Addressing the Oral Judgment to the Person it Most Concerns

By Celia Kitzinger – 3rd August, 2020

Something exceptional happened in a hearing I observed last week. 

A judge – it was Mr Justice Cobb – delivered an oral judgment directly to the young woman at the centre of the case, addressing her by name.

This was the 53rd hearing I have observed in the Court of Protection since 1 May 2020.  The person at the centre of the case, “P”, has been present in (virtual) court in about a fifth of these hearings – sometimes for part of it, sometimes for all of it.  She or he has often had the opportunity to address the judge and to influence the proceedings.  Judges often ask P questions, respond empathetically, and create an opportunity for them to express their views, even when they have a legal representative to do this for them. This kind of involvement of “P” is part of the ordinary business of the Court of Protection.

What is unusual – this is the first time I’ve heard it – is for the judgment itself to be addressed to the person it most concerns.

The oral judgment is the formal bit at the end of the hearing where the judge says what he or she has decided in relation to the issues raised in the hearing.  Until I heard Mr Justice Cobb do it differently, I hadn’t really noticed that, in every other case I have observed, the judgment has been addressed to the barristers. 

So, in one recent judgement, for example, the person the hearing was about was present throughout, and we could all see him on the video-platform. At the end of the hearing the judge said in her oral judgment:

“I am satisfied that I can make an interim declaration that P doesn’t have capacity to decide where to live or the conditions under which he lives.  But P needs to know more about the placement that’s proposed and the placement needs to know more about him, and in particular how to manage him if he has another period of difficult behaviour.”

If it wasn’t routinely done this way in the courtroom, it would surely be odd to talk  about P in his presence, and not to P.  But this is the way it is usually done.  In all previous oral judgments I’ve heard, P has been referred to as ‘he’ or ‘she’ – talked about, in the third person – even when he or she is sitting right there watching and listening.

However well-intentioned and fair the judgment, and however tactfully it is phrased, it can feel somewhat unsettling, almost “rude”, for a judge to announce to the lawyers what she has decided should happen to P by speaking about P, in P’s presence.  

Contrast that with what I heard last week from Mr Justice Cobb:

“I realise, Jennifer, that you are unhappy at [Placement]. I am satisfied that the local authority is looking carefully, conscientiously and creatively for somewhere else for you to live – and to live with Rover [Jennifer’s dog].  I understand this may make the world of difference to you, to live with Rover.  Your lawyer has suggested a number of options for where you might live and all of these will be looked at. I’m also pleased that there’s been some agreement reached about your use of the internet and your mobile phone. I know you’re not entirely happy with it but, Jennifer, this new arrangement will help to protect you. […]  I’m going to ask [Lawyer 1] and [Lawyer 2] to pull together an order to that effect.”

In this judgment, from Mr Justice Cobb, it is the lawyers who are spoken about and P (Jennifer – a pseudonym, obviously!) who is being addressed.  It’s a change from P being “him” (or “her”) to P being “you”. 

This feels appropriate – it is, after all, Jennifer who is the person most directly affected by the judge’s decisions.  And Mr Justice Cobb took care to acknowledge that he understood Jennifer’s feelings (“I realise you are currently unhappy at [Placement]”) and was concerned to get it right for her (e.g. by enabling her to be with her dog).

Listening to this judgment at the end of an otherwise unremarkable hearing took me unawares and made me realise how uncomfortable I’ve felt with a lot of the oral judgments I’ve witnessed over the last couple of months, where P (however fully involved in the hearing at an earlier point) has become the “object” of a judgment addressed to lawyers. P is being talked about instead of directly addressed on a matter that concerns them more than anyone!

Most judgments in the Court of Protection are never published.  I know there has been some recognition in the Family Court of the benefit of addressing published judgments to the people most affected by them.

The judgment in Re A (Letter to a Young Person) [2017] EWFC 48 is (apart from four introductory paragraphs) a letter sent by Mr Justice Peter Jackson to a 14-year-old boy, who wanted to  move to Scandinavia with his father but was refused permission by the judge.  Mr Justice Peter Jackson wrote: “This case is about you and your future, so I am writing this letter as a way of giving my decision to you and your parents.”  It’s important not simply for involving a young person in the proceedings, but also because he has the opportunity to understand the reasoning behind the Court’s decision.  (See also the letter, incorporated into the judgement, sent to the children in a Scottish case here). 

Of course, in addressing a young person in this way, judges have to use more straightforward language. Some judges have shown this can be done.  The previous year, Mr Justice Peter Jackson had written a “plain English” judgment in the hope that the mother and older children could follow it (Lancashire County Council v M and Others [2016] EWFC 9).  In 2018, Deputy District Judge Reed (Lucy Reed one of the founders of The Transparency Project)  published a judgment in which she had decided to place a child for adoption, contrary to the wishes of his Mum (M) and Dad (D). D had a learning disability and found reading difficult. The judge says:

“I’ve tried to explain my decision using simple words …  D (and M) might want to read it later, maybe with his lawyer. M helps D with reading so they might want to read it together in the future.”

Writing judgments like this also means that it is more accessible to lots of other people who are not familiar with the language of the law.  I recommend taking a look at these published court judgments: they clearly promote the transparency of judicial decisions.  Why not have “plain English” or “easy read” versions of published judgments that give P (and all of us who might become future Ps) the opportunity to understand how decisions are taken by the Court and the reasoning on which they are based? 

The principle of making published, but also especially oral, judgments accessible to those whose lives they affect, and – in particular –  addressing them directly when they are in court, could be applied more widely in the Court of Protection.

It’s common for judges to say that P is the person at the centre of the case.  P is often given the opportunity to address the judge – sometimes as part of the court hearing, sometimes before or after it – about their own views and what outcome they want from the hearing. But communication is two-way – not just from P to the judge, but also from the judge to P. 

When a judge hands down an oral judgment, it would be refreshing to hear it addressed to P – as Mr Justice Cobb did when he explained to Jennifer what he’d decided and why. It’s courteous. It involves speaking directly to P instead of talking about her in her presence to other people (a horribly familiar experience for many disabled people of course).  It recognises P’s presence and treats her as a participant in the interaction. 

I hope that, when P is in court, more judges in the Court of Protection will consider addressing their oral judgment to the person it most concerns

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project.  She tweets @kitzingercelia

Navigating Approaches to Care when Family and Local Authority Disagree

By Hilary Paxton – 31st July, 2020

On 29 June I started a job as a 2-day per week trainee Independent Mental Capacity Advocate (IMCA) and Relevant Person’s Representative (RPR) for an advocacy provider in Yorkshire. I am currently doing my induction and lots of training.  I have never worked with the Court of Protection and am likely to be involved in cases in my job, so I thought that observing a hearing would enable me to gain some insight into how cases are dealt with by the Court.

I also thought a better understanding of how the Court of Protection works in practice would be useful for my national policy work with the Association of Directors of Adult Social Services (ADASS), where I support the preparation for the Liberty Protection Safeguards scheme and the transition from the Deprivation of Liberty Safeguards (DoLS) and the Court of Protection Deprivation of Liberty (CoPDoL) process.

After several attempts to observe a case in the Court of Protection, I was able to watch a hearing on Friday 24 July 2020 before DJ John Beckley sitting at Central Family Court: Thurrock Council vs JS (Case no. 11895778).  Although the hearing was listed as Thurrock vs JS, and there had been a number of previous hearings about this case, on the day in question the hearing was focussed on the role and views of the father of JS rather than JS himself.  He was in court as a litigant in person, but although the hearing was via MS Teams and other participants could see each other, JS’s father apparently lacked the necessary IT and joined the hearing by phone.

The role of parent in cases where an adult son or daughter lacks the capacity to make decisions about their care and where they live can be particularly difficult, especially where the parents may have a different view from those who commission the services.  In this case, the son lives with his dad and his father has been sharing the care with a care agency for some time.  The council has proposed that an autism specialist provider may be able to offer opportunities to JS that the existing arrangements may not afford. 

This is a rather delicate situation, and there are a number of reasons why a parent in this situation might feel defensive and may feel that their point of view is not being acknowledged or valued.  Not having been at any previous hearing in this case, it became clear to me very early on, that JS’s dad  was cross.  He was frustrated.  He felt abused by the council and was really worried about the future for his son. 

At a previous hearing, the same judge had decided that he needed more information about what would work best for JS.  An order was made that there would be a trial period with both the existing carers and the new autism specialist carers working together to support JS to gather evidence about how he responded to the different approaches.  There would always be two staff on duty from 8am till 8pm, one from each provider. This trial would take place over a couple of months, and the evidence would inform the decision, to be taken by the judge at a later hearing, about what would be in the best interests of JS.  This approach had initially been agreed by all parties.  

There was a problem, however, as the father had strong views that the personal care should be provided by female carers.  The new autism specialist company did not have enough female carers to be able to guarantee there would always be a woman carer.  The original care agency only had female carers, and so by working together it was possible to always have at least one woman on duty, and it was agreed that if there was a male carer on duty he would not undertake personal care tasks, but would undertake other tasks, such as supporting JS with activities, and supporting other domestic tasks.  This was VERY important to the father of JS, as too was the wellbeing of his son.  He agreed to the trial period but would have preferred only female carers for his son.

Things came to a head a week before the hearing I attended, when JS’s father came home from an earlier hearing and found that his son had accidentally urinated on his clothes. He was wet and it appeared that neither of the carers on duty had helped JS or supported him to get washed and changed.  This whole scene made JS’s father very angry.   We’ve all had situations that have led to blowing a fuse or losing it, and this was one of those times.  It was reported at the hearing I attended that JS’s father rang the social worker and told him in no uncertain terms how angry he was.  He was cross with the carers, he was cross with the commissioners, he was cross with the social worker.  And his view appeared to be that if there had been two female carers this would never have happened.  He felt very strongly that he did not want the male carers supporting his son.  Unfortunately, the social worker was unable to speak to the carers to get their side of the story.  A few choice words were reported to have been used by JS’s father and it was stated that he had even called the social worker a wanker…..!

The response was that the council was seeking an injunction from the judge to ensure that JS’s father would not refuse entry to the carers or prevent them caring for his son, and also to prevent him behaving like this to council staff and using bad language.  They believed that JS’s father had been preventing the carers from the autism specialist agency from entering the house and caring for JS.

JS’s father had decided to represent himself, rather than to instruct the barrister who had previously represented him.  It became clear early in the hearing that the anger experienced by JS’s father was not very far from the surface and when invited to speak it rose up again. The judge had a difficult job to try and take an ordered approach and to make sure that all parties had their say.  There were times where he had to be quite assertive. He had to repeat himself several times to JS’s father and had to check a few times whether JS’s father understood the gravity of the situation.  He remained calm and gently persistent, explaining his role, and asking JS’s father if he would comply with the order he had made. 

He explained that whilst he understood that JS’s father was very angry, because it was an order of the court, there would be consequences if JS’s father did not comply.  He explained that this trial was needed to establish what would be in JS’s best interests, and that if JS’s father did not comply, this could jeopardise the evidence to inform that best interests decision that the Judge was to make in the autumn.  He gave JS’s father the chance to say that he would comply.  In fact, his approach worked and JS’s father agreed reluctantly to try.   The Judge decided that instead of granting the requested injunctions, he would give JS’s father one week to prove that he would comply with the agreed approach to the care in the trial period.

The Judge underlined that he had not yet made any decision about the long-term care, and that when he did make that decision, he could decide that it would be in JS’s best interest to move to the new package with the autism specialist provider or he could decide that it would be in JS’s bests interests to go back to the original arrangements.  But that he needed the information from the interim arrangements to inform that decision.

He left JS’s father in no doubt of the seriousness of this when he said that he would put another hearing in for one week’s time, so that all parties could report back to the Judge, and at the end of a week if JS’s father had been unable to comply, then the injunctions would be made, and that he could attach a penal notice to the injunction order.  He explained that this meant that JS’s father could go to prison if at that point he did not comply with the injunctions.

The Judge sought the agreement to this approach from the Council’s representatives. They were very keen to ensure that JS’s father would desist from using abusive or aggressive language or behaviour to any carers.  The judge confirmed that this formed part of the requirements. 

By this point in the hearing JS’s father was calmer and although he was clear that he felt the council was not being punished and that he was, and that this did not seem right, he nevertheless agreed to try and comply with the requirements.  Who knows whether this might be possible, or might prove just too difficult?   Only time will tell.  Watch this space!

I found that the process was quite structured, with the Judge inviting both sides to have their say, prior to inviting the social worker to speak, and also inviting the official solicitor to comment.  Originally the Judge invited the council to speak first but the representative for the council suggested that it would be best if JS’s father spoke first, as this may provide new information and their instructions may change as a result. The Judge agreed to this approach. 

Although there was a structure to the proceedings, and there was clearly a correct way of speaking, it was not overly formal.  JS’s father was respectful of the role of the Judge, but remained very angry.   I thought that the Judge was very clear about his role and the seriousness of the decisions he makes as a Judge in the Court of Protection.  He made absolutely sure that JS’s father had the opportunity to state whether he would comply with the arrangements.  He was calm and made sure that everybody understood what he was proposing, repeating himself where necessary, to make sure that all had heard what he said.  He also told the court what he was going to do and then did exactly what he had said he would.  An example of this was that he mentioned that at the end of the hearing he would make sure that JS’s father was given the opportunity to state whether he wanted to appeal against the Judge’s decision.  At the end of the hearing, having discussed his proposals and having sought agreement from the other parties, he did indeed ask JS’s father whether he wanted to appeal to a higher Judge about the decisions.  JS’s father decided not to appeal, and to work with the proposed approach for the next week.     

In terms of my role as an IMCA or RPR, I learnt that it is essential to be even-handed and remain as calm as possible, when contributing in court.  There can be many emotions involved for family members, and as a professional it is essential that all the evidence is available before the Judge can make a decision in the best interests of the person at the centre of the proceedings.

As a policy officer I was reminded that individuals and their families may not always want what we expect them to want. I am aware that the majority of people who work in personal care are female, and that many men with care and support needs would rather have males as carers.   But I was reminded that everyone is different and their preferences vary.  What is important is to take each person as an individual and work with them to provide care in the way they want.  In the case of people who lack the capacity to make decisions about how their care is provided, this may involve working with their family members.  I saw the Judge taking this seriously and trying to ensure he could get a feel for what JS responded well to, and what worked well for him, as well as what his father wanted for him.  He explained that it was important to him to get as much information on this as possible.  He was clear to both JS’s father and the council representative that this should not be rushed, and he wanted to give the trial period as much of a chance of working as possible, so that when he makes a decision about long-term care and support for JS he will be in a position to judge what will be in JS’s best interests.

Hilary Paxton works for the Association of Directors of Adult Social Services in England. She tweets @hilpax


Over-ruling P’s Strong Wishes in a Best Interests Decision: Autonomy, Protection and P’s voice

By Celia Kitzinger with Astral Heaven and Jenny Kitzinger

It is now widely accepted in the Court of Protection that P’s own wishes should generally weigh heavily in making a best interests decision about her, though they are not automatically determinative. 

In the hearing we observed (Case number 13462068 Re LW) before Mr Justice Hayden on Wednesday 22 July 2020, P’s views were clearly heard, both via reports from her psychiatrist, and in her own voice when she addressed the court.  However, the barrister representing P via the Official Solicitor (Fiona Patterson) argued for a course of action that was self-evidently not what P said she wanted for herself, and the judgment was contrary to the course of action P had chosen.

This hearing highlights the distinction between decisions made by vulnerable people for themselves and ‘best interests’ decisions made for them by a court. As this case graphically illustrates, best interests is not the same as ‘what P wants’. 

The hearing was listed with a time estimate of 2 hours starting at 10.30am, but it continued after a lunch break for another couple of hours in the afternoon – with most of that time being devoted to facilitating P herself to speak with the judge.  Due to other commitments, Celia only observed the morning; Astral and Jenny observed the afternoon.

Celia (morning)

The ‘P’ at the centre of this case, LW, is a woman in her sixties, sensitively described (by the barrister acting for her via the Official Solicitor) as a ‘talented individual’ who completed two years of nursing training and worked as a carer, and who enjoys playing the piano, listening to music, reading and dancing.  “Assessment of her capacity has been delicate”, counsel added: “on meeting LW one could be forgiven for thinking she’s a perfectly ordinary lady in her middle years”. 

LW has been detained for about three years under s. 3 of the Mental Health Act.  On admission to hospital she was emaciated, with poor personal hygiene, behaving bizarrely and had attracted concern from members of the public. Prior to that, LW, who has a long history of involvement with mental health services, lived in her own home with M, a man she referred to as her “domicile partner” and “spiritual adviser” and with whom she lived for around 18 months prior to her hospital admission.   The hearing focussed on the impact of M on LW’s mental and physical well-being.  It is LW’s ardent wish to return home and to live with M who she believes (apparently, wrongly) will care for her.  She also plans, with M’s support, to gradually reduce her medications once she returns home with a view to coming off them altogether.  It was reported that she was eager to talk to the judge, believing that he would authorise her return home. 

Neither the applicant county council, nor the NHS Trust, nor LW’s own counsel supported LW’s wishes, and the outcome of the hearing was an injunction preventing M from having any further contact with LW.  This is, as counsel for the NHS Trust (Conrad Hallin) pointed out “entirely contrary to LW’s wishes”. 

I’ve observed 7 hearings before Mr Justice Hayden since 1 May 2020 (and blogged about two of them, here and here).  What stands out about this judge – who is also Vice President of the Court of Protection – is his commitment to listening to P’s values, wishes, feelings and beliefs before arriving at a best interests decision.  This makes it particularly notable that in this case P’s wishes were heard and then over-ruled.

The first indication, for an observer, that the judgment might turn out not to support LW’s wish to return home and live with M came early on as Mr Justice Hayden intervened in the opening summary provided by the barrister (Winsome Levy) representing the applicant county council.  She described how LW and M “appear on the face of it to be a couple, but she refers to him as her spiritual advisor”.  The judge interjected: “They had a sexual relationship for maybe a year and then it evolved into something more sinister” – with which counsel concurred, adding “sinister, coercive and controlling”.  The judge subsequently described M’s engagement with LW as “destructive” and “extraordinarily exploitative” and asked:

“How has the manifestly deleterious contact been allowed to continue for as long as it has?  It’s been going on for three years.  He writes the scripts for what she says to the professionals.  He dismantles the relationship between her and the professionals who are trying to help her.  Have people lost sight of the goal here, which is protecting her?”

Some initial uncertainty was expressed about whether in fact LW might have capacity to make her own decisions about contact with M.  It was explained that the case was before Hayden (as a Tier 3 judge) because “there was some hesitation as to whether LW might have capacity, so we might have needed the inherent jurisdiction only exercisable by the High Court”.  The inherent jurisdiction (explained in a Guidance Note from 39 Essex Chambers here) is the ability of the High Court to make declarations and orders on behalf of people who have capacity to make their own decisions but are deemed ‘vulnerable’ and at risk from the actions (or sometimes inactions) of other people.  As it turned out, however, the judge quickly accepted evidence from the psychiatrist treating LW that she lacks capacity to make this decision.

The psychiatrist reported that LW has attracted various diagnoses over the years from different professionals but her own view was that a combination of episodic bipolar disorder and ‘schizotypal personality disorder’ impairs her reasoning and judgment.  She considered LW’s underlying impairment of mind to cause her to be unable to weigh up information and discern risk.  She further testified that it would be in LW’s best interests to prevent her from having further contact with M who has “manipulated her”, “caused her to be in hospital longer than necessary” and has “alienated her from her family who were very involved with her until he came along”.  She believes that “stopping contact will improve her mental health, her general well-being and her quality of life in the long run”.  The evidence is that “she becomes distressed and her mental state deteriorates when she is in contact with him. It improves and she is happier when she does not have contact with him”.

The psychiatrist responded to questions from both counsel for the NHS Trust (whose witness she was) and from the judge, by describing what was currently happening in terms of contact between LW and M.  It is limited to two phone calls each week – and these are supervised calls via landline (her mobile having been confiscated), with carers listening in to the conversation on a loudspeaker.  The conversations typically involve long prayers – many orthodox Catholic but sometimes with additional idiosyncratic features – and religious discussions.  Recently there has also been discussion about the court process and about LW’s plan to return home.  She has asked M to do some maintenance work on the property but when she asks about progress on this he is “evasive” and changes the topic.  LW is “displaying increasing levels of distress prior to the phone calls” and is “asking staff for advice on how she should manage the calls so as not to agitate M”. 

According to the psychiatrist, “she thinks that to follow the true religion, what he has instructed her to do is right”.  These instructions are “pervasive and all-encompassing”.  They include the clothes she wears, a ban on listening to music or reading for pleasure and the manner and order in which she has to say a long litany of prayers every day (needing to start again at the beginning if she gets anything wrong).  The judge said that he finds it particularly distressing to read in the bundle about an event more than a year ago when M instructed LW to smash up her piano – and then taped up the room with the piano in, telling her there was toxic powder in there and the room could not be used. The psychiatrist agreed, describing it as “a sadistic control in getting her to do that” and characterising it as “a distressing mental image in this very tragic case”. 

There was some discussion about why the supervised contact (the 2 phone calls each week) were continuing: (Note All quotations in this blog are drawn from notes taken at the time and are as close to verbatim as possible under the circumstances, but audio-recording is not permitted, so they are unlikely to be word perfect.)

Judge:  What’s disturbing is that this is manifestly abusive, and a professional sits there watching her being abused, and implicated in it. It strikes me as an incredibly unhealthy state of affairs.

NHS Trust: That’s why we’re sitting here, My Lord, wanting you to cease this.  We couldn’t simply prevent her from having contact with him.  She has Article 8 rights. And the extent of the abuse emerged over time.

Judge: I have heard that and I give it some weight.  My strong impression is that there hasn’t been sufficient communication between professionals here.  The element of control that has been part of the history of this case is sufficient to put the professionals on constant alert as to whether continued contact is abusive.  I hear that there were lots of changes of personnel and nobody keeping their eye on the goal.  I’m sure everyone has been doing their best and it’s all very well for me as a judge over-viewing the evidence to come to that view but I understand it’s not always so clear on the ground.

NHS Trust: From our perspective the contact is malign and abusive, but from her perspective she absolutely desires that contact.  Despite the malign quality of it, it appears – even to this day – that she wants to go back into his company.  Clearly her wishes and feelings are important to a best interests decision and it is entirely contrary to her wishes to have contact terminated.

It was arranged that LW herself should have the opportunity to express her own views directly to the court at 2pm, after a lunch break.  Mr Justice Hayden lauded the use of the video-platform which made this possible at such short notice: “In this court, in Tier 3, it’s enhanced the participation of P in the court process.  I see P more now than I did before we went into this new world, and more easily.”  A private conversation with the judge was mooted – and Mr Justice Hayden explained how he had managed this before, but expressed the view that in this case “it might seem patronising. I’m sensing that she wants to participate in a process that is properly judicial”.  Her psychiatrist said “I would agree”.

Astral (afternoon only)

I’m so glad that I was able to observe this afternoon’s hearing.  It was a fascinating and important insight into the workings of this important Court.  Celia contacted me shortly after 1pm to suggest that I might want to observe this hearing, and that P would be speaking to the court about her wishes.  She sent me a summary of what had happened in the morning and I was able to get access in time to join the hearing at 2pm.

Listening to LW’s conversation with Mr Justice Hayden was really interesting. I cannot underestimate how anxiety-provoking this must have been for her – and likely to have been worsened initially by what must have been frustrating difficulties with technology.   It took about 45 minutes and multiple efforts to establish a sufficiently clear link.  The judge noted that technology had worked well the past four months until this hearing. He was extremely keen to ensure LW was able to see and hear him clearly and to ensure he could clearly see, hear and get a sense of LW, and no effort was spared to ensure this happened. He spent considerable time guiding the parties supporting LW to help her establish the very clearest communication that was possible. When this was still proving less than satisfactory, further efforts were made to improve the situation and the importance of being able to hear LW’s evidence clearly was reinforced and how LW must not be impeded in any way. Only when communication was clear, did proceedings continue.

I couldn’t see LW and assumed this was intentional as I was a member of the public. I later learnt Jenny had been able to observe her, so that is very frustrating as I feel I would have picked up so much more from being able to actually see her, observe her body language and facial expressions as she spoke.  This brought home to me the importance of being able to see, as well as hear, people in court during remote hearings.

I also had so many questions. Although I received a summary of the issues Celia had gained from the morning hearing, there was so much left unanswered. I was unaware of LW’s personal background, the events in her life which had led to her becoming the person she was today, her beliefs and value systems, and the circumstances resulting in the development of this abusive relationship. I also didn’t know who had assessed capacity, the details of the capacity assessment, or whether LW was likely to regain capacity at some point. However, I did very quickly become aware of the extremely poor physical and mental state LW had been in at the time of her detention under the Mental Health Act, at which point she had been subjected to abuse for some considerable time.  This was difficult to hear and I wondered how the situation had not come to light earlier. I also questioned how the abuse had seemingly continued over telephone calls whilst LW was in hospital and wondered what had happened here, but I am aware professionals will no doubt have been struggling with how best to manage a very difficult situation.

The hearing was entirely centred around LW and moved at a pace that was appropriate for her. What came across so strongly for me was the kind and sensitive approach taken by all parties throughout the hearing, but in particular by Mr Justice Hayden. He placed LW at ease, asked with genuine interest about the things she enjoys doing and explained that whatever decision he came to, it would be the best for her. The success of this approach was reflected in LW’s acknowledgment at the end of the hearing that she had not found talking to the judge at all stressful and you could detect in the tone of her voice that this was genuine. 

It was acknowledged that LW gained nothing from her relationship with M, so I felt sad hearing her speak of her wish was to continue contact and return home to live with her abuser again. However, it was a little encouraging to see that she was acknowledging some disappointment about his unreliability.  She said he was telling her he wished to do right by her, yet ‘it doesn’t seem to happen’.  She wondered whether the court could order him to make the improvements to the house that were needed and which he had promised to deliver.

What was unclear to me during this hearing was what LW felt she still gained from this relationship, a relationship described by Justice Hayden as being ‘corrosive of her welfare and impeding her capacity to enjoy life’. It surprised me how during the hearing I observed it was never put to LW that professionals felt M’s actions were abusive and the concerns they had about her welfare. I’m aware this will have been discussed with LW at great length outside of Court, but it was interesting to note how this was not raised with her during the hearing.

Considering a person’s past and present wishes and feelings and the beliefs and values that would be likely to influence their decision if they had capacity is something I am very familiar with through my professional role as a Best Interest Assessor for DoLS. In Wye Valley NHS Trust v Mr B [2015] EWCOP 60, Peter Jackson J reminded us:

‘[A] conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view’. (para. 11)

It was therefore fascinating to observe how Mr Justice Hayden considered this. It was acknowledged that although the Court of Protection never lightly goes against the wishes and feelings of those who lack capacity, in LW’s case to allow her wishes to prevail would expose her to a ‘regime of sadistic and cruel abuse’. It was explained how very clear welfare factors outweighed P’s expressed wishes and feelings in this case and compliance with her wishes would have resulted in such adverse consequences for her that there was no doubt about the need to override her wishes in her best interests. However, I wondered who would be explaining the decision to LW and what her reaction would be. I felt her psychiatrist came across really well and I assumed it would be her.

It was great watching Mr Justice Hayden deliver his judgement at the end and highlighted the absolute importance of this Court and of allowing the public to see the critical work it does. The decision made during this hearing will now stop LW being subjected to a cruel, abusive and exploitative relationship and provide her with the future she would otherwise not have. I could also sense the genuine gratitude of the treating clinicians and professionals involved in LW’s case who have no doubt battled with what to do to protect LW for some considerable time.  

It was acknowledged that withdrawal of contact with M was likely to result in short term deterioration in LW’s mental health and result in some difficult weeks ahead for her and for the professionals supporting her.  But, given the frustration LW was currently feeling at her abuser’s empty promises, it was acknowledged that this might be the least worst time for contact to be severed and there was agreement that should contact cease, LW would have the potential to flourish long term.

Jenny (afternoon only)

Mr Justice Hayden has a reputation for being able to get people to talk and I have previously witnessed the skilled, supportive but probing way in which Mr Justice Hayden has questioned relatives of patients in court cases about patients in prolonged disorders of consciousness (e.g. here and here).  I was, therefore, very pleased to have the opportunity to observe him in action when Celia rang asking if I might pick up the afternoon hearing. 

He began by commenting to LW that “you look well”, and asked her about the things she enjoyed.  She mentioned playing Scrabble and reading newspapers.  With prompting she admitted to having enjoyed playing the piano, but said that she had given it up now.

Judge:  Who taught you to play the piano?

LW:      My father.

Judge:   What grade did you get to?

LW:       Grade 1. I wasn’t very good. But the thing is that this is all memories of the

              past.  I don’t want to go over my past. I toe the line as a good Catholic.

Judge:   Some of the best music in the world has been written by Catholics – some

              beautiful church music. You know that don’t you.

LW:       Probably yes

The judge seemed keen to put LW at ease – for example, by asking about her favourite Abba song and commenting that she and he were a similar age when a particular song was released. He also offered her the opportunity to say whatever she wished rather than just responding to questions asking “Is there anything you’d like to tell me that we haven’t discussed”.

For her part LW was obviously anxious to impress upon the court her desire to go home. Her very first statement to the judge was “I want to go home” and she asked several times if M had called the court “to build trust” with them, believing that this would facilitate an agreement that she could move home.  I do not know whether or not M had been notified of the proceedings and if so whether he had given a reason for not participating – or whether there had been a prior decision that he should not be allowed to argue his case, and if so on what basis.

LW was also concerned about the work that needed doing on the house before she could return.  She worried that M appeared not to have taken things forward with the carpenter: some stairs needed repair, and the floorboards in the front room, and there was a leak in the front elevation.  She also mentioned the need for some electrical work. “I get the feeling M lets you down a bit” said Mr Justice Hayden.  She replied. “He does when I am in hospital. He hasn’t before that.”

Judge:   I know you want to go home and be with M. I want you to know that whatever decision I make, it will be what I think is best for you.

And a little later:

LW:     Yes, I want to go home though.

Judge:   Let me assure you that I know you want to go home

After LW left the court, there was no serious discussion of the possibility of LW returning home. 

The County Council position was that contact between LW and M should be stopped and the “fallout” for LW should be managed over the subsequent 6 weeks or so by supervision and support in her current placement from the psychiatrist and other carers.

The NHS Trust supported this position, acknowledging that there is “a risk that LW will suffer a period of deterioration due to lack of contact, but will have the potential to flourish in the medium and long term that she wouldn’t have if she continued to be subject to the malign influence M has on her.”  Counsel said: “We recognise that this is entirely contrary to her wishes and feelings. The Official Solicitor is always careful to vindicate someone’s wishes and feelings where it is appropriate to do so. But the Official Solicitor takes the same position as we do, notwithstanding that it is contrary to her wishes and feelings.”

Counsel for the Official Solicitor supported the application from the County Council to stop contact.  She said it was:

 “…absolutely clear from [the psychiatrist’s] evidence that LW lacks capacity to make this decision. Her wishes and feelings are clear but the evidence is that contact with M is detrimental to her physical and mental health. There are cruel and highly damaging attempts to control.  M has quite deliberately sought to thwart the therapeutic relations with [the psychiatrist]. Maintenance of a strong therapeutic relationship is key to keeping her safe and well. This attempt to thwart the therapeutic relationship is particularly disturbing.  Note the speed with which she diverted when asked about the piano – and said that as a true Catholic she must toe the line. It’s very disturbing”

The plan endorsed by Mr Justice Hayden was to keep LW at her current placement for a further period of around 6 weeks, and then to move her to a long-term placement.  She would not have further contact with M. 

Like Astral, I was impressed by the efforts put into ensuring LW was heard in person. But time and technology devoted to allowing P to present to the court, and a skilled judge who devotes care to drawing P out is NOT the same as hearing P’s voice in the sense of ensuring a full exploration of her values, wishes, feelings and beliefs. Like Astral, I was struck how, at no point in the afternoon, was LW directly presented with, or allowed to rebut, the evidence that might be used to prevent her returning home  – a basic right that would surely have been accorded someone in a criminal court at risk of being deprived of their liberty. Nor was LW given the opportunity to address the scepticism with which some of her expression of views was treated. For example, her statement that “I toe the line as a good Catholic” was subsequently treated as evidence of the ‘script” written by her abuser, but this interpretation was not proffered to her, allowing her to counter this or assert ownership of the statement as an ‘authentic’ representation of her own. In that sense I wondered if this part of the hearing ended up as more a symbolic ritual (in an effort to make LW feel heard and to be assured she had been enabled to “participate in a process that is properly judicial” as Mr Justice Hayden put it) rather than actual serious engagement with her wishes.  But maybe the emphasis was on avoiding anything that could have come across as confrontational cross questioning which, perhaps, existing documentation suggests would serve no useful purpose. Perhaps the exploration of her views was better facilitated by in-depth one-to-one discussion and was well represented in the bundle?  Coming in just for the afternoon, and, of course, not having seen the bundle, left me with many unanswered questions.

Celia’s reflections

The question of LW’s capacity to make her own decision about contact with M seemed to be dealt with surprisingly quickly, given the “hesitation” expressed by at least one of the barristers.  Having subsequently read another of Mr Justice Hayden’s judgments, I can see that the outcome might have been the same whether she was deemed to have capacity or not. 

In Southend-on-Sea Borough Council v Meyers [2019 EWHC 399 (Fam)) a 97 year old man, Douglas Meyers, wished to live at home with his son, in deeply squalid conditions,  and was found to have the mental capacity to make that decision.  Normally, the fact of his having capacity would suggest that no court could intervene, and that any choices that Mr Meyers made, no matter how apparently unwise, would have to be respected.  It is clear from the judgment that Mr Justice Hayden talked with Mr Meyers, listened carefully to his views, was in no doubt about his wishes, and (as in this case) made a decision that ran counter to them.  Considering that father and son had a “dysfunctional” relationship and that the son’s influence on his father was “malign”, “insidious”, “abusive” and “corrosive of his dignity,” Mr Justice Hayden required an order to be drawn up to ensure that “Mr Meyers be prevented from living with his son, either in the bungalow or in alternative accommodation”.  Contact with his son was to be restricted “in order to keep him safe”.  So, in the event that LW had been found to have the mental capacity to make her own decisions, but could reasonably be described as ‘vulnerable’,  a parallel line of reasoning could have resulted in the same outcome – which, I believe, is why the applicant wished the matter to come before a High Court judge. 

For anyone interested in learning more about the ambit of the inherent jurisdiction, the seminal judgment is Re: SA [2005] EWHC 2942, subsequently endorsed and amplified in the Court of Appeal in Re: DL [2012] EWCA Civ 253; [2012] CPLR 504.  According to Alex Ruck Keene and colleagues, there is no agreement between High Court judges as to whether the inherent jurisdiction can be used – as in the Mr Meyer’s case – against the “victim” (as opposed to against the “perpetrator” (i.e. Mr Meyer’s son, or LW’s ‘spiritual adviser’). They flag this in their guidance here.

The urge to ‘rescue’ vulnerable people from their abusers is a strong, compassionate human drive and it is not always easy to balance this with our impulse to respect individual autonomy and guard against unwarranted paternalism. So when people like Mr Meyers or LW state clearly and repeatedly that they wish to return to their abusers, we confront a challenging dilemma.  The criminal law offers little help (despite the relatively new Section 76 of the Serious Crime Act 2015 – Controlling or Coercive Behaviour in an Intimate or Family Relationship) when victims will not press charges.  There is long-standing feminist discussion about why some women apparently do not recognise when they are being abused, harassed and oppressed – and may even dispute it when others label it this way.  I wrote about this very issue from the perspective of feminist psychology more than two decades ago (here) – arguing that we should not simply dismiss these voices as ‘inauthentic’ or as the ‘ventriloquised’ voice of the abuser, while simultaneously endorsing those we agree with as valid representations of women’s wishes and experiences.  It is ironic, and chastening, to confront the same issue I identified back then in a research context, arising in the very different context of the Court of Protection today. The two competing impulses (to safeguard vulnerable individuals and to promote their autonomy) are addressed in detail from the perspective of law and philosophy by Camillia Kong and Alex Ruck Keene in their book, Overcoming Challenges in the Mental Capacity Act 2005, which is highly recommended.

I do not want to argue that the outcome of the hearing was substantively wrong.  I am relieved that LW is going to be protected from further abuse from M and I would have been distressed had her intention to return to live with him been endorsed by the court. There are costs associated with either the decision to protect her from him (counter to her wishes) or the decision to let her wishes prevail (continuing abuse). That is what makes cases like this so difficult. 

But for me, there is a problem with the way in which LW’s wishes were handled during this hearing (i.e. with the procedural aspect of the hearing). Counsel appointed to represent LW argued for exactly the opposite of what she wanted.  This is not uncommon in Court of Protection hearings, since the litigation friend is supposed to secure P’s ‘best interests’, not what P wants for herself. However, as legal experts in this area have pointed out:

Ordinarily, a lawyer who submitted entirely the opposite of what she knew her client to wish would face, at best, professional sanctions, and at worst, a claim for negligence. In the Court of Protection, however, current practice would tend to suggest that there are circumstances where the lawyer must indeed argue against their client’s wishes. It is ironic and is (or should be) a cause for concern that they are doing so in relation to the most vulnerable of clients, and do so on the basis of instructions given by a person—a ‘litigation friend’—contending that they are acting in the best interests of the individual concerned. (Alex Ruck-Keene, Peter Bartlett and Neil Allen)

The position taken by the Official Solicitor (OS) meant that the Local Authority (the applicant), the NHS Trust (the second respondent) and the OS (the first respondent) all took exactly the same position – all opposed to P’s wishes.  It felt very one-sided and as though nobody was arguing for what P wanted, except for P herself.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of Open Justice Court of Protection and co-director (with Jenny Kitzinger) of the Coma and Disorders of Consciousness Research Centre. She is Honorary Professor in the Cardiff School of Law and Politics. She tweets @kitzingercelia

Astral Heaven is a Local Authority AMHP and DoLS Manager.  She tweets @AstiHeaven  

Jenny Kitzinger is co-director (with Celia Kitzinger) of the Coma and Disorders of Consciousness Research Centre.  She is a Professor in the School of Journalism, Media and Culture at Cardiff University.  She tweets @JennyKitzinger


 

A Stop-Start Hearing

By David Haxon – 24th July 2020

I work as a brain injury case manager and I wanted to observe a hearing because one of my clients has recently been the subject of a Court of Protection hearing with a challenge to capacity, residence and deprivation of liberty. I wasn’t involved in the Court process but was made aware of what went on.  Following this, I was interested in observing the Court process for myself and set aside a Friday to do that.  

I observed “COP 13155577 Re: M” which was listed in the Family Division for 10:30am on Friday 10th July before Mr Justice Cohen.

Access was very straightforward.  I went on to the Open Justice Court of Protection Project website to look at the featured hearings and chose this one because it was video rather than phone hearing. I sent an email at 7.34 asking for access information and got an email back at 8.05 with a link to join the hearing via video. It was all much easier than I expected.  I got back to the clerk and asked “Do you need to know anything about me? Do you need me to read anything or sign anything?” The clerk was really responsive and got back to me straight away, informing me to “log on a few minutes before and it’ll be fine”.  I didn’t get a Transparency Order. That really surprised me.

When I logged on, I was kept waiting for about 5 minutes before the clerk came on and spoke to me and another observer. We were informed that the legal teams had asked for additional time before the hearing to try to resolve some of the issues before going through the court process.  I was asked to log back on at 11.15.  

When I logged back on at 11.15, the barristers for the two parties came on, and there was a social worker and a litigation friend. The clerk made sure that everyone was there but there were no formal introductions – I had to try and work out who was who from the clerk checking on attendance. Then, the clerk asked me to mute my microphone and turn my camera off so that the judge would only see the people who were actively participating in the hearing.   When the judge joined, almost immediately the barristers asked again for more time to find a resolution.  So they adjourned again until 2pm.  At this point, I still didn’t know what the case was about or what the issues were!

It was good to hear that the two parties were talking to each other and trying to come to a resolution, but it was a bit frustrating for me as an observer.

They came back at 2pm and the barristers communicated, “We feel as though we’re really close to making some concessions on both sides here. We feel as though we can resolve this. We need a bit more time.”  The judge became a bit forceful at that point, indicating that a resolution was needed and not to spill over into another day. The message from the judge was, “if you haven’t resolved your differences by 3pm the hearing will start”.  So, we all logged off again for an hour.

At this point, I still had very little idea what the hearing was about. I had no idea who P was, although I’d managed to glean that it was an issue relating to P’s accommodation.  P was moving to a new residence in August because the placement they were currently in had broken down.  It seemed as though there had been some kind of breakdown in communications or agreement between P and the placement and P’s family – so P’s family were requesting an interim order for P to move home until the new placement was ready for admission.  However, if the issues with the current placement and the family could be resolved, then there would be no need for P to move back into their family home temporarily.   I know when other people have done observations there’s been an introductory summary about the issues to be addressed.  This did not happen on this occasion.  If I hadn’t been determined to see this through, I think I’d have given up at this point. 

At 3pm I re-joined the video hearing.  Barristers communicated they’d resolved three or four of the issues. They were starting to draft an Order at that point. But they said there were still one or two issues they were looking to come to an agreement on.  They again asked for more time and the judge at this point set a deadline saying, “you’ve got until 4pm”.  Both legal teams communicated, “we’re really confident we can come to a resolution by then”. So 4pm it was, and off we went again!

At 4pm we all joined up again and essentially what had happened in between 3pm and 4pm was that the draft Order had been emailed to the clerk and the judge, and at 4pm they reviewed the draft Order.  It wasn’t read out so I don’t know what it said. The judge wanted to make a couple of amendments to the Order, which both parties agreed with, and the judge asked for the final Order to be sent to him as soon as possible along with the schedules and the barristers agreed between them who was going to do that.  So, the outcome as far as I could gather was that P would remain in their current residence, with some agreements and guidance around contact with the family, until moving to the new permanent residence in August. The judge said that it could come back to court if there was some really serious unresolvable conflict between P, the family and the care provider between now and August.  P was due to move in either the first or second week of August, so I think the consensus with all parties involved in the hearing was, “what’s the point of causing all this upheaval moving P from the current placement, to their home, and then to the new placement in such a short period of time if we can find a resolution to the presenting issues?”

And that was it!  There was a request for another hearing towards the end of the year, maybe a couple of months after P’s move to the new residence. Both barristers viewed this as a backstop – and communicated that once someone is moved to new accommodation it’s just good practice.  That’s also what’s happening with one of my clients, who has now moved to his new residence and there’s another hearing in a couple of months, which I assume now, from my learning in this case, is the standard ‘backstop’ as they called it.  The judge was very clear though that the backstop should only be triggered if there were issues.  He was adamant that he didn’t want the court’s time taken up with this unnecessarily if the new placement was successful for P. 

It seemed like a good resolution to a difficult situation, but it did make me reflect as to why issues get to a point where it takes around five hours on a Friday for two barristers, and their instructing solicitors, and a senior judge to thrash out an agreement.  I did find myself wondering if this couldn’t have been done earlier without ending up in court.  I wonder sometimes if it’s the thought of going to court that gets people talking to each other?  

As a case manager I’m used to being in situations where clients, families of P and professionals disagree, but if people have a willingness to do so, issues can be resolved.  We’re always trying to explain and justify our recommendations – whether it’s purchasing equipment or supporting decisions about where to live.  But whether other people agree with it or not is up to them, and sometimes you have to make concessions. But it is do-able.  What I saw in this case was legal teams, health and social care professionals and P’s litigation friend finding a resolution in P’s best interests, on the day of the hearing, pushing back the hearing to try to get agreement. I have so little detail about the case and finer detail as to what the disputed issues were, but it would be interesting to know what discussions took place prior to the day of the hearing, and whether these issues couldn’t have been sorted earlier in the week instead of involving a judge like this. 

The experience definitely gave me a real feeling of confidence that in the Court of Protection, whatever the two parties disagree about that results in a court hearing, there is the sense that both sides want the best for P.

I’m glad that I took the time to do this observation, even if I didn’t observe as much of the court’s process as I had expected.  I think I’m more aware now of what to expect if I ever had to be in the court myself. It was time well spent.

David Haxon is a Senior Case Manager at Social Return and committee member for the North East branch of the Court of Protection Practitioners Association (CoPPA).

Restrictions, Covid-19 and a Glass of Champagne

By Jacqui Bond – 22nd July 2020

I observed a hearing before District Judge Morgan (Case no: 13569561) via telephone.

Having read other Court of Protection blogs, many of which describe difficulties of access, I was pleasantly surprised to be given permission to observe a hearing at the Welsh Regional Hub in Cardiff at first request.  

This hearing was listed with a time estimate of half an hour, but actually took 75 minutes. It was one in a series of hearings concerning the same case: further dates were booked in to consider issues raised from a previous hearing in June that were unable to be resolved today. I gather this is typical and that many cases are the subject of repeated Court of Protection hearings as part of ongoing case management. 

There was no introductory summary of the issues (as recommended by Hayden, here) which meant I found it hard to follow and am not sure that I have all the facts correct. Counsel were present to represent Cardiff and Vale Health Board, the local council, and P (who was not present himself) – and who, I learnt towards the end of the hearing, has an acquired brain injury.  P is currently living in a residential placement following discharge from hospital, as his primary residence wasn’t suitable to return to immediately. 

Initially he had been allowed to go out and see his Mum via public transport.  But after he told the staff at the home that he’d had a glass of champagne (and smoked cannabis) while out and about, restrictions were introduced. Another incident involving police being called while he was in a shop with a member of staff meant that supervision had not been lifted when accessing the community and meeting his mother. 

I think this placement must be further than 5 miles from his mother’s house because the judge raised the problem of whether he understood the Covid 19 restrictions. In Wales at the time these meant that people could travel no further than 5 miles from their home, except for essential travel.

There was also a problem with the capacity assessment that had been requested.  As a social worker I have only ever done a capacity assessment for one decision at a time, but it was necessary to assess a variety of domains here.  The judge had no confidence in the capacity assessment presented to the court, describing it as “inadequate” because it had not covered all the domains required.  Due to other work P’s doctor had had to prioritise, the capacity assessments would not be completed in good time.  Assessing capacity for where P would live, finances, COVID 19 guidelines – which change every 3 weeks – specific to P’s situation, alcohol and/or substance use, and taking medication could be time consuming. The judge ordered that an independent expert should be appointed to assess P.  

P’s legal representative was clear that P wished to have the situation resolved with regard to unescorted access to the community. She pressed for a clear ‘on the ground plan’ and what the situation would look like if P were to be relieved of supervision.

 In addition, she noted that P had been able to have his medication by depo injection when he was living in the community, but he was now prescribed Olanzapine. I assume this was orally, but it was not made clear. While the current medication regime was suitable for P in a care home, and the LHB (Local Health Board) advised there was currently no clinical need for an alternative means of delivery, she wished for flexibility to be explored. This would allow P more options in terms of a suitable home and the care and support that he would require.

P’s legal representative also raised the issue of P’s former home, which was in need of cleaning. While not within the remit of the Court at present, it was brought to the attention of all parties that P may not be able to obtain another property from housing authorities or associations until his former residence is cleaned and the tenancy surrendered. Cleaning the property may not seem to be a priority for the court, but P had noticed the need for it, and lack of it could affect future housing options.

Due to the length of the hearing, no decisions were made with regard to long-term residency, but a request for a brief outline of the Health Board’s parameters in relation a suitable place to live were to be drawn up and sent to all parties.

Observing the hearing was interesting and made me reflect on my own experience of conducting capacity assessments and the extent to which they would hold up in court.  I do wish, though, that the judge or the applicant had done a proper introduction to the issues to be covered in court so that I would have been better placed to understand what was happening and use the experience more effectively for professional development.

Jacqui Bond is a Social Worker, and can be found on twitter as @jacquic71

Lived Experience and Professional Expertise as a Lawyer in the Court of Protection

By Kirsty Stuart – 21st July, 2020

(Tweets from 9th July 2020)

When people think about what a lawyer is, I think the typical view is of someone who wears a suit, goes to court and earns a lot of money, or at least that is what my clients have told me.

But as solicitors we are shaped not just by our professional training but also by our life experiences.  

A proportion of my clients have a form of Alzheimer’s disease or dementia. My mum was diagnosed in February 2019 with a rare kind of young onset dementia called Posterior Cortical Atrophy. This came as a bit of a shock at the time as she was only 59. As solicitors receiving paperwork for new clients we get “care needs assessments” – and my mum’s name is now on that paperwork that drops through my door. I understand from seeing care homes and placements in my local area the options available and this adds a different slant to these clients. I can truly empathise with the perspective of family members whom I support in my job and I feel their worries about “wandering”, of change, and in the certainty of uncertainty. It also means that I am aware of what services are available, of the ways in which to speak to those individuals and what the family members concerns will be.

I was interested in going in to law whilst doing a degree in medicine, when I had a realisation that I did not want to become a doctor but still wanted a career where I could help improve the lives of others. I also knew I wanted a good life-long career. My interest for medicine though never left, and this is why I pursued mental health law as a paralegal and now as a qualified solicitor, working in the field of public law and human rights.

My caseload mainly consists of those who may lack capacity to make decisions for themselves: whether this be, for example, to decide on where they live, who they have contact with, or whether they can decide on medical treatment.

Some of my clients have communication difficulties and again my personal and family experience is helpful.  I have been blessed with two children. They were both born prematurely and received hospital treatment in the special care baby unit for several weeks after birth. My older child is almost 6 and has specific diagnoses which we still have to manage due to her prematurity, and my son who is almost 3 is more complex. He has seen most specialities at our incredible Children’s Hospital as well as the genetics team at the Centre for Life. He continues to require additional support from several medical professionals and looking after a child with additional needs is like having a separate job. Due to his speech difficulties, I learnt Makaton, which is a unique language programme that uses signs, symbols and speech to enable people to communicate.  With Makaton, signs are used with speech, in spoken word order. Having a child like mine means that when I have clients who have rare genetic conditions or learning disabilities and/or who are autistic, or those who have communication difficulties, I can use that to enhance the relationship, and relate to how those parents feel. I understand the struggles, the worry, the hospital admissions, and having to liaise with several professionals to obtain the right levels of support for your child and find the answers you need. I have also found it helpful to use my Makaton, albeit that I am no expert, to enhance the ability of some clients to communicate effectively with great results.

My personal experiences have had a big impact on my work and the way in which I approach cases. I am acutely aware of the ways loved ones will be feeling and know to approach their anger not as a personal attack but more a frustration at the battle they have fought for years and their misunderstanding of my role – meaning they think that I am just about to ‘breakout’ their loved one and set them free on their own, back into a dark place. That is absolutely not my role and it is about listening and really trying to consider the weight individuals place on things, even if I may not make the same decisions myself.

I think it is so important to share a little piece of yourself in the work you do. I think the views have always been not to do this, not to show a personal side but I have found a real benefit in the opposite. That is not to say that I do it for all clients, all of the time. I do not speak to my clients with dementia about my mum’s dementia. I also had a very emotional serious medical treatment case relating to an unborn baby, at the same time as myself being pregnant. I did not tell the lady that I was pregnant or of my previous child’s prematurity. There is definitely a balance to be struck and I let it happen naturally, if it feels right to do so, and sometimes a genuine ‘ I can really relate to that,’ is enough to give that feeling.

I am lucky in many senses in my work life, mainly in finding Irwin Mitchell solicitors where I currently work. Not only have they been genuinely supportive of my situation, always being understanding and allowing me to take time off and work flexibly, they are supportive of individuals carving out their career aspirations, of doing specific cases of interest and nurturing that interest in a furthering way. I wish that more lawyers online were honest and saw the positive impact of sharing a piece of you does rather than being scared of social media. When your true vocation is to be a lawyer, it sits beside your other roles and just becomes part of your day and overall self.

Being a lawyer in this field and covering cases within the Court of Protection can be difficult and emotive, particularly with those on, for example, ventilation or at end of life – and it draws on all personal parts of your own life to help clients and ensure that it is person centred. A lot of lawyers in this field are parents, carers and have those experiences to draw on alongside their training and expertise. We are not faceless, and any one of us could become involved as the subject of, or family member to a person subject to Court of Protection proceedings.

Kirsty Stuart is a public law and human rights solicitor at Irwin Mitchell, mother to Islay and Hugo, and parent ambassador/fundraiser or @tinylivestrust.  She tweets @ @MrsArcticride

DRUM ROLL…Introducing our New Logo

By Gill Loomes-Quinn – 20th July 2020

We are delighted to be beginning this new week at the Open Justice Court of Protection Project by unveiling our new logo. It’s great to have this new part of our “identity” in place, and is making us feel very “official”.

We hope you like it as much as we do!

[Design by Jon Loomes of Talking Cat Studios ]

A Tale of Two Sisters

By Kirsty Keywood – 17th July, 2020

In many ways the legal issues discussed in the Court of Protection hearing I observed before District Judge Gray on 10 July 2020 (Case No. 13575629) are somewhat mundane.  Two siblings were in dispute over who should assume the role of deputy in respect of an ageing parent, P,  who lacks capacity to manage their finances.[1]    One had applied to the Court to be appointed as sole deputy; the other (the respondent) had opposed on the basis that, having been estranged for a very lengthy period of time (over 10 years) from their parent,  she now wanted “to be involved”, as joint deputy, in decisions about P.

Outlining the factors identified by former Senior Judge Denzil Lush in determining whether a deputy appointment was appropriate (including of course P’s wishes being of ‘magnetic’ importance; the willingness of parties to act; and the nature of the relationship with P) District Judge Gray invited the parties to establish their suitability.   For the applicant, the lengthy period of estrangement as well as the respondent’s considerable geographical distance from the UK were obviously relevant here.  Of particular concern to the Court, and undoubtedly very painful for the respondent to hear, were the past wishes of P not to have contact with the respondent and to make no provision for her in their will. 

What became clear in the course of the hearing was that the respondent had no particular concerns about her sister’s ability to act as deputy but was rather upset at her own exclusion from decisions concerning P. The judge adjourned proceedings (for around 20 -25 minutes) in order that it be ascertained whether the applicant would be willing to share information about P’s accommodation and health with her sister on a regular basis.  He also encouraged the respondent to consider whether, if there were some way in which she could be kept informed about her father, she would wish to pursue her objection to the appointment of her sister as sole deputy.     

On resumption of the proceedings both sisters indicated that they were willing to compromise.   The respondent would withdraw her objection to the application for appointment of deputy; the applicant would supply information (and photographs if P were willing) to her sibling.  An order was to be drawn up to this effect.

Reflections

The case revealed a welcome input of pragmatism from a judge who saw that what was being sought by the respondent in this case wasn’t quite what the law was designed to address.   The respondent explained that she opposed the appointment of her sister as sole deputy because she believed it would mean that she would never be able to speak to her father again or find out how he is.  District Judge Gray took time and care to explain to the respondent that what she wanted would not necessarily be remedied by her appointment as a deputy and that there were considerable practical hurdles in the way of her being able to fulfil that role.   In encouraging the parties to consider an alternative way forward to resolve their difficulties, the judge at least managed to give both sisters the opportunity to consider how they might achieve some of what they had wanted without further involvement of the Court.  Fractured family relationships are profoundly difficult to repair when time has marched on to the extent it had in this case, although there had clearly been some accommodation of each others’ wishes in this case.

P was not represented at the hearing, although their wishes (past and future) were acknowledged.  It wasn’t clear to me whether P was consulted about the possibility of the estranged daughter now having a renewed role in their life, whether as a deputy or in some other capacity, although this might have been due to be addressed at a later hearing.   In ordering that the respondent may receive photographs of P, the judge made clear that this would only occur if P were “agreeable” to being photographed.  The judge reminded all attending that the role of the Court in these proceedings is to make sure P’s voice was heard.  I couldn’t help but wonder what P would have made of all this.    

Kirsty Keywood is a Senior Lecturer in Law at the University of Manchester.   She writes and teaches about how mental disability law and policy affects the lives of people with a mental health diagnosis or a learning disability. Check out her webpage here. She can be reached by email at kirsty.keywood@manchester.ac.uk


[1] The hearing may well have embraced welfare powers although this wasn’t clear to me. 

NEWS: Gill Loomes-Quinn will be talking about the Project at the Mental Disability Law – Postgraduate and Early Career Researcher Seminar on Wednesday 22nd July

By Gill Loomes-Quinn – 16th July 2020

Gill is looking forward to giving a talk about the project, and how we contribute to, and champion the cause of Open Justice in the Court of Protection – at 3.30 pm next Wednesday 22nd July, 2020.

This will be as part of the Mental Disability Law – Postgraduate and Early Career Researcher Seminar, a full-day, online event being organised and hosted by Amanda Keeling (University of Leeds) and Grace Carter (University of Nottingham).

The talk will provide an opportunity to hear more about this project – in an informal and interactive environment. It is aimed at the expected audience for the seminar itself (predominantly early-career legal and socio-legal researchers); however, with (scholar) activism at its heart, it will engage anyone committed to the pursuit of Open Justice in the Court of Protection (as does the project itself, of course).

You can find out about the event here.

The session in which the talk is scheduled is taking place via Microsoft Teams. In order to gain access, you need to email Amanda Keeling (a.keeling@leeds.ac.uk) or Grace Carter (grace.carter@nottingham.ac.uk).

Hope you can join us!

A Basic Guide to the Court of Protection

By Alex Ruck Keene – 15th July, 2020

The work of the Court of Protection is important and sensitive.  It has sat in public for several years because of the recognition there is a legitimate public interest in understanding how it reaches decisions about the capacity and best interests of people, with often serious and far-reaching consequence for the person (and others around them). There are almost always reporting restrictions around the case because this is not theatre: hearings are not put on for public entertainment, and hugely sensitive details about the person are examined, often in minute detail.  They have to be so that the court can come to a decision, but there is no legitimate interest in people being able to share those details.  

The effect of the COVID-19 pandemic, and the move (in almost all cases) to remote hearings has had the ironic effect of both making it less open, because of the difficulty of physically attending court and more open by making it (more or less) easier for a person with an internet connection (or, if a telephone hearing, a telephone) to attend hearings across the country without moving from their armchair.  The Open Justice Court of Protection Project is doing sterling work in enabling members of the public to understand how to attend court. 

However, there is a difference between open justice and comprehensible justice.  It is one thing for people to be able to come to court (whether in person or, at present, largely remotely) and another for them to be able to follow what is going on there.  

Some of the ways that the courts – including the Court of Protection – are set up to enable justice to be done fairly and proportionately place hurdles in the way of this.  For instance, making sure that much of the work is done by way of written arguments or witness statements in advance means that there are not (or should not be) surprises at the hearing which place people at a disadvantage.  It also allows the hearing to proceed more efficiently because the judge has (or should have) the arguments well in advance so that they can prepare.  But this means that, in court, much of what is happening will be done by reference to the ‘bundle’ of documents, to which anyone other than the parties to the case will not have access.  There are some ways in which this can be overcome, for instance by requiring the lawyer who speaks first to give an outline of the case (as the Vice-President of the Court of Protection has suggested).

Another important barrier to public understanding of the processes of the court is the use of legal jargon which makes sense to those involved, but may not make any immediate sense to those who are not.  This barrier is just, as if not more, serious where a person is involved but does not have a lawyer to help them translate.   

To that end, and building upon work that Victoria Butler-Cole QC did several years ago, a small team comprising her, Sarah Castle (the Official Solicitor), Jakki Cowley (an IMCA), and I have produced a basic guide to the Court of Protection for lay people who may be going to court, or may be attending court.  The guide is accompanied by a glossary of the terms that are regularly used.  Jakki has also written a more personal guide called “You’re going to a welfare hearing at the Court of Protection – what does this mean for you?.”    These documents are not official documents, but we hope that they may be of help in ensuring that those who attend court know what it does, and how it does it.[1]   All of the documents can be found here.

Alongside these documents, I should also flag the guide to remote hearings produced by the Transparency Project.  It is designed for those attending family proceedings, but has practical information which may be equally useful to those attending hearings before the Court of Protection.


[1] A much more detailed overview of the Court of Protection’s work and how it looked at difficult capacity cases over the first ten years of its life from 2007 can be found in this article.

Alex is a barrister at 39 Essex Chambers who has been cases involving the MCA 2005 at all levels up to and including the Supreme Court and the European Court of Human Rights. He also writes extensively, has numerous academic affiliations, including as Wellcome Research Fellow at King’s College London, and created the website www.mentalcapacitylawandpolicy.org.uk.

He tweets @CapacityLaw

%d bloggers like this: