By Rebecca Pritchard, 2nd June 2025
I have observed a number of Court of Protection hearings but have never blogged one before. I chose to blog about this case (COP 14265088 heard by Lieven J on 6th May 2025 in the Royal Courts of Justice, observed via MS Teams), because firstly, it struck me as the most ‘P’-centric case I have observed, and secondly, it was discussed whether a decision over an important point of law (whether P had capacity over where they lived) was needed in this case.
A brief overview of the case
The case involved an eighteen-year-old female who had been living in supported living for over a year. Prior to this placement, there had been difficult times whereby P had been in hospital under the Mental Health Act. P has a love for art and the hope is for restrictions to reduce, to enable her to attend college independently, and gain greater autonomy and independence generally. Reductions had already commenced, for example one staff member was now accompanying P in the community, reduced from two. There is disagreement between parties regarding P’s capacity to decide where she lives and how the expert report is to be interpreted.
The hearing
Everyone agreed that restrictions should be reduced and eventually removed, due to the widely acknowledged progress that P had made. It became clear, however that a road map for reductions was not going to be available by the end of the hearing because a restriction-reduction meeting was scheduled for the 13th of May (a week later). Mrs Justice Lieven made it clear that a plan was required with dates, so that there was a clear path to follow and for P to know the trajectory and the requirements for each step. Lieven J stated that the focus must remain on P and that the care plan should no longer be such as to constitute a deprivation of liberty by the autumn – and this should be reflected in a final order. A holiday abroad and attendance in the community alone, including college, is the plan for end of summer/beginning of autumn. The social worker said this was “not unrealistic” and would find out information regarding colleges nearby. Counsel representing P (Francesca Gardner instructed by the OS) also highlighted the importance of college and independent time.
Lieven J continued to emphasise the need for momentum moving forward and ensuring that reducing restrictions occurred between hearings, highlighting that risk aversion could delay progress without a judicial nudge, detrimentally impacting P. Counsel for P was told to apply to the court for a hearing if there was a lack of progress so that a hearing could be listed swiftly to prevent delay. The issue of delays or inaction between hearings appears to be an issue not isolated to this case, it has been present in many other cases I have observed and read about.
Counsel for the Local Authority (Ben McCormack) raised the issue of P’s capacity and how the expert report should be interpreted. It was unclear to me why there was disagreement between parties, I do not have the report, and it was not discussed in detail but appears to state that when P is going through a difficult time, she may lose capacity to decide where to live, but when stable and well she does have capacity. The disagreement appeared to concern whether a clear decision needed to be made regarding capacity, should a residency issue arise in the future. It was highlighted by counsel representing P that she was happy at the present placement with no desire to move elsewhere.
Lieven J raised concerns regarding a hearing to decide capacity, namely that it would cause delay, as it could not be heard until October, which would affect the whole trajectory of the case (as discussed previously, it is hoped that the care plan will be the least restrictive possible by the autumn). Lieven J decided that in this case a hearing to decide on capacity was unnecessary; the plan was to move forward to removal of restrictions, and a change in accommodation was theoretical and therefore, determination of capacity was considered not only detrimental to P but a waste of public funds. Lieven J suggested that there could be a vague declaration within a final order to come back to court should the theoretical issue over residency become reality. This appeared to be well received by counsel for the local authority.
The parties were invited to draft a final order with that in mind. If, however, no agreed decision could be reached, then an October hearing would need to be listed. I have requested the order and was informed that it had not been finalised but would be forwarded to me in due course. I have not received it to date (30th May) so I’m unsure if a decision has been reached or whether a hearing will be listed for October. Lieven J emphasised how this would not be in P’s best interests describing it as a “holding pen”. The purpose of the Court of Protection is to act in the best interests of the protected party, and it raises the question on whether risk aversion is leading to delays counter to P’s best interests.
Reflections
This was the first hearing I have observed before Lieven J and I was struck by her holistic, personable approach; her management of the case appeared to be very much in P’s best interest. It was discussed that she had visited P and viewed her art, describing P as very talented. I understand that with delays and time pressures that judges cannot visit the protected party in every case but after observing the hearing I was left thinking about how important this may be. The protected party after all is a person, who has likes, dislikes, talents and personality that may not be fully conveyed through written documentation. It also highlights the importance of ensuring that P’s wishes and feelings are heard, so that P can be heard as part of the decision-making process.
Rebecca Pritchard is a final year law student at University of South Wales, interested in the treatment of vulnerable people and their families in the justice system.
Promoting Open Justice in the Court of Protection 