked again, so it became clear that they could not hear me.
As I was about to use the chat box, the judge asked me to switch on my camera again, I quickly typed, “I can’t” and was typing the next line to explain when he questioned, with a confused expression, “you can’t or you won’t. Someone who I now know was Mr Batt, responded by explaining that it might be the settings and it would be better if I left and re-joined. I typed “I will rejoin” and the judge said “okay”.
Conscious that I was holding up the hearing, I re-joined in a hurry and soon discovered that I had joined with the video option only, instead of video and audio. I switched on my camera and began speaking, when the judge said ‘we cannot hear you’, I typed that I was observing in a public capacity, and that I was a member of the Observers’ Group with the Open Justice Court of Protection Project. I said I was interested in the area, and confirmed that I had understood the TO. That was fine, the hearing started and I switched off my camera.
At the end of the hearing, Mr Hughes pointed out that a summary had not been provided to me (as per the recommendation issued by Mr Justice Hayden, former Vice President of the Court of Protection). I had, however, indicated that I would like the position statements and these, he said, would provide the necessary background, although he was mindful of confidentiality.
HHJ Whybrow asked me if I still wanted the position statements, so I switched on the camera and used the chat box to say that I did, and it would be helpful. He informed both counsel that I had come on camera, had introduced myself and had confirmed my understanding of the TO and on that basis, he gave his permission to release the position statements.
Mr Batt asked if I could email him my request. As he is an in-house solicitor, I asked for his email address as it would be difficult to get, unlike Mr Hughes, who could easily be contacted via his chamber’s website. Mr Batt sent me both the LA’s and P’s position statements.
I’m grateful to Mr Hughes for addressing my request for the PSs and to Mr Batt for sending them. I now have both context and an enhanced understanding of the case. I would also like to express my gratitude to HHJ Whybrow for his patience in enabling open justice.
Summary of case background
P has diagnoses of cognitive impairment and diabetes, although there is a lack of clarity surrounding her diagnosis. A clinical psychologist has concluded that overall P’s support needs are likely as a result of development trauma and attachment difficulties due to adverse childhood experiences rather than a global learning difficulty.
P had absconded from her previous residential placement and was found in vulnerable and dangerous situations with men she had contacted using the internet/social media. Safeguarding concerns were raised and the court became involved in 2022.
The court determined in the interim, in accordance with s.48 of the Mental Capacity Act 2005 (MCA), that there is reason to believe that P lacks capacity to conduct these proceedings; make decisions about her residence; make decisions about her contact with others; manage her property and affairs; access the internet/social media; engage in sexual relations; and enter into a tenancy agreement.
Both position statements acknowledge the opinion provided in the expert report obtained, that with the right support, on the balance of probabilities, P is likely to gain capacity in all areas except for managing large sums of money.
P has moved to a supported living placement and is well-settled. She has the benefit of one-to-one care and support 24 hours a day, seven days a week. She has built good relationships with the staff and other residents at the placement. She accesses the community with her support staff. She enjoys shopping, eating out, attending rugby matches and going to a local disco.
P now has a boyfriend who also resides at the placement. She has been engaging in therapeutic and education work to develop her understanding of sexual relations and relationships in general – although, her litigation friend expressed concern that this work has been delayed. It was recommended in the expert report dating back to 2022 but work began some time in 2024 – prompted by P having sexual intercourse with her boyfriend when this should not have been permitted to happen, given the interim capacity position at the time.
Following the therapeutic work, an assessment undertaken by P’s social worker determined that P had acquired capacity to engage in sexual relations. P was elated to hear this.
She has also enrolled on a college course which is due to start in September 2024.
P’s wishes and feelings surrounding the restrictions in place have been ascertained by her solicitor. P expressed that she would like to lose the waking night staff, go to the cinema with her boyfriend, and have an hour alone with him. When attending college, she is happy for her support workers to meet her after lessons but not join her in the classrooms. In relation to a laptop being purchased for college work, she agreed to restrictions in respect to social media/internet access.
As P is still deemed to lack capacity in respect of contact, P’s barrister has highlighted the need for a ‘TZ style care plan’ to be prepared by the LA if the court accepts that P has gained capacity to engage in sexual relations. There’s an explanation of a TZ care plan in this blog: “Grave concerns”: Funding arrangements, capacity for sex, and a TZ-style care plan.
The LA, in its position statement, recognises the importance of preparing a TZ-style care plan as soon as possible. In practical terms, this will include for example, having provision for P to spend time alone with her boyfriend while also including having access to appropriate staff, who can assist her if there is an inappropriate level of risk. Other ways of managing risk include a suggestion by her social worker that staff can walk her and her boyfriend to the cinema and be present for when they come out. The LA will undertake necessary risk assessments and work with relevant professionals involved with P, including staff at her current placement, and representatives of the organisations that have been providing therapeutic and educational work.
The Hearing
The judge (who had also spoken to P before the hearing) confirmed that he was satisfied with the assessment undertaken by P’s social worker. P had understood, retained and was able to communicate what she had learnt about safe sex during her therapy sessions and from her social worker. He made a declaration under s.15 MCA that P has capacity to engage in sexual relations. There was a big smile on P’s face, to which the judge responded “I know you wanted me to say that”.
Mr Batt informed the court that the LA were working on a TZ style care plan. This then led to a discussion around graduated reductions on her current restrictions. Whilst the ground rules were to be worked out, the LA was considering introducing an hour of unsupervised time with her boyfriend on alternate days, and if that goes well, it could move to every day, and include review periods.
The judge asked that P is provided with easy read documents so she knows what is happening and why.
Mr Batt was pleased that P is starting college soon and wished her well. He informed the court that the LA will purchase a laptop and have suitable controls placed, as there are concerns about rushing things with regards to P’s access to the internet and social media.
P’s barrister stressed that as P is going to college, having access to the internet/social media will be part of her world. Educational work around internet/social media and re-assessing P’s capacity in this area should be prioritised. Furthermore, it is important that the LA have a plan available for the next hearing which can be endorsed by the court.
In terms of relaxing other restrictions, the LA agreed that P’s waking night staff could be removed. P’s social worker clarified that the cameras at the placement are not monitored constantly so there is need for more detail around that. P’s barrister also raised the matter of P not having access to the remote control for the television in her room requiring quick resolution. (Currently, P has to find staff every time she wants to change channels, as it is a smart TV which gives access to social media sites.)
For now, P’s capacity in all other areas remain as previously determined by the court. The parties agreed that the general way forward – considering the expert report – is that, with support, P is likely to gain capacity in all areas except managing large sums of money.
P had not yet received her college timetable so the judge suggested a review hearing towards the end of September. A hearing has been fixed (at which capacity building and P’s progress in college will be considered) at 2pm on 26th September 2024.
Hita Jadeja is a solicitor with a background in commercial dispute resolution and inhouse advisory work who has an interest in health and social care law, Court of Protection work and mental health law.
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