“Abusive” wife agrees to move out of “the matrimonial home” with continuing (albeit restricted) contact with P: An agreed order

By Bridget Penhale, 28th June 2022

After reading previous OJCOP blogs on the circumstances of this case (the most recent is here, and there are two earlier ones) I was keen to attend this hearing (COP 13861341 before Mr. Justice Francis) on Monday 27th June.

It concerns a protected party (P) who has dementia and Parkinson’s Disease. 

 According to the previous blog post, he’s in a care home and he wants to return home.  

The difficulty is that his wife, who lives in the house of which he is sole owner, is (allegedly) abusive and subjects him to coercive and controlling behaviour. She also impedes the delivery of care to him. The applicant local authority is asking the court to make orders that P’s wife (W) must move out of the house, and that her contact with him should be restricted. The local authority believes that it’s in P’s best interests to live at the property, but not with W – whose influence over him is such as to overbear his capacitous decisions about contact and residence.” (When P can’t go home to his “abusive” wife: Another ineffective hearing)

P’s wife was contesting the order. She wants to remain living in P’s house, and will not voluntarily leave (despite being offered alternative accommodation paid for by her husband) and she wants unrestricted contact with P.  

So, this hearing was expected to be a contested hearing, with a social worker giving evidence about W’s behaviour towards P – her abusive, coercive and controlling behaviour – in support of the local authority’s application.

 I have a particular professional interest (from a social work perspective) in matters relating to older people and capacity, including those involving alleged or potential abuse. I was therefore interested to hear more about this aspect of the case, especially as abuse against older men happens less often than against older women. Much of my academic career has been spent working on issues of violence, abuse, neglect and exploitation, with a particular focus on elder abuse and intimate partner violence and older people. (For more information about these interests and selected publications check out my webpage.)

Gaining access to the hearing was relatively straightforward – an email sent the previous evening requesting access was responded to shortly before the hearing was due to begin. After a short wait in the ‘lobby’ I was admitted without any further checks. 

The hearing

The start of the hearing was delayed by some 40 minutes, without any explanation to the observers, and online observers were left watching a largely empty court-room and P, the only person visible on screen, as he waited for the hearing to begin. 

In the event, once it started the hearing was brief and it again evidenced the work that can take place outside of a hearing, in the shadow of impending judgment.

Counsel for the applicant (Michael Paget), for the local authority, thanked the judge for the extra time before the hearing, and announced that a potential agreement had been reached.  

The represented parties (the local authority, and P via his litigation friend the Official Solicitor, Sian Davies), who were in agreement at the previous hearing, had now slightly amended their position after discussion with P’s wife – the second respondent and a Litigant in Person – just prior to the hearing. And they had secured her agreement to an amended draft order.  

So instead of hearing evidence and launching into a contested hearing, there was an agreed draft order to be discussed.

The original draft order had prohibited all contact between P and W, but this was now to be modified with the addition of “save by letter or phone contact and must seek a prior agreement from the applicant for any face-to-face contact”.  There was also provision to undertake a review in three months to see how contact arrangements were working and to review P’s care package at home.

The judge was clearly pleased about this turn of events and, as he had been the judge in earlier hearings, was knowledgeable about the circumstances of the case and keen both to pursue and endorse the positive outcome. 

The judge did not address P directly, other than to confirm that P could see and hear the proceedings from the outset, and thus P’s involvement was via his legal representative Sian Davies. She said she was “supportive of there being an agreed rather than an opposed order, because an imposed order brings with it the potential of it not being complied with.  The OS considers there is a greater prospect of success if the order is agreed, rather than with an unwilling respondent”.  She said that P currently receives phone calls from his wife “and that doesn’t appear to cause him any difficulty, so stopping phone calls may be a restriction too far”.  She said that contact with his wife was also “in keeping with P’s wishes[1].

 It was pleasing to see the care Francis, J took to ensure the wife’s participation in the hearing (through her interpreter).  This level of involvement was needed for the judge to satisfy himself that P’s wife was aware of, understood and in agreement with the terms of the order before a decision was reached by him to (as he put it) “give the order my blessing”. 

Care was also taken to explain to P’s wife what the penal notice attached to the injunction that was to be made meant. The judge said: “I’m being invited to make an order which has a penal notice attached to it. The effect of a penal notice, if a judge were to decide that there had been a deliberate breach, could result in an application being made to the court, and in some very serious circumstances a judge can send someone to prison for breaching an order.  Have you had that explained to you?”.  She said she had.  

The judge also explained that W would continue to have the right to seek legal advice and representation in future. 

I know on two previous occasions I encouraged you to seek advice from a lawyer – and it was made clear to you that the costs of that lawyer would have been met.  When the review comes up that Mr Paget referred to a moment ago, you may then want to speak to a lawyer.  If you do need a lawyer, or want a lawyer, then you should ask those representing P or the local authority or those managing his affairs.”

At this point the sound quality in the courtroom dipped but it seemed that W indicated that she might know someone able to offer her such representation in future (in a few months) to help resolve the issues. 

The discussion about the order also included the Deputy’s difficulties in obtaining access to P’s finance through his bank (which led the judge also to make an order requiring the bank to comply).

The judge’s courtesy and his personable and human approach – yet with necessary attention to detail – was evident throughout this brief hearing.

This hearing took around 30 minutes and the judge concluded the proceedings by stating that he hoped that he would not see the matter before the court again (as this would mean that the issues were satisfactorily resolved). 

I was left feeling somewhat less optimistic. Despite being a latecomer to this case, previous information (from blogs) had strongly suggested that this was far from being an easy and straightforward set of difficulties to resolve and that problems had been a long time in the making. For matters to have reached the Court in the first place indicates a certain level of intractability. The apparent ease with which agreement was eventually reached (as presented in the course of this hearing) appeared to me to be somewhat unlikely to be maintained in future. My unease was particularly in relation to knowledge and experience of issues relating to abuse, coercive control and contact arrangements.

I also felt a sense of an agreement being reached for a specific purpose but one that was likely to be far more difficult to put into practice and sustain than anticipated. I hope I’m proved wrong!

Bridget Penhale is Reader Emerita at the University of East Anglia, Norwich and an independent consultant on elder abuse, adult safeguarding and adult social care. She tweets @bpenhale


[1] We are not allowed to audio-record hearings, so all quotations from what was said in court are based on notes made at the time and are unlikely to be entirely accurate.

‘Micro-management’ or appropriate case management by the court for a ‘dangerous young man’?

By Claire Martin, 28th June 2022

The protected party at the centre of this case, ED,  is 27 years old.  He is autistic and has a learning disability and epilepsy.  He has been detained under Section 3 of the Mental Health Act 1983 since April 2018. 

Before then he lived with his mother (with paid carers to help with his care needs). He was initially in a psychiatric intensive care unit, and then moved to long-term segregation, which is where he currently remains. 

These proceedings began in June 2021, seeking court approval for ED’s deprivation of liberty in the community when he was discharged from hospital. The applicant is ED (via his Litigation Friend). 

A hearing on 23rd September 2021 before DJ Davies required two respondents (the CCG and the Local Authority) to provide evidence about plans for ED’s care in the community. ED has been ready for discharge for some time and a court order dated 1st December 2021 states the Trust’s position that he was ready to be discharged back then. Plans for discharge have been ongoing since early 2022. At this hearing, final care plans were still not available for the court. 

I observed a hearing for this case (Case No: 12611795) on 13th June 2022, before Her Honour Judge Matthews QC. It was due to start at 10.30am and got underway, for various reasons, at 11.27am. 

The judge asked counsel for ED (Victoria Butler-Cole, QC) to provide a ‘pen picture’ of the case, since there were observers present. As ever, this is extremely helpful in setting its context and history.

There were four parties in the hearing: ED (via his Litigation Friend, his mother), the CCG, the Local Authority and the NHS Trust which is currently caring for ED under the Mental Health Act.  The proposal (from the NHS Trust and the Local Authority) is that ED will initially be discharged to a designated home with round the clock carers, under Section 17 of the MHA 1983

It’s the circumstances and clear plans to enact this discharge that were the subject of this hearing. 

What are the issues to be decided about ED’s discharge from hospital?

Victoria Butler-Cole QC clearly outlined three main issues:

1. What CCTV arrangements should be in place for ED?

2. What should the contact arrangements be for contact between ED and his father and (separately) between ED and his mother and sister?

3. The plans for discharge from Section 17 of the MHA and transfer to a Deprivation of Liberty authorisation from the Court of Protection. 

The CCG, reportedly, was disputing aspects of the draft order, which I don’t have, so it wasn’t always obvious to observers during the hearing, what exactly was the position of the CCG. HHJ Matthews QC was concerned about the time available to the court and the fact that there was still dispute between parties and that ED needed to leave hospital not least because, as Victoria Butler-Cole QC had stated, there have been: 

“… recent incidents where he has suffered physical injury with what has been described as inappropriate physical restraint. One report has stated that ED is not safe in hospital. I raise it because it is critical that everything is undertaken thoroughly and comprehensively in good time, so that he DOES leave hospital with no further delay.” (Counsel’s emphasis)

In her Position Statement, there is more detail about both the physical injury and about the context in which it took place.  

An Independent Care and Treatment Review panel had concluded a couple of months ago (at the end of April 2022) that ED was ‘inappropriately placed in hospital’. ‘Red level’ concerns were raised about whether ED needed to be in hospital, whether he was receiving the right care and treatment, whether he was involved in his care and treatment and whether there was a clear, safe and proportionate approach to risk management. There were questions about whether ED’s rights and freedoms were being upheld. 

Then in May 2022, there were three incidents in which ED was physically restrained and sustained injuries. An independent medical review carried out by Dr Chris Ince (a Consultant Psychiatrist working in specialist autism services) on behalf of NHS England reported that ED was ‘not safe within his current environment’. There is currently a pre-action response awaited from the NHS Trust. Some staff have been suspended or removed from working directly with ED, and the CQC is going to carry out an unannounced inspection. It sounds like ED is not in the best place to meet his needs, to say the least.  

The following exchange[i] then took place, between counsel for the CCG (Samantha Broadfoot, QC) and HHJ Matthews: 

Broadfoot:  Good morning My Lady. I will be brief. The context is that ED is potentially a very dangerous young man. He has a history of highly challenging behaviour. He is a risk to himself and others – attacks on staff, property. [Psychiatrist’s] September 21st report details this [lists paras] and [further psychiatrist] report. The CCG is the commissioner. Everybody agrees he’s not getting the best care in the current setting. The proposal is that he is moved to a purposely adapted, extremely expensive placement. The care provider is an autism specialist. He can be extremely dysregulated and engage in challenging behaviour – there is evidence that change is a matter that can be upsetting and difficult for him. The reason we as the CCG say the orders sought are premature is because it is for the care providers to work out, especially with his mother, the plans regarding contact etc. [There is] a danger that court processes are being used to micromanage the process. The vast majority of discharges happen without the involvement of the court. Given the background to this, it is proposed that there is a risk it’s going to alienate the provider by micromanaging an iterative process. We accept that everybody involved in this should be engaging. [Care provider] is committed to this. The orders at paragraphs 7 & 8 [in the draft order – I am not sure of the details of those orders] are micro-management and we have serious concerns about that. On CCTV,  point specifically [care provider] will be data controller and they will work out what is necessary and then seek consent. If that consent is not forthcoming [care provider] will have to decide whether to proceed on a different basis. At this stage we just don’t know. At this stage those orders are premature and unnecessary. 

Judge: So you’re not agreeing to all of paragraph 10  ….. What do you see the point of the hearing on 21st July being?

Broadfoot: It might have to make a decision on some of these matters. We don’t know at the moment.

Judge: Why are you agreeing to this hearing then?

Broadfoot: By the 21 July, if there’s no dispute, then we’d be saying we are happy for the court to decide.

Judge: I am trying to follow the logic. You are objecting to the gathering of evidence?

Broadfoot:  The process … what we object to is the directions as to the service of evidence which assumes that there’s going to be dispute.

Judge: It raises the possibility, but equally, as is often the case in the COP, it sets out matters on which people can agree. It will be a matter for the court on 21 July to decide, and obviously ED needs to be safe. 

Broadfoot: One point on paragraph 9 on Deprivation of Liberty in future. It is safe to say at this stage, it’s very very uncertain what the timing framework will be for ending of S117 leave and mid-August is only one possible date. 

Judge: Thank you.

Rhys Hadden (counsel for the NHS Trust) confirmed that the Trust’s view was that it was uncertain when it would be appropriate to discharge ED from the MHA section (which can recall ED back to hospital if deemed necessary): 

“The best guess is 6-8 weeks from the end of July, it may be shorter or longer, it depends on how he settles in to new placement. The responsible clinician will be responsible for this. I am not commenting on the future. The agreement from the other parties is that NHS Trust involvement on 21st July is not going to be necessary. We are asking for our clients to be excused at the next hearing. The order is essentially agreed.” (Rhys Hadden, counsel for NHS Trust)

The issues (and a concern) were starting to firm up in my mind at this point.

ED’s legal team wants some clarity about the detailed plans for his move to the care home, the considerations relating to the decision to discharge from the Mental Health Act section (and transfer to a Deprivation of Liberty authorisation) and the proposals for use of CCTV and family contact.

Counsel for the CCG argues that this is ‘micromanaging’ the case.

I was also very struck by the CCG’s use of language to frame and describe ED. Ben McCormack (counsel for the Local Authority) addressed my emerging thoughts: 

“Two things. The CCG. ED was described as a ‘dangerous young man’. We don’t agree and don’t think that’s helpful. The aim is to get him out of hospital. We don’t think characterising him as such is helpful – of course he needs some care, needs looking after, but that’s the plan and what’s proposed. The Local Authority have their obligations. The second point – is this micromanagement or is it case management that the court needs to decide about? In most cases before the COP, the court has to clear the ground and understand everything before it. In the Local Authority’s view, there are many routes to agreeing a dispute. It’s not certain, he may be on s117 leave for some time, but if not, he’ll be deprived of his liberty by August or September. What’s the point in discharging these hearings only to step them up again? … Contact with family. How can the court decide without some evidence about this? We see it as a proper … we don’t think the other parties are asking too much of us, that’s why we agree it.” [Ben McCormack, counsel for Local Authority, Counsel’s emphasis]

I was relieved to hear Ben McCormack comment on the language used by the CCG to describe ED. I don’t know the extent of ED’s distress and how this might lead to ‘dangerous’ behaviours. It did not seem material to the issues before the court, however, which were about detailing plans for leaving hospital, monitoring and contact when he had left hospital.  It might be the case that both he and others are at risk when he becomes distressed. As Ben McCormack pointed out, however, all this means is that ED ‘needs some care, needs looking after’. Framing the issues around ED being a ‘dangerous young man’ served no purpose here in my view, other than to cast him in a pejorative light. I can’t see much difference between this, and the (regular, in my experience) casting of all of someone’s actions and ‘behaviours’ being attributed to their ‘personality’ – usually in the context of the professional concerned looking for a way out of having to think more about how they might need to adapt in order to help. We all act and behave as we do because of our ‘personality’, mediated by our life experience, the environment we are in, how we are treated and the relationships we form. The (often throwaway) label of ‘personality’ explains nothing, really, other than to locate the problems in the person, and thus nothing to do with us! 

HHJ Matthews QC gave a brief ex tempore judgement: 

“The draft order is a proper use of the court’s powers. It is not micromanaging. The court would wish to know what the arrangements are likely to be. I understand this is complex care planning, I have no wish to frighten away the care provider. What’s being asked is not inappropriate or extensive. The court needs to know what the dispute is. It may assist to resolve issues. It may be helped by a round table meeting, and the court wishes to know how things are proceeding. The court needs to know that things are being handled better than in the past. The court has no wish to be premature or inappropriate but with that information the court will be in a better position on the 21 July. … I will adjourn but may determine it should be dismissed on 21 July.I agree the Trust can be stood down at this stage. If it is appropriate then [ED’s mother] should sign the tenancy agreement. It is for the Local Authority and the CCG to decide [refers to paragraphs in the order].With the benefit of more information and time I may dismiss the application.”  [Judge’s emphases]

I couldn’t have agreed more with this judgment.

I didn’t hear evidence that the care agency was being ‘frightened away’. I am not sure why a care agency would object to transparency about detailed care plans for a person who needed good, carefully arranged and executed plans to facilitate as smooth a transition and settling-in period as possible. We heard that, for ED, change itself is frightening and challenging to him. Why not do everything possible to make sure that this is planned out in detail?

I have observed many hearings now, ‘case management’ and ‘directions’ hearings, where exactly this sort of detailed planning is considered the business of the court. It has seemed to me, often, that without orders of the court, good intentions might not translate into actions, plans can go awry and Ps’ care can end up very badly handled.

As HHJ Matthews stated: The court needs to know that things are being handled better than in the past.

I am unable to attend the next hearing – if it happens – on (21st July 2022) and hope that someone can observe it to see how ED is getting on and report back. 

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin


[i] Dialogue is reported as accurately as possible. We are not permitted to record hearings. It is possible that some words are missed, or misheard and reported inaccurately. 

When P can’t go home to his “abusive” wife: Another ineffective hearing

By Celia Kitzinger, 25th June 2022

The protected party at the centre of this case (P) has dementia and Parkinson’s Disease.  He’s in a care home and he wants to return home.  The difficulty is that his wife, who lives in the house of which he is sole owner, is (allegedly) abusive and subjects him to coercive and controlling behaviour. She also impedes the delivery of care to him.

The applicant local authority is asking the court to make orders that P’s wife ( W ) must move out of the house, and that her contact with him should be restricted. The local authority believes that it’s in P’s best interests to live at the property, but not with W – whose influence over him is such as to overbear his capacitous decisions on contact and residence.

The hearing I observed (COP 13861341, before Sir Jonathan Cohen, 13th June 2022, via MS Teams) was supposed to be a final hearing.

There have been two previous attempts at a final hearing for this case – one in May 2022 (blogged here) and one at the beginning of June 2022 (blogged here), both via MS Teams.

Neither got off the ground, largely because of concerns that W was disadvantaged by not having legal representation. It was also obvious that a remote hearing would not work well due to interpretation issues.

W was not represented at this hearing either – because she’d declined the offer of legal representation (to be paid for by her husband’s Deputy).

In fact, she wasn’t initially planning even to attend it.

When the case was called on at 10.56 (a 26-minute delay caused by “unavailability of staff at the court”), W was not in court, and nobody knew where she was.  

Although W was eventually located, and she joined the hearing with her interpreter shortly before noon. the hearing was abandoned shortly before 1pm as it was agreed that it could not be effective. The judge said:

I’m sorry for P, and sorry for all the professionals involved, that as a result of W not attending court, and not telling people in advance that she was not attending court, that we are now going to have to put the case over.”

The failure to hear this case, for the third time, means that P remains in the care home instead of returning to his house as both the Official Solicitor and the local authority believe is in his best interests.  He’s been in the care home for nearly 6 months now.

The next hearing – again, a “final” hearing – will be in-person (or ‘hybrid’, i.e. in-person, but with only P attending remotely from the care home) at the Royal Courts of Justice on Monday 27th June 2022.

What went wrong?

It was very unfortunate – though nobody’s ‘fault’ – that arrangements for hearing this case were changed at short notice such that it was moved from an in-person to a remote hearing (and from a full-day hearing to a half-day hearing).

This was bad news for the case, for which specific arrangements had been made to ensure an in-person hearing (and an all-day hearing to allow time for the interpretation).

According to counsel for the applicant local authority (Michael Paget of Cornerstone Chambers) the plan had been that this hearing would be in person, in the Royal Courts of Justice, before Mr Justice Hayden.  

Then, on the Friday before this Monday morning hearing, parties were notified that Hayden J was tied up with a part-heard case: the hearing would instead be before Sir Jonathan Cohen.  It would be held remotely because, as Cohen J explained at the beginning of this hearing, he was working from home due to “isolating following COVID-19”.

The solicitor for the local authority sent a letter, translated into W’s own language, by way of a process server, delivered at 7.50pm on Saturday evening.  It explained the changed arrangements and asked W to attend Mr Paget’s chambers instead of the RCJ. 

The plan was to provide her with a conference room and a computer link in chambers so that she could attend the hearing on the video-platform (instead of via telephone as previously).  As counsel for the local authority said, “face to face would be most appropriate and it’s unfortunate that it was modified, but a video-platform is the next best option”.  

The interpreter had also been asked to go to Cornerstone Chambers, so that she would be present in the same room as W to enable interpretation to run more smoothly (see previous blog for the problems of interpretation at earlier hearings). 

But at the start of this hearing, neither W nor her interpreter had arrived at Cornerstone Chambers.  The interpreter was on the video-platform, but was not able to say where W was.

The judge asked a member of the court staff to “check whether she’s in the RCJ – outside Mr Justice Hayden’s court or outside my court”, adding: “Can someone explain to P what is going on – he must be wondering what on earth is going on”. (P was on the video-link, attending from the care home).

At 11.06, we received the news that the staff member had not found W outside either courtroom.

She may be at Number 15 [P’s home]” said counsel for the local authority. “So, the next step is for someone in my team to go there”.

There was then some discussion about how long that would take and that’s the point at which it emerged that – contrary (as I understand it) to the original plan – the hearing was listed only for the morning, and Sir Jonathan Cohen had another hearing at 2pm.  The hearing was adjourned for half an hour (until 11.45am) in the hope that W could be found.

Cohen J seemed sceptical that W’s non-attendance could be attributed to these changed arrangements. 

It wouldn’t be satisfactory going ahead with this case when there’s an absence and there’s been a change of circumstances – though whether the change of circumstances has anything to do with her absence is another question.” (Judge)

Deciding that a hearing today would be ineffective

At 11.45, W was on the platform, as before via phone and as before without any other channel of communication with her interpreter.  

There was then a wait to get the interpreter back online.  The hearing resumed at 11.59am.

It was established that P’s wife was “attending via phone at the property” (i.e. Number 15, P’s house).  

The judge asked her why she had not attended the hearing at the listed start time.  (His method of questioning was unusual compared with other judges I’ve watched in that he often addressed the interpreter directly, referring to W as “she”, instead of speaking directly to W through the interpreter).

Judge: (to interpreter) Can she tell us please why she was not available at half past ten.

Wife:  Half past ten today, do you mean?

Judge: That is when the hearing was due to take place.

Wife: Because I told them that I don’t have money to travel to the court and someone gave me a card to withdraw some money but when I tried to withdraw the money, there was no money on the card.

Judge: (to counsel) How are we going to deal with this, given it’s now 12 o’clock and I have another case coming in at 2pm for an hour, and everything is being interpreted in a manner that means everything is going to have to stop for W.

Wife: I’m sorry about that. That’s because I didn’t have money so I could not travel there. I didn’t have another choice.

Judge: Can we have an effective hearing?

Paget: The hearing can’t be effective, and it’s suggested it be relisted as soon as possible for an attended hearing.

Judge: That won’t deal with the problem of interpretation. It’s not an effective use of time if every time you say something there has to be a break while there is a translation.

Paget: Yes, My Lord, it will be slow, but that is a consequence of having an interpreter, and that has been factored in in asking for a one-day hearing.  We would ask for it to be relisted in short order.

Judge: How are we going to avoid the problem next time of her saying she doesn’t have the money?

Paget: We don’t accept that, but we can make sure she has a taxi organised, so that if she chooses to, she can attend.

Judge: Will she be coming alone or will someone from the local authority escort her.

Paget: We can arrange for a taxi to be organised or make an alternative practical arrangement like local authority personnel going with her. She may not want that, but we can offer it.

Judge: Madam Translator, can you interpret that.

The judge then asked Sian Davies, counsel for P via his litigation friend the Official Solicitor, whether she also “accepted this matter will have to go off” (i.e. not be heard today).  She did – and added that it should be listed as an attended hearing (or hybrid, so that P can attend).  “It wouldn’t have made the slightest bit of different if it hadn’t been changed, would it?” said the judge.  Counsel’s response was tactful.

Davies:  Unfortunately, we haven’t had the full day allocation, for reasons I’m sure are understandable.  The Official Solicitor reluctantly accepts this hearing is not able to proceed today. W is disadvantaged by being on telephone, and interpretation makes it complicated.  This is a matter of concern. P wishes to go home, and further delay is not consistent with the wish he’s expressing. But for practical reasons as outlined, the matter can’t proceed today.

P’s daughter, who was also present (but not a party) was asked for her views and said she agreed with the Official Solicitor.  “I would like to proceed quickly, because my father would like to move, but I see why we can’t today”.

Legal representation for W

While the court was waiting as the judge’s clerk contacted Listings to see when another day could be found to hear this case, Sian Davies raised the issue of W’s legal representation.

W had said at the last hearing that she did not wish to have legal representation, despite the fact that the local authority, in its role as P’s interim Deputy, had confirmed that it would fund it. 

The local authority had given W a translated letter explaining that she should seek legal advice and providing the contact details of specialist firms (who would be paid by the Deputy).  She has declined.

 “The fact that this matter has been adjourned gives her the opportunity to reconsider”, said Sian Davies, “and I would invite the local authority to confirm that funding is still available”.  “It is”, said Michael Paget, for the local authority.

The judge checked whether the funding was for advice only, or for advice and representation (the latter) and then engaged with W (via the interpreter).

Judge: Let me ask you, W. You were offered the chance to obtain legal representation. Would you like to have legal representation at the next hearing?

Wife: No, I prefer everything simple. 

Judge: Well, it’s perfectly simple having a representative speak for you, and it’s being offered to you without you having to pay for it.

Wife: I know about that, but I am receiving lots of support from the government and I don’t want to waste the money from the government. If I need help, I will ask.

Judge: You’re not wasting money from the government. (To the interpreter) It’s a matter entirely for her, but most people benefit by being represented.

Wife: Yes, I understand that. I know. I understand everything and I also understand what I am doing and where I am. For that reason, I would like to say thank you to the people who are supporting me, and thank you to the family who are taking care of my children.

Judge: I’m not sure I understand the answer in relation to representation.

Interpreter:  “I understand everything and I also understand what I am doing and where I am. For that reason, I would like to say thank you to the people who are supporting me, and thank you to the family who are taking care of my children.”

Judge: (to interpreter) The question I asked is whether she would like to have a solicitor and barrister to speak for her.

Wife: My answer is no.

Judge: Okay.

Arranging the next hearing

My clerk comes bearing news”, said the judge.  

The clerk reported there were two possible dates for the next hearing: 23rd June or 27th June.

It turned out that there was only one witness to be called – the social worker – and there was then some delay as her availability on one or other of those dates needed to be ascertained.  It wasn’t straightforward to reach the social worker since it was she who had travelled across London to the property where W is living to enable her to join the hearing. (“She’s in transit, is she?”, asked the judge. “I’m not sure…” said Michael Paget.)

While attempts were being made to contact the social worker, the judge outlined what he wanted included in the order.

Judge: I want a recital that [Social Worker] is anticipated to be the only witness, other than [Wife].  I assume the daughter hasn’t filed a statement? [No.]. I want a statement that a final declaration has already been made as to capacity.  And a recital that this hearing has been frustrated by W not attending the hearing, and having only been ascertained to be at home shortly before midday, claiming that she did not have the funds to attend in central London.  There will be an order that the local authority must make arrangements for transporting W to the RCJ for her to arrive at the RCJ by 10am on whatever date it is.  And that the second respondent [W] must attend, and that if she does not, an order may be made in her absence.  If only I can be told on what date.

Paget:  I’m sorry I haven’t received that confirmation yet.

And then the confirmation came through from the social worker. The next hearing would be on 27th June 2022.

The judge repeated for W’s benefit the information that the local authority would arrange “an Uber or a taxi or some other means of transport to get her to the hearing and will likewise provide her with a means of money to get back at the end of the hearing”.  He added, “I am ordering that she attends the next hearing. If she does not attend, then she will be in breach of a court order.  I think it would be sensible for the local authority to make sure W knows the identity of the court number the day before. Simply dropping someone at the RCJ is not necessarily an easy experience for those who are completely unfamiliar.”

The wife’s response was to protest that she “was never against the law – it was just because I didn’t have money” and to say that she needs more money.  “Everything is broken. I need support in terms of finance on a daily basis.  I know what I am doing, where I am going. The only thing I want support with is to open my husband’s bank account so I can use it for my daily essentials.

P himself also spoke to the judge saying, “W needs money, and I don’t need money. Can you get her some funding?”. (He also asked to see the bundle of documents before the next hearing.) The judge said: “I understand your concern about your wife not having any funds and that will be a subject of discussion with the local authority to sort this out”. 

The judge ensured that W knew the name of the interim Deputy and how to contact them for money.

He also urged the parties to make sure that the court has booked an interpreter for 27th June 2022 (to attend in person in the court).  

He was clearly concerned to do whatever he could to ensure that the next hearing – unlike the three preceding it – should be effective.

Comment

I was dismayed to witness a whole morning of court time before a Tier 3 judge with so little achieved.

The cost to the public purse of this ineffective hearing (and the two ineffective hearings preceding it) included the time and labour of: a senior judge, two barristers, two solicitors, a social worker, an interpreter, a care home worker (supporting P’s access), a court clerk and court staff.

The cost is not only financial.

P remains stuck in a care home he doesn’t want to be in and which nobody thinks is in his best interests.

The judge at this hearing was clearly frustrated.

The barristers displayed meticulous forbearance but were obviously disappointed (given what had happened at the previous two ineffective hearings) to find themselves yet again in an MS Teams hearing with wildly unsuitable arrangements for interpretation. 

The solicitor for the local authority seems to have done everything he could (in terms of contacting W and trying to arrange for her to attend via video-link from chambers) – and this must have involved some frantic work over the weekend.   All that effort to no useful end!

It was pretty clear from the outset that the revised arrangements for this hearing were not going to work.  It’s deeply unfortunate that it was ever transferred from an in-person to a remote hearing.

It’s all very well to say, as the judge did, that this hearing wouldn’t have worked even if it had been in person as originally contemplated, since, in his view,  W would not have attended the RCJ for the same reasons she failed to attend the video-hearing via a link in chambers.  But the late change in arrangements makes it hard to hold W solely responsible for the ineffectiveness of this hearing.  

The next hearing will no doubt be a slow and frustrating process, not just because of the need for time-consuming interpretation, but also because of W’s decision to decline the offer of legal representation.  

I have not heard anything from her which amounts to an effective argument for her position – which I understand to be that she wishes to live with her husband in what an earlier judge in this case referred to as “the matrimonial home”.  

If W had a legal team representing her, counsel would no doubt mount an Article 8 argument about the way in which the draft order interferes with her (and her husband’s?) right to family life.  

Counsel for W would also have the opportunity to challenge the allegations against her that she has abused P physically, emotionally and financially.  These allegations form the basis of the applicant local authority’s “pattern of behaviour” document, which is relied upon in support of its application for an injunction excluding W from the property.  (“Controlling or coercive behaviour” is defined legally as taking place “repeatedly or continuously” and courts may look for a “pattern of behaviour” established over a period of time rather than a few isolated incidents.)

There has so far been very little said in court about this alleged abuse. I think the social worker will give oral evidence about it at the next hearing, and there was some discussion (at a previous hearing) about the opportunity for W to cross-question the social worker’s evidence.  It is apparent that cross-questioning a witness is something W is ill-equipped to do as a Litigant in Person, and that the opportunity for a fair trial  would be massively improved if counsel could do this on her behalf.  But since she has refused legal representation, that won’t happen.

In an earlier blog post about this case, I reflected on the importance of “Fairness in court for a Litigant in Person”.   I quoted from the Equal Treatment Bench Book to illustrate the responsibility judges have, when faced with unrepresented parties, to ensure that they are treated fairly.  In my experience, judges do this exceptionally well, but it’s time-consuming and involves a great deal of work from judges and counsel alike. 

In my view (I said)  “the solution to the problem of unfairness for Litigants in Person must be to stop them being Litigants in Person by ensuring they get legal representation”.  But in this case, that’s been tried – and it’s failed because W has declined legal representation.

When W said she didn’t want lawyers because she “prefer[s] everything simple”, I was immediately struck by how complicated her decision will make the next hearing, both for counsel and for the judge.  

Assuming, of course, that she attends.

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

Photo by Dan Cristian Pădureț on Unsplash

“She is religious and she is a fighter”: Three perspectives on best interests decision-making in the Court of Protection from ‘Compassion in Dying’

By Jemma Woodley, Zach Moss and Upeka de Silva, 23rd June 2022

We are three people who work for Compassion in Dying, a national charity that supports people to make their own decisions about end-of-life care in line with the Mental Capacity Act 2005.

We promote the rights of capacitous people to document their care preferences using Advance statements, Advance Decisions to Refuse Treatment and/or Lasting Powers of Attorney for Health and Welfare. 

We also promote the rights of incapacitous people to be treated (or not to be treated) in accordance with these documented preferences or in their best interests taking into consideration their past and present wishes, feelings, beliefs and values. 

Sadly, our free nurse-led information line often receives calls from individuals and family members anxious about not getting the treatment and care that is right for them and their loved ones, in line with the law. 

We watched a two-day hearing before Mr Justice Hayden, in person, in the Royal Courts of Justice on 15thJune 2022 (Jemma) and 16th June 2022 (Zach and Upeka).  

The hearing (COP 13933678) concerned LC, a 77-year-old woman who had suffered hypoxic brain injury following cardiac arrest (and eight cycles of cardio-pulmonary resuscitation) in hospital in January 2022. The Trust and two independent external experts report that LC is now in a prolonged disorder of consciousness.

The judge had to consider whether LC’s wishes were being properly taken into account in continuing to give her mechanical ventilation, and whether or not an attempt should be made to wean her off the ventilator with a tracheostomy. An application had been made by the Trust to use a tracheostomy, but the family were adamant she wouldn’t want this.

Helping to resolve disagreements about medical treatment between family and clinicians and ensuring that the person remains at the centre of the deliberations goes to the heart of what Compassion in Dying deals with every day.  

My reflections on observing my first CoP hearing, By Jemma Woodley

As I walked through the airport style security, the excitement which I had woken up with had quickly turned to apprehension. The weight of what I was about to listen to started to feel real. I felt intrusive and hesitant as I walked towards the court room. The intricate details of P’s life were about to be laid out for anyone to observe, I felt heavy with the weight of the decision which needed to be made. 

As I waited with Celia outside the courtroom, we discussed the details of confidentiality, and I was introduced to expert witnesses and practitioners. I felt privileged to be able to attend and grateful to the Open Justice Court of Protection Project. I watched as the family, lawyers from all parties and expert witnesses spoke to each other outside the courtroom, waiting for the case to begin. The court was delayed as a video had been shared by a member of the family. I watched as all parties stood around a small mobile phone, watching a poor resolution clip of LC, trying to determine whether she was blinking in response to the family member’s request or whether this was merely a reflex. My apprehension eased. I no longer felt as if I were the only one unprepared to enter the hearing. 

As the hearing started, I was immediately grateful to Mr Justice Hayden. He ensured a detailed summary was given before proceeding with the case. As the opening summaries began, I was taken aback by the sheer number of interruptions from the judge. It was clear to me he was disappointed with the sizable amount of medical jargon which was used. I was confused, I don’t have a clinical background and therefore the jargon which was used was unfamiliar and perplexing. I can only begin to imagine how this language on top of the emotional weight of the impending decision must have felt for LC’s family who were in attendance. I was grateful for Mr Justice Hayden’s interruptions, calling the practitioners out for their use of medical terminology. He stated, “When we have lay people and family members in court,  it’s just helpful to explain”.

I was also pleasantly surprised with how the judge interrupted the proceedings at one point to usher two family members to the front of the room. As we had entered the courtroom, the family looked fearful and had taken a seat on the back row. With Mr Justice Hayden moving them directly to the centre of the room, to me, this felt almost symbolic. By physically placing LC’s family at the centre of the room, the importance of LC and her family’s wishes to the decision being made were emphasised.   

As the hearing proceeded, I couldn’t help but watch Mr Justice Hayden attentively. It was evident how heavy the weight of this decision was on his shoulders. A decision to move LC to palliative care was clearly a serious one. I was reminded of how traumatic the death of a loved one can be. Mr Justice Hayden asked the doctors who were giving evidence about their experience with Post Traumatic Stress Disorders following Intensive Care. He wanted to know about the repercussions for LC, if she were aware of her surrounding, and for the family. I was grateful for the time he took to listen and understand this. 

A final reflection I had was a personal one. At Compassion in Dying, the majority of our callers want support to refuse treatment they don’t wish to receive. We support and advocate to help treatment come to an end, for those who wish it to. This case challenged my personal values and previous experience. The family emphasised throughout the hearing how important sanctity of life was to LC and how strongly they knew she would wish to continue fighting and receiving every treatment possible. This was not something I had personally come across in the six months that I have been at Compassion in Dying. I am grateful for the opportunity to better understand the breadth of people’s end of life wishes and it served as a good reminder that my own personal values should always remain personal when supporting people to express what matters to them. What mattered in this courtroom was not my own feelings (or Mr Justice Hayden’s or anyone else’s) but what was important to LC and what she would want to do. 

This thought process was something that was subsequently emphasised further by attending the Judging Values and Participation in Mental Capacity Law Conference this week. I listened to the likes of Baroness Brenda Hale and Sir Mark Hedley speak openly about how they negotiate their values in decision making. I was struck by the responsibility that judges bear. 

I was sorry not able to attend the second day of the hearing, but I am very grateful to the Open Justice Court of Protection Project for the opportunity to attend on the first day (and support in doing so) and I look forward to attending more hearings in the future. 

Dieu et mon droit –> God and my right, By Zach Moss

During the hearing, I kept wondering what the French writing meant (Dieu et mon droit) which adorned the The Royal Coat of Arms above the judge’s head in the courtroom. It translates to “God and My Right” which would prove fitting given the eventual judgment in this hearing. Mr Justice Hayden, who was presiding over the case, seemed to signal that his decision would rest on what weight to give LC’s faith.

My first time observing a case

As someone who has followed the Open Justice Court of Protection Project for some time, it was exciting to attend the Royal Courts of Justice on Thursday 16th June 2022 to view an in-person hearing. 

Through my work at Compassion in Dying I’ve often heard about how some people might theoretically end up in the Court of Protection after a disagreement or dispute about a medical treatment, but to actually be there watching a case unfold was memorable. It may seem silly to say, but the responsibility of those involved in the case and that of the judge to ultimately make the decision was palpable.

The time to be heard

Day two of the hearing (which I attended) was entirely about LC. I’m not quite sure what I was expecting in terms of process and questioning – but hearing Mr Justice Hayden probing LC’s three sons and daughter, I was struck by the incredible thoughtfulness of his approach. It felt to me entirely unconventional – but entirely appropriate. Hayden J after all, as he mentioned a few times, was the one ultimately having to make the very difficult decision. 

I got the sense that the two family members present, and the two others who joined remotely by phone and video were nervous. Entirely understandable, given the context and intimidating environment at the court. Looking on from the viewing gallery though, I was seriously impressed with the way Mr Justice Hayden was able to put the family members at relative ease. The questions he asked of them were deliberately open, authentic and not in any way tokenistic – he allowed LC’s children to build a rich picture of their mother. These weren’t questions to ‘break the ice’ or to set the scene – they were critical to the process, to in effect bring LC into the courtroom.

            “Who was LC closest to?”

            “What was her favourite food?”

            “Did she join in when you watched the football? Who did she support?”

There was a memorable moment (amongst many) which had the courtroom break into laughter when Hayden J was speaking to LC’s daughter JC on the phone. She had, I think, prepared a list of things she’d wanted to talk about – and each time the judge thought she’d finished, she’d say “oh and one more thing…”. There was a level of desperation from JC getting her chance to convey her feelings as clearly as possible but the time, patience and space Hayden J was able to give her will stay with me for quite some time.

There is an undeniable sense of dignity in this process: the family is there in court to be heard. This is surely what the Court of Protection is about– this perhaps being the first time a family feeling able to tell their story. 

You could feel that this detailed discussion and exploration of LC’s wishes just simply had not occurred before – for whatever reason.

Reflecting on this, it feels like this forensic and compassionate approach is entirely missing from the medical discussion. I fear that even with the best intentions, there is no space for this in an NHS under immense strain.

I even at one point imagined whether a world where a medically trained Mr Justice Hayden was the potential answer? Do we perhaps need to turn medical training upside down and start with social first, and medical second?

The role of religion 

It was clear from all the witnesses that LC’s Christian beliefs played a significant part in LC’s life and that, because of this, she’d be “up for the fight”. Even faced with some bleak medical evidence about what this ‘fight’ might mean, each of the children in their own way believed she’d want attempts to be made to wean her off the ventilator despite the poor odds of success. I thought Mr Justice Hayden was very careful to properly define what ‘success’ in this case might mean, both medically and also framing it in terms of what LC would not return to, as it seemed the children still clung to some sort of hope of a fuller recovery than the medical evidence suggested.

Ultimately, Mr Justice Hayden concluded LC would “be up for the fight.” She was, and had been, a woman of conspicuous courage. Given the all the medical evidence, I thought it touching for him to say that LC and her family would need that courage in the weeks ahead.

Reflections

My overall feeling is that I am impressed. Mostly I think by the compassion, skill and forensic ability of Mr Justice Hayden to place LC in the heart of the courtroom for 2 days and to decide what is in her best interests. 

I think I am convinced – at least on the basis of this one hearing – that the Court of Protection provides a way to settle disagreements about medical treatments. 

I am left with some questions though. Mr Justice Hayden in his (oral) judgment said this case should have been brought to court by the Trust far sooner – it is only in court where LC will “find expression”.

This left me wondering why exactly it hadn’t. It also made me realise how important the work of the Open Justice Court of Protection Project is.

I wonder how both sides of this hearing reflect on what has happened: How does the family of LC reflect on what they’ve gone through? They may have got the outcome they were seeking, but their experience is sadly not over, and it sounds as if their relationship with the Trust is perhaps irreparably broken. 

I wonder too how the Trust will reflect on this? There will be many people who were involved, but how do they perceive these cases in the Court of Protection? Perhaps as a headache or a cost? How do the clinicians reflect on what has happened – does it make them more fearful of medical litigation? Or do they view it as a practical, compassionate option to work through medical disagreements for their patients and their families?

The perception of the Court of Protection and these cases is important. For us working at Compassion in Dying, we often hear from people and families with concerns about medical treatments and potential disagreements . We need to know how we speak about the Court of Protection as a genuine option. How might we de-mystify the process?

I am very much looking forward to observing another hearing.

 “It is because she matters that we are all here”, By Upeka de Silva 

Thanks to the Open Justice Court of Protection project, I had observed hearings remotely before (blogs hereand here) but to be in the Royal Courts of Justice; in the presence of Mr Justice Hayden; discussing decisions at the end of life, a topic I feel passionately about, was particularly meaningful.

After what was reported to be an anxious and stressful first day, day two was about bringing LC into the court room through the evidence of those who knew her  – the very essence and value of the Court of Protection. 

Mr Justice Hayden had requested to hear first from M, one of LC’s sons, because he said he had observed how, unlike the other brother in attendance who had seemed more upset and agitated, M appeared to have been engaging more fully with the previous day’s discussions.  I was in awe of his ability to make such an astute observation during what must have been an intense day of deliberation.

Guided by Justice Hayden’s thoughtful questions about what LC’s life was like and his acknowledgement that there will be “very few occasions in life when you are called up on to assist in something as important as this,” LC’s three sons and daughter brought LC into the court room. We learned about LC’s devotion to her family and faith, love of cooking and soap operas, her support for Liverpool FC, and her work for the NHS delivering the very equipment that is keeping her alive. 

I wondered if any of her clinical team knew this about her. Would it have helped in their decision-making? Or is the Court of Protection the only place where the “protected party’s” voice finds expression”?

Honesty and respect

Callers to Compassion in Dying have told us how appreciative they are of clinicians taking the time to engage with them honestly and respectfully about a loved one’s care. Equally, we receive regular calls from family members desperate for support because they are being excluded, dismissed and patronized by health and care professionals when they have tried to engage with their dying loved one’s care. I couldn’t help but think how vastly the quality of end-of-life care might be improved if all clinicians were able to engage with family members the way Mr Justice Hayden did. 

He was brutally honest about the clinical options available; 

  • “ She won’t ‘make it through’, or she will have a minimal level of awareness and be more vulnerable to pain”
  • “Has this fighter earned her rest?”
  • “I may be protracting her death rather than prolonging her life – would she want that?”
  • “We are not contemplating a future where LC will be able to cook or play with her grandchildren”

He was incredibly respectful of the family members’ voices and their brave and honest evidence. He commended them on bringing LC to the court room in “glorious technicolor”. He reassured them that what had happened to LC “was tragic but it doesn’t eclipse her remarkable life”.

From my experience with speaking with family members on our information line, I can confidently say that this is the sort of conversation family members value having with those caring for their loved ones – and it’s often missing in healthcare settings. 

With increased focus on person-centered care and shared decision making, might this be achievable?

The decision

In an ex tempore judgment, Mr Justice Hayden concluded that the evidence was that LC would opt to “fight” and would consider it a part of her faith to do so. This meant it was in her best interests to try weaning her off the ventilator and assess her ability to breathe independently. He observed that LC was a woman of conspicuous courage and that the family would all need this courage in the weeks ahead.

While I understood this to be what the family preferred, I was left uncertain about whether the trust that had been broken between the clinicians and the family over the last few months would be sufficiently mended so as to move forward in collaboration. 

What I took away

  • A reminder that cardio pulmonary resuscitation may be ‘successful’ in restarting your heart but still do more harm than good.
  • Conversations about care preferences are invaluable. The option of a tracheostomy was not on the table because helpfully, she had clearly stated in conversations with her family that having seen a friend with one, it was not something she would wish to have. 
  • Recording these conversations in an Advance Statement and/or an Advance Decision would perhaps be even more valuable when faced with challenging choices at the end of life.
  • When there is a disagreement about what is in someone’s best interests, an application to the Court of Protection should be made without delay. Both clinicians and individuals should necessarily be aware of this avenue of dispute resolution and not be overly fearful of the court process.

Jemma Woodley is Information Support Officer at Compassion in Dying and tweets @JemmaWoodley2

Zach Moss is Digital Manager at Compassion in Dying  and tweets @_zachmoss

Upeka de Silva is a Policy Officer at Compassion in Dying and tweets @de_upeka

Compassion in Dying tweets @AGoodDeath

Sisters’ dispute over Deputyship – and a concern about open justice

By Daniel Cloake, 20th June 2022

Two feuding sisters (Ms J and Ms E) have asked the Court of Protection to pick one of them as a deputy after their father lost capacity to manage his finances following a series of strokes.

The hearing I observed was listed on the “Daily Hearing List” on the court’s website as follows: Friday 10 June 2022, Before District Judge GROSSE, 2:00pm COP 13824233, Directions, Property and Financial Affairs , Attended , PUBLIC HEARING WITH REPORTING RESTRICTIONS , time estimate 2 hours , Court 22.

The court heard that Ms J, whose identity is protected by court order, applied to act as a so-called Property & Affairs Deputy for her father in August 2021.  This would enable her to “do things like pay the person’s bills or organise their pension” 

Her father, P, is in his seventies and resides in a care home.  The court was told he enjoys listening to Reggae music when family come to visit.   

District Judge Grosse explained the use of the initial P to describe him “it’s the way the Court of Protection talks about persons who are incapacitated.  It’s not meant to be derogatory in any way”.

The exact details were not shared with the court, but it is understood that following the mother’s death in December 2021, there were “concerns” within the family about how Ms J handled the estate.  “The trust has broken down” is how Karen Reid, the barrister representing the sister Ms E, explained it.

She added: “Really this comes down to the lack of transparency that’s come from [Ms J].  That makes [Ms E] understandably suspicious as to what her intent is in becoming her father’s deputy.“

An incident that occurred at the care home, when both sisters visited at the same time, was also referred to.

DJ Grosse explained that the court had various options available in choosing a deputy but emphasised that “what the court has to consider is what is in the best interest of your father, not the parties: he is the number one”.

Appointing the sisters either on an individual or joint basis was considered along with the use of a paid professional known as a Panel Deputy. 

In support of her appointment, Ms J, appearing unrepresented (as a Litigant in Person), told the court that prior to the loss of P’s capacity she “was doing everything for Dadall I want is to make sure that Dad’s finances are looked after and there is something for his end of life.”

For the other sister, Ms Reid explained that her “client is willing to act as a deputy; nobody is saying she is not in a position to be able to act, to manage fairly limited affairs.  She is not interested in the money; she wants his care to be conducted properly…she would be ideally placed to act as his deputy“.

In handing down her Judgment, District Judge Lorna Grosse said that the “Court is required to consider the views of those nearest to P and to consult the family.”  She cited Section 16 of the Mental Capacity Act 2005 and explained that “the court has power to appoint a deputy if it feels it’s in the best interests of P.

The concern in this case is that there is friction in the family” and – after citing the decision in Re: BN [2015] EWCOP 11 (02 March 2015) –  DJ Grosse concluded that “where there is friction in the family the court should consider departing from a close family member” but “to have his estate [of £18k] really diminished by professional fees… is not in his best interests”.

Not only would P not want his funds depleted, “neither would he want his children squabbling … he would be very upset if he knew there was a difference of opinion in the three people he loves best in all the world” said DJ Grosse, including a brother, who was not present, in the picture.

As there are no issues in respect of the competence and integrity” of both of the sisters “but there are issues with the two working together”, the judge decided to appoint just one.  Explaining that Ms J had made the application, paid the fee, and “done a great deal of leg work in respect of her father, the court takes the view she should be appointed as the deputy.

The court would urge her to liaise with her siblings.  It’s really for the benefit of her father, if she can’t do it for herself.

The Judge concluded this 57-minute-hearing by telling Ms E to “just enjoy his last period of his life and be glad you’re not doing the donkey work.  It’s not great fun being a deputy.”

Open Justice

As seems to be normal at First Avenue House, some information about the issues before the court  was mentioned on the Daily Cause list.

I noted when I went into First Avenue House in Holborne, where the hearing took place,  that none of the COP lists were displayed on the board adjacent to the main entrance. This meant members of the public passing wouldn’t have seen there was a 2pm “PUBLIC HEARING WITH REPORTING RESTRICTIONS”.

Upon arriving at the COP Enquiry counter on the fifth floor, I was asked to sign a sheet confirming I had received the Transparency Order.  The first two rows contained the names of the sisters, and I was asked to put my name, reason for attending and my home address.  The sisters had managed to avoid putting their addresses down, a strategy I sought to copy – “I’d rather not put my address”.  “But this is a public hearing” came the response.  I still don’t follow the logic.  

I was told they would check with the Judge and a few minutes later I was approached by the Clerk in the waiting area who confirmed “you will need to provide an address to observe the hearing”.  We agreed that I could put my address on the second page so at least it wouldn’t be immediately visible to others. 

I have a few concerns about this and not just from the GDPR/data protection angle.

I take the view that any derogation to the principle of Open Justice can only be justified by the test of necessity, particularly a requirement which has been introduced, seemingly, without consultation or jurisdiction from an authority.  

Derogations to Open Justice can be a slippery slope and if it’s accepted that a home address is required to be given, then it’s a short step to having to verify the address with photo ID and a utility bill.

The then Master of the Rolls Lord Woolf warned against the erosion of open justice and that “the need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion” (§4 T (A Firm of Solicitors), R (on the application of) v Legal Aid Board [1998] EWCA Civ 958 (10 June 1998)

Further enquiries will be made with the court as to the source and justification of this supposed rule. 

Daniel Cloake is a blogger and news gatherer with a keen interest in Open Justice and the niche and the nuanced. This post was originally published on his own site, “The Mouse in the Court” (where you can read his many other blog posts).  He tweets @MouseInTheCourt

Photo by Robert Keane on Unsplash

Resisting Care: An unsuccessful s.21A challenge from a ‘feisty’ 94-year-old

By Celia Kitzinger, 19 June 2022

It was a week after the Queen’s Platinum Jubilee celebrations (this becomes relevant later!) and District Judge Searl was making a decision about a 94-year-old woman (“Hattie”) who lives in a care home but wants to return to her own home.  

The law

It was a challenge under s.21A of the Mental Capacity Act [MCA] 2005.  These challenges take place when there’s a standard authorisation restricting a person’s liberty under the Deprivation of Liberty Safeguards, and the person is objecting to their placement.  When this happens, there’s a positive obligation on local authorities to assist the person to challenge their deprivation of liberty (Re AJ [2015] EWCOP 5)

The starting point is Article 5 of the European Convention on Human Rights (incorporated into domestic law by the Human Rights Act 1998, s. 6 (1)) which says that everyone has the right to liberty and security of person and that no one shall be deprived of their liberty save in specific cases (which includes cases involving persons of unsound mind) and in accordance with a procedure prescribed by law. Article 5(4) provides:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful.”

Article 5(4) European Convention on Human Rights

The court has jurisdiction to make a decision about where Hattie lives because it has already been determined, in an earlier hearing, that she lacks capacity to make that decision for herself (s.3 MCA 2005).  So, the judge must make a decision on her behalf, in her “best interests” (s.4 MCA 2005).  

In arriving at a decision, the judge must consider Hattie’s “past and present wishes and feelings” (s.4(6(a) MCA 2005) and the “beliefs and values that would be likely to influence [her] decision if [she] had capacity” (s.4(6)(b) MCA 2005).  

The judge must also take into account the views of “anyone engaged in caring for the person or interested in his welfare” (s.4(7)(b) MCA 2005).  At this hearing, a key person was Hattie’s niece, Mrs Jones (all names are pseudonyms), who was also her Litigation Friend and had instructed a barrister to represent Hattie and to bring the s.21A challenge.

The outcome

At this hearing (COP 13719647) before District Judge Searl sitting at Newcastle Civil and Family Court, the judge ultimately decided, after hearing all the evidence, that although Hattie has “a firm, consistent and strongly maintained view that she wishes to return home”, it is not in her best interests to do so.  

The context (elaborated below) is that previous trials of living at home had failed,  the local authority did not support a move home, and the Litigation Friend (Hattie’s niece) was ambivalent.  

The main obstacle to Hattie moving back home as she wishes is that she’s unwilling to accept care. In her view, she doesn’t need it.  She can manage on her own.  She doesn’t want people intruding into her private space to provide care.  

This will resonate for many of us. A desire for independence is often a core value that leads older people (both with and without capacity) to refuse home care, much to the frustration and dismay of their adult children.  

And it often backfires: it seems quite likely that if only Hattie were willing to accept the care being offered, she would be supported to return home and would not remain deprived of her liberty, against her will, in the care home.

This is a recurrent challenge, it seems, for professionals working in care of the elderly (including those presumed to have capacity to make their own decisions on the matter): “On the one hand is the denial of need so evident to us and service workers. On the other hand,  there is a deep concern … about remaining independent and staying out of nursing homes …  [which] could be solved or alleviated by existing services, the very services the elderly say they don’t need.” (The reluctance of the elderly to seek help)[1]

The hearing

The hearing opened with introductions of the people on the video-platform.

Acting for Hattie, who was the applicant (via her Litigation Friend, her niece) was Sophie Allan of Kings Chambers. The local authority was represented by Jade Furguson of Parklane Plowden.  Other people on the video-platform included Hattie’s niece, a social worker and an instructing solicitor. Hattie herself was not present.

District Judge Searl then greeted Hattie’s niece by name and said she recognised “how difficult the position is you find yourself in today” before asking her – rather anxiously, I thought – whether she had any concerns about my presence as an observer and explaining the transparency order. “That’s absolutely fine. No problem at all!”, said the niece.

The judge said she’d “not had the privilege of dealing with Hattie’s case prior to now”, and checked that “Hattie” (rather than “Harriet” or “Mrs Smith”) was an acceptable way to refer to the person at the centre of this case. (It was.)

She then summarised the issues before the court.

Hattie is 94 and lived in the same property all her adult life until December 2020 when she was admitted to hospital following a fall and reports of increased confusion, irregular sleep patterns and verbal and physical aggression (she has dementia).  She was then discharged to the care home in July 2020.

Since then, she’s twice been discharged home with a package of care, but was both times readmitted within a short period.  Problems have included Hattie declining care and refusing entry to care staff – in part, says her niece, due to shortcomings in the previous care agency.  But the root of the problem is that Hattie feels she doesn’t need assistance.  She’s also refused assistive technology because she doesn’t feel she needs it and it’s an invasion of her privacy.

This hearing is to determine whether Hattie should be supported to have (another) trial period of living at home to see if it can be made to work.

Counsel for Hattie

On behalf of Hattie, counsel took the position that the risks of a trial return home “must be balanced with Hattie’s very firm wish to live in her home of more than 70 years: in terms of wishes and feelings, she could not be clearer”.  

Despite being relatively “settled” at the placement, she’s clear and consistent that she wants to go home.  She told her legal representatives she is “dying to go home”.  She can be ‘triggered’ by other residents or staff members talking about home, becoming disturbed and distressed.  When Hattie’s niece and Litigation Friend, Mrs Jones,  visited Hattie last week, she found Hattie upset and insisting on going home; she had packed all her bags and clothes and had them stacked in her room.  She desperately wants to return to her house. 

Hattie has not been, historically, a sociable person: “she’s kept herself to herself; she’s not someone with a wide social circle, and she doesn’t benefit particularly from social activities and social contact in the placement in the same way that other people would do”.  

Moreover, “notwithstanding her age, she’s remarkably able and capable.  Her care needs are surprisingly minimal for someone of 94She’s independent in almost all tasks.”

The local authority’s concerns are “understandable and come from a place of wanting safety for Hattie, but the evidence suggests perhaps the local authority has adopted a risk-averse approach in considering what Hattie’s care needs actually are.  In their first witness statement in June last year, the assessment was for 24-hour care, which is simply not borne out on the evidence”.

Moreover, “there is a helpful OT [Occupational Therapy] assessment that very much supports Hattie’s fervent wish to go home.  OTs are often cautious about the safety of returns home, but this is a remarkably positive assessment”.  On a brief visit to the property, Hattie “was oriented to the rooms, to the property and to the tasks the OT described as familiar, including operating the gas fire and appliances, mobilising over steps and using the stair lift”. The OT recommends carers four times each day, a key safe and the connection of an emergency monitoring and response service.

The local authority social worker had raised three key concerns: risk of falls, Hattie’s failure to use assistive technology and whether she’ll accept care at home.

On falls: Hattie was assessed as at high risk of falls 9 years ago, but continued to live at home for 6 more years.  The OT has identified some loose carpeting in an upstairs room  –  a trip hazards that can be removed.

On assistive technology: She doesn’t feel she needs it, but the Litigation Friend believes that Hattie would accept this if it was explained to her that a return home was conditional upon its use. 

On care:  “We have to acknowledge she’s previously refused care. She declined entry to care staff during a previous trial at home.  She feels she doesn’t need assistance and does lack some insight in that regard.  But there’s no record of her not being compliant with care in the care home, so we think there’s a good chance she’ll be receptive to the limited amount of care she needs.”

Finally, “I won’t quote Mr Justice Munby” said Sophie Allan, “but we all know what he said“.  (He said: “What good is it making someone safer if it merely makes them miserable?” Local Authority X v MM & Anor (No. 1) (2007)).

Counsel for the local authority

The key concern for the local authority was that Hattie is “resistant to care”.  

To the extent that Hattie accepts care at the care home, this is a consequence of careful management by the care home.  

Everyone says she’s a fiercely independent lady. She maintains the view she’s able to manage everything independently. She’s resistant to carers coming into her private room at the care home – so if we’re looking at a trial at home and carers coming into her private house, it is likely that she’s going to be resistant.  Care records do show she’s become less resistant to care over the last few months and that may be because she’s becoming more settled there.  She’s been there more than a year now, and built up a rapport with some carers, and they know not to come into her private room.  But at her home there’s no communal area – it’s all her private home.”

Counsel described how, when Hattie refuses care, the carers leave and return a little later to try again, but “the disengagement and return technique wouldn’t be possible with scheduled visits at home”.  

When Hattie doesn’t get on with a particular carer, the care home swaps to a different carer for a few days, but the agency providing care at home doesn’t have that flexibility.

The OT report prior to the last return home was “very similar to the report in the present case” and it broke down because Hattie wasn’t engaging with carers – which turned out to mean that she wasn’t letting them into her home, sometimes – as her niece explained – because agency staff were not turning up at the allotted times, and she was “really upset and didn’t know who was knocking at the door”.

Since assessment by OT, Hattie’s mobility has declined but she tries to walk without her walking stick, which increases the risk of falls.  

Also, it’s likely she’d unplug the assistive technology.

The local authority added that there is also evidence of further decline in her dementia – and a problem with the previous return home was that Hattie had been visiting her neighbours and complaining they’d been waking her up husband (who died many years ago). 

It would be “a very serious and distressing situation” if there were another breakdown in care at home, and it would take a long time to “settle” her back in the care home in the way she’s currently settled.  
Hattie has repeated on many occasions she wants to return home and the local authority isn’t trying to downplay that, but at the moment she is settled and enjoys her current environment. She takes part in communal activities and has built a rapport with some staff. The local authority view is that a trial at home would not be in Hattie’s best interests.”

Hattie’s niece (and Litigation Friend) – Mrs Jones

Counsel for Hattie (instructed by her niece, Mrs Jones) said several times that “in terms of best interests this is difficult case”.  She said “the Litigation Friend acknowledges that and feels it very keenly”.  She accepted that the local authority has “reservations” about Hattie returning to live at home and said that “Mrs Jones has reservations herself”.    

I thought Sophie Allan did a nice job of presenting, on the one hand, the best possible case for Hattie to return home (thereby representing her client’s wishes and feelings) while also acknowledging the reservations and ambivalence of Hattie’s niece, who was instructing her in Hattie’s best interests.  

Mrs Jones feels acutely torn. She wants to facilitate Hattie’s wishes and thinks there’s a reasonable chance that it could be successful. She’s effusive when describing Hattie’s independence throughout her life. But she’s cautious at the same time. She feels reassured that Hattie is safe and warm and provided the regular meals at the moment, and watched over, and she bears that in mind, which is why she’s inviting the court to make the decision today.  Mrs Jones is not coming down strongly on one side or the other, but on Hattie’s behalf, she’s very clear about what Hattie wants.”

In the Position Statement, Sophie Allan adds that Mrs Jones feels that it would be “a betrayal” of her aunt to “write her off” or “dump” her in a placement that she does not want. 

There was an additional complication, which must have been anxiety-provoking for Mrs Jones.  This application had been made more than a year ago and Mrs Jones’ circumstances had changed. Whereas before she would have been able to visit Hattie very frequently (for example, to ensure the carers gained admittance), now her work commitments had increased and she was no longer able to do so.  She was still hopeful that she could “drop in” on Mondays to Wednesdays each week, but no more.

The local authority was concerned that this “lack of oversight” from Mrs Jones would increase the risk to Hattie, but Sophie Allan pointed out that “this was never a case where family said they’d provide specific care”.   

The judge was also careful to point out that although the informal support arrangements were no longer as extensive as earlier in the proceedings, “that is a fact of life and the care package was never predicated on more than informal support”.  The court was concerned (it seemed to me) to avoid any implication that the niece’s changed circumstances had any bearing on the outcome, which was sensitive to the burden of guilt that informal carers can feel in situations like this.

When offered the opportunity to address the court, Mrs Jones thanked everyone for their “professionalism and care”.

Judgment

In her oral judgment, District Judge Searl reminded herself that “the Act requires we do not make a determination on the basis merely of a person’s age”, and that’s when she referred to the Jubilee celebrations and our “96-year-old monarch”. Just a week or so after the Platinum Jubilee, said the judge, we should be clear that “the age of a person is nothing to do with their capabilities“.

Mental Capacity Act 2005

The court has jurisdiction, said the judge, by virtue of the previous declarations that Hattie lacks capacity to make her own decisions about where she lives and the care she receives.

In making a best interests decision, the judge had to consider Hattie’s “wishes and feelings, values and beliefs and all other relevant factors”.  The judge said she had built up a picture of Hattie as “if I may use the term, ‘feisty’”: I’ll come back to that word “feisty” later.  She described Hattie as “a 94-year-old lady, loved and admired by many people”, “very house proud”, “remarkably independent and mobile” and as expressing “a consistent wish to live in her own home where she lived for 70 years”.

The judge described what had happened on the previous trials at home.  On one occasion Hattie was readmitted to the care home on an emergency basis having lost 2kg in weight over a three-week period at home because she was refusing food.  She’d also struck out at a (pregnant) care worker with a stick, and flooded her house due to turning off her washing machine mid-cycle.  She doesn’t accept her limitations and attempts to undertake tasks in the home that are beyond her physical abilities (e.g. changing the curtains).  She does not have insight into her difficulties and minimises the impact they have on carrying out activities of daily living and the risks associated with that.  

It was also likely, said the judge, that Hattie would refuse access to the carers.  She becomes “agitated” if they don’t arrive at her home at the specified time – and “in the circumstances in which she and we live, provision of care at set times cannot be guaranteed”. 

It’s also impossible to keep her safe because “she is rather charmingly of the generation and ilk that went around turning off electrical devices before she went to bed, so the assistive devices would be non-effective She also sees them as intrusive of her privacy and has a strongly held view that she does not need them”.

The judge accepted “without hesitation” the position of the Litigation Friend as being “torn” and said it was a “finely balanced” decision which she doesn’t “come to easily”.  On balance, though, weighing on the one hand Hattie’s strong with to return home (and her niece’s desire to support her in that wish) and, on the other hand, the risks of the care package breaking down “with significant detriment to Hattie”, the judge decided it was not in Hattie’s best interests to return home.

District Judge Searl ended by reassuring Mrs Jones that she (Mrs Jones) was not responsible for the decision:  “this is my decision not hers. In no way should she take any of the evidence I’ve heard today as meaning that her aunt is being ‘abandoned’ to the care home. It’s with regret that I do not find it in her best interests to give effect to her wishes”.  

Reflections

Many of us, watching this hearing, would resonate to the issues being addressed.  We may have elderly relatives who are declining care at home, or refusing to consider residential care, or asking to return home.  We may be thinking that this could be us in five, ten, twenty years.  

There’s an academic literature about managing older people’s resistance to care, some of which has found its way into blogs and online resources for the general public (e.g. Understanding your ageing parents: Why they refuse help;  How to deal with resistance when you’re caringRedirecting resistanceSix ways to help elderly loved ones overcome resistance to home care).  Many of the “tips and hints” about overcoming resistance to care appear on the web pages of businesses offering home care, supported living facilities, and residential care homes.  

A much-cited research article from the Journal of the American Geriatrics Society (Overcoming Reluctance to Accept Home-Based Support from an Older Adult Perspective) is based on focus-groups with 68 adults (average age about 74 years old). The authors found that reluctance to accept home-based support was associated with difficulty coming to terms with the fact that they couldn’t do things for themselves anymore; perceptions of being a burden; lack of trust in others to provide non-exploitative care; and lack of control.  Other articles locate the roots of resistance in: hostility towards being dependent on the state;  pride in fending for oneself; denial of need; fear of ageing; anxiety that relatives will visit less often if adequate professional care is in place; and diminishing cognitive capacity resulting in reduced coping strategies and rigid thinking.  Suggested strategies for overcoming resistance (or “non-acceptor syndrome”!) include tactful discussion of the notion of “interdependence”, focusing on what the person can still do for themselves and what positive contribution they can make to society, and encouraging shared decision-making. 

The problem of older adults refusing care is sufficiently endemic to have attracted professional training in negotiation and dispute resolution specifically in relation to older adults’ refusal of care (“Training Hospitalists in Negotiations to Address Conflicts with Older Adults around Their Social Needs”; “Negotiation Training for Case Managers to Improve Older Adult Acceptance of Services”).  

When older people refuse the care that everyone else can see that they need, and insist on their ability to look after themselves, thereby putting themselves at risk, those of us not (yet) in that situation can feel a complex mix of exasperation and admiration. Wanting the best for someone we love is fretted with guilt and frustration.

There was some (appropriate) hesitation from the judge in using the word “feisty” to describe Hattie.  But I could see what she meant.

Dictionary definitions of “feisty” offers synonyms like: fiery, spirited, active, bold, courageous, and determined (all of which seem to describe Hattie).  But “feisty” has also been criticised as a term “used to put women down”, an ostensible compliment predicated upon the assumption that women (and other powerless people) should behave submissively and be grateful for what they are given, rather than demanding something else. 

Feisty is typically used for people (or animals) believed to be small, weak and powerless but behaving as if their wishes mattered.  The Women’s Media Centre (citing examples of female politicians who’ve been branded “feisty”) quotes Michael Geis (The Language of Politics):  “one can call a Pekinese dog spunky or feisty, but one would not, I think, call a Great Dane spunky or feisty.”  According to the Guardian, “A woman is only identified as “feisty” because she isn’t behaving in the way all women are expected to”.  “Like Helen Mirran, I hate being called ‘feisty’ – can’t women stand their ground without being labelled?’ asks the Independent.  

In the context of this particular Court of Protection hearing, the word “feisty” embodies a recognition of Hattie’s relative powerlessness and the fact that she’s insisting on what she wants against the odds.

In using “feisty”, the judge expressed both affection and admiration for Hattie’s assertively stated determination to return home, even as she issued a judgment which frustrated that wish.

I have watched many protected parties in the Court of Protection trying to ensure that their wishes about where they live are respected: bargaining, pleading, begging, trying to prove themselves worthy and capable of a return home.  They do so from a position of relative powerlessness, in a context where they are deemed not able to make that decision, and the outcome lies in the hands of a judge.

Unlike the Queen, who despite her failing health, commands the wealth and power to live in her own home until the end of her life, Hattie does not.  

But even Queen Elizabeth II has been described as ‘feisty”!

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


[1] It’s sometimes suggested that resistance to accepting help is a generational (rather than age-related) problem, but the article cited here is 40 years old and still (sadly) rings true today.

Happy Second Birthday to the Open Justice Court of Protection Project

By Celia Kitzinger, Gill Loomes-Quinn, Claire Martin and Kirsty Stuart, 15th June 2022

It’s two years ago today since two of us (Celia and Gill) launched the Open Justice Court of Protection Project, at the beginning of the pandemic.

It was born of our passionate belief that “publicity is the very soul of justice” at a time when it seemed that the public health emergency was closing down the opportunity for people to observe the court in action.

We didn’t expect to be still going strong (with now two more core group members, Claire and Kirsty) two years later.

Launching the Project

When the COVID-19 public health emergency first began (in March 2020), Court of Protection hearings moved from physical courtrooms to ‘remote’ hearings via telephone and video-platforms.  For months, Celia had been supporting someone through the best interests decision-making process about whether life-sustaining treatment was in her father’s (P’s) best interests. It had just reached court – and it turned out to be the first all-remote hearing of the pandemic. It was a brutal experience for P’s daughter, as Celia describe here: Two years on: A postscript to remote justice.   Seriously concerned that all remote hearings would be equally alienating for P and their family, Celia decided to watch other remote hearings,  tweeted about her experience, and found others were interested.  Gill spotted the opportunity for a wider project and created the website, and we launched the project, on 15th June 2020.  We said: 

A key aim of the project is to raise awareness of the work of the Court, and its social impact. Blog posts covering observations by Public Observers, analyses of published judgments, and other social and legal commentary will be at the heart of how we go about achieving this aim. (Welcome Page 15 June 2020)

We had no funding, and no institutional backing (then or now).  We were just people who cared passionately about open justice in a court which makes draconian decisions in relation to the human rights of some of the most vulnerable people in society.  

It didn’t occur to us to “ask permission” of anyone to set up the Project (which we imagined would be something of a niche interest). If hearings were open to the public then we would go along, and encourage others to attend, and we’d write about them -subject to reporting restrictions.  We couldn’t have anticipated the extent to which simply doing something that seemed to us quite basic and straightforward would have such a ripple effect throughout the Court of Protection and beyond.

What’s been achieved?

Over the last two years, our website has attracted nearly 260,000 views from more than 134,000 unique visitors, from up to 151 countries.  The majority of our hits – not surprisingly since we cover a court with jurisdiction over England and Wales – are from within the UK (131,895 hits so far in 2022, and 233,958 hits in all-time).  This looks like more than a ‘niche’ interest!

We’ve supported thousands to people to observe Court of Protection hearings – many health and social care professionals but also, crucially, family members of people who are, or might be, Ps in the future. For a recent example, see: A section 21A hearing: Impressions from a veteran observer and the daughter of (a different) P in a s.21A case). 

We’ve published 264 blog posts in two years – that’s about one every three days!  They’re written by social workers, best interests assessors, case managers, psychologists, nurses, doctors, midwives, medical ethicists, policy officers, academics, journalists, people working in advance care planning,  law students, paralegals, lawyers, a birth rights activist, a care worker, a speech and language therapist, a court interpreter, an intermediary, a police officer, school students wanting work experience in relation to medicine and law, and family members of potential or actual “P”s.  They’ve opened up public awareness of the Court of Protection as never before.

We know that our blog posts attract a similarly broad readership.  Family members of P read them to learn about “their” judge, or to better understand how a decision might be made.  People working in health and social care see them as contributing to their professional development. Lawyers (including those we write about) have told us they support reflective practice.

We’re increasingly asked to contribute to training and speak at conferences, drawing on our experience of open justice in the Court of Protection: you can check out our slides and resources on the PAST EVENTS tab of our website and see future events on our FORTHCOMING EVENTS page.

Through watching hearings and blogging about them, we’ve highlighted concerns about the way disabled people are treated in health and social care.  Delay is recurrent theme: cases are getting to court too late – predictable applications for caesareans in the ninth month of pregnancy, when it’s clear that the applications could have been made sooner (here); applications for decisions about whether continuing life-sustaining treatment is in the best interests of people in prolonged disorders of consciousness, many years after family members have raised doubts that continuing is in the person’s best interests (e.g. here). And what we hear in court about the background to the case reveals delays in all sorts of other areas – from criminal charging decisions (here), to delays in treatment for people with disabilities (here), delays in determining whether or not a person has capacity – leading to their continued deprivation of liberty against their will (here), and repeated delays in finding suitable places for people to live (e.g. here, here, here, and here),

There’s often a belief that as long as the courts are open to journalists, that’s sufficient for open justice: they can act as the ‘eyes and ears of the public’.  But the information flow has been from us to journalists in some cases. One of our stories (Secure Accommodation for Young People: “A well-known scandal”) was picked up by the Guardian national newspaper (Council paid £60k a week for ‘wholly unsuitable’ place for vulnerable girl, 27th April 2022) and a story about Open Justice in The Times drew on an interview with Celia (Fair Trials at risk with online courts).  We attend hearings in county courts that never see journalists. In fact, we rarely encounter journalists – except Brian Farmer from the Press Association  – even in the Royal Courts of Justice.  

We’ve covered really important hearings that journalists don’t seem to know about: for example Mr Justice Hayden’s criticism of the  Royal Hospital for Neuro-disability in Putney, London for adopting an institutional “ethos” of care that appeared (in the hospital’s view) to trump the law, resulting in  decision-making processes that were  “both poor practice and ethically misconceived.” (“’Burdensome and futile’ treatment and dignity compromised: Poor practice at a leading UK hospital”)

Even when journalists do cover the same hearings that we do, the way we see them and write about them can be very different.  Partly that’s because we often write about the process of decision-making, rather than simply the outcome.  But it’s also because of the range of expertise that public observers bring to watching hearings. Take for example a hearing that attracted a lot of media attention: was it in the best interests of William Verden, a teenager with a learning disability, autism and ADHD, to have a kidney transplant. Media reports (e.g. here) were short, pithy, factual, and aimed at a general readership.  But members of the public who observed the hearing and blogged about it did so from specific professional and personal viewpoints and presented sustained and in-depth examination of the issues involved: from the perspective of a medical ethicist and mother of an autistic child (Imogen Gould); as an academic researcher on kidney donation (Bonnie Venter); and as a trainee barrister focusing on advocacy in the court (Jordan Briggs). 

We know, because barristers tell us, that open justice means improved practice in the Court of Protection (How being watched changes how justice is done), and overall we find much to admire about the dedication and hard work of the lawyers and judges in the court.  When we have concerns about what we see, we publish those too (e.g “Conditions on contact between mother and son: Missing P’s voice ”; A man with a diagnosis of schizophrenia can be conveyed to hospital against his wishes for assessment of his ulcerated legs).

We’re proud of what we’ve achieved. We even won an award – the 2020 ‘Mobilising Research into Action’ category of the Real Impact Awards (Emerald Publishing)!

Challenges

The biggest ongoing challenge is listings. We can’t observe hearings if we don’t know they’re happening because they’re not in the Court of Protection lists – or, sometimes, not listed at all, anywhere (A ‘secret’ hearing on life-sustaining treatment).  It’s also difficult to encourage people to observe hearings when (a) they are labelled PRIVATE despite the fact that the public are welcome to attend; and (b) we have no information as to what they’re about because the lists don’t say.  We’ve  written (and tweeted) extensively about these problems and raised concerns at Court of Protection User Group meetings.  There have been some positive developments (#BeMoreLikeNewcastle)  and some meetings with senior managers, which we hope will bear fruit.  (For details about the listing problems see: When family members apply to become parties: A hidden and “private” (but not sinister and secret) hearing and Why are so many Court of Protection hearings labelled “PRIVATE”?)  

Over the course of the last year there have (still) been problems with busy staff not responding to email requests to observe, and links being sent after the hearing is finished.  There have been issues with transparency orders – often we don’t get them, occasionally they render “private” information we think should be public (e.g. at one hearing this included the nature of P’s impairment; at another we were initially prevented from naming a putative ‘expert’)  and there was one (abandoned) attempt at a ‘retrospective’ transparency order.  We imagine that things like this will continue to crop up and we will need to keep challenging them. The price of open justice is constant vigilance.

The core group of the Project – Celia, Gill, Clare and Kirsty – is composed of four very different people, each contributing to and benefitting from the project in different ways.  

We close with our own individual voices.

Celia Kitzinger

When Gill and I set up the Open Justice Court of Protection Project, we did so independently of either of the two universities we are associated with.  It’s not an ‘academic’ project, and after four decades as an academic, I am overjoyed to be free of the institutional restraints of academia and to be able to organise my own scholarly research, writing and political activism without reference to it. 

The Project was launched in a fit of enthusiasm – without ‘permission’, without funding, without institutional approval: on a wing and prayer!   It’s developed organically to become what it is today.  We’ve done very little advance planning. We’ve never laid out our aims and objectives for assessment against SMART (Specific, Measurable, Achievable, Relevant and Time-Bound). We’ve never had to justify and explain what we’re doing to senior managers determined to slot our work into their “Vision” or “Ten Year Strategic Plan”.  I’m no longer chafing against institutional demands to publish in prestigious academic journals with high citation indices; or compelled to demonstrate how my work complies with the requirements of the Research Excellence Framework. 

The skills I developed as an academic – researching, writing, editing, mentoring, supervising, lecturing, public speaking – are all relevant to this Project, and it’s joyful and liberating to be able to use these skills in the service of something I really care about.  The Project has become a  labour of love – an expression of some of my deepest values about justice, fairness and human rights.  I feel incredibly privileged to be able to do it.  

Thank you to everyone who is part of it:  Gill, Claire and Kirsty (obviously!); all the observers and bloggers; the lawyers who support open justice and help with transparency; the judges who ensure we can come into their courts and make real efforts to help us to follow what’s going on; the court staff whose administrative burden I know that we add to; the managers and administrators who are liaising to sort out the listing problems; and the families whose lives we encroach on.  

I am entering the third year of this Project with optimism and undiminished commitment to open justice.

Gill Loomes-Quinn

Disabled feminist activist, Jenny Morris, describes the injustice of the political invisibility of disabled people’s experiences in her foundational text ‘Pride Against Prejudice’, where she writes:

Disabled people – men and women – have little opportunity to portray our own experiences within the general culture, or within radical political movements. Our experience is isolated, individualised; the definitions which society places on us centre on judgements of individual capacities and personalities (Morris, 1991: 10) 

I see the work of the Open Justice Court of Protection Project as contributing to and continuing the political work of making the experiences of disabled people – the good, the bad, and the ugly – visible within more mainstream cultures, especially those with power in our lives. 

It is very often the case that the court is one place where ‘P’ (the disabled person at the heart of a case) is able to “portray [their] own experience” on a public platform (as we covered here). Indeed, this is one function of the court that is not available when best interests decisions are made about disabled people’s lives ‘behind closed doors’ – in Local Authority offices or care home meeting rooms. And when ‘P’ is not afforded a ‘voice’ in court, the public nature of the proceedings means we can observe and comment on this (as here). It is for these reasons that I am so pleased with the number of people with professional backgrounds in health and social care, law, and the family members and other advocates of vulnerable people we have supported to observe and write about their observations of the Court of Protection in action.           

There is so much more to be seen and understood in observing the court in action than one can access by reading a published judgment – the relationality, the emotion, the humanity of a case. And this matters for multiple reasons. First, and most fundamentally, disabled people have a right to be visible within society – to be seen and recognised as part of society. But further, I believe that social change to improve the circumstances of disabled people – especially those of us who depend on social care and the support of our non-disabled advocates and allies – depends on those outside ‘the movement’ grasping the nature of the issues we face. I don’t pretend this is all that is required. But I see it as an essential component of such change.

You can read more of Gill’s thoughts on the project’s contribution to disability politics in this blog (of which the above is an extract).

Claire Martin

Thinking back over the past year, since Kirsty Stuart and I joined the OJCOP project as core team members, I realise that, unconsciously and on a very personal level, being part of this has helped me to feel connected to others during the lockdowns of the pandemic. 

Observing hearings, writing for the blog and the thrill of going through the editing process and final publication, meeting and sharing thoughts with other observers, getting feedback and having dialogue and challenge, has been an enriching and grounding experience. 

Looking back, deliberately going beyond my immediate experiences, at a time where everything felt to be closing in, was sustaining. Scary (especially having to speak on camera in court) but sustaining. The bonus has been vastly improving my knowledge of the values, principles and application of the Mental Capacity Act 2005! 

I work in a mental health service for older people in the NHS and consider myself a jobbing clinician – so was pretty surprised when Celia and Gill invited me to join the core team of the project. It started, as for others who have become regular observers with seeing a call to arms on Twitter, and observing a few hearings. I thought I’d just like to see what happens in the Court of Protection, go to a couple of hearings and then get on with daily life. The first two hearings I attended were by telephone and were really hard to follow. There was no summary of the case, by phone you obviously can’t see who is who, and I was pretty lost. What I noticed though, was that on the whole everyone involved was trying their best in the challenging and unexpected circumstances of remote ways of working. I saw (and heard) that the person at the centre of the hearings was genuinely attended to in terms of who they were as a human being. It made me reflect on how services – ‘care’ services in health and social settings – can often be so bound up in their own systems, sense of duty, worry about risk and repercussion, that the person ‘P’ as an individual can, and often does, get lost amongst people’s and services’ attempts to do what they think is right. I realised that learning more about contested capacity and best interests’ situations would be very helpful for me in my work and that I could share that knowledge and have discussions with the people I work with. I am hooked by the court’s endeavour to be fair – a value that has always been so important to me.

Being able to do that remotely from my own home makes it possible, alongside the day job. I have now observed around 40 hearings and written and contributed to many blogs and it has been so exciting to do so. As things change again, and we return to more in-person hearings, it makes me wonder about the effect on Ps and their families in the CoP – what would they want? Is it helpful to have hearings remotely or to have the option of a hybrid hearing? The feedback that we have had is that some people value being able to attend remotely – and for some it simply makes attending possible. I have observed several hearings where people have attended from abroad. I hope that this accessibility is not lost – and of course it makes open justice more achievable, as observers (many of whom would not be able to be released from their jobs for days at a time to visit court) can spend an hour or two of CPD time watching from work or home. 

My colleagues on the project are brilliant – even though we have not met in person as a group, and actually don’t meet very frequently at all, the collegial spirit is huge. The project remains unfunded – it is quite an undertaking, managing the website, compiling the listings every evening, editing and publishing blogs, attending to emails. Celia and Gill do most of the hard work. It’s clearly a ‘labour of love’, as Celia describes earlier, and I share that enthusiasm. The courts are here for all of us – they need to be seen, discussed, talked about, reflected upon, commented upon by critical friends and, more than anything else, known about. How better to do that than be part of observing and telling people about it? 

Kirsty Stuart

Birthdays always seem like a good time to reflect on how things have been and the last year of the OJCOP project is no different. 

I was so honoured to be approached a year ago to join the core group of the Project and wanted to use it as an opportunity to develop my skills as a lawyer working in this area. 

I am an associate solicitor working in the public law and human rights team at Irwin Mitchell and a lot of my work involves representing families and those at the centre of Court proceedings to ensure their voices are heard and represent them. 

Pre-COVID,  I recall going to an in-person hearing and being shocked if an observer was present. It only ever happened in the Royal Courts of Justice in London and was usually a journalist following a case. Although I knew the hearings were public, this seemed more of a formality and not the reality. Fast forward to the pandemic, and all hearings becoming remote and the creation of this amazing Project, and I see observers on a regular basis. 

For me, I am interested to see from the lawyer’s perspective how it changes things to have observers in court.  As others have said (How being watched changes how justice is done), there are a lot more introduction and opening summaries by barristers.  Also, I find I check CourtServe a lot more to see how hearings are listed.

And the opportunities for learning and development for more junior colleagues to observe and write blog posts has been great. I am always keen to develop others and encourage them to shine and writing a blog and ‘getting your name out there’ is a wonderful way to do this. I have and continue to encourage any law students or those who want Training Contracts to do the same. I have spoken to those who have observed to help with their understanding of the issues and am more conscious of Transparency Orders and what they mean for observers. Of course, it isn’t to say that I wasn’t before, but from helping others to write blogs, I see them in action and how they affect what can be said. 

I love that the Project shows that the Court of Protection is not a secret court and that anyone can come and observe a hearing and really start to understand decision-making in the Court of Protection and see behind the headlines. 

I am so grateful to Gill and Celia for co-founding this and have loved watching it grow from strength to strength and cannot wait to see what the next year has in store.  

Celia Kitzinger, Gill Loomes-Quinn, Claire Martin and Kirsty Stuart are the Core Group members of the Open Justice Court of Protection Project, which tweets @OpenJusticeCOP

Making Disabled Lives Visible – Reflections Two Years On

By Gill Loomes-Quinn, 13th June 2022

One of the many challenging aspects of being disabled in our society is the isolation that comes from those around you being ignorant of, and failing to comprehend, the ways in which living with impairment(s) in a disabling society impact the life of a disabled person.

My own experiences of this fall broadly into two categories:

  1.  Non-disabled people are often unaware of, and unprepared for, the complications, barriers, and manifold frustrations that disabled people face when trying to complete the most basic of tasks. This has included friends showing surprise that much of the London Underground is inaccessible to me (as a wheelchair-user) because they “thought the law said that everywhere has to be accessible now”, and that I need to call ahead before going practically anywhere to make extensive checks for accessibility and requests for assistance and being even more surprised when such assistance often fails to materialise. To them, this is remarkable. To me, it is “life”.
  • In perhaps paradoxical contrast to the ‘surprise’ reaction, non-disabled people demonstrate that they imagine my existence to be pitiable – including total strangers offering to pray for me, others telling me they would “lose the will to live” if they were “like [me]”, as well as taxi drivers bringing me home from work expressing surprised congratulations that I am employed. This latter category of ‘pity’ beliefs was analysed critically by disabled journalist, Lucy Webster, in a recent article in the Guardian, entitled “Some people think they would rather die than have help brushing their teeth, but care is not tragic”. I think she sums up well how out of touch many non-disabled people are with the everyday experiences of disabled people.

One of the key reasons for my research interest in the work of the Court of Protection, and why I am so proud of what we have achieved so far with the Open Justice Court of Protection Project, is that the court deals with the everyday lives of disabled people deemed (or who may be deemed) to lack capacity. In the past two years, we have covered, and hopefully drawn public attention to, the myriad of issues affecting disabled people – including serious medical treatment at end of life, the long, drawn out search for a suitable ‘placement’ (home) for a young disabled woman, pregnancy and birth, and how global events, such as the Covid Pandemic have impacted disabled people – including receiving vaccinations, and the right to visits with family and friends in care homes.

Some of the cases we have written about have been ‘sensational’ in nature – covering the most shocking of circumstances in which anyone may find themselves – such as the asylum seeker engaged in a hunger strike to have his understanding of his date of birth recognised by the authorities (here, here, and here). And cases challenging inequalities and discrimination in health access faced by disabled people – such as failure to provide treatment for cataracts in a timely fashion that would be available to a non-disabled person; and whether a kidney transplant was in the best interests of a disabled young man.

But many cases engage the most taken-for-granted of everyday human experiences, such as access to medication, and to pets and hobbies, and the right to engage in the intimate relationships of one’s choosing. For me, this speaks to my cultural heritage as a disabled activist, as themes that have concerned disabled activists for decades are played out daily in the Court of Protection.

To give an example, it is now 30 years since Anne Finger wrote her heartfelt critique of social attitudes to disabled sexuality (and the responses of the disabled people’s movement thereto). And these same themes have played out in some of the most prominent cases before the Court of Protection in the past two years, as the court has adjudicated on matters such as the rights of disabled people to access prostituted women/sex workers, and revising the definition of capacity to engage in sex to include understanding that the other person must be able to give/withhold consent (and actually do so) before and during sex (covered here and here). Back in 1992, Finger wrote that “Sexuality is often the source of our deepest oppression: it is also often the source of our deepest pain”. And she argued that it was “crucial that the disability-rights movement starts to deal with it”. The prominence of themes of sex and reproductive rights in today’s Court of Protection suggests strongly that three decades on, society as a whole still has a long way to go until disabled people can be considered fully equal sexual citizens. It is my hope that the work of the Open Justice Court of Protection Project in supporting people to observe these themes played out in court will contribute to an awakening of social conscience and drive us towards such equality.

In more general terms, Disabled feminist activist, Jenny Morris, describes the injustice of the political invisibility of disabled people’s experiences in her foundational text ‘Pride Against Prejudice’, where she writes:

Disabled people – men and women – have little opportunity to portray our own experiences within the general culture, or within radical political movements. Our experience is isolated, individualised; the definitions which society places on us centre on judgements of individual capacities and personalities

(Morris, 1991: 10)

I see the work of the Open Justice Court of Protection Project as contributing to and continuing the political work of making the experiences of disabled people – the good, the bad, and the ugly – visible within more mainstream cultures, especially those with power in our lives. It is very often the case that the court is one place where ‘P’ (the disabled person lacking capacity at the heart of a case) is able to “portray [their] own experience” on a public platform (as we covered here). Indeed, this is one function of the court that is not available when best interests decisions are made about disabled people’s lives ‘behind closed doors’ – in Local Authority offices or care home meeting rooms. And when ‘P’ is not afforded a ‘voice’ in court, the public nature of the proceedings means we can observe and comment on this (as here). It is for this reason that I am so pleased with the number of people with professional backgrounds in health and social care, law, and the family members and other advocates of vulnerable people we have supported to observe and write about their observations of the Court of Protection in action.           

There is so much more to be seen and understood in observing the court in action than one can access by reading a published judgment – the relationality, the emotion, the humanity of a case. And this matters for multiple reasons. First, and most fundamentally, disabled people have a right to be visible within society – to be seen and recognised as part of society. But further, I believe that social change to improve the circumstances of disabled people – especially those of us who depend on social care and the support of our non-disabled advocates and allies – depends on those outside ‘the movement’ grasping the nature of the issues we face. I don’t pretend this is all that is required. But I see it as an essential component of such change. This is especially the case where the disabled person at the centre of a case is unable to communicate their own experiences in any way due to the impact of their impairment(s) – as is the case where ‘P’ has, for example, a profound brain injury leading to Prolonged Disorder of Consciousness (PDoC), or is otherwise unable to communicate either verbally, or using Assistive/Augmentative Communication (AAC) technology, sign-language, gesture, or other reliable non-verbal communication. And it is my view that we, as a disability rights movement, let these people down when we fail to engage with, and support the non-disabled loved ones and other allies of such people. I see the Open Justice Court of Protection Project as key to such partnerships, and to ensuring that we, as a movement, take all our members forward with us and lift up everyone’s ‘voice’ and experience in our advocacy.

Several observers have explained in their blogs how observing the Court of Protection in action has impacted their understanding of mental capacity law, and its impact on disabled people’s lives. In one of our earliest blogs Mereil Scott, an aspiring barrister,  explained that “This hearing demonstrated to me the way in which the Court of Protection can work very efficiently to enable people’s voices to be heard”. The difference between the ‘letter of the law’ and its implementation has also been a key theme – Samantha Williamson told how she

…had been struck by how different it is reading judgments and legal commentary on cases (all neatly summarised and structured) compared with observing cases in the Court of Protection.

And the “reality of applying the ideals of the MCA 2005” was also made clear to law student Lucy Williams by observing the Court of Protection in action. She explained the distinctions between legal theory and its practical impact like this:

In theory, it’s easy to say that decisions should be made in P’s best interests, but even when…everyone agrees what that is, judges have to deal with real world issues…I’ve learnt that the Court of Protection’s role is also about managing the concrete particular details of a particular P in the specific conditions of her life, and in the context of over-stretched health and social care services.

I am delighted to think that over the last two years our project, run on passion and zero funding, has supported people engaging with disabled people deemed to lack capacity.  This is key to providing them with a better ‘real world’ grasp of the issues affecting their service users, clients, family members, and friends. And I look forward to seeing the fruits of cultural change that will be harvested from the seeds our project is sowing.

Gill Loomes-Quinn is a disabled scholar-activist whose ongoing PhD research on disabled ‘voice’ in mental capacity law received an award from the Caroline Gooding Memorial Fund. She is co-director (with Celia Kitzinger) of the Open Justice Court of Protection Project and is also proud to be a convenor of the Participatory Autism Research Collective (PARC). Gill tweets @GillLoomesQuinn


Photo by Michael Dziedzic on Unsplash

A short hearing and a failure to agree

By Mollie Heywood, 12th June 2022

I am a full-time children’s social worker and part time law student and aspiring barrister, passionate about social justice and human rights.  

I wanted to observe a Court of Protection case because I find this area of law particularly interesting – and I learnt from Celia Kitzinger (who blogged about an earlier hearing in this case) that there was a Litigant in Person involved in this hearing.  This was of particular interest to me as I have observed many such cases as a social worker and in different courts. In my view, learning from the experiences of Litigants in Person and the difficulties they have navigating the legal system, in personal and emotive circumstances, is vital to supporting future Litigants in Person, particularly in light of reduced legal aid funding.

I observed the hearing (COP 13861341) over Microsoft teams before HHJ Francis, on Wednesday 8th June 2022.

The Local Authority and P, with legal representatives, a social worker and a relative of P, attended virtually, with cameras on, and with the ability to see the other parties on screen.  The protected party’s wife ( W ) also attended virtually, but (as before) via telephone. In my experience, there are always further complications when one attendee is over the phone: the audio is of reduced quality, for both sides, and the person attending via phone can’t be seen, and can’t see the other participants.  This was particularly evident when, at one point, W asked who was there. 

As at the previous hearing, an interpreter was employed, but for some reason I was not privy to, there was a delay in getting her access to the hearing arranged, and so there was a delay of over an hour and a half. The hearing had been listed for 10:30am but didn’t start until after noon.  

The hearing was very short, around 25 minutes. No significant submissions were heard.  The judge just asked if there had been any progress since the previous hearing and whether any agreements had been reached. 

There had not been any progress. P’s wife opposes the position taken by the Local Authority and by the Official Solicitor (on behalf of P): she is not willing to move out of Number 15 without a court decision, and wants to have unrestricted contact with P.  This is not, in the view of the other parties, in P’s best interests (see previous blog about this case for more details).

The arrangements for the next hearing were discussed: P was to attend virtually, but everyone else involved would be present in person at the RCJ. Having since checked the RCJ list, which says it will be listed on MS Teams, either the list is in error or there has been some change since the hearing on the 8th June 2022, that I’m not aware of. The contested hearing is listed before Sir Jonathan Cohen, although there was no explanation for the change in judge in the hearing I attended. 

As with the first hearing, the interpreter and P’s wife had no separate platform of communication and so the court heard the ongoing interpretation throughout the hearing. 

Again, W did not appear to have read any paperwork due, I think, to not having had anything available in her own language, and so arrangements were made for the interpreter to read this to her after the hearing. 

This struck me as a significant disadvantage for a Litigant in Person.  Having a solicitor or legal advisor to read this for her would have helped her to understand her position more clearly. Anyone who has read court bundles will know that they are often lengthy and written with legal terms and phrases alien to the layperson. I do feel for the Wife in having to rely on the interpreter to quickly read out the papers. This isn’t the first time I’ve seen information not being translated, just a cover letter, and the information left in English, and the impact on equality never fails to astound me. 

As described in relation to the first hearing, I found that the Judge was acutely aware of the disadvantages faced by W as a Litigant in Person and as someone using an interpreter. He encouraged her (as he had done previously at the last hearing) to get legal representation. He reassured her she wouldn’t have to pay for this.  She stated, through the interpreter, that she is opting not to be represented at Monday’s contested hearing. She didn’t say why. It wasn’t clear, to me at least, if she had sought legal advice since the previous hearing.

The Judge asked that some discussions should take place between the parties following the short hearing, in the hopes that some agreement and conclusion could be reached. However, this must not have been possible, as the contested hearing is listed for Monday 13th June 2022. 

Although this was a short hearing and in effect nothing much happened, I am glad I observed this hearing because it has given me greater insight into the role of Litigants in Person, particularly those that have the additional complication of using interpreters.

As an aspiring barrister, I noted the ways in which the barristers interacted with W, through the interpreter. I’ve not seen these barristers before, but they spoke slowly and clearly and used plain English. They tried to support W’s understanding of and inclusion in proceedings. 

I hope that W is able to attend in person on Monday 13th June 2022 and is able to experience the contested hearing on more equal footings with the other parties. 

Mollie Heywood is a full time children’s social worker and part time law student at the University of Law and aspiring barrister, passionate about social justice and human rights.  She tweets @mollieaheywood

Photo by Jr Korpa on Unsplash

Fairness in court for a Litigant in Person

By Celia Kitzinger, 12th June 2022

At the hearing I observed (COP 13861341) before Mr Justice Francis on 18th May 2022, the applicant local authority was asking the court to make orders that P’s wife must move out of the home where the couple had lived together for many years, and that her contact with him should be restricted.

The Official Solicitor supported the draft orders.

It was clear that P’s wife does not want to move out of the house, nor does she want her contact with her husband restricted.

Unlike the other parties, P’s wife did not have legal representation.  She was a Litigant in Person (LiP)[1].   

I often see family members in Court of Protection proceedings without legal representation.

The Equal Treatment Bench Book covers a wide range of issues relating to fairness in court and provides specific guidance for judges on how best to ensure that Litigants in Person are treated fairly[2]. The guidance recognises, of course, that some Litigants in Person choose to represent themselves (e.g. because they don’t trust lawyers, or believe that they will do a better job themselves of putting their case across §2), but also, crucially, that most Litigants in Person in fact have no choice in the matter: they cannot afford to instruct a lawyer and do not qualify for legal aid.

Here are some extracts from the Equal Treatment Bench Book which highlight the importance of fairness in court for Litigants in Person.

Fair treatment is a fundamental principle embedded in the judicial oath and is, therefore, a vital judicial responsibility. […] Treating people fairly requires awareness and understanding of their different circumstances, so that there can be effective communication, and so that steps can be taken, where appropriate, to redress any inequality arising from difference or disadvantage. This Bench Book covers some of the important aspects of fair treatment of which all judges should be aware, making some suggestions as to steps that judges may wish to take, in different situations, to ensure that there is fairness for all those who are engaged in legal proceedings in our courts and tribunals.

§ 1 and §4, Equal Treatment Bench Book

Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.

§10 Equal Treatment Bench Book

For a discussion of the potential difficulties in communicating with people from different cultures and/or who speak English as a second language, see the sections on ‘Communicating interculturally’ and ‘Language interpreters’ in chapter 8. Those sections consider communication with witnesses, but difficulties are likely to become more acute when a person is also presenting his or her own case, without any representative to mediate cultural and linguistic understanding. 

§21 Equal Treatment Bench Book

Judges must be aware of the feelings and difficulties experienced by litigants in person and be ready and able to help them with the court process…. […] LIPs commonly feel at a profound disadvantage. The aim of the judge should be to ensure that the parties leave with the sense that they have been listened to and had a fair hearing – whatever the outcome. 

§17 Equal Treatment Bench Book

Sources of outside help and information for LIPs : Some litigants in person are unaware of the explanatory leaflets available at the court, or of the lists of advice agencies. Citizens Advice has an informative online information system, and local Citizens Advice offices may be able to offer assistance with case preparation. Advicenow also has a useful collation of resources on its ‘Going to court or tribunal’ website page. While these possibilities may be flagged up to LIPs, it is important not to overestimate the availability and extent of voluntary sector assistance. Advice agencies have been subject to severe funding cuts, both to grants and to legal aid income, in recent years. LIPs are likely to have difficulty in getting prompt appointments or finding the level of specialist expertise needed. The experience of trying to find help without success can itself be very demoralising. 

§18, Equal Treatment Bench Book

In this post, I’ll look at how this hearing unfolded with particular reference to how the judge embodied through his actions some of the relevant principles of the Equal Treatment Bench Book quoted from above, and the challenges in doing so.

What was the hearing about?

The  local authority was making two applications to the court: one under the inherent jurisdiction of the High Court (more on this later), the other under the Court of Protection.

The first was an application for an injunction against P’s wife ( W ) ordering her to move out of his house in two weeks’ time.  This is because P would like to move back home (he’s currently in residential care) but she is alleged to have abused him.  The injunction also requires her to permit access to professionals between now and then, so that they can make the accommodation suitable for P to move in.

The second was an application to make declarations – on the basis of an expert capacity assessment that wasn’t disputed – that P has capacity in relation to residence and care, but lacks capacity to make decisions about his property and financial affairs, and about contact with his wife. (He also lacks capacity to conduct these proceedings and the Official Solicitor is acting on his behalf).  

On the basis that P lacks capacity to manage his finances, the applicant local authority also asks for appointment of a Deputy to deal with his property and affairs – and also an ‘interim’ Deputy to be appointed urgently so that matters can progress until a panel Deputy is approved by the court.

On the basis that he lacks capacity in relation to contact with his wife, the applicant local authority asks that P’s contact with his wife should be restricted in his best interests.

The Official Solicitor (acting on behalf of P) supports these applications. 

As became clear during the hearing, although P’s wife, W, was content for a Deputy to be appointed for her husband, she opposes the injunction requiring her to move out of the home she shared with her husband for many years (although by the end of this hearing there was some indication that might change), and she opposes restrictions on her contact with her husband.  She does not accept evidence that she abused him.

P’s wife was multiply disadvantaged in this hearing.  

  • Unlike the local authority and P, she did not have legal representation, i.e., there was no barrister in court to speak for her.
  • She is not a first language English speaker, so she was reliant on interpretation during the hearing and translation of documents into her own language (which had not been done, although some translated summaries had been sent)
  • She had not been sent copies of the up-to-date draft orders 
  • She had not been included in the pre-hearing discussion at which these orders had been discussed and agreed by the other parties
  • She was attending the hearing via phone when the other parties were using the video-platform, so had no access to visual cues accessible to others. 
  • She was angry and upset, and displayed some fundamental misunderstandings about the basic legal principles of the Court of Protection.

Background

The protected party (P) is in his seventies and has Parkinson’s disease and dementia.  He’s been living in a care home since December 2021 and would like to return home to a property of which he is the sole owner and the local authority is considering whether a return home with a package of care in place would be feasible.  The presence of W in the property is “a significant barrier” (says the Official Solicitor) because it poses issues “in relation to P living without abuse, and with successful delivery of care”. 

Counsel routinely referred to P’s home by its street address (I’ve pseudonymised it as “Number 15”), presumably as a more neutral designation than alternatives such as “the matrimonial home” (used by the judge at one point) and “my house” (used by the wife, via the interpreter).

The local authority is of the view that, despite having capacity to make his own decision about where to live,  “his free will is being overborne” by his wife who has been accused of abusing him – physically, emotionally and financially.  This means that he is a “vulnerable adult”  as described in case law (e.g. Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867 and Re SK [2005] 2 FLR 230).  

The Court of Protection cannot make best interests decisions in situations where a person is deemed to have capacity to make that decision for themselves (even if the decision is an unwise one).  But the High Court can do so, under its “inherent jurisdiction” if the person is a “vulnerable adult”.  This includes cases where a person is at risk from other people (e.g. from domestic abuse, undue influence, coercion or control) but “chooses” to remain in that situation while being apparently able to understand, retain and weigh (s.3(1) Mental Capacity Act 2005) the information relevant to their decision – or at least their inability to do so cannot be said to be caused by “an impairment of, or a disturbance in the functioning of, the mind or brain” (s. 2(1) Mental Capacity Act 2005): in other words, they have capacity to make the decision that puts them at risk of harm. The inherent jurisdiction has been described as “the great safety net”, (Re DL [2012] EWCA Civ 253) used by High Court judges to fill the gap left by the fact the Mental Capacity Act only applies to those lacking mental capacity applying the test in ss.2-3 of that Act. (See the excellent ‘shedinar’ by Alex Ruck Keene on the inherent jurisdiction here and a downloadable pdf from 39 Essex Chambers here).  

So, although P would like to return home and has capacity to make that decision, the local authority is of the view “this cannot happen” while his wife is living at the house, or continues to have access to it.  “If he were to [return to Number 15] with W in occupation, it would compromise his well-being. That is because of his will being overborne by W as part of their relationship.  Even though he’s been living away from her for a couple of months, it isn’t a situation where his will has become entirely independent.”[3] (Counsel for the LA)

They have applied for an injunction under the inherent jurisdiction of the High Court to exclude W from P’s property and to restrict her contact with him. 

The proposed property and affairs Deputy appointed to manage P’s finances will be able to offer short-term financial assistance to W if she can’t arrange alternative accommodation. In the long term, one option is for P’s house to be sold and separate accommodation to be purchased for husband and wife: that’s an option that P himself has sometimes said he wants to happen, but has at other times been less keen on.  His consistently expressed wish is to return home to Number 15 (sometimes to live with her, sometimes with her living elsewhere).  

Up until today’s hearing, W has (say the local authority) been “obstructive” and “refused to take part in proceedings or comply with court orders”. 

By way of a little additional background, W is P’s second wife, whom he met while travelling in Asia. They have two daughters of secondary school age who have been removed from their care because W “poses a serious risk of harm to the children”.  P also has an adult daughter (with whom his ex-wife lives), and he’d lived with her for some months after he moved out from his own house due to W’s behaviour.

The hearing

The applicant local authority was represented by Michael Paget of Cornerstone Barristers, and a social worker was also present.

The first respondent, P, was represented (via his litigation friend, the Official Solicitor) by Sian Davies of 39 Essex Chambers.  P was also present at the hearing – with his camera on, seated on a red High Back chair in his care home, apparently alert but impassive throughout.

The second respondent, P’s wife, W, was a litigant in person, attending with her interpreter.  

When the judge joined, there were (brief)  introductions as to who was in court, and their roles.  Although the judge greeted P (“Before we go on, I can see P sitting there too – hello can you hear me?”) he did not greet W, who was attending via phone and so was not visible on the screen.  

And there was no opening summary at the beginning of this hearing.  I initially struggled to work out what it was about. I imagine that W was completely at sea (despite the translation) when listening to Michael Paget’s opening remarks. 

The challenges of interpretation 

After confirming to the judge that the observer (me!) had been sent a transparency order,  Michael Paget (for the applicant local authority) checked that the judge had received the Position Statements from the represented parties.  He then said that there was “a further iteration of the draft orders following a pre-hearing meeting and I can send these through shortly”.  I gathered that an order for W to leave Number 15 had been amended from a week from today to two weeks from today, and it had been agreed that the local authority should be appointed as an interim Deputy (pending appointment of a Deputy by the court) in order to manage immediate financial matters such as ensuring utility suppliers at Number 15 are paid, that the house has access to the internet and so on.

After each paragraph of speech from counsel, the interpreter translated everything into W’s language, and the court waited while this was done.  At previous (remote) hearings I’ve watched, the interpreter and the person for whom they’re interpreting have both appeared on the video-platform with their mikes off, and have had a separate  channel of communication open to them (e.g. telephone or WhatsApp).  (For a description of how this can work, see British Sign Language Interpretation in the Court of Protection). This means that the court doesn’t experience the interpreter’s version, which is going on behind the scenes. In this hearing, because only the one channel of communication was open for W, we all listened to the interpreter throughout the hearing.

What struck me was how long the interpreter’s version was compared with the original English.  The judge also commented on this (“it seems to take twice as long in your language”)  and the interpreter explained that sometimes there is no direct translation so she had to explain the meaning of words in roundabout ways. (“Thank you for explaining”, said the judge). This also meant the interpreter occasionally used English words, which for English-speaking listeners, jumped out of the flow of an otherwise unintelligible translation.

The judge smiled during the course of one (fairly lengthy) translation and hastily accounted for this by saying “it always amuses me when we get an English phrase in the middle of a [foreign language] sentence – so ‘Court of Protection’. That’s all I was smiling about, nothing else”. I recalled this comment when I read this paragraph in the Equal Treatment Bench Book:

A thoughtless comment, throw away remark, unwise joke or even a facial expression may confirm or create an impression of prejudice. It is how others interpret the judge’s words or actions that matters, particularly in a situation where they will be acutely sensitive to both. 

§21 Equal Treatment Bench Book (my emphasis)

A contested injunction to vacate Number 15

The first task the judge addressed was to determine whether he was having to make a decision that everyone basically agreed about (certainly the applicant local authority and the Official Solicitor were in agreement) or whether one party – P’s wife – disagreed and so the hearing was “contested”.

Was W objecting to moving out of Number 15 or was she willing to leave the property as the draft injunction required her to do?

Counsel for the local authority said: “until today ,W has taken no active steps in proceedings, and the Official Solicitor and Applicant have had no comfort that she would be willing voluntarily to vacate the property or voluntarily amend or restrict her contact with P.”[5]

The judge asked, “Does that mean I’m hearing a contested injunction this afternoon?” and counsel for the local authority said “I think so – subject to what W says. It might be she’s willing to give undertakings, but the Official Solicitor and the Applicant would not be comforted by undertakings at this stage in the proceedings, given the history of the case.”

The judge did not then immediately ask W whether or not she was willing to vacate Number 15.  Instead, he asked counsel a series of questions which seemed directed to ensuring that W was not disadvantaged by her role as a litigant in person.  

He pointed out that there were written witness statements providing evidence for the position of the local authority,  but the local authority said that it did not propose to ask for oral evidence in court. The judge pointed out that W may wish to cross-examine on the statements. 

It then emerged that W had not seen a copy of the Order the local authority was asking the judge to make.  

Judge:  How can I deal with a contested injunction if the respondent doesn’t know what you’re asking for?

Counsel for LA: She does know what we’re asking for, but she doesn’t know the precise wording. She doesn’t have internet, so we’ve been hand-delivering papers to her.

At this point, Mr Justice Francis addressed W directly, and the following exchange took place (Bear in mind that the judge’s questions had to be translated into W’s first language, and W’s responses were then translated into English.)

Judge: Mrs W, can I ask you this question. Do you agree that from 1st June you should not be allowed to occupy or visit Number 15?

Wife: No.

Judge: Do you want to live there with P or on your own?

Wife: (crying) Of course I want to live there with my husband and children. This is my family.  I don’t have a solicitor.  I have not had enough money to buy food. My phone has been stopped. I don’t have money to pay for it.  We have legal marriage, so why? Tell me why!

Judge: (to counsel) Legal aid – is it merit-tested or means tested? Would W be entitled to legal aid or not?  I am troubled that she doesn’t have legal representation today.  Translate please.

Wife: (crying) I am a human being. I am not an animal. I have child with my husband. After each day this matter seems to get more serious. I am not a bear. Why do I have to be away from my husband? Why keep saying untrue things about me? If my husband cannot remember, I can look after him.  I am not some stranger walked into his life. He asked to marry me and he is my husband.

Judge: (to applicant counsel) Balancing fairness for both parties, how am I to meet the requirement for fairness towards W if she’s not represented this afternoon?

Counsel for LA: These proceedings have been afoot for some time and she’s been aware of these proceedings. It’s very good news for the court that she’s now engaging. She’s had the whole of 2022 to engage with the issues in this case, her relationship with P, and her occupation of Number 15.  W has decided to engage at this late stage with the proceedings, but it’s clear from what she’s said thus far that she’s not engaging with this issue.  She’s engaging with historic issues relating to her children that are not germane.

Judge: If I don’t make the order this afternoon, where does P live?

Counsel for LA: He’ll continue to live at the care home. (Confirmed that he was not being asked to leave.) The court has a choice whether to make orders today, or a short-order return date if W wants to challenge the applicant’s evidence that P is at risk in her company.  W has failed to engage at all with those assertions and is in denial that they have happened or are likely to happen. She does not recognise the wishes and feelings of P, or the court decision that it is not in his best interests to have unrestricted contact with her.  We’re not confident that if the court does indulge her to give her additional time with an in-person hearing that that will assist in putting forward any case whatsoever against the manifest evidence that has been provided by the local authority and is supported by the Official Solicitor.  P has been living in a care home where he shouldn’t be for months now.  It won’t make a dramatic difference if you don’t make the order today, but it’s completely sub-optimal and unsuitable for him.

Judge: What do you say are the prospects of- Is there any benefit to P if he and W live in the same house together, or do you regard that as untenable and unsafe for him?

Counsel for LA: The latter.

Judge: (to W) If I put this case off for a few weeks, are you going to be able to get a lawyer?

Wife: It will be impossible.  Because I don’t have money for taxi, I don’t have money to eat. Everything in this house has broken – microwave, oven, fridge, washing machine, even the bathroom, the internet.  My phone is not working because I have not been paying the bills.  I need people to help me find a solicitor because it’s not going to work for me if I have to do it myself.

Judge:  Has anyone done a survey of the property to find if it’s suitable?

Social Worker: I visited the property yesterday. Everything appears in good order. The fridge and the cooker were working.

Judge: If I make the order you’re seeking, you’re satisfied that with P’s money she could rent somewhere in the notice time that she’d have?

Counsel for LA: Yes.

Judge:  Mrs W, do you want to ask questions of any witnesses if I proceed to hear the case this afternoon.

Wife:  This is a small trivial matter. A trivial family matter.  This is not a corporation that requires witnesses.  We don’t need witnesses for this kind of case because it’s a family matter.  The ladies who come to the house, sometimes they are happy-happy, sometimes they shout at me. I am a human being and I retaliate. I raise my voice.  At first it was my children not being well, then my husband not being well.  All fabricated.  When husband is not well, he needs wife to look after him.  When not quite clear in the head, everyone would need to have a spouse by their side – to look after you so when you’re unwell, under the weather, you have someone there to rely on.  Why did the ladies who came to my property not allow me to give explanation?  As soon as I left my property, they took my husband to the nursing home.  In [country of origin] I own a company, okay?  I am a company director, so I haven’t brought my money over. I am not a maid.  The whole thing has been exaggerated by people who are not listening to me. They’re not on my side, so they have invented things and expected me to follow.

For me as an observer, this answer (and the exchange leading to it) revealed significant problems in W’s understanding of the case, and its legal framework, and indeed of the procedures and processes of the Court of Protection.  She doesn’t understand the role of witnesses in this court, or recognise that it has jurisdiction to make judgments about “family matters”.  People are often surprised and shocked to learn that once a family member loses capacity, “next of kin” cannot make decisions about them, and that the state – in the form of professionals and sometimes the court – takes over that role.  For people from cultural backgrounds which place great emphasis on “family”, this must be particularly challenging. 

The judge asked counsel for the local authority how he should proceed. 

Judge: Mr Paget, where do we go from here? I’m sympathetic to P’s position, but I also have to consider Mrs W’s position.

Counsel for LA: Her indirect answer, if we take it that [the Social Worker] was one of the women who visited her, is that the evidence is ‘fabricated’, ‘invented’ and ‘exaggerated’.  So, she’s clearly contesting that evidence. Balancing fairness, she should have the opportunity to give her evidence.

The judge then turned to the Official Solicitor.

Judge:  Ms Davies, I’m very troubled about this – because if moving P back into his own home is the right thing to do, then the sooner the better.  Having said that, W presumably has matrimonial rights to live in the property.  Ms Davies, what do you suggest I do?  Make the order today or put it off for the possibility of W being represented?

Counsel for P: The first point I’d make is one that Mr Paget has already made the court aware of. Proceedings began in December last year. This is the first hearing W has attended.  Not only has she not attended, but she’s not engaged with proceedings.  My client doesn’t want to be in a care home.  It’s not being suggested on anyone’s behalf that W should be made homeless.  Alternative accommodation arrangements will be made for her. There are clearly serious issues to be resolved and it is a matter of concern that W regards these issues as “trivial”, because the Official Solicitor considers them to be very serious.

Judge:  The parties are married.  It’s a matrimonial home where they lived as a couple.  I can’t ride roughshod over her rights and say, “oh well, she’s got somewhere else she can go”.

Counsel for P: It’s a difficult balance.  There is a disadvantage for W in being a Litigant in Person. I’m not able to say with certainty that she’d qualify for legal aid, but it would seem on the face of it she’d qualify for representation.  She doesn’t say she’s attempted to secure legal advice and been unable to – which is consistent with her until very recently not engaging with these proceedings.

I was perturbed that the Official Solicitor seized on W’s use of the word “trivial” – by which I heard her as meaning “family-not-corporate” – to undermine her position. This didn’t seem fair – especially since “trivial” was in translation anyway.  She also used W’s lack of legal representation to emphasise (again) that W had not been “engaging with these proceedings”.  I heard this as casting aspersions on W in an unnecessarily adversarial manner.  The judge did not comment.

What was clear was a shared concern that W should have access to legal representation if at all possible – and a potential solution was arrived at later in the hearing. 

Court of Protection Order to limit contact

So far, the discussion had been about the draft injunction (under the inherent jurisdiction) requiring W to move out of Number 15.  Counsel for the local authority now raised the matter of the orders they were seeking under the jurisdiction of the Court of Protection.

In response to the judge’s questions, Counsel for the LA said that  – just as with the previous Order – W had not seen the Order the applicant was seeking from the judge.  This really is troubling, and the judge again raised issues of fairness.

Counsel for LA: Mrs W hasn’t had an opportunity to comment on the Court of Protection draft order, with the invitation to appoint a panel deputy and to restrict her contact (as a best interests decision) with P.

Judge: When did W first see the Court of Protection Order?

Counsel for LA: She hasn’t seen a copy of it.  She was aware of what we were seeking in Court of Protection proceedings – although she was not aware of the additional interim Deputy issues.

Judge:  Has she been sent a copy of either draft order – either in English or in her own language?

Counsel for LA: No.

Judge:  If you were representing W in these proceedings and you were being asked to comment on an order you hadn’t seen at 3.30pm, you’d be saying it wasn’t fair, wouldn’t you.

Counsel for LA: I would if it was a long and complicated order, but it’s short and can be explained to her.

This exchange was followed by (what I experienced as) a long and complicated explanation of the contents of the Court of Protection order from Counsel for the local authority.  I was not sure of what some of it meant myself, particularly in relation to the financial deputy.

Judge: When did W get notice that the local authority was seeking these other orders – not about the house, but all the other orders.

Counsel for the LA:  25th March or shortly thereafter

Judge:  (to W) Do you agree you had notice on 25th March or shortly thereafter

Wife:  I have received quite a lot of paperwork but all in English.  Please say to the court they have to be in [Asian language] otherwise I can’t read them.

Counsel for the LA:  We sent a cover letter explaining the substance of the order and that has been translated – but not the order itself.  (Refers to pages in the bundle which show they’ve done this).

At this point I was struck by how exhausted the judge looked.  He took his glasses off and rubbed his eyes.

It does seem to me pretty basic on any understanding of fairness that all parties to a case, including a Litigant in Person, should have received the relevant Position Statements and draft Orders, before the hearing – in a form they can understand and with enough time to read them.  I’ve watched several hearings where Litigants in Person have not received draft Orders and have had to rely on explanations of them in court, or speed-reading during a brief adjournment.  I understand, I think, how this can happen, but it is surely a self-evident problem when considering equality and fairness in court.

The judge then took it upon himself to explain the draft Order – apparently recognising that counsel’s explanation of it would have been unintelligible to W.

Judge: So, the first thing is the appointment of a Deputy.  I don’t expect W knows what that means.  What we’re talking about now is whether I should make an order appointing the London Borough of Hillingdon to take control of your husband’s financial affairs.  Is that something you can agree to or not?

Wife:  I agree, because I know my husband is living in there, not being able to look after his cards.  However, I want to ask the court what will happen to me.  How about my spending?

Counsel for the LA:  There is authority under the Deputy order to pay reasonable living expenses and, if required, rent for W.

Wife:  To me, all I care about is for my husband and my kids to be safe. Those things are the most important. Everything else is temporary only.

Counsel for P:  P’s  view is that he would want his wife to be looked after financially. That is in accordance with his wishes and feelings.

At this point, with the clock obviously ticking and a busy schedule, the judge said:

Judge: We can’t do this piecemeal or we won’t get through it.  I will make declarations that P lacks capacity regarding litigation, financial affairs and contact with the second respondent.  Secondly, I’m going to make an order for a panel Deputy.  Mrs W herself has indicated that she agrees that I should do that, and it’s plain from everything I’ve heard and read that I need to make that order.

I didn’t hear him say that he was going to make the order that it was in P’s best interests not to have contact with W, or that he wasn’t going to make that order. I don’t know what the judge decided on that.

There was then a discussion of dates for next hearings, with consideration of whether it should be in-person, remote or – as was decided in the end – hybrid (so that P could attend remotely).  The judge fully consulted W about this – she said she didn’t have a preference.

Foreshadowing the issue to be addressed at the next hearing, the judge then asked W the key question about whether she would move out of the property, so that P could return there.

Judge:  Mrs W, let me ask you this.  If P is able to fund you to live in a rented property, are you willing to live in the rented property and for him to live in Number 15.

Wife:  I am quite easy on this.  It’s not important.  I can survive without eating for one day, maybe two days.  So long that my husband and kids are well.

Judge:  I’m not talking about food. I’m talking about accommodation.

Wife:  I told you. I mean I am not fussy on this.  Whatever.  Staying somewhere, eating something, these things are not important.

Judge: (to counsel) Once you have the Deputy appointed, you may be able to come to some arrangement and she might move out.  If the Deputy and W come to an arrangement, because she says she’ll be fine with that, then you will get what you want without a further hearing.

Legal representation for W

The judge then mooted the idea that he should list the hearing for “one morning next week, in the hope that you might have been able to crack this by the route I’ve suggested”.  

Counsel for the local authority agreed – and the judge reminded him that “there is a huge problem with language and understanding. If you are to do a deal with W, you have to produce documents and use language and concepts she can understand”. 

He then checked that W had understood that no decision had been made today about her occupation of P’s property (she said she understood) and encouraged her “in very strong terms to get some legal advice”.  He mentioned Citizen’s Advice (see §18, Equal Treatment Bench Book), and commented on how “unavailable” legal aid is “in situations like this” and that as a consequence, “the system works much more slowly and much more cumbersomely and to the disadvantage of people like P”.  

He then raised a possible solution to the problem of representation for W, asking counsel for the LA: “What are the prospects of the Deputy being prepared to make money available to get legal advice from a solicitor qualified in Court of Protection work to advise W?”.

Counsel agreed to explore this as a way forward: “the Deputy is governed by best interests at every stage. It would be in P’s best interests for W to have legal advice.”

One final issue was raised by Counsel for P – the matter of professionals having access to Number 15, so that they can ensure it’s suitable for P to move back in.  On checking with W, she said she “agreed” and was “content” for this to happen and the judge asked for a recital to be added to the order that she’s agreed to permit access (“not a formal undertaking, because that creates legal difficulties”).  

The judge ended the hearing by addressing Mrs W.

Mrs W, what I’ve tried to do, I’ve tried to walk the difficult line between protecting P and protecting you.  And I’m very grateful to you for making the agreements that you have.  And what you’re being asked to do now is consider moving out of Number 15 once you’ve got enough money to live somewhere else.  And I’m going to list this matter in another remote hearing, like this, so we can all meet and agree that this matter has been resolved.” (Judge) 

He checked that an interpreter would be provided for in the draft order for the next hearing, thanked the interpreter, and concluded: “With understanding and patience, I think we’re going to get there”.

Fairness?

In my view, the judge did virtually everything he could, within the parameters of the time constraints, to treat P’s wife fairly as a Litigant in Person.

Most importantly, he did not issue the injunction ordering her to move out of “the matrimonial home” – hoping instead that she would agree to do so once he’d authorised the local authority to act as interim Deputy, so that the local authority could “make a proper offer to W to enable her to live elsewhere” (i.e. living expenses and accommodation). 

If that doesn’t happen, or W doesn’t accept this offer, the case will be back in court but hopefully, next time, with legal representation for W, paid for by P if necessary.

The solution to the problem of unfairness for Litigants in Person must be to stop them being Litigants in Person by ensuring they get legal representation – but with cut backs in legal aid (which disproportionately affect members of BAME groups and women, i.e. people like W) this can be impossible.

That’s why the Equal Treatment Bench Book is so important, as increasing numbers of Litigants in Person come to the courts, in offering guidance and support to judges about how to deliver “fairness” when the parties before them are starting from such unequal positions.

Observing this hearing showed me how difficult it is to do that, even with a judge very clearly oriented to matters of fairness and to the inequal resources of the parties before him.  

It isn’t unusual for me to see the guidance on “fair treatment” from the Equal Treatment Bench Book being put into practice.  Whenever there’s a Litigant in Person in court (which is often), I see judges doing their very best to ensure that person feels comfortable, understands the procedure, and feels able to participate.

In many hearings I’ve observed, the Litigant in Person takes a position which is supported by either the local authority or by the Official Solicitor (or by both).  In such cases, the inequality they face is less starkly apparent. But here, the Litigant in Person was on her own, opposing Orders agreed by the other parties.

This case stands out for me as particularly challenging not only because of the multiple ways in which W is disadvantaged and the absence of support from other parties, but also because her interests, as a Litigant in Person, are diametrically opposed to (what the other parties agree) are P’s best interests. 

She wants to remain in Number 15 and to have unrestricted contact with P. They say it’s in P’s best interests for her to leave Number 15 and for her contact to be restricted.  

So, the judge is forced to juggle two key principles.

On the one hand there’s the primary commitment to acting in P’s best interests that is central to the work of a Court of Protection judge – which means (according to the represented parties) that he should issue an injunction against W so that P can go home.  There was no effective position to counter that application.

On the other hand, W has not been able effectively to present her case to the court. She doesn’t have legal representation, hasn’t seen the Orders in advance and doesn’t understand the legal principles at stake.  There hasn’t been a fair trial.  And so, to issue the injunction would seem to violate the “fundamental principle” of “fair treatment” that is a “vital judicial responsibility”. 

Postscript: The subsequent hearing (on 8th June 2022) was observed by social worker (and aspiring barrister) Mollie Heywood whose blog post you can read here (A short hearing and a failure to agree). In essence, there was no agreement reached and so a contested hearing is listed for 10.30am Monday 13th June 2022 before Sir Jonathan Cohen (via MS Teams).

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

Photo by Elena Mozhvilo on Unsplash


[1] It became clear that she had not previously played any part in these proceedings and counsel had not initially expected her to be present in court today: she had told them that she might return to her country of origin (in Asia) while the proceedings were ongoing, but had not in fact done so.

[2] There are also resources for Litigants in Person here: https://www.judiciary.uk/you-and-the-judiciary/going-to-court/advice-for-litigants-in-person

[3] Direct quotations from the hearing are as accurate as I can make them, but we are not allowed to audio-record hearings and so they’re based on touch-typed contemporaneous notes and are unlikely to be verbatim.  At this hearing, however, advocates were asked to speak slowly to help the interpreter, and there were many gaps in the proceedings while the interpreter translated what had been said, and occasionally asked for repeats or clarifications.  This means it was also easier for me to get down what was said with greater accuracy (I believe) than I might otherwise have achieved.  

 

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