“I’m making these orders not for my own amusement, but for P”: Judge admonishes professionals over “disappointing” failures

By Gill Loomes-Quinn, 25th March 2025

I first came across this case on 9^th October 2024 when I was looking for a hearing to observe. As frequently happens in the Court of Protection, the first one I found had been vacated (meaning it was no longer going to take place), so I’d requested a link for a second, and when this was also vacated, I started to feel the familiar tug between the desire to make use of the afternoon I had set aside to observe a hearing and the recognition that I was likely to be adding to the workloads of already overstretched court staff with repeated emails requesting links. I would quite possibly have given up, had not a particularly helpful court clerk in the Judicial Support and Listings Team at First Avenue House let me know that there was another that would be going ahead. That turned out to be COP 14155095 HMB – and this blog post covers two hearings: one on 9^th October 2024 and another on 4^thFebruary 2025.

First Hearing: 9^th October 2024

I received later that day a link to the hearing and a copy of the relevant Transparency Order and was able to sign in and be admitted to the virtual waiting room shortly before 2pm when the hearing was due to begin. Counsel for the Official Solicitor representing the ‘protected party’ (referred to for the purposes of this case as ‘HMB’) –  Scott Storey – and  the barrister representing the Local Authority (the London Borough of Bromley)  – Kristina Hopper – were also in the waiting room, along with HMB’s mum and social worker.

            The hearing began with the judge (District Judge Batten) entering the courtroom at 2:11pm. She began by noting the presence of three observers – two online and one in the courtroom – and asking if there were any questions concerning the Transparency Order to which the proceedings were subject (there were none). She then asked Counsel for the Applicant (Scott Storey) to provide a brief summary of the background of the case so far.

            I learned from this that HMB is a woman in her early thirties living in the South-East of England. She has a diagnosis of learning disability and is said to be probably autistic. She also has diagnoses of “possible psychotic disorder” and anxiety disorder (i.e. agoraphobia/panic attacks) ^[1]. When she becomes anxious, she is said to “display some challenging behaviours”. HMB communicates verbally and “is able to make her views, wishes, and aspirations known with staff on simple matters” – e.g., choosing what to eat or wear and letting staff know if she is feeling unwell, although she is said to require “support with all her daily living activities”.

            The case before the court is an objection by representatives of HMB to a Standard Authorisation under the Deprivation of Liberty Safeguards (DoLS) – commonly known as a ‘s.21a challenge as it is brought under s.21a of the MCA 2005. This seems to be the culmination of a series of breakdowns in care and accommodation, which have involved HMB being moved repeatedly in a period of only a few years following a 5-month hospital stay that itself resulted from a “nervous breakdown” following a change in accommodation in late 2022. The ‘placement’^[2] to which she was discharged from hospital in March 2023 broke down after only a few days as several incidents led to the home manager noting that HMB was at this time “a high risk to herself, other service users, staff, and members of the community”. A month’s notice was served in April 2023, but in what may have been a foreshadowing of challenges to come, the deadline for HMB to move out was extended by a further month “for an alternative placement to be sourced”. She then moved to her current home in July 2023. 

            The case is concerned with two tasks, specifically: (1) to identify appropriate accommodation and care package for HMB, and (2) relatedly – to ensure access to appropriate “care and therapeutic support” so she “doesn’t suffer” (as the judge phrased it) in her mental health and quality of life, while (1) is ongoing. The court heard evidence of ‘suffering’ in a “rough” attendance note following a visit to HMB on 3^rd October 2024 by the solicitor representing her (Claire Langford). The note described HMB’s “presentation” during the visit as “not ideal” and indicated that “limited discussion” had taken place. During this discussion, HMB indicated that she is unhappy and bored, and that she wants to move – information that was received gratefully by the judge who affirmed the importance of hearing HMB’s views, “however rough” the form might be.

            Progress in identifying alternative provision for HMB has been far from ideal. Investigations prior to the hearing on 9^th October 2024 had included a report by an independent social worker suggesting options of residential or supported living services, or an individual flat with a package of bespoke care. A key priority was identified as being geographical location so that HMB could be near her mum. However, when the judge came to enquire as to what progress had been made in locating an appropriate housing and care, she was demonstrably less than pleased – pointing out that the case is now one year on from initial application and asking, “Why does it take so long?”. She made an Order that before the next hearing, the Director of Adult Social Care should file a witness statement outlining what care and home have been identified; and if this has not been achieved, explaining why not.  

            Reasons were given for these delays, which seemed to fall into two categories: 1) Counsel for the Local Authority pointed to a lack of appropriate results from the “extensive placement searches” carried out by the Local Authority placement team – who were “on it”, but unfortunately “not much has returned”; and 2) Arising from probative questioning by the judge, a lack of clarity among the parties about what sort of placement or location is in HMB’s best interests. 

            The judge also heard from HMB’s mum, who pointed to the impact on her daughter of the current situation. She said that she sees the judge “making things happen” (via directions) but that HMB “is the one missing out”. Her daughter used to want to go out of her home but now finds it too overwhelming and “overthinks”. HMB’s mum explained that her daughter “needs people to keep trying” when she refuses to leave the home due to anxiety, rather than simply giving up after the first failed attempt.

Second Hearing: 4^th February 2025

At the second hearing, there was new counsel for each party: HMB was represented by Stephen Williams (via the Official Solicitor), with Nikita Pierpoint appearing for the ICB (which had been joined as a party following the previous hearing). I was unsure about representation for the Local Authority as Zoren Nettey (an in-house solicitor) was present via remote link, but I couldn’t identify any barrister acting for the Local Authority, and the judge and Nettey interacted at various points during the hearing. 

            There is still no ‘placement’ identified for HMB, and her mum reports concerns about further impact of the delay and inappropriate home and support on her mental health and levels of anxiety. Williams was able to provide an “update of sorts” – as apparently HMB’s mum has been in contact with a potential new placement, which she has visited. The manager is “on Annual Leave until next week” but then an assessment can begin as to HMB’s suitability for the place.

            The judge was very critical of various failures to comply with Orders made at the previous hearing. It transpired that the Director of Adult Social Care had failed to provide a witness statement in compliance with the Order made on 9^th October. In response to an attempt to account for this by Nettey, she responded, “That the Director of Adult Social Care is new in-post is not my concern” and “I’m making these Orders not for my own amusement but for P” – adding that any further such Orders “may have a penal notice attached”. And in response to the failure (again) of parties to hold a Round Table Meeting prior to the hearing, she exclaimed, “I’m completely at a loss to understand why a group of professional people can’t agree a date for a [meeting]”. 

            The ICB was also a focus of the court’s displeasure. They had been joined as a party at the previous hearing though it was clear they were dissatisfied with this and had initially asked to be discharged, with their Counsel subsequently indicating that they were “led by [other] professionals” and viewed the Local Authority as the “lead authority”. The judge admonished them, saying she expected them to be playing a “key role” rather than a “remote – ‘I’ll send you a list’ – role”. She ordered them to attend the next hearing in person.

            In conclusion, an Order was made retaining the ICB as a party (with the caveat that after the next hearing they were not required to attend if there was nothing specific for them to do). The 12 months of the DoLS Standard Authorisation was confirmed as still having time to run. The court wants to see improvement in record keeping regarding HMB’s daily care and activities and the manager is to liaise with the social worker to ensure this. The inadequate explanation for lack of input by the Director of Adult Social Care was noted, with the judge emphasising that hearing from them was “urgent”. A detailed witness statement was ordered to be filed by 28^th February, with HMB’s mum being permitted to file a statement in response by 7^th March if she wishes. The judge also hoped that HMB’s solicitor could visit her and file a note by 7^th March as HMB’s views are “crucial at this point”. A Round Table Meeting must take place during the week commencing 14^th March with a date to be agreed immediately after this hearing, and “the court will not be impressed if you fail”. A further hearing will take place as soon as possible after 24^th March 2025 with the court clerk notifying the parties of the date. This will be a hybrid hearing with all parties except HMB’s mum being required to attend court in-person.

Reflection

As with any member of the public who observes COP proceedings, I bring to my understanding and interpretation of any hearing relevant aspects of my own experience and identity – notably as a disabled activist with complex health needs who receives social care. In this case, the seemingly glacial slow speed of progress in identifying appropriate accommodation and care for HMB – and the related apparent lack of such resources seemed to mirror my own experiences of delayed assessments followed by lack of available services to meet assessed needs. Similarly, I have experienced the collapse of care packages as providers “couldn’t meet my needs” causing me to empathise with the reported circumstances preceding HMB’s admission to hospital. It can feel as though a care package is both the elusive pot of gold at the end of the rainbow and a house of cards just waiting to fall down at the slightest breath of wind. 

What else stood out to me was how a significant part of each hearing was taken up with the judge asking probing questions to establish what each party believed was being worked towards for HMB – often revealing misunderstandings or lack of certainty among the parties and their legal representatives. It seemed as though what was going on between hearings was a game of ‘Telephone’ in which objectives became distorted over time and when passed between parties and colleagues. And the failure of “professional people” to organise a pre-hearing Round Table Meeting that so exasperated District Judge Batten seems to have exacerbated further the need to use court time for this case management function. 

As someone who must also rely on such “professional people”, it was difficult to watch this play out in court.  Those of us for whom health and social care services mediate access to the fundamental safety, dignity, and quality of life that many people take for granted need those professionals to work and communicate effectively, because there is so much resting on it for us. Such professionals have accepted a role in which they take on the responsibility that comes with the trust we place in them. We have no choice but to place our faith in others to facilitate fundamental aspects of our personal and social wellbeing – and that is hard enough – but to see the efforts of those individuals and organisations in whom we must place our faith falling short with such alarming regularity can be galling.

While I noted several aspects of ‘overlap’ or resonance between my own and HMB’s circumstances, observing these two hearings also prompted me to reflect on a key difference between her situation and mine – i.e., the involvement of the Court of Protection. The COP is constituted through the MCA 2005 as the arbiter of disputes regarding mental capacity and best interests, but what I saw in these two hearings led me to consider further facets of the court’s role in terms of case management and ‘advocacy’. 

There were several examples across the two hearings of the court managing the ‘case’ – which importantly means not only the legal case before the court, but the health and social care circumstances out of which this legal case has developed. The use of Court Orders to compel a Director of Adult Social Care to account for a lack of progress via a witness statement (from which the title of this post is taken) was particularly powerful given the threat of a penal notice attached to future Orders in the event of (further) non-compliance. This, of course, highlights a key aspect of what makes the COP’s involvement unique – it comes with the power to hold those who fail to do what it has ordered them to do (by the deadline it has set) in Contempt of Court. I have had (and continue to face) many situations in which those involved in my care have attempted to compel “professional people” and public bodies to do what they should be doing to secure my care package but have failed to deliver. But no one advocating for me in this way has ever had the authority to promise a penal notice in the event of future non-compliance. This seems to be a distinction that differentiates health and social care cases that become ‘welfare cases’ before the COP from those that don’t.

This, in turn, points to another feature of the court’s function that I observed in these hearings: i.e., how it goes about advocating for P’s ‘best interests’ alongside determining what these should be. As well as emphasising the importance of hearing P’s views (via her solicitor’s attendance notes), the judge was repeatedly explicit about her concerns for HMB’s “quality of life” and access to therapeutic input while the search for appropriate accommodation and care is ongoing. As I’ve indicated, the judge also expressed surprise, frustration, and exasperation throughout at the lack of progress and failure of “professional people” to comply with Court Orders and to make progress in identifying appropriate accommodation and care for HMB. It may be said that no amount of angry discourse directed at public bodies during COP proceedings is of itself going to make a material difference to P’s circumstances – in HMB’s case, she still lacks the accommodation and care deemed to be in her best interests. But as I observed these hearings, I reflected on the times when I have been let down by health or social care professionals who have failed to do what they promised. In my experience of such situations, it isn’t only the material circumstances that have a deleterious impact on one’s wellbeing – it is the feelings of powerlessness, invisibility, and ‘voicelessness’ that come with such circumstances. Although the COP may not be able to compel a public body to provide facilities or services to meet the needs of a disabled person (see further: the Supreme Court case of N v ACCG & Ors [2017] UKSC 22), I observed the judge’s surprise and exasperation at the lack of progress in HMB’s case as performing a function of delegitimising and ‘calling out’ the situation. When one finds oneself repeatedly let down by those on whom one is forced to rely, it can begin to feel as though this is all one is entitled to expect – as though such experiences are to be deemed socially acceptable. While discussing my experiences with others leads me to suspect that the majority of society is simply unaware of how health and social care bureaucracy works (or doesn’t work), it can feel as though in failing to exhibit surprise or disapproval at failures of care, society legitimises the situation. Hearing such disapproval from someone exercising the authority of the court (in open court) felt like a powerful counter to such tacit social legitimisation that I wish more of society could (or would) hear. 

Observing these two hearings caused me to feel empathy and deep anger that HMB is being failed by the bodies (and ultimately the State) in whom she, and those who care about her, should be able to place their trust. But I also had cause to reflect on the ‘advocacy’ potential to be found in the role of the COP in ‘welfare cases’ – and how this potential might be  harnessed further in the pursuit of social justice for disabled people. Of course, I think the fact that this role is exercised in public is fundamental to its impact, and the first step is for more disabled people, and our allies and advocates, to observe COP hearings – to bear witness when the court exercises such ‘advocacy’ and to seize its momentum for social change.

Gill Loomes-Quinn is co-director (with Celia Kitzinger) of the Open Justice Court of Protection Project. She can be found on Twitter and Bluesky @GillLoomesQuinn and on LinkedIn here.

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^[1] In drafting this post, I have drawn on position statements in addition to my own notes from the two hearings I have observed in this case. Given the general prohibition of recording of court proceedings, any quotes included from my observations are as accurate as possible but should not be assumed to be verbatim. 

^[2] I noted that the term ‘placement’ was used throughout both of the hearings I observed in this case (and in the relevant position statements) to denote accommodation either assigned to or sought for HMB. I know that of course the use of such vocabulary is ubiquitous in professional discourses concerning disabled people – particularly those with learning disabilities. And some may seek to justify its use (as opposed to more ‘everyday’ terms – e.g., “home”) to indicate the ‘specialist’ nature of such accommodation. However, this brought to mind for me the ‘othering’ that is central to how disabled people and our life experiences are typically portrayed in and perceived by wider society. I had cause to wonder if/how reference to the search for a “home” for HMB (with the attendant connotations of privacy, safety, security, comfort, and family – as well as familiarity for professionals themselves), rather than a “placement” (with implications of non-domestic clinical sterility, and almost certainly distinct from the domestic arrangements of the legal, health, and social care professionals involved) may have made a difference to the case, or professional attitudes to it –  both inside and outside of the courtroom. For some more examples of the harmful language used by professionals in relation to the lives of disabled people, check out this short video by Rightful Lives.