Moving forward in Re A (Covert Medication: Closed Proceedings): A social work perspective

By Meg Niven Withers, 25th October 2024

Editorial note: This is a second blog post about the same hearing we’ve already blogged about here: A is back home and taking her medication voluntarily: The final hearing in Re A (Covert Medication: Closed Proceedings). We are also planning a future blog post reflecting on this case as whole.

As a registered social worker/ academic, I have a particular interest in Adult Safeguarding and how the Court of Protection functions to safeguard and promote the legal and human rights of people who have been assessed as lacking capacity. I also want to better understand the experiences of service users and their families subject to what can be intimidating, complex and drawn-out proceedings in a system that aims to have their best interests at heart. Becoming a volunteer observer with the OJCOP has provided me with the opportunity to learn more about both of these things and the commentary here is a brief summary of some of my reflections on this occasion.

The start of the hearing I watched (COP 13236134 before Mr Justice Poole on Monday 14 October 2024, 2pm, at Sheffield Combined Court) was delayed because the protected party, A, had wanted to speak to the judge –  and at the outset he stated that he had taken the opportunity to explain to A the presence and the role of volunteer observers. In addition, he asked A and her mother (B) to move seats so that their faces were not seen in the video feed which seemed to me to be a concrete example of applying the Transparency Order to practice, even within a courtroom setting.

 Poole J asked the LA’s advocate to summarise the case at the outset but this was brief and focused on the positive outcomes that had been achieved since the previous hearing where Poole J decided A should return home. It is only because I have been following this case through previous OJCOP blogs and commentary that I was able to gain any understanding of A and B’s past history, the COP decision making to date and how this information played out in the hearing here.

A large part of the hearing was taken up with how A was to be represented and safeguarded in legal and practical terms if and when the court order was discharged. The ensuing discussion between the advocates brought my thoughts back to the central tension that exists within the legal framework between wanting to respect a person’s Article 8 rights to privacy and a family life while at the same time safeguarding a person’s health and wellbeing where they lack capacity, but also what that might feel like from the person’s point of view. The COP here is being asked to strike a balance between wanting to put in place the least restrictive interventions as possible while at the same time leaving room for state agencies and appropriate legal frameworks to be put in place in order to have some oversight of A’s health and well being over the longer term. 

There was consensus that the way forward would be through the discharge of the existing court order and an application made for  a Community Deprivation of Liberty (DOL) authorisation because although A is now living at home, she is not free to leave the house without support and she is effectively under continuous supervision and control. This set of circumstances means that the acid test is met as detailed by the Cheshire West decision for people who lack capacity to consent to agree to their care arrangements (P v Cheshire West and Chester Council and Q v Surrey County Council, (2014 UKSC19). It is a measure of Baroness Hale’s clarity and precision in communicating a complex idea that social care practitioners are very familiar the premise that a gilded cage is still a cage, and it was intriguing to hear it cited here by the representative for A (via the Official Solicitor).  Additionally, the  DOLS Code of Practice (2005) sets out  a number of questions  that have to be satisfied in order to make sure that any decision is made in P’s best interests, one of which is imputability to the state. In other words, there should be evidence that the state is responsible in some way for the deprivation of P’s liberty.  I was therefore intrigued, given that all the participants were very well aware of the protracted and difficult history of the case, to hear counsel for the OS spending some time setting out how the case was indeed imputable to the state, and citing case law in support of his request for a DOL authorisation. It seemed to me however that there was less time given to another key question, the (re) evaluation of whether the deprivation of liberty authorisation was indeed necessary to prevent harm coming to A but more a recognition of this is how A now lives her life at home and a desire to have some kind of legally acceptable oversight in place for what happens next. 

Certainly, on the face of it, A’ s return home has been a positive one with some aspects of the community access and support plan drawn up by the Local Authority now in place, albeit that other significant elements – such as finding carers that are acceptable to A and B – are still to be resolved. I did wonder if the implications of the decisions being made were apparent to A and B. The LA’s advocate observed that both were smiling when she commented that things were going well for them at home, but the reality is that they are likely to experience ongoing and significant state intervention with potentially daily visits from carers, fortnightly visits from health and social care practitioners, medical and hospital appointments etc. While living at home with her mother has been what A has been asking for all along, and the court has determined that it is in her best interests to do so, it may not feel like the least intrusive option given the level of scrutiny and stress they will be exposed to – a point alluded to by counsel for B when he requested that any visits should take place away from the home, explaining that B has OCD and is compelled to clean the house after any visit.  A and B haven’t always been aware of the decisions being made or accepting of the reasons why they were made and now they are being asked to place their trust in agencies and professionals and to work with them to achieve care plan outcomes.

Equally I was a little surprised therefore to hear that the DOL authorisation should be reviewed in 12  months’ time, in effect at the end of the authorisation period, given the concerns voiced on the implementation of the care plan and  who would act as A’s representative during this time. An authorisation can be reviewed at any point if there is a change in circumstances, but again I am unsure if A and B know that the LA can bring the case back to court at any time from what was said in court, other than a comment from the judge to say “that it all depends on what happens this year”.  It is likely that B will not be entitled to any further legal representation or Legal Aid after the hearing is concluded and there was uncertainty who would represent A going forward. Even when a Rule 1.2 representative is identified to speak on A’s behalf, there is the issue of continuity for A and B and how are they going to be supported to make play their part in what remains complex, and what are likely to be fraught decision making processes. My sense is that careful, sustained relationship building between professionals and with A and B is what is needed here to help them so far as possible to understand not just the authorisation but also how it affects them and to be able to meaningfully exercise their rights going forward. The risk otherwise is that mistrust of professionals endures, positions remain entrenched and the case is returned to the Court of Protection once again.

Finally, I also noted that the representative for B called her either mum or mother for the most part whereas the representatives for the LA and the OS called her Mrs X which seemed to me to be to a more respectful, less reductive, acknowledgement of B as a person. Both Poole J and the counsel for P (via the OS) took the time to thank and commend A and B on being in court but at the end, it was noticeable just how quickly both left the courtroom and without them speaking to or being acknowledged in turn by their legal representatives. 

 Research in 2017 by  Lucy Series and colleagues at Cardiff  University on The Participation of P in Welfare Cases in the Court of Protection has highlighted the challenge of promoting  a human rights model of participation based around the idea that P has a fundamental right to participate in proceedings that will have serious consequences on their lives.  My observation here is that the judge and lawyers were paying close attention how they could best represent and support A’s legal rights but it nevertheless remains extremely difficult for P to challenge professional decisions made within the welfare incapacity jurisdiction, with systems and processes that continue to exclude rather than include P.

Meg Niven Withers is a Senior Lecturer in Social Work in the School of Health and Social Wellbeing at the University of the West of England. She can be contacted at meg.nivenwithers@uwe.ac.uk