Capacity for sex and marriage

By Claire Martin and Celia Kitzinger, 22nd January 2021

Back in October 2020, a hearing before Mr Justice Poole (COP 13551368) was adjourned, part-heard, after inadequate reports from the expert witness, Dr Quinn.  He reported that the person at the centre of the case (she’s “AG” in the judgment and we called her “Barbara” in our previous blog) lacked the mental capacity to make any of the decisions before the court – including the decision to engage in sex, and the decision to marry.  His evidence collapsed under cross-examination.  The parties agreed to instruct a new expert and listed a new hearing for 20th January 2021.  This is a report of that hearing.  

The most salient finding of this new hearing (also before Mr Justice Poole) was that Barbara, who had previously been found under s. 48 of the Mental Capacity Act 2005 to lack capacity in relation to both sex and marriage is now deemed to have capacity to engage in sex, but not to have capacity to marry.

The effect of the judgment is that the local authority must withdraw the Safeguarding Adults protection plan that has been in place to prevent Barbara from having an intimate relationship with her partner (another resident in her care home) ever since proceedings began in January 2020.   This plan has meant that the couple has been subject to supervision and monitoring.  She has been prevented from entering his room and from spending time with him other than in public places. 

At the hearing in October 2020, counsel for Barbara’s partner described it as a “troubling feature” of the hearing that it was starting some ten months after the initial application to the court.  By now, with the new court judgment of 20 January 2021, this – as it turns out unjustified – interference with the couple’s Article 8 rights to private and family life has been in place for more than a year.  

For the judge, the moral of the case is spelled out in the opening sentence of the judgment: 

 “This case demonstrates how a thorough assessment and well-reasoned expert report on capacity can assist the resolution of difficult issues, saving time, resources, and anguish.”  (para.1, A -v- AG and CI (No. 2))

As observers, we recognise the importance of good expert reports and the cost – both human and financial – of the delay caused by an inadequate report. But this is not the most salient ‘take home’ message for us.  

We are both dismayed that Barbara has been actively prevented from engaging in an intimate relationship with her partner for more than a year and we are concerned to understand how this interference with her human rights was possible for such a protracted period. 

At the hearings we observed, the applicant Local Authority was represented by Brett Davies; Barbara was represented by Joseph O’Brien (via her Accredited Legal Representative);  Barbara’s partner (we call him “John” – he is CI in the judgment)  was represented by Ben McCormack

Background

The court had been asked to determine Barbara’s capacity to make decisions about the conduct of litigation, her place of residence, her care and support, her contact with other people, the management of her property, engagement in sexual relations, and marriage.  

The Trust’s application to court was occasioned by safeguarding concerns, after Barbara – who has frontal lobe dementia – had formed an intimate relationship with a man she met in the care home.  She’d moved from her bungalow into a care home in July 2019 after finding it increasingly difficult to cope at home.  Shortly afterwards, she struck up a relationship with John, who had moved to the care home following a stroke.  He is now a wheelchair user, and described as cognitively intact. Towards the end of 2019, the couple were seen kissing and holding hands in communal areas and were several times discovered lying down together in bed.   Barbara said she wanted to marry John, and to leave the care home and live with him in the community. 

If Barbara lacks capacity to consent to sex, then any sexual involvement she has with John is legally assault or rape: the police visited John and explained this to him.  Barbara (and John) were supervised by staff in the care home because of the risk to John of prosecution under s.30 of the Sexual Offences Act 2003.  At the first hearing (in January 2020), an interim declaration was made that Barbara lacked capacity for all the decisions before the court, including capacity to consent to sex, and the couple’s contact has been circumscribed ever since.

At the second hearing (October 2020), the expert evidence from Dr Patrick Quinn was that she lacked capacity to make any of these decisions – including decisions about sex and marriage.  However, the court did not accept this because he’d provided insufficient information as to the process leading to his conclusions and how they had been reached.  

In a clear and helpful interim judgment, Mr Justice Poole lays out some key issues for experts to bear in mind in future in providing the Court of Protection with written reports about a person’s capacity (para. 28 of the interim judgment) – essential reading for expert witnesses.  

New evidence in court

The new expert appointed, consultant psychiatrist Dr Laurence Mynors-Wallis, produced a report that is “detailed”, “clear” and “properly evidenced”: “a first-class report”.  Brett Davis, counsel for John described it as “a very impressive and careful document”.  

Like the previous expert, Dr Mynors-Wallis found that Barbara lacks capacity to conduct legal proceedings and to make decisions as to her residence, care, support, property and affairs, and marriage.  

Unlike the previous expert, he concluded that she does have the capacity to decide with whom she has contact and to engage in sexual relations.  

The evidence from Dr Mynors-Wallis establishes quite clearly that, notwithstanding previous opinions given to the court on this issue, AG does have capacity to make decisions about sexual relations.” (para. 26, A -v- AG and CI (No. 2)

Dr Mynors-Wallis also found that Barbara lacks capacity to marry.  

AG was not consistent in her account of her own marriage status (I am told that she remains married) but Dr Mynors-Wallis says that he was satisfied that she demonstrated a basic understanding of the marriage contract. What he considered was absent was any ability to understand, retain, weigh or use more complex information relevant to decisions about marriage and divorce, such as the financial implications. (para 18, A -v- AG and CI (No. 2)

Understanding the financial implications of marriage was first mentioned as part of the requisite understanding for having the capacity to marry in London Borough of Southwark v KA and Others [2016] EWCOP 20.

P must understand the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other.”

But the judge in that case (Mrs Justice Parker) considered that the understanding need only be rudimentary, and in a later judgment, Mr Justice Mostyn considered that:

 “it would be inappropriate and, indeed, arguably dangerous to introduce into the test for capacity to marry a requirement that there should be anything more than a knowledge that divorce may bring about a financial claim.”(para 30, Mundell v (Name 1) [2019] EWCOP 50])

In considering Barbara’s case, Mr Justice Poole said that “In the light of this guidance, it is important not to apply too stringent a test for capacity to make decisions about marriage or divorce” (para 21) but finds that Barbara’s “view of her status as a married person is not at all grounded in reality.”

she has fantastical beliefs that the act of getting married will result in her living independently in the community, free her of the need for care, and enable her to work. This is what married life was like for her in the past, and her impairments due to her frontal lobe dementia result in an inability to understand that marriage in the future will not return her to that same level of functioning and independence. AG is unable to retain information about her present married status – she does not consistently recall whether she is married, divorced or widowed. She cannot weigh or use relevant information to allow her to consider the advantages and disadvantages of marriage so as to make a decision about marriage” (para.23, A -v- AG and CI (No. 2)

The care home will now follow the Care Quality Commission’s guidance on “Relationships and Sexuality in Adult Social Care Services.” It emphasises that Providers need to understand the importance of enabling people to manage their sexuality needs” and to “recognise and support these needs, so that they do not risk discriminating against people or breaching their human rights.

At the next hearing (in April 2021) best interests decisions will be made about where Barbara might live. The Trust is reconsidering the options that might be available for her care and residence with a view to whether it might be possible for Barbara and John to live together in the community if they wish to do so (for example in an extra care supported housing scheme).  

At the end of the judgment Mr Justice Poole says:  

“It is regrettable that delay in resolving her case has prevented AG and CI from sharing intimacy when, as the court has now found, AG does have capacity to engage in sexual relations.” (para. 25)

Comment

There’s a human cost to this story which, for us, is not adequately captured by a simple expression of “regret” at the end of a judgment in which the court effectively congratulates itself on how it managed the problem of an inadequate expert witness report.

It’s taken more than a year – from 13 January 2020 when the case first came to court until 22 January 2021, when final orders were made – to establish that Barbara has the capacity to make her own decisions about who she spends time with and whether or not to have sexual relations.  During that year, Barbara and John have been prevented from developing an intimate relationship.

At the end of the previous court hearing, back in October, one of us blogged: 

“Since the end of 2019 Barbara has been (consistently) expressing, verbally and through her actions, wishes to live and have sexual relations with the companion she has met in the care home.   She has been waiting almost a year now for these issues about her life to be determined. […]  So, over all I felt very sad for Barbara, and for those caring for her who will need to walk the tightrope of her care before the case is heard again in January 2021. We must not forget that this is a woman in her 60s, whose dementia is becoming worse and time is of the essence for her to potentially be allowed to live a life she wants to live.” (Claire Martin)

The effect of this delay has been to rob Barbara – for a whole year – of her right to determine for herself whether she spends time with John, and whether or not she has a sexual relationship with him.

Celia

It’s hard to understand – as mere observers – how this situation was allowed to happen and (therefore) how it can be prevented in future.  The care home acted quickly: after discovering that Barbara and John were sexually involved in December 2019, the application that she lacked capacity for contact and sex was granted in January as an interim declaration under s. 48 of the Mental Capacity Act (MCA) 2005 are made where “there is reason to believe that P lacks capacity in relation to the matter” and “it is in P’s best interests to make the order, or give the directions, without delay”.  The expert instructed as a consequence of that hearing produced a report in February 2020.  There were presumably some problems with this report as he was asked to report again, and produced a more detailed report in May 2020.  This involved a three month delay that could perhaps have been avoided with clearer instructions or an expert more able to engage with Barbara: it may also be that the public health emergency posed some problems that led to delay in reassessing her. Then in June 2020 the test for capacity for sex changed (with the Court of Appeal decision in Re JB) necessitating a further assessment.  It can’t have been easy to find a slot for a three day hearing, and the court summer vacation period must have intervened, meaning that the final hearing got pushed back to October 2020 – nine months after the original s. 48 decision about Barbara’s capacity had been made.  This already seems too long a wait on a matter that touches so directly on fundamental human rights.  The additional 3-month delay due to the inadequacy of the expert report compounded the problem. 

From what I can see (and the participants in this story, who have much more information of course, may know differently) there are no obvious points at which someone could have said something to the effect of “we can’t let this situation continue – we need an urgent hearing NOW!”  But with benefit of hindsight that’s what should surely have happened.  

There is a presumption of capacity by law, but once this has been displaced (by a s. 49 decision) it may be difficult to reinstate it. The impression we were both left with from the October 2020 hearing was that Barbara almost certainly lacked capacity to make decisions about sex (and everything else), but that the court was being punctilious in ensuring that reliable evidence supported this conclusion.  We expected (as, we suspect, did the lawyers) that when the hearing resumed in January 2021 we would find Barbara’s lack of capacity for sex properly evidenced – especially since she has a degenerative condition and had been seen as likely to lack capacity for almost a year.   

It is only with the new compelling evidence about Barbara’s capacity over the last year to make her own decisions about contact and sex that it feels dreadful that her rights have been trampled over for so long. There is a strong message for all of us here not too readily to allow the diagnosis of dementia to override the presumption of capacity, even when there is “reason to believe) (s. 48) that a person lacks the relevant capacity.

I also have some concerns about the finding that Barbara lacks capacity to decide to marry. This was the issue flagged up by the expert witness as the most difficult for him to resolve and the challenges it involved are laid out in the judgment (paras. 18-23). I can appreciate the problems.  On the other hand, I bring to mind the very many conversations I have had with friends and colleagues – not deemed to lack capacity – on the matter about why they do (or do not) want to get married.  For most of those who want to marry,  it is  – as for Barbara – simply “because they love each other” (para 22) – and my observations about the financial implications are treated as entirely irrelevant.  Some of my feminist friends who decide against marriage have “fantastical” (para. 23) ideas that marriage requires a woman to promise to obey her husband, or that she will be automatically subjugated to her husband in a way that she would not in a different-sex civil partnership (which is legally structurally equivalent).  Some who decide in favour of marriage do so in part because they believe that this will mean their spouse will be able to make health care decisions for them if they cannot – indeed, this false belief was frequently used to justify same-sex marriage campaigning in England.  There’s a large body of sociological and psychological literature on ‘the meaning of marriage’ for people.  If the court is to avoid setting a higher bar for people with impairments of mind or brain than for everyone else, this literature should perhaps inform the court in deciding what information a person needs to be able to understand, retain and weigh in displaying capacity to make decisions about marriage. 

Claire

This judgment has stark lessons and wide ramifications for health, social and care professionals.  Barbara was judged to lack capacity for conducting litigation, making decisions about residence, care and support needs, property and financial affairs and whether to marry or divorce. She was judged to have capacity to decide with whom she has contact and, most importantly, to make decisions to engage in sexual relations. At the same time, counsel for the LA intends that the care setting would ‘keep a record and review regularly’ any concerns e.g. emotional manipulation. Of course, Barbara has a degenerative condition (frontal lobe dementia), so her needs and abilities will change, and it did make me wonder where that intention will go if a best interests decision is made that she and John can move into their own accommodation, even if it is a sheltered living setting. 

I think it is right that we as health and care professionals need to work with these most complex dilemmas and grey areas.  Being clear about how and why we support P in the way we do is about being able to live with some amount of uncertainty and discomfort. The reward (for them, and us) is that people might live lives that feel fulfilling and vibrant. If we don’t do this, we keep people so ‘safe’ that they have no life at all. 

In practice, in our experience as an older people’s psychology service , sex is not frequently facilitated in care settings for people with dementia in a robust and person-centred way, consistent with the Care Quality Commission’s guidance on “Relationships and Sexuality in Adult Social Care Services.  It is a very difficult area for staff and health care professionals for many reasons, including the complex question of capacity to consent, and the subsequent possibility of sexual relations being deemed assault (as in this case with Barbara and John). 

Speaking to two psychologist colleagues, both of whom specialise in and have extensive experience of, working in care homes and on wards with people with dementia, we reflected together that it is often the case that any sexual expression in dementia is typically seen as ‘disinhibition’ or ‘challenging behaviour’ and stopped or restricted immediately. 

One colleague said that sexual intimacy in dementia care settings ‘just doesn’t happen’. Friendship is more often allowed (holding hands) but even this can arouse strong responses from staff in the care setting.  One colleague described a recent case, reported to her, in a care home where two people formed a friendship and were holding hands. This was seen as risky by care staff and they were separated – one of them was moved to a different floor of the home. My colleague was told that the couple ‘lacked capacity’. The home had made this assumption because of their dementia. 

It is important to understand what might underlie responses like these.

Fear of repercussions for the home can be an unspoken concern.  ‘What would the family think?’ is very common response when residents move towards forming new friendships or relationships with other residents. Being faced with upset or angry relatives who would prefer their loved one not to form new (and especially sexual) relationships can be difficult to manage. It might feel a better solution to divert or quietly restrict such behaviour.

There might be an understandable lack of confidence for staff in care settings to deal with complexity in the area of dementia, capacity and sexual intimacy. Sometimes care settings are faced with making speedy decisions. The care home in this case seems to have acted really responsibly and quickly in asking for help to determine Barbara’s capacity – it was the judicial system that was slow to resolve this issue for the home, and for Barbara and John. 

A less openly acknowledged (or owned up to) obstacle is people’s beliefs about older people and sex, revealing entrenched ageism and calcified social attitudes. One colleague said ‘people are often appalled at the idea of older people having sex in my experience – almost to the point of disgust’. This is likely to be amplified in relation to older people with dementia and will translate into care practice and often be hidden behind safeguarding (which of course, is also important). 

Another, wider, issue is risk. Risk is inherent in everything that we as humans do. It is embedded in any fulfilling and vibrant life. However, we have become much, much more risk averse in services. Fear of blame is real, and often not unreasonable. Making ‘positively risky’ decisions in complex cases can be hard, especially if the unintended costs might be high (e.g. criminal prosecution for assault; investigation into a home’s safeguarding processes). At the same time, it is entirely consistent to argue that safeguarding might be evoked as a way of smothering and hiding our own discomfort and disgust. 

One colleague reflected that gender can be a determinant of responses to expressions of sexuality in dementia care. Men might be dealt with more ‘robustly’ than women who show sexual desire – they might be seen as more sexually predatory (which of course statistically might be correct, and clearly is more common), though it can be a default response, rather than countenancing the possibility that the person is expressing a genuine need. 

The need for attachment, relationship and intimacy is normal; though such expressions of sexuality and intimacy might not be understood as such, and can be interpreted as a function of the impairment of the brain, and therefore ‘disinhibition’ or ‘challenging behaviour’ to be stopped, rather than a genuine human need. So, all of these factors demonstrate how hard it must be for care settings, and for the wider health and social care system, to navigate complex issues of sexual intimacy in dementia. 

It is common that sexual intimacy is restricted for people, often with the good intention of protecting them from harm when there is a question of whether they know what they are doing. However, this judgment makes it clear that we must live and work with our discomfort. We must look at ourselves and question whether it is our views and beliefs that are informing our decision to restrict a person’s right to have intimacy with another – one of the most fundamental attachment needs for us all. 

 I struggled a bit with this judgment on the issue of capacity to decide to marry and divorce. Counsel for Barbara very clearly and helpfully explained the reasoning of the expert witness for his assessment that Barbara lacks capacity for this decision. He noted that Barbara ‘has a good understanding of marriage [but]… struggled to weigh the advantages and disadvantages’. This is what led to the decision that she lacked capacity to decide to marry or divorce. The key issue, as proposed by counsel, was that we ‘cannot make silo decisions – the concept of marriage involves the concept of mutual obligation. [Barbara] doesn’t understand her financial or care needs but still understands the concept of marriage’. This made sense to me: Barbara understands what marriage is and told the expert witness it is about love, but she doesn’t understand that people’s finances become intertwined and the potential ramifications of that. 

However, he went on to say that ‘context is everything’ and that ‘sex and marriage for {Barbara] are not as clear cut as the local authority says’. Barbara expressed a view to the expert witness that sex is only acceptable within marriage. Counsel said ‘The question of marriage might come to the forefront. It very well could do – if her views on sex linked to marriage are borne out then it could be an issue’.  I think I am struggling with this because although the Mental Capacity Act 2005 does structurally invite a ‘silo’ approach to decisions, nuance was expertly applied to assessing whether Barbara understood that marriage also had implications for finances – and found that she did not. One decision therefore reasonably has a bearing on another. However, her understanding of marriage as far as it relates to sex is that the two are inextricably linked – so, not in separate silos.

If Barbara and John want to marry, and if Barbara’s failure to appreciate the financial implications of divorce and marriage is a significant barrier to her being deemed to have capacity in this area, then I wonder whether an arrangement could be made to separate out the financial ramifications? Since she lacks capacity to make her own decisions about property and finance, someone else is anyway now responsible for doing this on her behalf.  Perhaps that person could also work on a pre-nuptial agreement in Barbara’s best interests? 

I found Barbara’s case fascinating from a legal and ethical perspective and heart-breakingly sad for her and John, having lived the past year restricted from close contact with one another – especially in a pandemic when we have all felt scared and under threat, and have needed to feel loved. 

Claire Martin is Consultant Clinical Psychologist. Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She tweets @DocCMartin

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

Acknowledgement: Claire would like to thank Dr Alan Howarth (Consultant Clinical Psychologist) and Dr Kate Andrews (Senior Counselling Psychologist) for helpful discussions that informed this post.

Photo by freestocks on Unsplash

How being watched changes how justice is done: ‘Insider’ Perspectives

By Celia Kitzinger, 20th January 2021

Although the majority of hearings in the Court of Protection have been open to the public since 2016, very few people actually watched them.  

This changed when – due to the public health emergency – hearings moved out of physical courtrooms and onto video platforms or telephone conferencing systems, making it much easier for us to observe hearings from the comfort of our own homes.  Public observers are now much more common.

Before Covid, I’d never had a public observer in court,” one barrister told me, “but now I’ve learnt to expect it.  There were 12 observers in one of my hearings in December.” A trainee solicitor, reflecting on her first experience of having an observer in a hearing, said: “Before COVID-19, I can safely say that I had never considered the real possibility of having a public observer at a first instance COP hearing.” Another solicitor said, “It’s all been a bit strange getting used to the idea of having members of the public watching us.”

The Open Justice Court of Protection Project, launched in June 2020 (by Celia Kitzinger and Gill Loomes-Quinn) has supported hundreds of people to attend remote hearings (and the occasional hearing in an actual courtroom).   They’re mostly health and social care professionals, but also some law students and occasionally people who are themselves caught up in Court of Protection hearings as family members of a protected party.  Most are attending to better understand how justice is done – often, specifically, how the Mental Capacity Act 2005 (which many observers use in their everyday work) is interpreted and implemented by the court.  

The question “Does being watched change how justice is done?” arose out of discussions with colleagues involved in similar projects: Louise Tickle, a journalist involved in The Transparency Project, which reports on the family courts; the Transparency Project’s chair, barrister Lucy Reed; George Julian, who blogs about inquests (and live tweets from them); Emma Norton, of the Centre for Military Justice.  We’re addressing this question in a panel discussion on Thursday 21 January 2021, as one of a series of four webinars organised by Louise Tickle under the title “Law, Justice & the Spaces Between”, with the support of Bath Publishing. More information about the panellists, the four seminars and how to get your (free) ticket here

How can we know the impact of observation?

We can’t compare and contrast the hearings we didn’t watch with the hearings we did: we don’t know what happened in hearings when we weren’t there.  But there’s often evidence from the hearings we do attend that the judge, lawyers, court staff and sometimes other participants, are aware of our presence and behave differently as a result.

Barristers sometimes explain that, “because observers are present,” they need to finalise a transparency order before the hearing progresses, or check with the judge whether they can read aloud from a skeleton argument (which the judge has already read) so that observers can follow an argument (or conversely, they may ask the judge to silently read a paragraph about P so as to preserve P’s privacy when observers are present). 

Sometimes I’ve actively intervened into hearings I’ve observed by sending requests to the judge via the court clerk, or to emails to counsel.   I’ve asked for position statements: sometimes I receive them without further ado; on other occasions counsel and the judge have discussed during the hearing whether or not they should be released and if so if they need to be anonymised or redacted first.   I’ve made submissions about the transparency order: on one occasion the judge agreed to make a change I had requested.  On another occasion I emailed counsel asking whether they would be willing to ask the judge to expand the published judgment to cover some points raised in the position statements but not directly addressed in the oral judgment.  These interventions on my part change the process of justice, but not – of course – the substantive outcome of hearings.  

But the ways in which justice changes when observers are present are likely to go well beyond explicit reference to observers by barristers and explicit interventions from observers into the court process.  Simply knowing that we’re watching, and that we may write about what we see, may influence what goes on in court.

Many lawyers – and also some family members, litigants in person, other lay participants and expert witnesses – have the experience of hearings that have public observers and hearings that don’t.  They are in a good position to describe the difference they think observers make.

So I tweeted the question, “Does being watched change how justice is done?” and received more than 40 responses – many of them direct messages (DMs) which developed into conversations,  rather than (or in addition to) public tweets. I also received emails addressing the same question.  Most were from barristers but I also heard from some solicitors, six family members (some of whom were litigants in person), and one expert witness.  In quoting what they told me, I’ve given names where I have permission (or where I’m quoting from public tweets) or descriptions (e.g., “barrister”, “COP family member”, etc) where I don’t.  I’d also welcome feedback on this blog post: use the “Leave a Reply” button at the bottom of the post.  

How being watched changes how justice is done

From what we’ve been told so far, there seem to be five significant changes to Court of Protection hearings as a result of observers in court: 

(1) Barristers are increasingly opening cases with introductory summaries for observers 

(2) Lawyers (and sometimes judges) are having to explain to P and P’s family that observers may be present and may write about the case

(3) When observers are present lawyers clarify and highlight key legal concepts

(4) Blogs by observers create an opportunity for self-reflective learning 

(5)  Observation means lawyers are “on best behaviour”

1. Barristers are increasingly opening cases with introductory summaries for observers

In my experience, opening summaries are now common – and it is usually stated at the outset that they are “for the benefit of those observing this hearing”.  

Around four-fifths of the hearings I’ve observed in recent months have begun with a basic introduction both to the people present in court (who is representing whom; who is applicant, who the respondents are) and to the key issues in the case (e.g. what the applicant is asking for).  There’s also often a potted history of previous hearings in the same case. Introductions usually take around 3-5 minutes (I’ve very occasionally heard much longer ones – 15 mins in one case) and they are invaluable to observers in enabling us to understand what then unfolds in court.  To the anonymous barrister who said: “I’m not sure how useful hearing an opening actually is for an observer as they would not have had the benefit of reading all the context within the bundle”, please be reassured that we find them extremely useful!

It’s my experience, and that of other observers, that there’s been a gradual increase in the frequency of opening summaries over the seven months that the Open Justice Court of Protection Project has been operating – from rarely encountering them at the outset, to mostly hearing them now:

“I think the only thing which I have noticed for sure from the start of the project up until now, is that there has definitely been an increase in the number of cases which start with an opening statement laying out the background to the case. Although that is by no means across the board still. It has definitely become more common place, especially when the case is before certain judges in the RCJ, who ensure it.” (Adam Tanner, Public Observer)

Opening summaries were the single most frequently mentioned change in response to observers’ presence (and sometimes the only change people mentioned):

Only difference is the applicant barrister is supposed to “open” the case. That never happened before.” (Barrister)

“I hear more detailed case summary and intros now than previously.” (Kirsty-Louise Stuart, solicitor)

We have been told that we need to properly open cases again for the benefit of those attending. I have found this to be good practice anyway and the process of condensing the case into a short opening is actually really useful for me.” (Barrister)

I’m not the only person who thinks an opening summary can help the judge. The Vice President of the Court of Protection, Mr Justice Hayden, who wants opening summaries to become “routine normal practice” has said in hearings that he finds them helpful in ‘orienting’ him to the case.  A barrister agrees – and adds that they are also useful for non-lawyer participants – including P, P’s family and litigants in person:

It’s good practice to have to think ‘how can I summarise this case in 2 minutes’ at the outset. I think it helps to do that in most cases anyway, but a public observer’s presence means we are more likely to have thought about it first. It aids the judge’s understanding and just as importantly the understanding of non-lawyer participants/litigants.” (Barrister)

Opening summaries do, however, need to be succinct, brief and to the point.  Victoria Butler Cole QC expressed concern (across a series of public tweets) that oral opening summaries can “waste time” and that it would be more useful to provide us with written case summaries.  From the observer’s perspective, written case summaries would provide the additional benefit (if they could be requested in advance) of enabling us to choose between hearings on the basis of our professional or personal interests (e.g. a DOLS assessor might choose a hearing related to deprivation of liberty issues; a psychologist working with older people could choose a case concerning a dementia patient rather than one about a young person with learning disabilities).

It would also be invaluable to receive, on request, the skeleton arguments, or position statements prepared in advance by the parties – since these usually underpin oral argument in court, even when they are not explicitly referenced.  These are rarely offered. When I request them there is often no explicit refusal – they are simply not sent at least 50% of the time. This is something that appears to me not to have changed over the course of our project, despite a relevant Court of Appeal judgment nearly two decades ago:

“ … the principle of open justice leads inexorably to the conclusion that written skeleton arguments, or those parts of the skeleton arguments adopted by counsel and treated by the court as forming part of his oral submissions, should be disclosed if and when a request to do so is received.” (Howell & Ors, v R. [2003] EWCA Crim 486 (28 February 2003))

Summaries are an excellent development in enabling observers to follow a case.  Timely release of skeleton arguments to those observers who request them would support comprehension and avoid some of what happens at present where counsel read out sections of the argument (sometimes apparently irritating the judge) for the benefit of those of us who don’t have the documents. 

2. Lawyers (and sometimes judges) are having to explain to P and P’s family that observers may be present and may write about them

The Article 10 right to freedom of information, which supports the presence of observers in court, is often in tension with the Article 8 right to private and family life – and this plays out in court as lawyers and judges wrestle with how to explain our presence to lay participants, and what information we are and are not allowed to have access to or report in blogs  (see my post here). 

Both barristers and solicitors sometimes express anxiety about how P (and P’s family) will react to the presence of observers – and this is a compelling reason to address the matter before the court hearing and to request a private hearing if it’s really necessary to do so.  

When hearings are open to the public, as most are, solicitors should have explained in advance to P, P’s family and any other lay participants that there may be public observers.  In practice, though, this seems often not to happen and I have personally witnessed these explanations being offered in court at the beginning of the hearing at the point at which the lay participants become aware of my presence.  This seems to lead to hasty, defensive, and often inaccurate explanations.  

One judge explained to P’s family that I was there “to see how remote hearings are working – so she’s only interested in whether the technology is working properly not in the substantive content of the case”.  I was taken aback by this and emailed the judge’s clerk a few minutes later to correct this misapprehension.  Another judge explained to P that the observer “won’t quote anything you say – she just writes general summaries of the case” (another email!).  

It should also be self-evident that in explaining my role as a public observer, lawyers need to explain the transparency order – but this explanation is not always offered (and can be inaccurate when it is).  

Barristers seem to be caught unawares by the need to explain the presence of observers – either because they perhaps hadn’t expected an observer, or because they thought a solicitor would have explained this to their client in advance of the hearing.  But some solicitors, too, are clearly not prepared for the presence of a public observer in a public hearing:

The first thing that surprised me about the presence of the observer was how sudden it was. At a telephone hearing a few weeks ago, the operator was announcing names, and the name after mine was one I didn’t recognise. I scrabbled through my papers to check attendees to see if I had missed anyone. When I concluded that I hadn’t, I emailed counsel asking “…any idea who this person is?!” It was only when the Clerk joined the call that she confirmed that we had a public observer present, that the judge had already confirmed he could be present and that he would need a copy of the Remote Hearing Order before matters proceeded any further. The observer was emailed this and matters proceeded as usual. He was permitted to introduce himself and explain why he wanted to observe the hearing, which I hadn’t anticipated either. I was a little taken aback because, although P was not present and did not want to participate in the court process, I hadn’t had the opportunity to speak to P about the reality of someone being present at this specific hearing.” (Trainee solicitor)

Other, perhaps more experienced, lawyers are increasingly familiar with these conversations, but can also manifest some anxiety about them, describing them as “difficult” and referring to clients who have (or would have) become distressed by having observers present:

Having observers has, I would say, moved me to talk to Ps and family members more about this. Whereas it may only have been a mention before, the presence of observers is more of a reality now.” (Kirsty-Louise Stuart)

Yes, we are definitely having to have more difficult conversations with Ps about the fact that strangers will be listening and may write about them.” (Victoria Butler Cole QC)

I recently acted in one case where our client was a private woman. She was horrified that Court proceedings were ongoing (although they were necessary) and was acutely embarrassed when certain topics, such as sex, were discussed in court. This was necessary, handled in a delicate way by all parties (including the judge) and we supported her closely throughout, but I am aware that it would have been hard to explain to her that a further person was in court, who was there for experience rather than anything else. It may well have been that the judge did not permit observers if any had requested access, but even the conversation with her would have been very difficult and would no doubt have added to her distress.” (Trainee solicitor)

Some lay participants are delighted to have observers in court. One unexpected consequence of our work with the Open Justice Court of Protection Project is that we have been contacted by people with requests to attend their hearings – and have observed hearings as a response to such requests on seven different occasions now: that’s an average of one every month for the duration of the Project.  What P’s family members (who in some cases are also litigants in person) tell us is that they believe that having an observer present will ensure that the judge “behaves himself” and “doesn’t do anything wrong – because you’ll be watching!”.  Litigants in person have also reported feeling less isolated and alone if there’s just one other person in court who doesn’t feel to them as someone “on the other side”. In several other cases, family members have contacted me after a hearing (it’s easy to find me via google) to ask what I thought of it and whether the judge was “fair” – and seemed to have gained some comfort from having someone independent and impartial as a witness to their story.

Even though, in every case so far observed at the request of family members, the judicial decisions made have been contrary to what they wanted,  family members report that they felt the hearing went better for them than had previous hearings, and that the judge was “fairer” to them because observers were there.  One litigant in person wrote:

“ [Observer’s] presence was valuable – the judge was quite snappy and aggressive with me before he arrived; and was clearly in fast-forward mode. That changed.” (Litigant in Person)

We’ve several times been contacted by families who are angry and distressed about the transparency order (they speak of “censorship”, “secrecy”, “preventing us from telling the truth”) and they want to know how they can get it changed so that they can speak publicly about what’s happening to their family.  I get the impression that lawyers representing the family, and/or P, have sometimes simply adopted the standard transparency order without discussing with the family whether they (or P) would have wanted some variation to it, especially in the direction of greater transparency.  In one (very unusual) case where lawyers had worked with family to permit public identification of P,  P’s son actively wanted us present in court in the hope of some additional publicity about the case – to bear witness to the injustice his family was suffering and to ensure others knew about it (blog post here).  

In response to my tweet requesting comments on how being watched changes how justice is done, several people contacted me concerned that their hearings (not all of which were Court of Protection hearings) had not been observed, saying they wish they had been.

Another family member told me she desperately wanted observers present, and had tried (unsuccessfully) to interest the media in the hearing about her mother: “If only your Project had been around when my Mum’s case was in court, it would have made such a difference for us to have someone watching”.

The presence of observers in court hearings will be welcomed by some but problematic for others.  What is needed is for lawyers to talk with their clients about the role of observers, and the transparency order, in a timely manner and to become confident in having “difficult” conversations about this – perhaps supported by the knowledge that sometimes their clients might welcome observers in a way that lawyers might not have anticipated.

3. When observers are present lawyers clarify and highlight key legal concepts 

Lawyers – especially those most accustomed to having observers in court – report that they try to ensure that the key legal concepts underpinning the decisions that need to be made are fully explicated for the benefit of observers (any non-legal specialists involved in the case).  This can include spelling out acronyms and initialisations, referring explicitly to sections of the Mental Capacity Act 2005 and sometimes reading them out, and drawing out the implications of case law more fully than they otherwise might:

“There’s a few bad habits that have been corrected: […]   we’re thinking about how we communicate and tend to explain the ratio of authorities, or what obscure pieces of legislation mean….”  ( Ian Brownhill, barrister)

That drive to ‘clarity’ goes for lawyers and (as I perceive it) judges too, who are more likely to explain what they are doing in straightforward terms.” (Barrister)

One barrister is especially positive about the effect of observers in ensuring that fundamental legal principles come to the fore and as a result are “more rigorously and consistently applied”:

There has been real enthusiasm for public observers in the Court of Protection. It has been seen as a real opportunity to counter the perception of it as a secret court. As a result, we have been taking the time to expressly set out the first principles and legal principles which should govern everything the Court does. This exercise, which was prompted by a desire to make the proceedings accessible and easier to follow has actually meant that as the principles are pushed to the forefront of everybody’s mind, they are more rigorously and consistently applied.” (Josh Hitchens, barrister)

Overall, lawyers see this as a good development – especially when there are non-legal participants such as litigants in person or expert witnesses in court.  But there is also some concern about the extra time (and therefore cost) of court hearings conducted in this way:

My only difficulty with being observed is the expectation that practitioners will avoid using legal jargon. I find this difficult for two reasons: firstly, I find shorthand to be useful for speeding up hearings and to cut through complex concepts and secondly, maybe selfishly I have got used to referring to acronyms like DoL or MCA, I now find that I lose my flow if I have to shift into speaking in full sentences.  It may appear that I’m being flippant but I do think that there is a place for commonly understood terms and concepts between practitioners. I have seen counsel recount the entire test for mental capacity for the benefit of observers. While I agree that ‘jargon busting’ is a good thing generally, I am troubled by the idea of drawing out hearings solely to explain that which the judge and the parties already understand. There are resources available if observers didn’t understand every term used.” (Barrister)

As a seasoned observer (I’ve watched nearly 130 COP hearings since May 2020), I’ve actually not noticed much change in the use of acronyms or explanations of ‘jargon’ – I’ve simply become more skilled at decoding them.  I’ve spent a lot of time on google, typing in acronyms and case names to figure out what’s meant, and I usually have the Mental Capacity Act 2005 open in another window on my computer so I can rapidly check anything I’m unsure of.  Observers often also write down what’s said verbatim and look it up after the hearing.  

While observers are always grateful for any help we can get with understanding what’s going on in court, I think we all recognise that the point of the hearing is primarily to make decisions on behalf of a protected party, and not for our educational benefit.  We can cope with not understanding every word! What I hadn’t appreciated until barristers told me, though, was the value for the court of being explicit about the underlying legal principles that guide its decision-making.

4. Blogs by observers create an opportunity for self-reflective learning 

Our blogs attract a significant number of reads: for example, there are more than 4,600 reads for “When Expert Evidence Fails” and more than 2000 reads for “Hunger striking for his identity”, “Should life-sustaining treatment be continued?” and “What does the Court of Protection needs to know about ‘borderline personality disorder’.  We’re told our blog posts are widely read by law students, pupils, and junior lawyers in the Court of Protection for whom they open a window into ongoing cases. They also offer the opportunity for continuing professional development for lawyers, health and social care staff, and others who use the Mental Capacity Act 2005 in their daily lives.

Lawyers often read blogs about the hearings in which they themselves feature:

We reflect on our advocacy by reading the blogs!” (Ian Brownhill, barrister)

I have actually found the blogs produced by observers to be really interesting and useful.” (Barrister)

Reading the blogs is entertaining – a little bit like the review following opening night. It keeps everybody on their toes.” (John McKendrick QC)

We have of course also received occasional email correspondence from lawyers asking for corrections to blogs (e.g. here) and -as we say in our policy statement – we welcome this.  Hard as we try, we are (mostly) non-lawyers, so it seems inevitable that we will sometimes make mistakes in reporting court hearings.  Open justice imeans running the risk that non-specialist members of the public will get the wrong end of the stick and inadvertently misreport proceedings.  That risk is of course reduced by careful introductory summaries at the opening of hearings, and by releasing position statements – at least to the blog editors who can then cross-check the author’s submitted post against court documentation.  Moreover, our errors as public observers for the Project, seem to me to be considerably less egregious than those of other reporters and commentators across some media and social media outlets.  There is generally a poor understanding of the CoP and its work among journalists as among the general public.  Without a space such as that provided by our blog, the only place a court has to explain its work is in published judgments – obviously intended primarily to do a different job and speak to different audiences.  

I get the impression that some lawyers (and judges) feel rather ‘exposed’ by blogs (and tweets) about their hearings – I would too in their position.  There are also professionally-imposed constraints on their ‘right to reply’ – although we will publish relevant replies/corrections when we receive them, as stated in our policy (here).  

My view is that, so long as we are as accurate as we can be in what we write, and appropriately courteous in our criticisms and disagreements, the discomfort borne by the professionals involved in court hearings we report on is one of their contributions to the price paid for open justice – a shared principle to which we, and they, are jointly committed.

5.  Observation means lawyers are “on best behaviour”

Awareness of being watched and its impact on behaviour is something academic social scientists have agonised about.  It’s sometimes referred to as the “Hawthorne Effect” after a study in 1920s Chicago investigating whether improved factory lighting increased productivity: it seemed initially that brighter lighting increased output until someone turned the lighting down to below baseline levels and found that productivity increased even more.  The moral is that that people change their behaviour for the better when they think you are watching them (or at least, monitoring their behaviour).   In linguistics, the effect of being observed is named the “observer’s paradox” (“to obtain the data most important for linguistic theory, we have to observe how people speak when they are not being observed”, Labov 1972, p. 113):  the problem is that observing ordinary vernacular speech is difficult (or was in 1970s America)  because a speaker who is aware that their speech is being simply displaying poster images of ‘watching eyes’ (like the image at the top of this post) has been shown to improve behaviour dramatically (e.g. reducing bicycle theft in this study). 

So, are lawyers (and judges) likewise minding their Ps and Qs, and displaying themselves and their work to best advantage, when they know they are being watched?

Inevitably, yes.  Reports from the front line strongly suggest that knowing you are being observed changes the way justice is done in the direction of improving everyone’s behaviour in court.  As John McKendrick’s comment quoted earlier indicates, the possibility of a blog about your performance in court (like “the review following opening night”) has the effect of   “keep[ing] everybody on their toes”.   Most of the comments I received about this issue were from people who preferred to remain anonymous.

It absolutely changes things – practitioners and judges are less sloppy I think, and take the time to properly set out the facts, the law and judgments when they might otherwise refer to things in a more shorthand way.  This, I think, is a good thing since it means that anyone participating or watching (often family or even P themselves) can actually follow what is going on far better.  It means we are all on ‘best behaviour’ essentially!  (Barrister)

Privately I think observers make the barristers try harder in a hearing – like in a driving test. u never drive like that normally. They are more aware of what they are supposed to do in court. (Solicitor)

My opinion is that it is extremely good to have witnesses present, and by this, I mean anyone (including journalists) who is not directly involved. This is the case in medical situations.  Just having a visitor from another unit completely alters (for the better) how processes occur, and also prompts self-reflection or, through questions asked or comments made, a more formal reflection. Groups who work together in isolation (e.g. locked nursing homes or wards) are at great risk of developing attitudes, values, and processes that are not good.  So I think even having the possibility that an observer could be present, or could suddenly walk in/join in on video will make a difference.” (COP expert witness)

Eight barristers (independently of one another) told me that having observers present improves judicial behaviour – in particular via what was characterised by one of them as “improved civility in court”.  They referred to “rudeness” from judges who were “hostile” to or “impatient” with their oral submissions in court, or “dismissive” of P and P’s family members.   One barrister emphasised that that Court of Protection judges are “very good – from DJs up to HCJs. They are serious about the role they are performing and appear to enjoy the work” but added that being observed “acts as a brake on some of their more obstreperous characteristics”. One commented that judges behave better in front of observers, knowing that the public would be “horrified” at their customary level of disrespect (e.g. expressing the view that some hearings are “a waste of time”).  

One barrister who often acts for the Official Solicitor said that “observers have moderated some of the lower-level Judges who are known for being hostile towards the Official Solicitor”.  I quoted this to a different barrister who did not share the perspective that some judges are specifically hostile to the Official Solicitor but said:

I think perhaps the reality is that judges are less dismissive of ANY advocate, less ‘rude’ or apparently stroppy etc when there is an observer present  – they are human after all and are aware they have an audience of usually professional, disinterested persons who want to observe them at work. Generally, I think that simple fact means people act in a more civilised manner.” (Barrister) 

A couple of other barristers (both QCs) told me about bad behaviour from judges that they’d endured as junior advocates – behaviour that obviously still rankled years later – and hoped that our presence as observers might militate against that for others.  I have certainly observed (what I consider to be) bad behaviour from professionals in court – but the worst case (which I wrote about here) was a hearing at which, although I was known to be present, I think the advocates and judge perceived me (correctly) as having a primary role as support-person for P’s daughter, rather than as an observer.  Observers unconnected to parties in the case, present only to observe, may be oriented to very differently and are more likely to militate against bad behaviour from judges and counsel.

On the other hand, a couple of barristers did mention, with some concern, a “performative” element to some judges’ behaviour when they have observers in court.  They were acutely uncomfortable with the idea that a judge might be “playing to the gallery”,  displaying his or her knowledge, skills, intellectual acuity, beneficence, wisdom and humanity as a sort of ‘public relations’ job for the Court of Protection – and not actually getting on with the business in hand.  This was only thought to be the case for one or two judges.  It was also acknowledged that one or two judges really “don’t care” what the public think of them, and there was some concern about (what some lawyers consider to be) these judges’ disrespectful behaviour and bad practice – unmitigated in the presence of observers – having a negative effect on perceptions of how justice is done in the Court of Protection.  I have to say that I personally recognise and resonate to both sets of concerns.

Final Reflections

The rapid increase in the numbers of observers in the Court of Protection coincided with the move to remote hearings.   What observers see when watching how justice is done is different in remote hearings as compared with attended hearings in courtrooms.  As John McKendrick QC, who was involved in the first post-pandemic COP remote hearing, says:

“As counsel we have been on a long journey since the first all Skype hearing in March 2020. The involvement of members of the public in a virtual hearing from home, is different to appearing in a public court. The layout of a physical courtroom draws the advocate’s attention to the judge and witness and little else. Virtual hearings have a different effect and expose counsel in a different way. Normally the public would only see my back but in a virtual hearing they can clearly see my facial reactions. That provides a sense of greater accountability.” (John McKendrick QC)

Nonetheless, the points made here – about the value of opening summaries, the need to explain the presence of observers to lay participants, the value of clarifying key legal concepts, the opportunity for self-reflective learning, and the likelihood that being observed means lawyers are “on best behaviour”, would seem to apply equally to hearings in courtrooms as to remote hearings. 

Obviously, too, we can blog about hearings whether they are in courtrooms or on video-platforms – and have already published a report about “a covid-secure attended hearing” at First Avenue House during the pandemic.  For us, as observers, there is of course a question mark about how we will be supported to observe hearings once they return to physical courtrooms, and hence the future for open justice in the Court of Protection.

For the avoidance of doubt, nobody has suggested that substantive judicial decisions are altered by the presence of observers. I’ve seen nothing to indicate that a judge who might, for example, have made an order that life-sustaining treatment is not in P’s best interests falters under the glare of public observation and instead orders that treatment should continue (or vice versa). What changes with observers present seems to be the process of justice, rather than its outcome.  

The judiciary has a strong commitment to open justice: it is, for them, “a principle at the heart of our system of justice and vital to the rule of law” (Lord Justice Toulson R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] QB 618.  This is notably so in the Court of Protection: “Transparency is central to the philosophy of the Court of Protection”, says Mr Justice Hayden, Vice President of the COP (in his 31 March Guidance).  The problem for the judiciary is that if their stated commitment to transparency and open justice is to have any practical realisation, they have to ensure that journalists and public observers come into their (virtual or physical) courtrooms.  

The Open Justice Court of Protection Project is committed to providing the judiciary with the support it needs to overcome the barriers to public attendance and to minimising and managing the practical difficulties the presence of observers can sometimes involve.  It is a fundamental principle that justice should not only be done, but should be seen to be done.  With nobody watching,  ‘open justice’ is simply an abstract ideal.

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

A mother abroad and a family dispute – Part 2

By Daniel Cloake, 19 January 2021

As a follower of the Open Justice Court of Protection Project on Twitter I took advantage of their daily publication of upcoming Court of Protection hearings and e-mailed in my request to observe this case.

Before MR JUSTICE COHEN
Sitting as a Judge of the Court of Protection
Monday, 11 January, 2021
At 02:00 PM
FOR HEARING IN OPEN COURT
COP 13677853 Re ‘P’ MS Teams Hearing

A previous hearing in this matter, held some 11 days earlier, had been observed and blogged about by Kristy Regan, a Senior Lecturer in Social Work at the University of Sunderland.  Her well-written write-up entitled “A mother abroad and a family dispute”provided some useful background to the case and for continuity I intend to use the same aliases as she did for the parties. 

Ms Sarah Haren, the barrister representing applicant Louise, helpfully summed up the background to this dispute at the beginning of the hearing.  She told the court that in September 2020 Louise’s mum, who I shall call Ms P, was taken “in a surreptitious way” and with “no prior notice” from England to a European country by Ms P’s other daughter ‘Kim’ where they still remain. 

Ms Haren explained that “within weeks of arriving in [Country] Ms P’s property was placed on the market” by Kim, under power vested by a Lasting Power of Attorney over Ms P.  This led to Louise feeling “deeply concerned”.

We were then told that in November 2020 Louise issued an application for the return of Ms P back to the UK as “plainly she was a vulnerable adult”.  Ms Haren further submitted that whilst there was “some evidence” Ms P lacked capacity there “was no expert evidence” and requested this be ordered as part of today’s directions hearing.

The judge asked Ms Haren what she considered the effect was of a “curious document” which purported to be a “professional witness report” written by Dr A and supplied by Kim.  Ms Haren replied that she had only received the document that morning and had concerns about the admissibility of it.  She submitted that the document should “carry little to no weight” and in any event “doesn’t avoid the need for a court appointed assessment of capacity”.  Citing provisions within Section 15 of the Court of Protection Rules 2007 Ms Haren detailed their objections as follows:

  • No record of a letter of instruction, No purpose of assessment
  • All information came solely from Kim
  • No record of what Dr A was told
  • Nothing to record the experts understanding that the report was for court, or knowledge of his duty to the court
  • No reference to medical or social services records
  • No statement or record of tests used to determine her capacity or the result of those tests
  • No record of questions asked or the form they took, eg open or closed
  • No record of when or how long the assessment lasted
  • No record of Ms P’s appearance during the assessment
  • No consideration of Ms P’s vulnerability from influence; nor her capacity to litigate, or capacity to grant or revoke Kim’s Power of Attorney or to manage property or affairs
  • Concern over Kim’s presence throughout the meeting
  • And no indication that Dr A understood the context of these proceedings, ie a contentious hearing between sisters over welfare.

Stating that the “comments made on Dr A’s report are plainly valid” the Judge said he needed a proper assessment of Ms P. 

In response to a question from Mr Justice Cohen as to the proposed way forward, given that travel between England and Europe is heavily restricted due to Covid, Ms Haren suggested that the assessment may have to be remote.  In dealing with the accompaniment of Ms P by Kim it was advocated that the conduct of the assessment could be determined by the expert.

The court then considered the question of contact between Louise and her mother as it is understood none has taken place since the mother moved abroad some 5 months prior.  A summery by the judge that it was “extraordinary they weren’t having daily communications” led to the following exchange taking place:

Judge: the idea these two should be locked into what may be very expensive and prolonged litigation is unfortunate … We have to find a constructive way forward through this.  I don’t want to go into who’s right or wrong about it.  Is there any reason why Louise shouldn’t speak to her mum a couple times a week? Just like the way we’re communicating with you now?

Kim:    Mum hasn’t wanted to

Judge: At the very least she should have the opportunity

Kim:    She doesn’t want to until this is resolved

Judge: But your report says she doesn’t want to lose contact.

Kim:    Louise lives 15 minutes from [an airport], they can come here

Judge: Well if you leave things until they are resolved, I’d be surprised if that’s what your mother wanted.  I hope you can enter mediation.  An awful lot of suspicion would be alleviated if Louise has the opportunity to speak to her mother.  Having expensive and emotional litigation is not the best way to reach a constructive conclusion.

Kim:    We agree, this is not the road

Judge: Do you agree you should appoint a mediator?

* A few moment hesitation

Kim:    Yes

This was surprising as Ms Haren had already told the court that her client had requested mediation, but the offer had been rejected by Kim.  After some discussion, the parties agreed that the mediator should be based in England, rather than trying to find an English-speaking mediator local to Ms P.  The judge suggested to Ms Haren that her client should “pick two or three mediators who would be able to start work reasonable quickly and who can be provided with the minimum of documents.  A brief and neutral summery can be prepared for them.  I do not want a ‘he says she says’”

Turning back to the issue of contact the Judge told Kim that “I expect you to facilitate your mother speaking to your sister twice a week” with the court ruling that communications should take place at 5pm on Wednesdays and Sundays unless otherwise agreed.

Mr Justice Cohen directed that he wanted a report from Ms P’s social worker and her GP and these would be paid at joint expense of the parties.  They should report on Ms P’s capacity to deal with various issues arising out of the litigation, her vulnerability, an opinion on where she should live and their recent dealings with her prior to departure. 

The Judge also said “Consideration will have to be given at the next hearing for representation of the mother.  In the event of the capacity assessment suggesting that Ms P either lacks capacity or is a vulnerable person the parties must liaise with the Official Solicitor as to her representation“.

Responding to a request the judge replied that he was “not prepared to order that medical reports should be provided to the daughters” adding it was “wholly inappropriate … before I know whether she has capacity”.

It was at this point Kim became emotional saying “I’m delivering care to mum, and I can see what’s happening to her.  I’m going to have to tell her about this”.  The judge replied: “you’ve got yourself into this situation with horns being locked”.  Upon realising that with the choosing of experts and report preparation etc the matter might not come before a judge until March, Kim added “what about mum, it’s her house and her decision.  Where are we?”.  The judge replied:

“The answer is you’re nowhere at the moment.  Two sisters are at daggers drawn as to which country she should be living in.  How can I decide?  She might be being taken advantage of.  We need to get the evidence in … I’m not making a finding on evidence that doesn’t currently exists..”

To provide a glimpse into what I’m sure is a complicated back story Kim stated it was a “misconception that this is a fight between sisters, we have to look at facts and the criminal investigation into fraud with late father”… “we have seen the film, she was filmed, she was filmed!”. 

Opinion

Well, do we have a daughter protecting her mother from the fraudulent activities of a sister or a daughter weaponizing her mother as ammunition to get revenge? Thankfully not a question I have to answer. 

I am reminded of a section of text in barrister Sarah Langford’s excellent book “In your defence” discussing the unsatisfying conclusion of most divorce proceedings:

“My job has taught me to understand the power of the judgment; how a compromise will not grant the vindication that drives some people to court… It is not over until they realise that no one – not me, nor the judge, nor the law – is able to give them the release they so long for.” 

It is difficult to see how any one party could ever win in a case like this, sadly I fear that whatever happens only losers will remain, albeit losers with a lot less money.  I hope that mediation works out and both daughters get to spend quality time with their mother, time after all is precious and irreplaceable.

Hopefully, the parties will have some positive news to report to the court, on the first available date after 22nd Feb.

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

Photo by Paweł Czerwiński on Unsplash

Does being watched change how justice is done? A researcher’s reflections

By Gill Loomes-Quinn – 18th January 2021

Ahead of a seminar in which OJCOP is participating this Thursday 21st January (more info below – register here) I have been reflecting on the question at the centre of the seminar: “Does being watched change how justice is done?” and thinking about what I have learned from my experiences as a public observer in the physical Court of Protection (prior to the pandemic), and through the Open Justice Court of Protection project.


It was in February 2017 that I had my first experience as a public observer in the Court of Protection at First Avenue House, High Holborn, London. I was filled with excitement at the prospect of undertaking a core part of the empirical research for my PhD, but I was also full of trepidation. I knew that public observers were quite rare in the Court of Protection since the introduction of its Transparency Pilot in 2016, and I was aware that a degree of work was created for lawyers and court staff in ensuring that documents were anonymised and paperwork was available for members of the public to sign into public hearings and agree to be bound by the terms of the relevant Transparency Order. So, I was worried about how I would be received as a public observer in the court.

My concern was exacerbated by the fact that I was unsure about what would happen following my period of observation – I knew (or assumed or hoped) that at some point I was going to get a PhD following this work, and I knew that my intellectual curiosity was going to be stimulated and my legal knowledge improved. But these all seemed rather self-oriented objectives. It was also my hope that my presence as a (disabled) public observer in the Court of Protection and what I learned and wrote as a result would enable me to develop a political analysis of the role of the court in the lives of disabled people, and in disability rights politics. But that seemed a rather ‘grand’ aim, and I also worried that such aims and ambitions may seem “niche” – considering the world of oppressions facing disabled people and our communities; or that I may not be up to the task of communicating my observations to make the difference I sought.

I was fortunate to meet court staff and legal practitioners during my month in court who expressed genuine interest in my research and indicated that they saw its value. These included barristers who took the time to discuss with me how the court works, and a solicitor who asked me about my research during a break in a hearing I was observing and then told the applicant in the hearing that “this sort of research” was “very important for policy-making”: a welcome vote of confidence in the research.

Things have changed considerably between 2017 and now regarding the presence of observers in the Court of Protection. As we know, in response to the danger posed by the Coronavirus pandemic the majority of hearings before the court are now held remotely, which has transformed the scope of access to court proceedings for members of the public, addressing some of the challenges I experienced such as the risk of traveling considerable distance to hearings that turn out to have been vacated at short notice; but also creating some challenges such as that arising when emails requesting access to remote hearings are unanswered. During this period, as the Open Justice Court of Protection Project, we have been able to set up publicity and support around public observation in the Court of Protection and found that this has been met with considerable interest by members of the legal profession who see the value of having the work of the court observed and understood by members of the public, and by people keen to observe court hearings for professional or personal reasons.

The presence in court hearings of (sometimes) several observers at a time, and comments written in blogs for the project website have highlighted that members of the public involved in mental capacity law and practice gain much from seeing the court in action, and that these gains have a social justice impact beyond the walls of the courts. These insights have certainly addressed some of my earlier personal anxieties about the balancing of labour and benefit involved in transparency in the Court of Protection. I think I am seeing the growth of a ‘community of practice’ that didn’t exist and that therefore could not have an impact when I was a lone researcher at the back of a court room in 2017.

Now seems like an ideal time to reflect on what we have learned about the relationships between open justice and social justice and to discuss with those working across other courts and tribunals how our experiences intersect with theirs – what we might learn, and how we might maximise our impact.


The Open Justice Court of Protection Project is delighted to be participating in the seminar series, hosted by Bath Publishing, and coordinated by journalist, Louise TickleLaw, Justice, and the Spaces Between: An important series of free webinars investigating openness and press reporting in our courts and tribunals’.

The series consists of 4 seminars with participants including Sir James Munby (immediate past President of the Family Division of the High Court); Tor Butler-Cole QC (barrister specialising in inquests and Court of Protection cases, 39 Essex Chambers); Emma Norton (solicitor, and founder of the Centre for Military Justice) Lucy Reid and Julie Doughty (the Transparency Project); Dr George Julian (knowledge transfer consultant and live tweeter of inquests); Prof. Celia Kitzinger and Gill Loomes-Quinn (the Open Justice Court of Protection Project); and many more.

The 4 seminars are as follows:

  1. Does being watched change how justice is done? The role and function of observers in trials, inquests, family courts, and tribunals 21 January 2021*
  2. Silence in court: What is lost – and who gains – when the State bans family members from speaking out? 4 February 2021
  3. In pursuit of social justice – Is a hearing held in public enough to hold the State to account? 18th February 2021
  4. The observer’s dilemma: Does negotiating access with power and parties compromise independence? 4 March 2021*

This series engages issues close to the hearts and minds of anyone interested, and committed to, Open Justice in our legal system. It will bring together experts in legal practice, scholarship, and activism and promises to address intellectual, emotional, moral, and practical aspects of the pursuit of transparency across our courts and tribunals. It is a series not to be missed.

You can find out more about each event, and register here – we look forward to seeing you there!

*Seminars including The Open Justice Court of Protection Project

Gill Loomes-Quinn is co-director of the Open Justice Court of Protection Project. She tweets @GillLoomesQuinn

A hotel as an interim placement

By Celia Kitzinger, 15th January 2021

At a brisk 17-minute hearing on 30 December 2021 before Mr Justice Keehan (Case no. 12803319), the judge approved the applicant local authority’s order to place P in a hotel with a package of 24-hour care as a temporary measure, pending his move to a permanent placement.  

Use of a hotel to temporarily house P was apparently not in itself particularly remarkable.  Ian Brownhill said that the local authority had previously placed service users in this same hotel. 

The particular concern in this case arose from the fact that P (who has “mild learning disability”, “autistic spectrum disorder” and “attention deficit hyperactivity disorder”) was currently in prison – on this occasion for the offences of criminal damage and common assault and battery, and he has previously been convicted of sexual offences against children.  He was due to be released the next day.

At an earlier hearing on 23rd December 2020 before Mr Justice Keehan (I blogged about it here), the proposal to move P into a hotel was opposed by the Official Solicitor (represented by  Joseph O’Brien) who described it as “fundamentally flawed” and by the National Probation Service  (represented by Fiona Paterson).  The judge’s view was that the proposed plan of the hotel simply will not do.” (Mr Justice Keehan).  He urged the local authority to find another solution and to return to court if they could not. 

At this hearing the local authority asked the judge to approve a draft order authorising P’s care at a hotel.  There was simply no other option.

The Official Solicitor expressed “a real feeling of discomfort” about what the hotel would be told about P and about the sustainability of this arrangement beyond a very short period.  

The local authority did not intend to tell the hotel anything about P’s offending history – only that he is homeless and needs to receive social care intervention.  

Beyond that, the local authority doesn’t believe it’s necessary to tell the hotel any more.  We would go further than that: we don’t believe it would be lawful for us to disclose to the hotel P’s legal history” (Ian Brownhill)

He referred to the Rehabilitation of Offenders Act 1974, the Data Protection Act 2018 and the overarching protection of Article 8.  It was, he said “unnecessary and possibly unlawful to disclose more to the hotel”. 

On behalf of P (via the Official Solicitor) Joseph O’Brien expressed concern that:

 “P may be able to place himself in a position where his carers are not around him, and he himself makes disclosures about his offending history [as he has done in the past].  The hotel might then become extremely concerned that they haven’t been given the full picture and terminate the arrangement at very short notice.” (Joseph O’Brien)

He added that “there is no contingency plan if, in fact, this placement fails on Day 1 or Day 2” but, “the local authority will no doubt one day have to answer for it if it all goes horribly wrong with the hotel.”

The judge intervened with a pragmatic suggestion that (as it turned out) was acceptable both the local authority and to the Official Solicitor.

“I can’t see why the hotel can’t be told that for the benefit of P and others he requires 24 hour supported care. The hotel can be told he’s not to leave the hotel or wander around the common areas of the hotel without his carers.  And if hotel staff found that he was wandering around the hotel, or attempt to leave it, then they should call the police, or contact the care providers.  They don’t need to know what the risks are, but they do need to know what’s permitted.” (Mr Justice Keehan)

All parties accepted this as an acceptable way forward.

My understanding is that, after less than a week at the hotel (without any incidents of concern), P was moved to his permanent placement.

I’m glad the hotel worked out and that P is now satisfactorily settled in a suitable placement, but this entire incident demonstrates vividly the pressures faced by adult social services. 

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

Photo by KEEM IBARRA on Unsplash

A mother abroad and a family dispute

By Kristy Regan, 11th January 2021

At the third attempt, after a couple of false starts (a case made private at the last minute and an email request not replied to), I gained access to my first Court of Protection hearing: COP 13677853. This was a case at the Royal Courts of Justice before Mr Justice Peel and it took place on 31st December 2020. I emailed the RCJ the night before and had a response at 10.15am for a 10.30am start. My advice to anyone would be to sit by your email with everything ready to go!

It felt like an awkward start. I joined Teams and found a number of people there sitting in silence, and others without cameras on. Being mindful of the advice given on the Open Justice Court of Protection Project page here, I had my camera on initially and when the case started I turned it off. Being more used to Teams calls which have small talk, the silence while we waited for the judge was palpable and I found it quite uncomfortable. It was also difficult not knowing who everyone was. A bit like a ‘guess the barrister’ situation. 

When the judge joined, I found it surprising that there were no real introductions: people said their names but I found it difficult to catch their roles in the proceedings. The judge, having had the papers, would have known who everyone was, but as an observer it was difficult to tell. It soon became clear that two of the participants on Teams were the applicant and respondent in the case. The applicant was represented by Sarah Haren and the respondent was unrepresented (a litigant in person). Another barrister (Jeremy Abraham) was present: I googled him and found he is a member of the Office of the Public Guardian’s Deputy Panel, which would make him relevant to this case, but his role was unclear and he didn’t participate in the proceedings. I believe P was not represented.

Background

Sarah Haren helpfully provided a brief synopsis of the background to the application.

The case concerned P, an 80+ year old “widow” (exact age removed to ensure confidentiality), and her two daughters were applicant (“Louise”) and respondent (“Kim”) – both present via video-link. P has completed the Lasting Power of Attorney documentation to make Kim her attorney (finance and property I, assumed).

P is currently residing in a European country at an unknown address with Kim. She was “taken” abroad by Kim on 1stSeptember 2020. The application before the Court was for an order to return P home to England, to preserve P’s property until her capacity to make her own financial decisions is determined, and to suspend the powers under the LPA.   

Today’s proceedings were brought under s.48 of the MCA since there was no determination of P’s capacity before the court.   (The possibility of invoking the inherent jurisdiction was also mentioned.) S.48 concerns “Interim orders and directions” and reads as follows:

Interim orders and directions

The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if— 

(a) there is reason to believe that P lacks capacity in relation to the matter,

(b) the matter is one to which its powers under this Act extend, and

(c) it is in P’s best interests to make the order, or give the directions, without delay.

(s. 48 Mental Capacity Act 2005)

Today’s proceedings

Mr. Justice Peel was clear from the outset that it would not be possible to make all of the declarations requested today. Kim expressed her concern that she had received very short notice for the case today and was using Teams via her mobile phone. She was also unrepresented and advised she was unable to seek legal advice until the week beginning 4th January 2021 at the earliest. 

Mr. Justice Peel advised that he was concentrating on the issue immediately to hand, which was the sale of the property, as it was reported that an offer had been accepted by Kim. 

At this point the judge directly questioned Kim, asking her whether the property was on the market, to which she replied it was. Kim then started referencing a safeguarding investigation by a Local Authority in England, a video (of what it was not clear) and police investigations. The allegations under safeguarding were not clear, though appeared to relate to financial abuse. Kim went on to say that her mother’s Social Worker (who she repeatedly named to the Court) knew about the plans to move and was satisfied that P had mental capacity. Kim was keen to emphasise that she was the primary caregiver and that P is well looked after. 

The judge brought Kim back to his original question about the property. She confirmed the property was put on the market “around October 2020” and an offer had been accepted. The judge asked whether there was a completion date. At this point Kim became very non-committal and said she was unsure but felt it would take until at least Spring. 

The judge also asked whether Kim was exercising her role as attorney for the LPA in the house sale. Kim kept saying that it was P’s capacitous decision and she was not using the LPA. She did say, however, that she had dealt with all the calls and paperwork for the house sale. 

It was clear that neither Louise (P’s other daughter) nor Louise’s legal representative knew where P was living. The judge asked Kim for the address and contact details of P. Kim had to give these in Court. The judge asked how contact could be made with P. Kim advised she could only be contacted via her (Kim’s) email or her daughter’s mobile number. She then said that P is hard of hearing and struggles to use a phone. There was very little reference made to P’s medical conditions. Kim was adamant that she has mental capacity and said that all of the medical professionals supporting her currently agree with her on this. Later on, she did however, mention that P has a “mild cognitive impairment”

The judge was very clear that declarations on the issues around P’s capacity and the LPA could not be determined today. The judge agreed part of the order, namely to preserve the property until at least the next hearing. He kept emphasising that the aim was to preserve the “status quo” while further directions are considered. 

A directions hearing has been scheduled for 11th January 2021. The judge advised Kim to engage legal advice before this hearing. She said this was very short notice and it would distract from her caring role. The judge was firm that she needs to do nothing except get legal representation and that the evidence required will be outlined at the next hearing. He stated this would include Kim’s evidence and a capacity assessment of P.

My impressions

It was an unusual experience and felt quite voyeuristic in one sense, especially as it involved private individuals, who were present, rather than professional bodies, such as local authorities or clinical commissioning groups. Teams is also an unusual medium for such formal proceedings. Many of us are getting used to Teams for daily work, and it is a testament to the Courts that they are also enabling this way of working in order to keep everyone as safe as possible during Covid restrictions. It has also allowed greater access to individuals based all around the country, to view proceedings. As someone based in the North East, it would have been extremely unlikely for me to access the Royal Courts of Justice otherwise. 

Having worked in adult safeguarding for 8 years, I felt myself going back to that role, in the respect of the experiences I have had over the years of dealing with family disputes. Family disputes are always a difficult dynamic to work with and listening to Kim, I felt she was quite evasive. The way she starting bringing other issues into the Court, and not answering direct questions, was a technique I have witnessed over the years when people are trying to deflect from the matter in hand. I felt the judge was skilful at bringing her back on point, but feel this was due to his position. I can imagine that others who have worked with the family would not have been so successful. 

I found myself empathising with Louise, who sat through the case and said nothing, especially as she did not know where her mother was living. As an observer with a limited amount of information, I was also conscious that I was only seeing part of the situation and that there will be many viewpoints on what has happened. The situation and facts are likely to be discussed throughout the proceedings in Court, therefore it is important to keep an open mind. 

The situation with current family contact was one of the main areas, which stuck with me when the session had ended. At one point Kim said they had been doing video calls with family in England, but that P “entered the password wrongly too many times and locked the tablet”. From this, I surmised that contact between P and the rest of the family was no longer being facilitated – a family estrangement, which is sad all round and which no amount of Court action will likely remedy.

Kristy Regan is Senior Lecturer in Social Work at the University of Sunderland who previously worked in Adult Safeguarding for 8 years, as a Senior Social Worker then Team Manager.  She is also a COP Visitor. She tweets @kristyregan13

Photo by USGS on Unsplash

Excluding the public from Court of Protection hearings: A case before Mr Justice Keehan

By Celia Kitzinger, 7th Jan 2020

Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. …. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. (Lord Justice Toulson R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] QB 618 )

Since January 2016, the usual approach in the Court of Protection is that attended hearings are in public, with reporting restrictions to protect the identity of P and their family (Practice Direction 4(c)).  During the pandemic, with the rapid move to remote justice, the situation has been somewhat different from usual, but the court’s commitment to transparency remains firmly in place.[1]

Despite the fact that most hearings are listed as “in public” or “in open court”, it was until very recently extremely unusual for a member of the public (unconnected with the parties or their advocates) to attend a hearing.  Until we launched the Open Justice Court of Protection Project in June 2020, I was often the only ‘public observer’ in court.  It also was – and remains – rare to find journalists at hearings – especially in courts outside London, and at hearings before district judges.  This means the vast majority of Court of Protection hearings were held “in open court” in name only.

Perhaps because it is a relatively recent development for members of the public to attend hearings, it can still be challenging to gain access.  My own experience is that I am admitted to only about one in every three of the court hearings I ask to observe.  (This proportion applies equally to hearings listed as ‘public’ and hearings listed as ‘private’: those words in the listings are not reliable guides to whether or not you will gain access).  

This post explores how and why the public is so often excluded from Court of Protection hearings. I begin with the ‘inadvertent’ exclusions that (in my experience) constitute the vast majority of cases.  I’ll then highlight some ‘deliberate’ exclusions.  In particular, I’ll describe how and why members of the public were deliberately excluded from a hearing before Mr Justice Keehan (COP 12803319, 23 December 2020) that I was eventually – and as a special exception – permitted to attend. I will conclude by sharing what I learnt from that experience and considering the implications of my experience for open justice in the Court of Protection.

Inadvertent exclusion

Massively the most common way in which members of the public are excluded from Court of Protection hearings is that there’s simply no response to our requests for access.  That’s how my experience with Mr Justice Keehan’s hearing on 23 December 2020 began – as an inadvertent exclusion. 

On Tuesday 22nd December 2020 at 18:53, I sent an email to the Royal Courts of Justice (RCJ) asking to observe the hearing before Mr Justice Keehan the following morning.  It had been listed on the RCJ website (posted around 16.30 that day) as “For Hearing in Open Court”.  The RCJ never replied – not to that email, and not when I resent it the following morning.  I was disappointed, but not particularly surprised. 

My colleague Adam Tanner – who frequently blogs for the Open Justice Court of Protection Project (e.g. here and here) – was also trying to observe hearings during this same period.  He told me:

“In a single two-week period leading up to Christmas I emailed the RCJ about 13 separate hearings that I wished to attend. Eight of those emails went completely unanswered, and one was responded to three hours after the hearing had started.” (Email, 29th December 2020)

I’ve learnt over the course of more than 300 requests to observe hearings that I’m most likely to gain access if I email repeatedly (the night before, again in the morning, again within an hour of the scheduled start of the hearing) and – if a phone number is provided – I follow up with a phone call 40 mins or so before the scheduled time of the hearing.  It also seems effective to tweet the fact that I am seeking access to a given hearing, especially if I also tag in @HMCTSgovuk and direct message any barristers or solicitors I happen to know who might conceivably be involved in the case, or who might know someone who is.  Obviously, it shouldn’t be necessary to do this, and it’s an uncomfortable strategy to have to adopt.  I am undoubtedly inconveniencing busy people, and however politely I try to phrase the emails and tweets, it feels like insistently battering on a locked door to demand entrance. It also requires an investment of time and the determined cultivation of a sense of entitlement not possessed by most health and social care professionals (who constitute the majority of people interested in observing hearings).   

In the case of Mr Justice Keehan’s hearing on 23 December 2020, I had another route of access (also not available to most members of the public).  I’ve observed his hearings in the past and have his clerk’s contact details. So, at 9.22am, just 38 minutes before the hearing was due to start, having finally given up on getting any response from the RCJ, I emailed her apologetically, explaining the situation, and she replied with an MS Teams link at 9:29am.  Success!

By that time, several members of the public – alerted to the hearing by our “Featured Hearings” page – had contacted me to say that they had not received any response to their email to the RCJ and asking whether I could help.  Although I passed names and email addresses to the judge’s clerk, other members of the public were not admitted – for reasons I discuss below.

More broadly, I am not sure why members of the public are so often excluded from hearings that are listed as “Open Court” and hope that this is something that the HIVE group will investigate. My impression is that it’s usually because court staff are busy and don’t find time to deal with our requests.  As I indicated earlier, it seemed a particular problem in the two weeks before Xmas, but it’s been a more general problem throughout the year.   Occasionally I’ve been told, when I’ve phoned, that staff haven’t had time to open their emails.  Often the phone rings unanswered or I listen to recorded messages in an endless loop.  A few judges have written apologising that I didn’t get access to their hearing because they’d been forwarded my request (sent to the administrative regional hub) too late to action it, or because they were struggling already with joining multiple counsel to conference calls or with uncooperative video-platforms, and couldn’t find time to deal with my request on top of that.  

I suspect that some of the requests to which I get no response concern hearings that are adjourned or vacated (i.e. they don’t actually happen, so in reality there’s nothing to be excluded from) – but if so, it’s often the case that nobody tells me, so this is just guesswork.   Sometimes I do get responses explaining that a hearing isn’t now happening – and that really helps to dispel the notion that members of the public are being deliberately excluded.  

So, in my experience the fundamental principle of open justice often falters and fails without anyone willing it to do so.  The Court of Protection is not secretive by design – but it is not adequately designed for transparency.

Deliberate exclusion 

Sometimes I’ve been deliberately excluded from Court of Protection hearings.  

Occasionally I’ve been told that a case was wrongly listed and should have been ‘private’ all along, so my application to observe it has been refused without further explanation.  This includes some Dispute Resolution Hearings, all of which are held in private, but the lists don’t always specify that’s what they are.  

One case was redesignated as ‘private’ after my request to observe it – and after I had observed an earlier ‘public’ hearing in the same case.  There was no explanation as to why this had been done.

On several occasions recently, I’ve been admitted to video-platforms only to find counsel having a discussion about whether or not to exclude the public and then making representations to the judge: on one such occasion we were permitted to remain  (see this blog post about a case before Hayden J); on another occasion (also before Hayden J), we were excluded, with the explanation that P was exceptionally vulnerable. 

The Court of Protection Rules 2017 specify that the court can decide not to make a hearing public, or to make only part of a hearing open to the public, or to exclude any persons or class of persons from the hearing, if there is “good reason” for doing so. In making this decision the court will have regard in particular to:

(a) the need to protect P or another person involved in the proceedings; 

(b) the nature of the evidence in the proceedings;
(c) whether earlier hearings in the proceedings have taken place in private; 

(d) whether the court location where the hearing will be held has facilities appropriate to allowing general public access to the hearing, and whether it would be practicable or proportionate to move to another location or hearing room; 

(e) whether there is any risk of disruption to the hearing if there is general public access to it; 

(f) whether, if there is good reason for not allowing general public access, there also exists good reason to deny access to duly accredited representatives of news gathering and reporting organisations. (para. 2.5 Practice Direction 4(c))

This provides the basis on which the public can be deliberately excluded, and it turned out these criteria had been invoked to exclude the public from Mr Justice Keehan’s hearing on 23 December 2020.

Why Mr Justice Keehan decided to exclude the public 

When I joined the video-platform for the hearing, which had been listed as “for hearing in open court”, there were  three barristers online:  Ian Brownhill (acting for the applicant local authority), Joseph O’Brien (acting for the Official Solicitor), and Fiona Paterson (acting for the National Probation Service).  The issue of the public/private status of the hearing was immediately raised. In discussion before the judge arrived, they recalled that there had been what was described as “an oven ready judgment” made in 2019 excluding members of the public from attending the hearing, but that it had never been handed down. This was subsequently located and sent to me.

Ian Brownhill said that the case had been in front of different judges at different tiers (since 2015 I think) and that over the years different orders had been made.  Initially it was open to the public with a reporting restriction in place, but the local authority had subsequently applied for hearings to be in private to protect P’s identity and a previous judge had approved this application.

When the case was allocated to Mr Justice Keehan in 2019, he questioned why the case should not be heard in public, subject to a suitably worded transparency order.  The local authority and National Probation Service asserted that the risks to P of hearing the case in public were too great: there would be ‘sensationalist’ reporting and a risk of ‘reprisals against him’.  (The local authority also argued that there was a risk of disruption to the hearing from angry members of the public – who might include members of vigilante groups or family members of P’s victims).  The Official Solicitor submitted that the public should be admitted, subject to an appropriately worded transparency order that specified what could be reported and that “the court should have confidence that accredited media organisations will report the proceedings in a responsible way”. (She further noted that the argument about disruption was speculative and any disruptive members of the public could be removed from court.)

In his judgment in 2019, Mr Justice Keehan considered that “the need to protect P is a very powerful factor in favour of holding the proceedings in private”.  He continued:

16.  The importance of public justice, however, is a central tenet of the Court of Protection.  It should only be overridden when the circumstances of the case compellingly, and on the basis of cogent evidence, require the proceedings to be heard in private.

17.  I accept the submissions of the Official Solicitor that in her experience and that of her office is that [sic] those members of the accredited media who attend Court of Protection proceedings respect the orders of the court and report proceedings in a responsible manner. This mirrors this court’s experience.  

18.  Accordingly, I am satisfied that if:

 i) I exclude members of the public from attending future hearings of these proceedings; but

ii) Permit accredited members of the press and broadcast media to attend; and 

iii) I make a transparency order in the terms proposed by the National Probation Service and agreed by the other parties; 

the Article 8 rights of P will be protected and the Article 10 rights of the press and broadcast media will be respected.

19.  With the exclusion of the public and the making of [an] appropriately drafted transparency order the risks to P of identification, and the consequences of the same, are reduced very considerably.  These reduced risks do not justify overriding the central tenet of open justice in the Court of Protection.  Accordingly, I do not consider it necessary and proportionate for these proceedings to continue to be heard in private.

Re P (Court of Protection: Transparency) 2019 EWCOP 67 

In sum, then, given the particular facts of this case, Mr Justice Keehan had reversed the previous judge’s decision that the hearing should be held in private, permitting journalists to attend (subject to reporting restrictions), but excluding members of the public.  This was described by Ian Brownhill (counsel for the local authority) as a “half way house”. 

Gaining access to the hearing

Once it became apparent that I had been admitted to a hearing from which members of the public had been excluded by an earlier judgment, the parties were asked address the judge as to whether or not I should be permitted to stay.  As they did so, I learnt quite a bit about P.

P is in his twenties and has a “mild learning disability combined with significant deficits in adaptive functioning” including “autistic spectrum disorder” and “attention deficit hyperactivity disorder”.  This places him at risk of offending and he has been convicted of several sexual offences and was in prison at the time of the hearing.  He is due to be released shortly and the hearing concerned the need to find a suitable placement for him.

The local authority had been concerned because local newspapers had published details about P’s offences, including his name and photographs of him leaving the Crown Court where he was found guilty. They were concerned that he could be targeted by paedophile hunters and vigilantes as a result of this press coverage. They would not necessarily be “people with baseball bats hanging around outside his placement, but could be apparently respectable people seeking to entrap people like him”, said Fiona Paterson.

On the basis of information about P garnered in the first ten minutes (including his first name and the name of the local authority, plus other details not reproduced here), I easily located media reports about P’s sexual offenses.  It was also straightforward to find websites of vigilante groups across the UK, such as Dark Justice who impersonate children online to lure people into making inappropriate or sexualised communications with them over the internet, and then provide the material generated by such contact to the police. A large proportion of prosecutions for child sexual abuse result from these ‘sting operations’ and in Sutherland v Her Majesty’s Advocate [2020] UKSC 32 , the UK Supreme Court ruled that prosecutions based on this kind of evidence do not violate the person’s Article 8 right to private life and correspondence.   

On behalf of the Probation Service, Fiona Paterson was clearly concerned both (obviously) to ensure that P does not re-offend and also to protect him from becoming the target of online child abuse activist groups (who may themselves commit offences against vulnerable adults, as outlined by the Crown Prosecution Service here). 

Anxious that I might be excluded from the hearing, given what I was hearing about the sensitivity of the subject matter,  I emailed Brian Farmer, the only journalist who regularly attends Court of Protection hearings and a strong advocate for transparency (check out his blog here) asking if he could attend – and messaged the court to say I had done so.  He was on annual leave.  Without him, there would be no public report of the hearing if I were to be excluded. 

As it turned out, though, none of the parties objected to my presence – albeit without instructions from their clients one way or the other since this situation had not been anticipated[2]. It helped that I have previously observed hearings involving all three advocates (and the judge), have blogged about some of them, and that counsel were aware of my previous reports and considered them “responsible”.  

When the judge invited me to address him as to why I wanted to observe the hearing, I made two points. First, that excluding the public (and there has been a recent rash of such exclusions from RCJ cases) risks reinforcing the perception of the “secret court” and so undermining public confidence. Second, that – not yet fully apprised of the facts of this case, but not wanting to cause harm to a vulnerable adult – I was willing to send my proposed blog post to counsel prior to publication and to take advice from them about anything that might harm P and need to be changed[3].  On that basis, I was permitted to remain for the hearing (but there was no further consideration about whether or not to admit other members of the public who had also asked to attend).

The hearing itself: an unsuitable interim placement

On behalf of the applicant local authority, Ian Brownhill provided an exemplary introductory summary of the case.  There had been a long history of Court of Protection hearings concerned with P’s capacity and best interests in relation to residence, care, contact and internet use. Throughout this time, there have been repeated problems with placements breaking down (including the specialist provider directly prior to his current custodial sentence, at which he had assaulted staff):  he has “been through a vast number of providers”.  One feature of P’s behaviour is that, despite the negative consequences to himself (he’s been called “a paedo and a nonce”), he often discloses his offending history and talks about his sexual behaviour and his recent imprisonment was as a direct result of his own disclosures. 

The local authority now finds that P is “often rejected by specialist and non-specialist providers” because of this history.  He’s due to be released from prison very soon.  A long-term placement has been identified but is not yet available because a different local authority has not yet removed a service user (who has given notice) from what will become P’s room.  Until they do so, there is no approved placement for P on his release.

Acknowledging that “it’s not the ideal option”, counsel on behalf of the local authority proposed placing P, temporarily, in a room in a well-known (family-friendly) hotel chain, with carers in place during the day (but not at night).  P would be electronically tagged and “if it proved problematic this would be reviewed”.  

The Official Solicitor’s position was uncompromising: this proposal is “fundamentally flawed” and “exposes my client to the risk of serious harm”.  The notion that P would stay tucked up in bed during the night while his carers were absent (simply because he is subject to a curfew) was “based in the world of fantasy”.  Counsel pointed out that the court had no way of knowing who else would be staying at the hotel, where exactly in the hotel his room would be, what the staff would be told, or any number of relevant details related both to protecting P and to protecting the public.

The Mental Capacity Act 2005 cannot be used to impose restrictions on someone to stop them from offending.  As Ian Brownhill has said in a blog:

The most that can be said, is that restrictions can be imposed if it is determined that they are in P’s best interests; that best interests analysis could include an aim to keep P out of the criminal justice system.” (Ian Brownhill, blogging here about “the myths and mistakes of capacity and criminality”)

As a consequence, the focus of the argument in court was very much on the harm caused to P by being left unsupervised in a hotel, rather than the harm that members of the public might suffer as a consequence (leaving me feeling somewhat uncomfortable).  However, as counsel for the Official Solicitor pointed out: 

“P’s welfare is linked with the welfare of the public – they are conjoined here. He remains at significant risk of harm if the proposal for a hotel placement is followed through.  If this plan is not reformulated with a more robust package of care by next Thursday, then it will be back on the list. … I hope the local authority heed our concerns.  I sincerely hope we don’t see you next week, but I fear that we will.” (Joseph O’Brien, Counsel for the Official Solicitor).

The judge responded immediately in no uncertain terms:

“I agree with absolutely everything you’ve said.  I do not doubt the local authority are doing absolutely everything that you can – and no doubt working in very unusual circumstances.  But I’m afraid that the proposed plan of the hotel simply will not do.” (Mr Justice Keehan)

On behalf of the National Probation Service, Fiona Paterson reported that she was content with the proposed permanent placement, and she understood that the local authority was “trying to pull out all the stops” to enable P to move there as soon as possible.  She had been informed that P’s tag will not sound an alarm if he leaves the hotel “its function is purely historic: so that the police would be able to work out where he’d gone [say at] 2am when they interrogated the system the next morning.” She hoped very much that P would not have to go to the hotel, but if he did end up going there, she had a number of pragmatic suggestions, including that he be brought to the probation service offices every day, the number of hours his carers are with him was increased, and that the local police were asked to spot check whether he was complying with his nightly curfew – although that would entail relying on the good will of officers.

For me as a public observer, this seemed a completely ghastly situation: both the safety of P and the safety of the public would self-evidently be compromised by placing P in a hotel with insufficient surveillance in place.  “It’s not unreasonable to assume that having just been released from custody, he is at the greatest possible risk”, said the judge.  Nonetheless, following Fiona Paterson’s submission, and her suggestions for addressing issues that might arise in a hotel placement, he did seem more open to entertaining the possibility that this stop-gap solution might need to be adopted.

Addressing counsel for the local authority, the judge said that he expected the situation to be addressed by “someone who is, shall we say, at the top of the food chain”. The focus of the local authority “has to be to deal with the other local authority to move that service user out so that P can be admitted.  If it has to be the hotel, then you need to be looking at more hours of care.”  

In what sounded to me like a thinly veiled warning, he added: 

In due course I might find myself making another judgment, explaining why P was placed in a hotel and why something unfortunate happened to him or to a member of the public, and referring to the public body responsible for that state of affairs coming about.” (Mr Justice Keehan)

Reflections

Open justice is not incompatible with the occasional deliberate exclusion of members of the public – but these exclusions need to be clearly exceptional and well-justified if they are not to risk undermining the principle of transparency.  “The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases.” (Lord Woolf in R v Legal Aid Board, ex p Kaim Todner  [1999] QB 966).

I’ve attended several hearings where P has been involved in criminal behaviours (including ‘upskirting’, sexual harassment, sexual assault, substance abuse, and drug-dealing)  and we’ve blogged about two previous cases where P was in prison at the time of the hearing (here and here) –  both, like this one, applications for judicial decisions about where he should be placed on release.  I’ve also observed hearings where P has been the victim of crime – including rape, coercive control, and ‘cuckooing’ (in which drug dealers use the home of a vulnerable person as a base for drug trafficking).  In at least two of the latter cases, the judge warned that P needed protection from perpetrators who were either still at large, or who might seek P out for retaliation.  All these hearings were held in public with stringent reporting restrictions in place.  Reflecting on the threshold for making a hearing ‘private’ rather than ‘public’, it’s not immediately obvious to me why this case, in particular, should exclude members of the public (excepting me) and not these other hearings I’ve observed.   It is perhaps accounted for by the sheer visceral rage that child sexual abuse can occasion and by the existence of organised groups who’ve made (I discovered) threats of physical violence against P (by name) on public websites.  

Simply the fact that P is vulnerable and sensitive personal details are being discussed in court is clearly not sufficient reason to exclude the public, since that would pretty much prevent open justice altogether in the Court of Protection.  We often bear witness to intimate personal details about vulnerable Ps – because these intimate behaviours have become the object of judicial decision-making. That is of course the point of open justice in a democratic society.  If the long arm of the state is to reach down into our personal lives and determine, for example, whether or not we can have sex – ever, at all, with anyone (as here), or engage in the sexual practice of our choice (as here), or use a sex worker (as here) – then those decisions, and the processes by which they are made, need to be transparent. Any of us – or our friends and relatives – could lose capacity to make important decisions for ourselves in the future and many observers work with people in that situation. When we observe how lawyers argue and judges decide on such matters we learn about how the law works in practice.  This enables us to understand the laws by which we are governed, to use them to protect ourselves against future loss of capacity, to better employ them in the course of our work, and to develop informed critiques of them and campaign for change if we believe them to be wrong.  The idea that major decisions about people’s intimate lives – affecting fundamental human rights – should be made by the state in secret without public oversight is something I find abhorrent and quite terrifying.

Engagement with the concrete particularities of specific cases can also graphically display the fault-lines in health and social care services.  One of the values for me in being allowed to observe this case was that it was driven home to me the extent to which adult social care is on its knees. The fact that the local authority was contemplating placing P  (this P of all Ps) in a hotel illustrates how dire the situation is – and I know from observing other hearings the extent to which there is a wider problem with finding appropriate placements: Ps are regularly placed in accommodation described as “manifestly inappropriate” because there is nothing else available (see the blogs by Beverley Clough here;  Caroline Hanman here; and NB here).  Settled case law establishes that the court is limited to making a decision about what is in a person’s best interests by choosing between available options: it cannot compel a local authority to add new placements or care packages to those on offer  (N v ACCG [2017] UKSC 22). In practice, this often means a constrained choice between unsatisfactory options – or, as in this case (so far), no choice at all. The long-term solution can only be better funding and reforming adult social care.  

Does a hearing that excludes the public militate against open justice and harm the reputation of the court?

Over the past six months I’ve worked extensively with members of the public seeking to observe Court of Protection hearings.  The vast majority are either health and social care professionals, or aspiring lawyers. Their intention in observing a hearing is to gain valuable continuing professional development (CPD) and the blogs on our website bear testimony to the rich learning experiences so gained. 

What militates most against open justice and harms the reputation of the court is the routine, mundane, inadvertent exclusion of members of the public.  Not replying to emails, and leaving phones ringing unanswered sends the (no doubt unintentional) message that members of the public are not considered important, that open justice simply doesn’t matter to the court, and that those asking to observe hearings can casually be ignored.  These health and social care professionals (like court staff, lawyers and judges) are busy professionals who are often carving out CPD time in their days off, or during their annual leave. It takes time and research – and sometimes courage! – to identify a hearing in the time slot available and email the court.  It’s disappointing and disheartening not to receive a reply.  Some blame themselves for having somehow asked ‘incorrectly’. Others – especially after repeated failed attempts – wonder if there isn’t actually a conspiracy to exclude them. If nothing else, the court comes to feel a disorganised and unwelcoming place.

Having observed the hearing before Mr Justice Keehan, I understand better why parties might be reassured by hearings conducted in private – or at least without members of the public in attendance.  I learnt a lot from observing this hearing and ironically it has bolstered my faith in the court’s commitment to open justice. I think most members of the public could understand and accept being deliberately excluded from attending a small minority of hearings – especially if they were clearly flagged up as “definitely private” on the relevant lists (and somehow distinguished from all the ‘not really private’ ones currently appearing in the lists during the public health emergency – see Footnote 1). In my experience, observers are very aware of and sometimes chastened by the intimate details they learn about P: they sometimes describe feeling “intrusive” or “voyeuristic” (Caroline Barry’s words here) and would be sympathetic to decisions to exclude them so as not to expose P to their observations when the risk of harm is particularly acute.  In general, the public are not clamouring for access to particular specified hearings so much as simply trying to observe a hearing – any hearing! – in the particular time slot they’ve designated for CPD.  Often the hearings they most want to observe are those dealing with issues that are part of their everyday working lives (e.g. Deprivation of Liberty Orders, s. 21A applications) rather than the more ‘sensationalist’ issues they are less likely to encounter themselves.

What’s needed is a solution to inadvertent exclusion: this is what really damages the reputation of the court.  Fixing administrative problems associated with admitting the public to Court of Protection hearings (ensuring that emails are forwarded to judges and answered in a timely fashion) is less intellectually engaging than discussing the balance between competing Article 8 and Article 10 rights or reworking the standard transparency order to cover all possible identifying information in complex cases with distinctive fact patterns – but I think it’s the way forward for the court in pursuit of transparency and open justice.

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

Photo by Matt Seymour on Unsplash


[1] With the move from physical courtrooms to audio- and video-platforms, Practice Direction 4C and any transparency orders previously issued in accordance with were disapplied.  It can be re-applied (and the transparency order reissued) if any member of the public (or journalist) requests access – so ‘private’ doesn’t really signal an intention to exclude us.  I am rarely refused access to hearings listed as “private” and they constitute around 25% of the 123 hearings I have so far observed.  You can see the new template (which lists hearings as ‘private’ by default) as an appendix (p. 18 onwards) to the 31 March 2020 Guidance here.   Notice that it specifically allows for “ongoing consideration” being given to “the means by which any remote hearing can be accessible to the public”.  

[2] The transparency order (sent to me on 30 December 2020) now reads: “Subject to further order of the Court, that any attended hearings of this application are to be in private but that accredited members of the Press Association and Professor Celia Kitzinger of the Open Justice Court of Protection Project are permitted to attend for the purpose of reporting upon these proceedings, subject to the terms of this amended transparency order.”

[3] Thank you to counsel for taking the time to read and make suggested amendments to my blog.  I have incorporated all their suggestions. There was no suggestion that I had written anything that could lead to the identification of P.  The majority of suggested amendments were typos.  The others were clarifications of points that I had reported incorrectly: I can see (in retrospect) that the wording of certain points made in court was open to misinterpretation by an observer who did not have access to documents (such as the care plan) to which counsel were referring.  For example, in my original version I implied that Fiona Paterson’s suggestion was that probation officers would visit P in the hotel, but actually it was thought that P might be taken to the probation service offices.  And the reference to ‘pulling out all the stops’ was apparently to attempts to ensure that P could gain access to his permanent placement, where I had incorrectly written in my draft post that it referred to efforts to find an alternative interim placement.  It was useful to me as an observer to receive feedback about errors of reporting.  For the avoidance of doubt, as lawyers say, there was absolutely no question of ‘censorship’ whatsoever.  

“RPR”, “IMCA” and “Paralegal” – what are these roles?

By Tory Smith, 6th January 2021

I am a paralegal working at MJC Law. One of MJC Law’s specialties is health and welfare cases in the Court of Protection and in the vast majority of our cases we represent “P” (the protected person). 

By way of my own background, I have been involved within the realms of the Mental Capacity Act for a number of years.  My initial involvement was in the role of a Paid Relevant Person’s Representative (“RPR”) and Independent Mental Capacity Advocate (“IMCA”). I am aware that these roles are often mentioned within proceedings but for any observers, they may be foreign terms. As such, I thought it may be useful to provide an outline of each of the roles and how they might be involved with P. 

Paid RPR

An RPR is appointed as part of the deprivation of liberty process. Again, this may be jargon that is mentioned particularly in proceedings relating to a challenge to deprivation of liberty authorisation (section 21A proceedings) and an observer may wonder what on earth everyone is talking about. 

The Deprivation of Liberty Safeguards (“DoLS”) are designed to protect the person’s Article 5 and 8 ECHR rights. A number of assessments are completed as part of the DoLS process and if a person does not meet any one of the criteria then they cannot be be deprived of their liberty under standard authorisation.  The assessments that are most often talked about are (1) the capacity assessment – i.e. whether a person lacks capacity to consent to the arrangements; (2) the best interests assessment – which also involves consideration of whether the proposed arrangements are the least restrictive possible to meet their needs.    Once a standard authorisation has been granted, this essentially means that the arrangements have been approved by the supervisory body (the local authority).  

A standard authorisation is granted for a set period which can range from a matter of days or weeks or up to the maximum of 1 year. Conditions can be included as part of the authorisation and act essentially as action points that must be completed during the period of the authorisation. 

The process is of granting a standard authorisation is in practice much more in-depth than I have outlined here and there are many more factors that have to be considered but in an effort to not to overload readers with too much information, I have tried to keep it brief. A more detailed explanation can be found here.

In order to further protect the person’s rights, when a standard authorisation is granted somebody is appointed to act at the relevant person’s representative (“RPR”). This is usually a close friend or family member. The role of the RPR is to maintain regular contact with the person and to represent and support them in relation to the DoLS. This can include triggering a review, making a complaint or making an application to the Court of Protection on the person’s behalf. 

There are some circumstances where it is not possible or appropriate for a friend of family member to act as RPR.  For example, there may be safeguarding concerns relating to them or they may be unwilling to take on the role, or perhaps have conflicting views and would not be willing to support a review or the issuing of proceedings in the Court of Protection. Sadly, also, a common circumstance to arise is that the person does not have any family or friends to take on the role. 

In the event that there is nobody to take on the role of an RPR, a paid RPR will be appointed. This is a role that I have previously fulfilled. A paid RPR will have the same responsibilities as a friend or family member would have. They are required to make regular visits to the person, usually monthly, and support them with the DoLS process for the period of the standard authorisation. 

I found acting as a paid RPR to be extremely rewarding. Within the role I had the opportunity to form a relationship with the person and get to know all about them. A standard visit to see a client consisted of spending time with the person to discuss how they are doing, how they feel about their placement and care arrangements, if they had any concerns or worries, ensuring that overall their needs are being met and making sure they are happy and content. As well as speaking with the person, I would also speak with staff to discuss in their view how the person is doing, if they have any concerns or if there have been any events since the previous visit that I should be aware of. I would discuss any conditions on the standard authorisation in order to ensure that they are being progressed. 

As a RPR you always hope that the client is happy with their placement and care arrangements.  This is not always the case and if the person expresses an objection to the placement then as the person’s RPR, it would be my role to take steps to assist the person in challenging the standard authorisation. 

Taking steps to have proceedings issued in the Court of Protection is not usually the first resort and generally I would have taken steps to see if the issues could be resolved without the involvement of the court. This could be done by contacting the person’s social worker and alerting them to the wishes and feelings that have been expressed. On many occasions, if the person is unhappy with the arrangements, this would trigger the social worker to look into an accommodation move without the oversight of the court. If, however, this was not possible and the client remained clear and consistent in their objections, I would then make contact with a solicitor in order to issue proceedings in the Court of Protection to challenge the standard authorisation. These are section 21A proceedings. 

The role of a RPR in Court of Protection proceedings can vary significantly. Some RPRs act as the person’s litigation friend in the proceedings, whilst others support the person to access legal representation and continue their role as RPR, but do not become involved in the proceedings themselves. The extent of a paid RPRs involvement is often stipulated by funding restraints and an individual organisations’ policies. The organisation I worked for would not enable us to act as litigation friend so this was not a role I was able to fulfil. 

In my view there are pros and cons of an RPR acting as a litigation friend. On the plus side, it is beneficial for someone who is already familiar with the person and their circumstances to be supporting them within the proceedings. This also ensures that there is continuity and the RPR is aware of how proceedings are progressing in order to keep the person up to date and involved. But there are also challenges – a RPR should not usually take a view in respect of what is in a person’s best interests. A RPR is there to support the person and if the person says they do not want to remain at their current placement and would prefer to live somewhere that the RPR knows is not an option – say in a house independently with no support – it is not for the RPR to take a view on this and they should still support the person with their challenge. This differs from the role of litigation friend where a position does have to be formed as to the potential alternative options and what is in the person’s best interests. Difficulties here can arise when the position the litigation friend comes to is not in line with the wishes and feelings of the person and there is a danger it could lead to a significant breakdown in the relationship. 

IMCA

The role of an IMCA is quite different to that of an RPR, although there are times that there can be an overlap in the roles. Both roles come under the umbrella of advocacy and involve ensuring a person’s wishes and feelings form part of the decision-making process

An IMCA’s role is to support and represent a person in the decision-making process when important decisions are being made about them. These decisions most commonly concern long term accommodation moves and serious medical treatment cases.  

The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 sets out the IMCA’s role and functions. In summary the role is to gather information, evaluate the information, make representations and if required, challenge decisions. I will deal with this in a little more detail below:

Gathering information

An IMCA meets with the person and, similarly to an RPR, discusses their wishes and feelings with them. This should be done in private and without the influence or distractions of others. Where possible, an IMCA aims to meet with the person on a number of separate occasions, at various times, to ensure that the wishes and feelings expressed were consistent and also to give the person the opportunity to maximise their ability to express the same. 

As well as obtaining the person’s views directly, steps should be taken to obtain the views of anybody else who may be able to shed light on the wishes and feelings of the person. As an IMCA you have the right, and should exercise this right, to examine relevant health and social care records. This enables the IMCA to be armed with all of the information that is relevant to the decision being made. 

Evaluating information

Once an IMCA has gathered all of the information, they must then evaluate this. It is important to ensure that all of the different options have been considered and decide if any further opinions may require investigation. The IMCA must ensure that the person has been supported, so far as is possible, to be involved in the decision that is being made and evaluate the information gathered to determine what would be their wishes and feelings if they had capacity to make the decision for themselves. 

Making representations

IMCAs are required to provide a report to the decision maker and this should be done in advance of the decision being made. It is important for the IMCA to raise any issues or concerns they have with the decision maker. It is the role of the IMCA to ensure that all of the relevant factors have been considered as part of the decision-making process and to highlight any gaps that need addressing. When acting as an IMCA, I often attended best interests decision meetings, in addition to providing a report. This provided a good opportunity to ensure that any concerns were addressed and to raise any further queries that may arise as part of the process. It also often provided me with the chance to ensure that the client’s wishes and feelings were given full consideration. 

The IMCA should not express their own views as to what is in the client’s best interests and should only express the wishes and feelings of the client. At times this can be challenging as the client’s wishes may be entirely unrealistic but it is still your role to express this (even if your client has said they want to live on the moon!). 

Challenging decisions 

An IMCA cannot simply challenge a decision because they do not like the outcome, but in the event that the IMCA does not feels the correct process has been followed or that concerns raised have not been addressed then this can be challenged through the local complaint procedure. If issues cannot be resolved then it should then be referred to the Court of Protection. 

As with a paid RPR, an IMCA is not always required. If a person has family or friends who are appropriate to consult as part of the process then an IMCA will not be instructed. If, however, family and friends are not appropriate, or there are no family and friends available, then an IMCA should be instructed. 

In addition to the role of the IMCA set out above, an IMCA can also be instructed as part of the DoLS process in order to support a family or friend acting as RPR in their role or alternatively to fill a gap in a RPR being appointed. Further, there can be an overlap in acting as an IMCA and a paid RPR if a decision is required about, for example, whether a person should move into a care home in the long term. Each organisation is different and not all paid RP’s are also qualified IMCAs so cannot fulfil both roles. I personally feel it can be a particular advantage if an advocate is able to act as an IMCA and a paid RPR as it provides a more holistic approach and can provide consistency for the client. 

PARALEGAL

I am currently a paralegal at MJC Law. In this role I support the solicitors within the firm to progress cases within the Court of Protection. In the majority of cases we support the protected person (“P”) by their litigation friend which is often the Official Solicitor or a RPR. We also accept instruction from other parties, including family members. 

Observers may have seen paralegals in attendance at hearings and wondered what the difference is between them and the solicitors. Paralegals are usually not qualified solicitors and therefore must work under the supervision of the qualified solicitor who has conduct of the case. A paralegal does not have any rights of audience which means they are unable to speak in court and therefore require a qualified solicitor or barrister to be in attendance with them. 

The role of a paralegal can vary from firm to firm but in my role I become actively involved in cases under the supervision of a solicitor. My role includes the consideration of the papers and evidence, drafting applications and orders, corresponding with the parties to narrow the issues and also completing administration tasks as required. 

As part of my role I also attend on clients to discuss the proceedings and obtain their wishes and feelings. I must say that this is one of the best parts of my job. When I attend on clients I am able to utilise the skills and techniques that I developed as a paid RPR and IMCA to determine their wishes and feelings. I can then ensure that these are communicated to the other parties and the court in order to be considered as part of the decisions being made. 

The main difference between my previous roles and my current role relates to the position taken in relation to the person’s best interests. As mentioned above, in my previous roles I communicated the person’s wishes and feelings but did not have to consider what I thought to be in the person’s best interests. Legally representing the person concerned requires active consideration of this in advising the litigation friend.   

In order for a case to progress within the Court of Protection, providing the court is satisfied that the person lacks capacity, the parties must each decide what they consider is in the person’s best interests based on the evidence before them and communicate this position to the court to allow the court to make its determination. 

Whilst each of the roles have distinct differences in the ways in which they support P, they all share the ultimate aim of ensuring that P has a voice in the decisions that affect their lives. In my view, it is essential that any professional working with any person who could potentially lack capacity has an awareness of the roles discussed here and an understanding of when it may be appropriate to make a referral to an advocacy agent or to make an application to the Court of Protection. I hope that the Open Justice Court of Protection Project goes some way in boosting awareness and that blogs such as this will help others to gain insight into how the roles introduced by the Mental Capacity Act 2005 work in practice. 

Tory Smith joined MJC Law in January 2019 as a paralegal. She has just recently progressed on to be a trainee solicitor. MJC Law is a specialist law firm, offering advice and representation in cases involving the Court of Protection, mental health and social care and health law.

Photo by Chris Lawton on Unsplash

Unwanted amputation and its likely aftermath

By Monica Young, 23 December 2020

Editorial note: You can listen to Nageena Khalique QC, counsel for P talking about this case in a YouTube video. Her account of this case lasts for about four minutes starting at 18:50 minutes into the recording. https://www.youtube.com/watch?v=ML-PDLIkrSc&feature=emb_logo

The hearing that I attended on Thursday 17th December 2020 (Case: 13693467 before Mr Justice Mostyn) concerned a gentleman in his early 70s who had been admitted to hospital (against his stated wishes) as a result of painful gangrene in his foot. The vascular surgeon from the hospital had advised him that the foot would need to be amputated, to avoid the risk of developing life-threatening sepsis. The gentleman, Mr Smith (not his real name), refused the surgery and has been saying repeatedly that he would like to go home.

If Mr Smith has the mental capacity to make his own decision about amputation, then he is free to refuse surgery (whatever his reasons for doing so).  The first question then was whether or not he had capacity to make his own decision – and only if he does not can professionals then make a best interests decision as to whether surgery is in his best interests.  

A capacity assessment around ten days earlier, carried out by a vascular doctor and a community psychiatric nurse (CPN) who is also Mr Smith’s Care Coordinator, had concluded that Mr Smith lacked capacity to make a decision about amputation.  

It is a fundamental principle of the Mental Capacity Act 2005 that “A person must be assumed to have capacity unless it is established that he lacks capacity” (1(2), MCA

so the burden of proof is on those who claim (as his treating clinicians do) that Mr Smith lacks capacity to make his own decision.  It is also an underlying principle of the Mental Capacity Act that “A person is not to be treated as unable to make a decision merely because he makes an unwise decision” (1 (4) MCA).

At a Court of Protection hearing on 14th December 2020, it had been agreed to instruct an expert witness, a Consultant Forensic Psychiatrist, to provide an independent report relating to both capacity and best interests.  By the time of this hearing, she had submitted her written evidence (which public observers did not see) and was also in court to give evidence and be cross examined on it – as were Mr Smith’s Care Coordinator and his treating vascular surgeon.

Capacity

Mr Smith has severe paranoid schizophrenia which makes it impossible for him to understand what the cause of his blackened foot and toes is, or what the proposed treatment would entail.  His schizophrenia has caused him to believe that his painful and blackened foot/toes are not the result of a medical issue such as gangrene, but in fact the result of a malevolent individual who controls his body, movement, and pain. Mr Smith believes that his symptoms are caused by a gadget that is being controlled by his ex-neighbour. As a result, Mr Smith does not believe that amputation is necessary.  If the police were to arrest his ex-neighbour and prevent him from causing this harm, then his foot would return to normal.

It was agreed that there is sufficient evidence to rebut the presumption of capacity in this case and the parties had agreed before the hearing that Mr Smith lacked capacity to make decisions regarding his medical treatment.  This meant the court, specifically Mr Justice Mostyn, had to determine whether the amputation was in Mr Smith’s best interests. 

Best interests

At the beginning of the hearing, the applicant Trust (represented by Conrad Hallin of Serjeants’ Inn Chambers) took the position that below-knee amputation is in Mr Smith’s best interests.  This view was shared by the Trust that provides psychiatric care to Mr Smith, who were the second respondents also instructing Conrad Hallin.  

Acting on behalf of Mr Smith, Nageena Khalique QC (also of Serjeants’ Inn Chambers) stated that the Official Solicitor had not yet come to a settled view and wished to reserve her position until the evidence had been tested, There was, in particular, a concern about acting contrary to Mr Smith’s wishes.

The physical implications of amputation or no amputation were laid out quite clearly by the vascular surgeon. Amputation would mean no gangrene and likely recovery, albeit as an amputee. No amputation would mean a high risk of sepsis and death within 2-3 weeks. However, when considering best interests the court must take into account not only the clinical considerations but also the wishes and feelings of the protected individual, which extends to the psychiatric effect that the amputation would have. This is where I found the hearing to be the most interesting.

Two aspects of weighing up Mr Smith’s best interests: (a) how to balance sanctity of life and Mr Smith’s wishes not to have the amputation in arriving at a best interests decision; and (b) how to assess and take into account the likely effects of having amputation against his will on Mr Smith

(a) Sanctity of Life v. Mr Smith’s wishes

Counsel for P indicated that it was a finely balanced decision between amputation or no amputation, but I struggled to see how the balance between life or death could be finely balanced. To me it seemed quite simple:  the sanctity of life should prevail. Because why would it be better to die?  But that then opens up a big question about the end of life which is far more complex and philosophical. As counsel for the applicant very aptly said, ‘there are no very good outcomes in this case.’

The extent to which treatment should be given, contrary to Mr Smith’s explicitly stated wishes, is a difficult question to determine. The law requires the non-capacitous individual’s views to be fully taken into account by the judge when making a decision regarding treatment. Section 4 of the Mental Capacity Act 2005;

(6) He must consider, so far as is reasonably ascertainable—

(a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.

There is then a balance to be struck between affording the individual’s wishes adequate weight and ensuring that the individual’s right to life is fully respected. The question of how much weight should be afforded to an individual’s wishes was discussed at length in the case of Re N [2015] EWCOP 76, where Hayden J stated that: 

Where the wishes, views and feelings of P can be ascertained with reasonable confidence, they are always to be afforded great respect.  That said, they will rarely, if ever, be determinative of P’s ‘best interests.  Respecting individual autonomy does not always require P’s wishes to be afforded predominant weight.  Sometimes it will be right to do so, sometimes it will not.  The factors that fall to be considered in this intensely complex process are infinitely variable e.g. the nature of the contemplated treatment, how intrusive such treatment might be and crucially what the outcome of that treatment may be for the individual patient.  Into that complex matrix the appropriate weight to be given to P’s wishes will vary.  What must be stressed is the obligation imposed by statute to inquire into these matters and for the decision maker fully to consider them.  Finally, I would observe that an assessment of P’s wishes, views and attitudes are not to be confined within the narrow parameters of what P may have said.  Strong feelings are often expressed non-verbally, sometimes in contradistinction to what is actually said.  Evaluating the wider canvass may involve deriving an understanding of P’s views from what he may have done in the past in circumstances which may cast light on the strength of his views on the contemplated treatment. (Para. 28 Re N [2015] EWCOP 76)

I very much agree with the above passage, which identifies the need for balance but also highlights that the individual’s wishes should not always be determinative. There are two situations where I believe that the individual’s wishes should be less determinative. 1) Where the incapacitated individual is unaware of what would benefit their quality of life and 2) where the case involves crucial medical treatment, as I recognise the importance of following medical advice and assessing the medical impact on the individual. 

I believe that when an individual lacks capacity, it is difficult and potentially dangerous to afford them the autonomy which would be given to a capacitous individual. It is also incumbent in the Court of Protection’s role to protect vulnerable individuals, and this can mean it has to adopt a paternalistic role when deciding upon matters. Where a person lacks capacity and will die without crucial medical treatment, I believe that the wishes and feelings should be considered by the court (as required by law) but that they should not be determinative as it is necessary for the court to adopt a more paternalistic approach. 

This is the situation which we have here with Mr Smith: he lacks capacity and so it is the court’s role to determine what is in his best interests. It is also the court’s role to consider Mr Smith’s wishes and feelings. Although Mr Smith had indicated to health care staff that he did not want the amputation, his wishes and feelings were more complex than this. There was quite a lot of discussion of the fact that Mr Smith has in the past accepted treatment where people made the decision for him and then informed him that it has to happen. During the hearing Nageena Khalique asked Mr Smith’s community psychiatric nurse: “Might it be that Mr Smith finds the magnitude of the decision he is faced with so overwhelming that he would get some relief from others making the decision for him?” to which she said yes. Then the psychiatrist expert witness said there was no evidence that P wants to die, but that he doesn’t believe that he would die if he doesn’t have the treatment. Therefore, this is not a case of simple refusal of treatment versus an application for treatment, and it would have been wrong for the court to view it this way.

(b) How would Mr Smith react to amputation contrary to his wishes?

When the psychiatric doctor gave evidence, the judge questioned why her report did not reach a conclusion about what would be in Mr Smith’s best interests. It became apparent throughout the doctor’s evidence that this was due to the fact that Mr Smith’s schizophrenia made it difficult to say how he would feel about an amputation which he had expressly refused.

The doctor and community psychiatric nurse both gave evidence about the possible psychiatric effects but neither could say exactly how Mr Smith would react. It might be the case that if the foot and toes are amputated that Mr Smith feels as though the person who he believes is tormenting him has been eliminated too. Or, he could feel enraged by the amputation which he does not feel is medically necessary. 

As the judge said though, “Loss of a limb could be quite psychologically disturbing, but when you put that in the scales against DEATH!”.  

There could be practical as well as psychological consequences though.  The psychiatrist reported that Mr Smith had said, “If this is done against my will, I won’t have anything to do with anybody”, which she understood to mean that he would refuse to see the Mental Health Team.  If that were to happen, then, she said, “his mental health will deteriorate to the extent he’s detained under the Mental Health Act and he’ll then have further treatment imposed upon him against his will.”  She also pointed out that there would be additional complications in terms of meeting his care needs – since psychiatric nurses (were he to be detained) are not physical health nurses.

Under cross-examination by counsel for the Trust, the psychiatrist acknowledged that although Mr Smith had said he didn’t want to go into hospital, actually now he is there he’s quite settled, and accepting of basic care and treatment, including antibiotics and pain relief.  His life after amputation could potentially be quite similar to the life he had before he went into hospital – he was not an active person, and spent most of the time sitting in a chair and watching TV.   And although he had stated that he would “rather die than have an amputation”, that was in the context of his personal belief that he will not die.

Counsel for Mr Smith, who by the end of the hearing had come to the view that amputation was in Mr Smith’s best interests, stated that there “may be an underestimation of his ability to recover”.  She referred to the fact that he “wasn’t excessively knocked off balance when his wife died” a few years ago, and also took the view that although he might find a nursing home or care home setting difficult at first, he might be able to enjoy a wider range of activities than he was able to engage in before, in his own home.  She also said that he is currently “at sub-optimal levels of anti-psychotic medication” and that a trial of increasing his medication, or trying alternatives, might also improve his quality of life.

Both counsel for Mr Smith and counsel for the Trust referred to the strong presumption in favour of preserving life. Counsel for the Trust stated this:

The decision itself is not a happy one. Mr Smith may well have significant problems in his life, but the reality is that he has already had significant problems and that is not a reason to come to the view that his life is not worth living.  Mr Smith deserves to be allowed to live.” (Conrad Hallin).

What I learnt from the hearing

I was left feeling that the judge had ultimately made the right decision by stating that it was in Mr Smith’s best interests for the procedure to go ahead. I agree with the approach adopted by Mr Justice Mostyn, where the sanctity of life was favoured due to the fact that Mr Smith’s refusal was not a solid refusal and that there was evidence to suggest that he might come to accept the decision if it was made for him. As a result, I do not believe that there was a ‘fine balance’ between sanctity of life and Mr Smith’s wishes as the evidence came to suggest that in fact Mr Smith did not wish to die, favouring the order for amputation.

What resonated with me most from this hearing was the need to make decisions in complex mental health cases like this one where there is such a lack of certainty of the effect the judgment will have. It highlighted to me the seriousness of the responsibility which judges in Court of Protection cases hold – especially in this case where the decision, as counsel for the applicant described it, was essentially one of choosing life or death for Mr Smith.

I have had limited opportunities to contemplate the more philosophical questions surrounding life and death decision-making, and I believe that this case enabled me to find where I stand on quite a difficult point of discussion. I will be able to take this with me into my work, especially in the more common midwifery cases concerning fetal death that I deal with. I think that it will allow me to approach these cases with a new-found sensitivity.

I very much enjoyed watching this hearing as it allowed me an opportunity to really question the arguments being put and to get deeply involved in the analytical aspects of the case. I found myself going back to my law school days of picking apart a case and getting stuck in to the legal questions at hand. It was an incredibly stimulating and engaging experience overall.

Monica Young is a regulatory paralegal, specialising in fitness to practise investigations against nurses, midwives and other healthcare professionals. She tweets as @MonicaYoung_

Photo by Sandy Millar on Unsplash

An inappropriate placement and Article 8 rights

By Beverley Clough, 21 December 2020

After following the Open Justice Court of Protection Project with interest since it was launched in June 2020, I was really pleased to be able (finally!) to attend a hearing on Friday 18th December 2020.

The hearing I observed  (COP 13462068 Re ‘LW’, before Mr Justice Hayden)  follows on from a judgment earlier this year (https://www.bailii.org/ew/cases/EWCOP/2020/50.html ) which featured in a blog post on this site. It is one that I had been interested in at the time given the issues that it raised around capacity in relation to contact, care and residence in the context of an abusive and coercive relationship. 

Back in July 2020, the focus of the hearing was on LW’s strong desire to leave her current placement (which all parties agreed was unsuitable) and to return to live at home in her flat with her partner, M. However, there was very real concern as to the relationship with M – the blog post and judgment go into detail on this, but the history of the relationship and actions of M suggested that should LW return home she would be likely to be coerced into disengaging with care and treatment, resulting in significant deterioration in her physical and mental health. Against this, however, LW had appeared in court, facilitated by Hayden J, and made clear her strong wishes to return to live with M. The previous blog post at the time raised some really important questions, however, as to whether LW’s voice was really heard in this hearing. There was purportedly very little by way of probing LW’s view of her relationship with M or discussion of how she felt about his actions. 

Cases such as this then undoubtedly raise questions as to respect for LW’s autonomy, particularly against a backdrop of a very strong and clear desire to return home with M. In the judgment, Hayden J stated that “were I to permit her to return to her flat with MG, I would be exposing her to a regime of insidious controlling and abusive behaviour which is both corrosive of her personal autonomy and entirely irreconcilable with her best interests”. He found that LW lacked capacity in relation to the decisions as to contact, care and residence, and that M’s behaviour was coercive and controlling in line with the definition and examples contained in the Statutory Guidance on the Serious Crime Act 2015. The way forward from the judgment was to remove M from LW’s flat and to cease contact. As Hayden J outlined at para 14- “The pace of progress will very much depend on LW’s reaction to this judgment… progress must be at LW’s own pace. It is LW’s needs that should drive the timetable not the exigencies of the litigation.

The hearing today then arose from the pace of progress – or lack thereof. It was prompted by the Official Solicitor’s concerns about delays in removing M and progressing towards the end of goal of getting LW home. A number of really interesting issues arose during what was otherwise a fairly short hearing (just over an hour) which I’ll consider in turn: LW’s Art 8 rights and the powers of the Court in the face of sluggish Local Authority responses; LW’s progress after contact with M ceased; the unsuitability of other options: the interaction with housing law, and the Covid context.

What was really striking at the outset of the hearing was Hayden J’s unequivocal frustration at the lack of progress some 5 months after the initial hearing. He stated that he “could not have made it clearer that that he wanted this man out of the house.” Given that at the time of the initial judgment, there was broad agreement across the parties that LW’s current placement was wholly unsuitable for her and indeed this had been the view for at least the previous 12 months, it was deeply frustrating to hear that LW was still in the unsuitable placement. Nothing had changed. M was still in LW’s flat, and, it transpired, he had also destroyed the property to the extent that It is left in a state of total disrepair, with significant work to be done to make it habitable again. 

What surprised me, however, was the way in which Hayden J then invoked the Human Rights Act 1998, and Article 8 in particular, to suggest this situation breaches LW’s convention rights and that damages will necessarily flow to reflect this. Later, it was suggested by Hayden J and Fiona Paterson (representing LW on behalf of the Official Solicitor) that such damages could, serendipitously, be enough to repair LW’s flat. The reason that this very strong response by Hayden J to the situation surprised me was because it seems that it had not been argued by counsel: he stated that he can imagine counsel hadn’t expected the Human Rights Act to be invoked by him! But it does demonstrate the severity of the delay in getting LW back home and the gravity of the situation that she is now in, being in a wholly unsuitable placement. The seriousness of this and the impact on LW was later reiterated by Hayden J where he took issue with a statement in the position statement for the Official Solicitor that this delay had not caused any tangible harm to LW. As he suggested, any delay is inimical to LW’s welfare, such is her right to liberty and to choose where she lives.

Reference to the Human Rights Act seems to have been of real utility in aiming to jolt the relevant Local Authority into action- Hayden J reminded the parties that these costs and damages will linger over someone’s head and so movement is needed. Whilst he made no declaration as to breach of the Human Rights Act at this hearing – primarily because the Local Authority did not have counsel available to represent them and that this may cause unfairness – it seems to me that these strong statements and reliance on human rights arguments here will concentrate minds on ways forward.

I have often been cynical as to the power that the Court of Protection has/may have in these sorts of situations, where Local Authorities or Clinical Commissioning Groups fail to act quickly. Today, however, I was really heartened by the robust nature in which LW’s rights were firmly centralised right at the outset by Hayden J. I’ve written in a blog post here about the way that the Court of Protection’s hands can be tied by the options that Local Authorities or CCGs are willing to place on the table. The case of NYCC v MAG   [2015] EWCOP 64 is illustrative of this. It involved a man living in wholly unsuitable accommodation, which he had been in for around 10 years and which was too small for his wheelchair, resulting in him having to crawl around and causing painful bursitis as a result. NYCC sought declarations that there were no other suitable alternative places to live and so his deprivation of liberty at the current placement ought to be authorised. At first instance, Glentworth DJ refused to authorise MAG’s deprivation of liberty, necessitating that other more suitable accommodation be found quickly to avoid NYCC breaching MAG’s Art 5 rights. However, the case was quickly appealed, and Glentworth DJ’s approach overruled here. It was seen as (among other things) placing undue pressure upon NYCC to direct their resources in a particular way, and wrongly engaging Art 5 questions. It went against settled case law which establishes that the Court cannot force authorities to use their resources in a particular way – they have to choose from available options.

This rule – about choosing from available options – was plainly stated in the case of MN [2013] EWHC 3859 (COP) and was reiterated as the litigation travelled through the courts to the Supreme Court in 2015 (see SC judgment here). Again, this case raised questions as to whether care arrangements offered by local authorities or CCGs could be authorised as in somebody’s best interests despite them being viewed as unsuitable or deficient. Disappointingly, from my perspective, the Supreme Court judgment re-affirmed the principle that the Court can only choose between available options i.e. options that local authorities or CCGs were willing to offer. As Munby LJ had put it in the Court of Appeal (judgment here), the Court must choose between the lesser of two evils and sometimes endorse care or support as being in somebody’s best interests when other (unavailable) options might be preferable. 

However –  and importantly for the case today and the call to LW’s Art 8 rights by Hayden J – Munby LJ pointed to areas where there is scope for an exception to this general approach and for further pressure by the Court or Protection if P’s human rights are being interfered with by the Local Authority. He stated that:

The court cannot be compelled to accept the local authority’s plan, any more than it is obliged to accept the plan propounded by a local authority bringing care proceedings under Part IV of the Children Act 1989. On the contrary, the court is required to act in the best interests of the vulnerable adult and must not – is forbidden by s 6 of the Human Rights Act 1998 to – endorse a plan which in its view involves a breach of Art 8.”  (Para 166 emphasis added)

https://www.bailii.org/ew/cases/EWCA/Civ/2015/411.html

This is interesting for the case today and the extent to which there is any scope for the local authority to push back against any concerns about the Court of Protection here over-stepping their authority. Hayden J made a clear argument here as to the engagement of LW’s Art 8 rights in her current placement, and it seems that this may take this case into the realms of the exception carved out in MN. Indeed, Fiona Paterson suggested that whilst she had not had time to prepare for the invocation of the Human Rights Act by Hayden J, she could see a case that it might fall within this exception. As there was no counsel for the Local Authority in the hearing today, no declaration was made by Hayden J but it remains to be seen how this aspect of the case plays out when the Local Authority do respond. 

What was also really interesting for me about the case today was the glimpse that we got into how LW was progressing following the ceasing of contact with M. Despite her strong feelings as presented in the initial hearing back in the Summer, it was reported that LW has been doing well: she has been happy and engaging with her medication, and has improved her road safety awareness. There were also positive updates on LW seeking to make contact with relatives who had unfortunately been cut off as a result of M’s coercive behaviour. As Hayden J said  “ with the malign influence of M gone, LW shows greater potential for rehabilitation than professionals dared previously hope for”. He  pointed out that hindsight is a wonderful thing, but he has seen other cases where such interventions in coercive relationships can have such positive outcomes once the source of control is removed.  This of course is very tricky ground to navigate, as other bloggers’ reflections after the first hearing here attest to. 

Another issue that arose in the hearing was the adequacy of a proposed step-down interim placement that the Local Authority had suggested for LW as a way to get her out of her current unsuitable placement, until she can return to her flat (which is badly damaged, and M is still there).   The concern was that this proposed placement had been the target of numerous allegations of abuse and bullying, had not been inspected by the CQC for over 2 years, and had over 40 residents. Hayden J roundly dismissed this option: “she is not going there” he repeated.  Hayden J took this opportunity to rightly remind us of the fact that whilst there are many good care homes and carers, sometimes that which the state has to offer “is not a panacea”. He quickly returned the focus of the hearing to LW’s flat, and her wish to return there.

One thing that I wondered throughout the hearing, and which wasn’t fully addressed (primarily because the Local Authority was unrepresented) was why M was still in LW’s flat. Mr Justice Hayde said he was “frankly appalled that this man is still living there and is destroying and devaluing the property”.  It seems there was some uncertainty early on as to his legal status there, but Hayden J strongly reiterated that M was a bare licensee with no legal status or right to be in the property. Moreover, his potentially criminal actions- damage to the property, and the coercive and controlling behaviour- should surely facilitate M’s removal.  “She’s in a profoundly inappropriate place”, said Hayden J, “and nothing at all – frankly, nothing at all – has been done for five months. Let’s call it what it is!”.  Why there has been stalling over this was not fully discussed in the hearing (although I understand some relevant information was  in the bundle) and I would have liked to have known more about what efforts (if any) had been made and why they failed. But Hayden J expressed his “enormous disappointment” that “so little has been done since I gave a judgment which might have stirred any local authority to activity, given what I have to say, rather than perpetuate inactivity and leave LW in an establishment which is manifestly not in her interests”.  He asked that the order should be constructed “on the basis that I am hovering hawk-like over it to see when that property will be vacated”.  This was a really important reminder however of the way that mental capacity law does not sit in a vacuum: it interplays not just with areas of criminal law, social care and public law, but also housing law. 

The discussion around M’s residence status though was also an important reminder of the context of the pandemic (indeed, the reason the hearing is virtual) as there was some uncertainty as to whether the stay on possession orders brought in in response to Covid was still in force and what bearing that may have on the ability to remove M. There was also a brief discussion as to whether LW was in the first tranche or second tranche of those due to be vaccinated against Covid. This brought home for me the very real, and the very current, circumstances of the case which can all too easily be forgotten when we just read legal judgments.

The next hearing will be listed for the first available date after 13th April 2021.

Beverley Clough is Associate Professor in Law and Social Justice at the University of Leeds and can be contacted @bev_clough

Photo by Tom Crew on Unsplash

%d bloggers like this: