A Basic Guide to the Court of Protection

By Alex Ruck Keene – 15th July, 2020

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

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

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

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

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

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

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


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

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

He tweets @CapacityLaw

British Sign Language Interpretation in the Court of Protection

By Tony Evans – 14th July 2020

Deaf people who use British Sign Language (BSL) are entitled to an interpreter in court.  But what does an interpreter do? What don’t they do? Who needs an interpreter and who does the job?

I am a registered interpreter with the National Registers of Communication Professionals working with Deaf and Deaf/blind people (NRCPD). Registration is proof of qualifications, ongoing CPD, a commitment to a code of conduct/ethical principles and accountability through a robust complaints procedure. Unfortunately, it is not compulsory to register and the title of ‘interpreter’ is not protected. Thankfully, the Ministry of Justice is committed to only using Registered Interpreters.

My work experience over nearly 30 years is very varied including the courts, the police, theatre, local government, Social Services, mental health services, funerals, and probation meetings.  It has not been unknown for me to do High Court one day and pantomime the next day. One judge actually said, “Not much difference I imagine!”.

In general terms, an interpreter works in two languages to allow parties to communicate effectively. (In my case, my first language is English and my second is BSL. For some of my colleagues, they have grown up in a Deaf family with BSL as their first language and English as their second.) Interpreters are not there ‘for’ the Deaf person. They are there because the parties do not all use the same language.

There are many styles of interpreting, some styles (or models) suit particular interpreters, clients, assignments better than others. The underlying principle though, is that we facilitate communication. When we work, we are not ‘helpers’ (though we may be helpful) or ‘friends’ (though we may be friendly). We need to be strictly impartial and there are times when we need to be compassionate. Importantly, we must always work within our skill set and be willing to declare if we feel someone else would be better suited for the assignment. Often (normally for court work) we work in pairs to support each other, improve accuracy and avoid fatigue.

In the Court of Protection, the interpreter(s) can sometimes be seen as an intermediary – we are not. If somebody has a linguistic barrier to access, but they are judged to have capacity, they can make their own decisions, then all parties need an interpreter to allow communication to happen smoothly. If ‘P’ is deaf, uses sign language but also has other issues regarding making decisions and understanding the proceedings etc. then they may require an intermediary: a person with a unique set of skills who should be involved at various stages of the proceedings and will have assessed the communication abilities of the vulnerable person they are working with.  The interpreter is not the intermediary. The interpreter is the access tool, and throughout the course of events, different interpreters may be used depending on availability. It is essential that an intermediary working with a Deaf client should understand sign language. How else can they assess P’s understanding? They are uncommon – but Deaf Registered Intermediaries do exist.

There’s often an assumption that if someone is d/Deaf they’re “non-verbal” and they’re seen at a lower end of capacity, which is obviously not always the case.  Equally, it can be assumed that the presence of an interpreter will ‘solve’ any communication issues. Early on in my career I remember thinking, “I’ve got to make this person sound lucid” and I’d make sentences out of the few signs that the person produced. In hindsight, I realise that the impression I gave the Court was wrong. Now, if I find myself in this situation, I will say to Courts, “I will give you what I am given”. Sometimes that is, “Tree. Swimming pool. Tomorrow” which may not make a lot of sense, but that’s what they’re giving me. As interpreters, it’s easy to feel a responsibility to make the signs we see make sense. Sometimes, it doesn’t make sense, and we can do more harm by making it make sense.

The court environment can be difficult, and the current pandemic has created some extra complexities. Working via video link can always cause problems, but add to that the need for parties to see a BSL interpreter and limitations regarding who can see who on the screen and there is potential for a breakdown in communication.

That said, I did a remote hearing recently.  I joined via Skype but also had a separate platform running so that the deaf person (P) could see me and I could see them.  P was sitting in their kitchen at home, looking at me on a telephone screen. P’s parents were there, and they had the computer screen up with Skype so they could see the court. The court – through Mum and Dad’s computer screen – could see P, looking at me on the phone, and they could see P nodding at the right time and things like this: so there was a nice connect without it being overwhelming. All parties felt reassured that communication was occurring smoothly. I think this situation was actually better for P than it would have been going to court. When the Skype call finished and the court shut it down, we were still in touch via phone; so I was able to say to P, “Are you clear about what’s happening? Was everything okay with the communication?”, with the intermediary present at ‘their end’.  So that little debrief session took place in the same way as it would in person as you walk out of the court.  Those brief interactions – the human niceties, are often lost in a video relay world.

It’s really important to point out that there was an intermediary for P as well.    

As interpreters, we should never be seen as intermediaries. (Did I mention that already?) That said, we should not just sign what we hear with the view that if people don’t understand, that’s not our problem. It really is our problem.  It really should be our problem. Our job, our goal, our reason for being there is to enable good communication. If that can’t be achieved for some reason, we have a duty to inform the court. An intermediary can and should meet P before things come to court. They could produce a report regarding good communication strategies for the court and those involved. All of this should contribute to smooth communication. It’s very much a team effort. The common goal is clear communication and best understanding. There may be times when I say to the intermediary “Can I just check: if I explain it like this, … will that be better?” or ask for clarification regarding P’s understanding of something. 

One of my worries regarding remote court interpreting is that interpreters are booked via agencies and just join the court with no preparation Often there is no information on the background of the case or the people involved. There is sometimes good reason for this (confidentiality, avoiding bias)  and it must be handled carefully, but as professionals we know what we need and it would be nice to think that we could ask an agency or have a pre-hearing meeting to discuss any issues.

In these ‘new normal’ times, there is less chance of the court using a local interpreter, so it is more likely that the interpreter doesn’t know P, is booked by an agency that doesn’t know P or the interpreter, and you end up with a very sterile clinical procedure, where somebody’s just signing at a person via a screen, not something they’re used to, and the court maybe can’t see the deaf person or the deaf person can’t see the court.  Remote hearings really do need extra care, as compared with the in-person interpreting that we’re used to. I implore lawyers, intermediaries, agencies and interpreters to work together in the best interests of those concerned in a hearing.

Anthony (Tony) Evans is a British Sign Language/English Interpreter who works from his home near Cardiff. Tony tweets @Dukevfr


Hunger Striking for his Identity: Autonomy, Capacity, and Justice

By Celia Kitzinger with Jo Beswick, Jack Broom, Simon Bruce, Moira Hill, Emma Rich, Vicki Sudall, and Adam Tanner – on 13th July, 2020

Editorial Note + Update

The judgment from this hearing has since been published here: Avon and Wiltshire Mental Health Partnership v WA & Anor [2020] EWCOP 37 (16 July 2020)

There is now a decision from the Court of Appeal: In September 2020 WA’s application to have his biometric age changed to the age he believes himself to be was refused by Upper Tribunal Judge Pitt. His appeal against that decision has now been dismissed. Judgment was handed down on 12 January 2021 and can be read in full here.

—————-

When you ask to observe a hearing in the Court of Protection you never know quite what you’re going to be exposed to. 

This hearing was listed simply as “COP 13617268 Re WA before Mr Justice Hayden”.

Only after requesting access did we learn that the hearing was scheduled to last for three days, and in fact it continued into a fourth.  Celia, Moira and Adam attended the entire hearing: others attended only parts. (Jack was only able to be there for the first day.)

It turned out to be a harrowing experience. It concerned a life and death issue for a someone who’d been tortured and sexually abused and was now engaged in a hunger strike by way of political protest.  It covered fundamental issues, central to all of us as human beings: the way we define our own identities versus the way we are defined by the state; at what point strong beliefs and values, when not shared by others, become evidence of mental illness; why sometimes the decisions we feel compelled to make can hurt the people we love (and even offend against our faith); how to balance the wish to save someone’s life with respect for their autonomy. 

We approached the hearing from very different personal and professional perspectives: for many (excepting only Celia and Adam) it was the first COP hearing observed.  We are: a first year law student (Jack), a PhD researcher in mental capacity law (Adam), a law lecturer (Jo), a practising lawyer (Simon), a student midwife (Emma), a nurse (Vicki), a former nurse of 30 years and (now) end of life coach (Moira) and an academic psychologist with a decade of research in medical treatment cases concerning vegetative and minimally conscious patients (Celia).  Most of us (numbers grew as the days went on) were grateful to be part of a private chat room convened during the hearing, where we were able to comment on what was going on and check out our understandings with each other, as well as exchange information as needed (e.g. what’s a COP3?).  And after each break: “Are you in yet?  Have they started – I’m still in the waiting room.”

After giving a background summary to the case, and the decisions before the court, we will describe our own (sometimes shifting) impressions and responses to what we saw, and reflect on what we learnt.  We do not have access to the court bundle or other documents before the court and although this is as accurate as we could make it, it should not be relied upon for matters of fact or law.  There will be a published judgment which should be referred to for this purpose. 

Background

The hearing we observed was about a young man, Mr A, so committed to an aspect of his identity that he is willing to starve himself to death rather than have it taken away from him.  He is on hunger strike as part of what the judge, Mr Justice Hayden, described as a “crusade for the reinstatement of his own identity”.

We heard, over the course of three and a half days, that Mr A left his native Palestine a decade ago after his parents had been killed and he had been tortured in attempts to recruit him as a suicide bomber for Hamas.  He eventually arrived in England after enduring horrific events in Italy where he was sexually abused by a foster carer who was supposed to be looking after him, and his friend was killed in front of him.  He arrived here without an official birth certificate, but documents given him by his grandmother recorded him as having been born in 1994, and he believed himself to be then 14.  He was fostered by loving and supportive parents (referred to in court as his “mother” and “father”) and started school in year 10 with others of his age.  

But the Home Office decided, based on biometric tests, that he was 5 years older than he said he was, and issued him with a new date of birth.  (Information about how and why the Home Office assesses immigrants’ age here.). From the outset Mr A found this impossible to accept.  He would not learn the new date of birth and found it unbearable to report it in official contexts, e.g. in relation to a driving licence, bank records, and job applications.  

He challenged the Home Office age identification several times and was given legal advice in March 2020 that suggested that his prospects of successful challenge were small.  He started a hunger strike as a form of political protest. He also issued judicial proceedings some 8 weeks later.  The revised date of birth assigned to him by the Home Office makes no difference at all to his immigration status: he was granted indefinite leave to remain in 2019.  The only difference it would make to his state-related benefits if the Home Office accepted his date of birth would be that he would not be eligible for a state pension until 5 years later than currently.

His mother described how she initially cared for him at home during his hunger strike until he became too unwell. He was sectioned in April and again in May(detained under first s2 and then  s3 Mental Health Act), with a treatment plan including insertion of a nasogastric tube to deliver nutrition and hydration, antidepressants and Electro Convulsive Therapy (ECT).  Insertion of the nasogastric tube against his will left him curled up in a foetal position, weeping uncontrollably because “it was an act of force, against his will” (Mother).  His father reported that “a GP who saw him realised he was wrongly sectioned at that time and it was quickly removed.”  He was subsequently found to have the mental capacity to make this decision (to eat or not to eat, and whether or not to have a feeding tube) for himself.  His counsel said at one point that all but one of the 18 assessments of his mental capacity found him to have capacity to make this decision. The most recent assessment found capacity to be “borderline or possibly lacking”.

Since issuing judicial proceedings, Mr A has consented to (or accepted) a nasogastric tube through which he is currently receiving about 600 calories a day, plus another 200 calories via additional dextrose in IV fluids (less than half of what he needs).  He also takes occasional nutrition by mouth including Fortsip, yoghurt and dates.  His current BMI is 14 which is “just on the cusp of starting to threaten health and life”.  He is accepting a limited amount of nutrition now only so as to be still alive to learn the outcome of the judicial review. 

According to the clear and succinct introductory summary from Fiona Paterson, counsel for the applicant (the Trust responsible for Mr A’s psychiatric treatment) “He’s made it quite clear to those who look after him and those who love him that if the Home Office refuse to amend his biometric age he will return to the hunger strike and bring about death.”

The hunger strike is widely recognised as a weapon of last resort by the powerless and disenfranchised.  There have been more than 3,000 hunger strikes in UK immigration centres since 2015, according to Home Office figures.  What makes Mr A’s hunger strike distinctive is both his determination to pursue it to death if need be (many are ‘symbolic’ refusals of food for not much more than 48 hours) and the fact that, whereas other hunger strikers are protesting indefinite detention or demanding leave to remain in the country, his own immigration status is entirely settled and secure. 

The decisions before the court

The court was being asked to decide whether Mr A had the mental capacity to make his own decisions about his intake of nutrition and hydration, and if not, to decide whether it would be in his best interests to deliver clinically assisted nutrition and hydration without his explicit consent. We watched as the judge and the advocates wrestled with key questions about both capacity and best interests and raised these questions with expert witnesses and family members.

Capacity

In order to decide that Mr A does not have the mental capacity to make his own decisions, the court would have to find (in accordance with the Mental Capacity Act 2005) that he has “an impairment of, or a disturbance in the functioning of, the mind or brain” (s. 2(1)) and that this causes him to be unable —

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means). (s3(1) MCA 2005)

It was not entirely clear what “impairment” or “disturbance” of mind or brain was being invoked as the basis for engaging s. 3(1) (the functional test of capacity).  In most of the hearings I’ve observed this has relied upon a diagnostic category (‘dementia’, ‘learning disability’, ‘schizophrenia’).  Although Mr A has some of the symptoms of Post Traumatic Stress Disorder (PTSD) – and it was agreed that he has suffered from this in the past – none of the experts who have examined him finds that he currently meets the diagnostic criteria for PTSD.  Nor is he currently clinically depressed.  One possibility, offered by two psychiatrists called into court as expert witnesses, was that Mr A’s impairment of the mind is that he has an “over-valued idea” – the value he places on his correct date of birth – which results in “abnormal and over-rigid thinking” and “maladapted behaviour”. 

If the judge were to accept that either ‘sub-threshold’ PTSD symptoms or the holding of an ‘over-valued idea’ constituted an impairment of Mr Y’s mind, then the next question is whether this impairment prevents him from making his own decisions about nutrition (with reference to s. 3(1) (a)-(d) quoted above).  There was no dispute, I think, about his ability to understand or retain information, nor about his ability to communicate it – we heard him do so articulately and powerfully in court.  The hesitation over his mental capacity concerns his ability to ‘use or weigh’ information relevant to his decision. According to the two psychiatrists, his ‘over-valued’ idea about the importance of his correct date of birth causes an inability to weigh information about the Home Office. Both these psychiatrists found, on the balance of probabilities, that Mr A lacks capacity to make his own decisions – but agreed that the decision was “on a knife-edge”. 

By contrast, a psychologist (an expert in PTSD) who also assessed him said that he did have capacity to make these decisions. She found him to be “incredibly resilient”, with a “strong sense of integrity’ and of “what’s right and wrong”.  She recognised the hunger strike as a “logical outcome” given that “he’s tried everything else with the Home Office”.

If Mr A is found to have capacity to make his own decisions about nutrition, then it is up to him whether or not he eats and up to him whether or not he accepts nasogastric feeding.  Everyone around him – his family and health care team – can support and encourage him to accept nutrition but nobody, by law, can compel him.  The World Medical Association unequivocally condemns force-feeding of hunger strikers as “unethical’, and as “a form of inhuman and degrading treatment”.

Best Interests

If the judge were to decide that Mr A lacks capacity to make his own decisions about nutrition, then he would need to make a ‘best interests’ decision which takes into account Mr A’s wishes and feelings (although these are not determinative).  There is no question about what his current wishes and feelings are: he wishes to continue his hunger strike – to death if necessary – unless the Home Office recognises his correct date of birth. 

None of the parties (or witnesses) said that it would be in Mr A’s best interests to use physical or chemical restraint to compel him to receive nutrition against his wishes: that had already been tried, with devastating results, when he was sectioned.  But there was a view that “gentle persuasion” could and should be used, with mild sedation to manage anxiety about (for example) reinsertion of a nasogastric tube.  The meaning of “gentle persuasion” was extensively explored with reference to a Treatment Plan that was several times revised and circulated to the court (but which we did not see).  My understanding is that the final version before the court includes physical treatment without Mr A’s agreement or assent – and that it goes further than that and includes treatment even if Mr A says “No”.  In the face of an explicit refusal, treatment could be given unless Mr A physically resists, for example by pulling out the tube or trying to prevent its insertion by physically lashing out. (It’s possible that I’m wrong about this – we did not see the Treatment Plan and it was re-written several times during the course of the hearing, and amendments were still being suggested in the submissions on Day 4.)

Both psychiatrists and the psychologist believed that he might change his views if he engaged with appropriate therapy. They believe that psychological or psychoanalytic therapies are in Mr Y’s best interests and that if he were able and willing to engage in such therapies he may no longer wish to continue his hunger strike because he would have been helped to have a more  ‘flexible’ approach concerning the importance of his date of birth to his overall identity.  In order to provide this therapy, nutrition also needs to be provided.  “We’re running out of time here. He’s getting more and more poorly, more and more malnourished. If we’re going to offer therapy, we have to offer nourishment.“

But Mr A is clear that he doesn’t want more nutrition and doesn’t want therapy: he described it as “wasted ink”.  He said, “I need my identity. I don’t need more than that”.  

There is a clear additional concern that, as Mr Justice Hayden put it, “any compulsion in the Treatment Plan runs the very real risk of reawakening the trauma of his earlier experiences” – something which has to be taken very seriously in considering his best interests.   As counsel for the applicant said in introducing the case, “Everyone would wish to avert a tragedy but persevering with treatment plans that reawaken old traumas may serve no purpose”, to which the judge added “and may be positively harmful”. 

Mr Justice Hayden also raised (repeatedly) a question as to whether the Treatment Plan would be any different whether Mr A were deemed capacitous or not – given that if he has capacity he is not consenting to treatment, and if he lacks capacity he is not assenting to it: it would be unlawful to give it in the former circumstance and arguably contrary to his best interest in the latter.

Day 1: Monday 6 July

Joining the virtual court

For many people this was a new experience – and there’s always some anxiety associated with joining an online video-platform successfully (this one was Microsoft Teams).

I was a first-time attendee at an online hearing but had become interested after seeing tweets from @KitzingerCelia. I found the initial waiting rather nerve wracking, being met with the message “We’ve let people in the meeting know you are waiting”. Although the email had directed I should be logged in by 11.30am, it was 12.06 when everything burst into life, finally vanquishing my doubts that I had done something incorrectly. The clerk asked that we should show our faces initially to help establish who was present. After that I was able to relax.

Jo Beswick

The Transparency Order

After a brief introduction to the people attending the court, the hearing opened with a discussion about the Transparency Order – which routinely states that nothing can be published that identifies or is likely to identify that the person at the centre of the case, and their family, are the subject of Court of Protection proceedings.  Stories about Mr A, we were told, had already been published by the BBC and the Guardian newspaper.  This means it would be “extraordinarily easy to identify him now because of what’s in the public domain”.  These existing publications don’t name him, don’t refer to the critical state of his health, and don’t refer to this hearing, but the details of his story are singular enough to make identification easy.  Mr Justice Hayden reflected aloud for a while about the importance of freedom of expression in reporting on a case as it unfolds, especially in a case which is a political “crusade”, but accepted that the Transparency Order should remain in its usual form for the time being.  This severely limited what we could say publicly – although I did post a thread about the hearing (omitting all details about the hunger strike and the Home Office) on the evening of the third day (here), which attracted a great deal of commentary – and a revised Transparency Order has subsequently been issued.

The opening summary gave sufficient information that two of us were able to google and locate both the Guardian article and the BBC report and to share them with others in the chat room. 

Listening to Mr A’s voice

Mr A has been found to have capacity to litigate this case: he was the first respondent and had instructed his own solicitor and counsel (Katie Scott).  He wanted to participate in the court proceedings from his hospital bed and to address the judge – but although he was willing to be seen by the judge (in fact, had already met him), he did not wish for members of the public to see him in his current state.  An enormous amount of time, care and attention was devoted to making this possible and it eventually happened by Mr Justice Hayden using a different video-platform (Zoom I think) to speak with Mr A, while remaining on Microsoft Teams, so that we could all see the judge talking with Mr A, and hear Mr A’s statements but without seeing him.  They talked for about half an hour.  This conversation made a huge impact on observers, in part because “we could all appreciate A as the person he is and not just some faceless entity” (Vicki Sudall)

From our chat room:

I think it’s fantastic that they are trying so hard to make sure that Mr A has his dignity maintained

Emma Rich · Mon 12:59 PM

True example of an holistic, person centred approach – sadly these are words that can be said often but not always achieved.

Moira · Mon 2:34 PM

The judge is very natural and down to earth and seems genuinely interested in P as an individual

Vicki Sudall · Mon 2:36 PM

The Supreme Court in Aintree v James [2013] UKSC 67, and subsequent case law, has made it clear that a patient’s wishes and feelings are key in making a decision and should be heard in their proceedings.Mr Justice Hayden exemplified precisely that. In this hearing, the Court was able not merely to have a statement read aloud by Mr A’s counsel, but Mr A instead joined the call and spoke directly to the Court for an extended period. This discussion between Hayden J and the patient was informal, light-hearted and was most of all human and heartfelt. Hayden J asked the pressing questions about how the patient reconciled his wish to die with his faith and why he had refused nutrition; however, more importantly, he sought to understand and learn about Mr A, he wanted to know his favourite food, his prior life and about his family. It is cases such as these which indicate the need for excellent judicial oversight with judges who can understand the issues, see inconsistencies and press to find the real issues.

Adam Tanner

One vivid memory of the case was when the judge asked one question to Mr A. It was arguably the most important question of the case, not from a legal perspective, but from a human perspective. The judge simply asked Mr A, “what would you do if your date of birth wasn’t recognised?” The reply from Mr A was striking – along with the silence afterwards: Mr A simply replied “I will die.  The silence from the judge was telling of the seriousness of this case. Justice Hayden is the vice-president of the Court of Protection and he is no doubt used to hearing evidence of a sensitive nature due to his role. Mr A saying he wants to die if his date of birth isn’t recognised was incredibly difficult to hear, so I can understand why Justice Hayden did not know what to say in response. Hearing a fellow human being say they would die is the most surreal thing and I felt a great deal of sympathy for Mr A. During the time I heard Mr A speak, I heard of how he had an incredibly tough childhood after fleeing his home country and how his date of birth is about his identity. It was hard to comprehend what Mr A has gone through and I feel like the fact he will die for something that means so much is incredibly sad.

Jack Broom

Mr Justice Hayden questioned Mr A in a compassionate, thoughtful and respectful manner – and engaged on a very human level. He showed true empathy as he acknowledged Mr A’s extremely difficult past yet spent as much time as needed focussing on the positive aspects of his life, what he felt he had achieved, and his wishes for the future.

Moira Hill

Witness Statement from Psychiatrist

Many of us struggled with the evidence provided by the first expert witness called in this case, who had concluded that Mr A lacked capacity to make decisions about his nutrition.  She stated that his preoccupation with the Home Office and his date of birth was an impairment of mind.  It “overwhelms” his ability to weigh information and leads to ‘concrete’ and ‘inflexible’ thinking and maladaptive behaviour.  For example, he had wanted to work at the Nightingale hospital “but that was scuppered because he couldn’t bring himself to give the wrong date of birth” to officials, who therefore couldn’t find evidence of his existence.   She was unable to explain counter-evidence such as the fact that Mr A had willingly signed a legal aid form with the wrong date of birth on it in order to have his own representation in this court case.  Nor did she have a response when asked: “Isn’t your real complaint not that he’s failing to use and weigh information but rather about the weight he gives to his date of birth and the pain it will cause him to live with the wrong date of birth attributed to him by the state.”  For this psychiatrist, Mr A’s concrete preoccupation (“every single negative thing is wrapped up in his date of birth”) is a barrier to his ability to weigh and balance.

From our chat room:

Having a clear view and passionate desire to achieve something is so often pushed aside as a mental illness or something of the like.

Adam Tanner · Mon 3:16 PM

So Emily Davidson who threw herself under a horse to protest government’s refusal to allow women to vote, and suffragettes’ hunger strikes were all evidence of an impairment of the mind or brain – a preoccupation with women’s right, so extraordinarily outwith normal thinking at the time. A fixed preoccupation of delusional intensity!

Celia Kitzinger. Mon 3:16 PM

The psychiatrist isn’t convincing me of her conclusion that he doesn’t have capacity. It just seems that she disagrees with his decision. From a lot of the reports they have discussed it seems that he can understand and weigh up information to make decisions.

Vicki Sudall · Mon 3:54 PM

Yes, exactly that, it strikes me that it cannot be grasped how much his date of birth means to him and so everything that follows for them must be illogical also

Adam Tanner · Mon 3:54 PM

I don’t understand it! I completely get where he was coming from when he explained the importance of his DOB to him. It’s part of his identity which is all he has left from his birth parents! How can they not get that! 

Emma Rich · Mon 3:56 PM

The main basis for the psychiatrist concluding that Mr A lacked capacity was his fixation on his date of birth. The psychiatrist seemed to find that this “fixed belief” or ‘over-valued belief’ amounted to some sort of delusion, or disordered thinking and it was this which amounted to a lack of capacity as it prevented him from giving weight to other factors in making his decision.  The psychiatrist claimed that his date of birth is the only thing he cared about and this meant he was unable to weigh it against the fact that it would result in his death or consider the effect it would have on his family.  I found the psychiatrist’s reasoning to be flawed.  In determining capacity, it only matters whether Mr A understands and retains the information and can use and weigh it in making a decision. The fact that Mr A values a particular factor over all the others, is irrelevant to the issue of capacity. It is not for others to decide what should be important to Mr A – that would reflect their values, not his. On further questioning by both Justice Hayden and Mr A’s barrister, the psychiatrist acknowledged that her own values may have influenced her assessment, but she did not concede that her assessment was wrong.  Mr A feels strongly that death would be preferable to the indignity of being stripped of his identity. Although this may seem irrational and the consequences are extreme, that does not mean he lacks capacity. People are allowed to make “bad” decisions and we must accept their autonomy to do so. That can be difficult for many healthcare professionals to accept but we must remember that it is not our role to save patients from themselves. We may disagree with them, we may think they are irrational, we may try to persuade them, but ultimately if they have capacity, we must accept their decision. That does not mean it is easy, especially when it involves someone young and whose death is preventable

. Vicki Sudall

As the hearing for today drew to an end, Hayden gave us all some homework.

Hayden J thoughtfully suggested that his judgment in London Borough of Tower Hamlets v PB [2020] EWCOP 34 would be useful as an illustration about the proper extent of autonomy and he recommended to the expert witness psychiatrist (and to the rest of us) that we might read it before the court reconvened in the morning.  Its especial focus is on explicating s.1(4) Mental Capacity Act 2005 which states “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”  Misguided paternalism, says Hayden in that judgment, has no place in the Court of Protection. The judgment draws on extensive common law jurisprudence (prior to the Act) recognising that the law does not insist that a person behaves “in such a manner as to deserve approbation from the prudent, the wise or the good”.  It is the ability to take the decision, not the outcome of it which is in focus.  The judgment also quotes an observation from McFarlane L which, says Hayden J “strikes me as capturing and distilling the true essence of this principle”:

“there is a space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual’s autonomy operates”.

And the end of the judgment (para 51) Hayden reiterates these points:

 i. The obligation of this Court to protect P is not confined to physical, emotional or medical welfare, it extends in all cases and at all times to the protection of P’s autonomy;

ii. The healthy and moral human instinct to protect vulnerable people from unwise, indeed, potentially catastrophic decisions must never be permitted to eclipse their fundamental right to take their own decisions where they have the capacity to do so.

Jo Beswick

Day 2 Tuesday 7 July

The day opened with continued cross questioning of yesterday’s expert witness, and discussion of a range of different possible therapies – including the involvement of a Palestinian therapist who might offer a more ‘culturally sensitive’ approach.  She told the judge she had read the Tower Hamlets judgment he recommended the day before (and some other judgments on BAILII too) and added: “One might think I have a particularly maternalistic approach towards the assessment of capacity”.  She was honest and upfront when asked, “Is it possible that your understandable concern to keep him alive might have influenced your assessment of his capacity.”.  Her answer was: “I think I would be dishonest to claim there was no possibility of that”. The judge thanked her for being “candid” and “helpful”.

A second psychiatrist was sworn in and confirmed that he agreed with the treating team that Mr A’s ‘over-valued idea’ that the Home Office has given him an incorrect date of birth is the impairment of mind that causes a lack of capacity to weigh information relevant to the decision whether or not to accept nutrition.

A third clinician was consulted about the Treatment Plan – the details of which it was virtually impossible for observers to grasp without the paperwork. There seemed at that point to be several different ‘levels’ of treatment, some of them invoking ‘tacit compliance’ rather than explicit consent, and if necessary “physical restraint delivered by staff specifically trained in restraint, registered mental health nurses or security teams” and “closely monitored”.  The judge asked for references to physical restraint to be deleted.

We reflected on the Treatment Plan (insofar as we understood it).

From our chat room

Co-operation is key and no reason so far to think he would be more receptive to going forward, unless dob changed – or, he was receptive to option of different & long-term therapy – narrative therapy – which appears to be new thought and so presumably not yet discussed with him.

Moira · Tue 3:22 PM

I’m really not clear on the plan. I think the point that the plan was trying to make is that NG can easily be dislodged and then need to be replaced. Attempting to insert one on a cooperative patient can be difficult let alone an uncooperative one

Vicki Sudall · Tue 3:26 PM

NG tubes are one of the most uncomfortable procedures that patients report. Having to repeatedly reinsert is traumatic

Vicki Sudall · Tue 3:28 PM

I struggle to see why they feel he will suddenly be accepting of it. If they feel it is only way he will survive is by feeding without consent they need to be clear

Moira · Tue 3:32 PM

I think they are hoping he will just give in and allow them to feed him.

Vicki Sudall · Tue 3:33 PM

Yes, I believe that they think if it is ordered then he will likely acquiesce

Adam Tanner · Tue 3:35 PM

The Dr said it would take a week to build up his nutrition. Do they propose to sedate him for a week to ensure he keeps the NG in? What happens afterwards if he pulls it out and then refuses to eat

Vicki Sudall · Tue 3:35 PM

He [the clinician] seems to be backpeddling

Celia KitzingerTue 3:35 PM

Indeed he does. Nobody seems to fully understand what the plan actually is

Adam Tanner · Tue 3:36 PM

I can’t see how any of this will work

Vicki Sudall · Tue 3:37 PM

The day ended with Mr A asking to address the judge again.  He said that he could hear that clinicians were focussing on how to get him to eat but asked for attention to be directed to the fact that it was the Home Office that was causing him not to eat.  Mr Justice Hayden reassured him that “it is right at the forefront of our minds” and “We are looking out for your best interests and trying to do collectively and individually our best for you”. 

Day 3: Wednesday 8 July

Mr Justice Hayden said that he planned to send an email to the Home Secretary to draw her attention to the circumstances Mr A was in.  He pointed out that she is unlikely to be able to do anything immediately and said that he was concerned about Mr A’s health which is “pivoted at a point where it could easily deteriorate”.   He asked Mr A’s barrister to “discuss with him an increase in his calorific intake”.  He added, “We are all doing our best so I’d like a little bit in return from him, if he could manage it”. 

Then the next witness was sworn in – an expert in PTSD who gave a very different account of Mr A.  In her view, he has capacity.  She provided evidence that he understands other people’s point of view that his date of birth should not play such a large part in his identity, but he doesn’t accept that point of view.   “Every time he has to show ID, get a driver’s licence and get a job he has to show an age that isn’t his real age and it reminds him of the trauma”.  She described him as acting “in accordance with his values” and said, “I don’t think his response is evidence of an impairment of the mind or brain. He’s tried everything with the Home Office.  This is a logical normal outcome given what he’s experienced”.   She was, however, of the view that the psychiatric therapy he has already received is not evidence-based and that “compassion-focussed work” and trauma therapy would be more appropriate. Given that Mr A says he does not want therapy, however, she is not optimistic about this approach.  The main “therapy” he would benefit from, she said, was resolution from the Home Office.  His mother smiled and nodded.

His parents were next: his mother was the second respondent, representing herself.  She read out a moving tribute to her son.  He is “considerate, thoughtful and endearing”, he “puts other people before himself”, he has a “strong will” and “stands by his values and beliefs”. He is “very clear on what’s right and wrong” and “doesn’t cope well with overbearing controlling people who want dominance to impose their will on him”.  She believes that if he can get through this experience he will go on “to lead a full and fulfilling life because he has great potential”. She thanked Mr Justice Hayden because her son “just wanted to be heard and I truly believe that he now thinks he is being heard. Judge Hayden, you’ve been tremendous”.  She answered questions with calm confidence – although the question of whether ‘compliance with’ rather than ‘consent’ or ‘agreement’ to treatment should be sufficient for treatment to be given remained (as it had when discussed by the clinicians) entirely obscure to me.   We were all impressed by the amazing family P has had supporting him since he settled in the UK. 

It was clear from the start of the hearing, that Mr A is very much part of a loving, caring and supportive family. In particular his ‘mum’ and ‘dad’, who play key roles in his life, and who give him not just love but also a feeling of ‘safety’- something that cannot have come easily to Mr A. Mr Justice Hayden said, “you are a young man who is very much loved, by a family who has claimed him”. Despite any potential risk to themselves from Coronavirus, Mr A’s parents visit him twice a day at the hospital and were at his bedside throughout the hearing. It was clear from all who had spoken with them that they have Mr A’s best interests at heart and are strong advocates for him. As he referred to the bond between Mr A and his family, and the importance of continuing to include Mr A’s parents moving forward (as Mr A wished) Mr Justice Hayden made it clear he was not infantilising Mr A in any way.  It was hard not to feel emotional hearing Mr A’s mum give evidence (with additional comments from his dad). The love, and respect, for Mr A shone through their every word. It was clear he is an important member of their family.  While they don’t want him to die, they do not want him to be given treatment “at any cost”.  I am left reflecting: Is this respect for another’s right to self-determination not the purest form of unconditional love?  

Moira Hill

Day 4 Thursday 9 July

The advocates delivered their closing summaries.

Counsel for the Trust responsible for delivering psychiatric services to Mr A (the applicant) sought a declaration that he either lacks capacity or has fluctuating capacity and that it is in his best interests to have treatment as outlined in the Treatment Plan. 

Counsel for the Trust responsible for delivering physical treatment sought a declaration for the delivery of nutrition with (I think) Mr A’s ‘passive acquiescence’ rather than explicit agreement (or ‘consent’).   Mr A is currently accepting (a limited amount of) nutrition and the plan is to give enough nutrition to enable him to be well enough engage in therapy.  He also noted that Mr A “might receive a response from the Home Office which sets him back and that’s why we’ve proposed Option 3” (on the Treatment Plan).  My understanding is that Option 3 means that treatment could be given in the face of Mr A’s explicit refusal unless there is also physical resistance or if he became distressed to an extent that could not be managed with mild sedation:

Judge: What if some disappointing news were to come along and he were to say “absolutely no”,

Counsel: If he were to physically resist…

Judge: (interrupts) No, not physically resist:  “I don’t want to physically resist the nurses, I’m just telling you ‘No’. With pellucid clarity, NO.”

Counsel: It would be an option to continue to provide it under Option 3.

It was however clarified that physical and chemical restraint, and elastic ties and mittens (to prevent removal of an nasogastric tube) would not be used.

Counsel for Mr A said the evidence was strong that Mr A has capacity – and in particular that he’s able to use and weigh information in making a decision.  She  expressed surprise about the (to me, jarring) revelation from the applicant, made as part of her summing up, that treatment was currently being provided on the assumption that Mr A lacked capacity.  I had not understood this to be the case, or how this could be possible: neither, it appears, had she.  “I say it must be on the basis that he has capacity”.  She said that Mr A makes decisions about nutrition based on the weight he gives to the significance of his date of birth – and it is the weight he assigns it that clinicians are objecting to. But the weight he gives to his date of birth is a matter for him and is not relevant to the issue of capacity.  She also queried: “Why is it that Option 3 will accept ‘No means No’ only at the point at which Mr A physically resists.  He is not someone who wants to physically resist.  He doesn’t want to harm others.”

Appropriately enough, Mr A asked to address the judge for a final time.  He wanted to make it crystal clear that his hunger strike is not motivated by depression or loss of capacity but is a political protest against the Home Office with the objective of getting his date of birth back.

Reflections on the experience – a ‘person-centred’ hearing

Having witnessed or participated in cases at every level of the English judicial system I have seen lawyers both good and bad. Every barrister in this case went above and beyond for Mr A and received much-deserved praise from Mr Justice Hayden. The logistics of remote hearings are not ideal for cases such as this, but I believe all Counsel took their time and put Mr A at the centre of everything they did. This hearing has illuminated to me how much of a positive contribution the Court can have on patient-centred discourse

Adam Tanner

This was a great learning experience to broaden my knowledge of mental capacity. I have been a nurse for over twenty years during which time I have encountered many complex ethical situations regarding decision making. Working in intensive care, organ donation and now cancer care has stimulated my interest in healthcare ethics, and I am currently undertaking an LLM in Healthcare Law and Ethics.  What immediately struck me about this case was the concern and consideration that Justice Hayden gave to Mr A and his family.

Vicki Sudall

Over the course of the hearing I witnessed unwavering respect shown to the importance of P’s autonomy; the ‘principle which lies at the heart of the doctrine of informed consent’ – and which is known as Beauchamp and Childress’s de facto dominant ethical principle.  Throughout, there was an almost palpable sense of the gravity of the decision in question – and an awareness that under the s.1(4) principle of the Mental Capacity Act 2005, he could not be treated as lacking capacity “merely because he makes an unwise decision”. In clinical practice, as with this case, assessing a person’s mental capacity is not always easy.  So, whilst it may be that ‘the temptation to regard a choice you disagree with as non-autonomous is strong. The outcome of the choice should be irrelevant.’ (Brazier, M. 2016 Medicine, Patients and the Law – Sixth Edition, Manchester University Press s.3.3)

Moira Hill

As a student midwife, we are taught to promote autonomy to women and encourage informed decisions based on evidence. This includes any care that is given to them, medication that they receive and any other aspect of their life as part of the holistic care that we offer. The thought of taking a decision away from anybody about their own life and care is completely alien to me. From the very beginning it is made clear to us that our own values and opinions are irrelevant when it comes to the care that we offer women and we should support any decision that a person makes.  On reflection, this case has been extremely thought provoking for my own practice as a student midwife. It is important to me that I offer women an informed and safe way of giving birth whilst ensuring that women play a strong role in the planning and implementation of their care. Positive outcomes and the satisfaction of the care received are the main goals that any midwife can hope for. This hearing has taught me that at times, my professional opinion and the needs and wants of the women I work with aren’t always going to marry up, and at these times I will be ethically and morally tested.

Emma Rich

The parts of the hearing that I observed were a true eye opener for me, particularly as this case is very complex and sensitive

Jack Broom

As a family lawyer working in this field for 35 years, I like to think that I’ve seen a journey towards compassion in terms of the direction that family law has taken. I tend to look at my work as a family lawyer now through a prism of compassion. In some ways it’s a touchstone against which I judge situations, people and events in their lives. It’s something that I look for in the interface between our jobs and our clients. And compassion was the overriding theme of what I saw in the way that Mr Justice Hayden conducted this hearing. The facts of this hearing tugged at the heartstrings.  A young person, determined to take his own life. And what could or should we do by way of reaction?  I’m so glad that we live in a civilised society in which people actually care, and are actually employed to care. Some of the finest brains in the country gathered in that virtual courtroom to pool ideas, questions, facts and hypotheses, all aimed at the central question of what should happen next in this young person’s life.  It was a privilege to witness this, to ponder the questions of autonomy that were raised, to witness the lawyers nibbling away at what should happen next. But what most impressed me, what most made its mark, was the judge insisting on emphasising the painful life experiences that this young person has had on the journey that led him to this courtroom. This young person is someone who loves his religion, who is godly and kind, who loves his mother and father and all his relations, and yes, who therefore has so much to live for.

Simon Bruce

The question of Mr A’s date of birth cannot be settled by the Court of Protection.  That lies with the Home Office. For all of us, though, altering his ‘official’ date of birth seems the best solution.

The age assessment process of asylum seekers by the Home Office is not without controversy. The Court of Appeal has recently called the policy unlawful, as it was found that the policy failed to adequately safeguard children from being treated as adults (BF (Eritrea) Secretary of State for the Home Department [2019] EWCA Civ 872). We have observed in court the damage which this policy can cause. Mr A is now an adult, and to allow him to have his date of birth back does not change anything which would, or should, concern the Home Office. He would not become a minor or be eligible for any services or support which he is not currently eligible for. Mr A has one simple wish which, in my opinion, can and should be granted.

Adam Tanner

My own view, based only on observing the hearing and seeing nothing from the bundle, is that there is insufficient evidence to rebut the presumption that Mr A has capacity to make his own decisions about nutrition.  Any claim that he is incapacitous falls, in my view, at the first hurdle, since there is no evidence of impairment of the mind or brain.  The claim that “sub-threshold” PTSD or commitment to an “over-valued idea” is sufficient to satisfy the “impairment” criterion leaves a great many of us wide open to having our capacity challenged – all of us who have suffered trauma, rape, abuse, and all of us who hold strong values or beliefs which we are willing to fight for, and perhaps to die for.  Mr Justice Hayden asked “What is the difference between the suffragettes starving themselves for votes and Mr A starving himself for his identity?” 

I hope Mr A’s hunger strike works to shame the Home Office into respecting his identity – but if it does not, I would like him to choose to live, if he can bear to.  Not because he will have a happy future (although he may), and not for the sake of his parents (although they would rejoice in that decision) but because he has so much to contribute.  Mr A has suffered greatly and he has (so far) survived and shown himself to be resilient, determined and committed to what he believes to be right.  His qualities of integrity, compassion, kindness, persistence, and standing up for justice mean he is someone who can make the world a better place – not just for himself but for others too.  I would like to see him use his voice – which has come through loud and clear in this court hearing – not for himself alone but for others who are persecuted and oppressed.  In his conversation with Mr A early on in the hearing, Mr Justice Hayden described him, counter-intuitively, as “a lucky man” – for the family he now has, the safety he feels,  and the ‘wonderful life” he has the potential to live.  Mr A agreed with that assessment.  I would hope Mr A can find ways of using both his suffering and his good fortune to reach out and help others, demonstrating through his life and through his deeds that it is possible to survive oppression and to live a good, compassionate and just life.

Celia Kitzinger is a social psychologist specialising in decision-making about clinically assisted nutrition and hydration and a co-author of the British Medical Association Guidance (here). She is co-founder, with Gill Loomes-Quinn of the Open Justice Court of Protection Project. She tweets @kitzingercelia

Jo Beswick is a Medical Law and Ethics academic and author at Staffordshire University. She tweets @DrJoBeswick

Jack Broom is a first year law student at Essex University. He tweets @broomie_23

Simon Bruce practises family law at three law clinics – Hammersmith and Fulham Law Centre, Dads House, and East Greenwich Legal Advice Clinic – and at Farrer & Co LLP.  He tweets as @simonbrucelfc

Moira Hill Following a long nursing career, she now uses her professional & personal experience in death, dying and grief in her role as an End of Life Coach. She is also writing a book to help people who are facing the death of a loved one. She tweets @moirahill67   

Emma Rich is a student midwife. She tweets @emma84rich

Vicki Sudall is an Army veteran and colorectal nurse in NHS. She tweets @vickisud76

Adam Tanner is a PhD researcher in Mental Capacity law at the Open University. He tweets @AdamRTanner

Till death do us depart…

By George Julian – 9th July 2020

‘I said when I married you… I said till death do us depart, I said and that’s the way I want it because at the end of the day we shouldn’t have other people interfering and stopping us from having that privilege and that’s what I’d like’

P’s Husband

These were the words of P’s husband in a recent hearing I attended. My immediate thoughts on hearing him speak was how much he reminded me of one of my favourite neighbours, kindly, humble sounding, understated with a lovely local burr.

After a few hours’ reflection my overriding impression of the proceedings was of the compassion shown by His Honour Judge Horton and the genuine inquisitorial nature of the court. I’ll return to this later.

When Celia Kitzinger and Gill Loomes-Quinn launched the Open Justice Court of Protection Project I was keen to support them and immediately agreed to attend a hearing and blog about it. My only stipulation, to myself, was that I wanted to stay local. Even though hearings are now held remotely, I was keen to ‘observe’ a case in my local community, or one like it. After several weeks of requesting permission to attend Court of Protection hearings in my local area (the Westcountry) I finally struck gold yesterday and was granted access to attend a hearing held by HHJ Horton.

What was the hearing about?

This hearing was the first case management hearing and His Honour Judge Horton was asked to consider whether it was in P’s best interests to remain deprived of her liberty at a residential home under a standard authorisation issued in March 2020.

HHJ Horton helpfully started the hearing with a very brief outline of the circumstances that brought the case before the court; stating that if I were in the back of his court as a member of the public he’d give a brief introduction and so that was his intention.

This was a challenge to P’s Deprivation of Liberty pursuant to Section 21A of the Mental Capacity Act 2005. P has diagnoses of Alzheimer’s, depression, Type 2 diabetes and hypertension. P is resident in a residential home, having been admitted there in August 2019. P’s initial admission was on an emergency respite basis, but her stay has been extended and the DOLS authorisation was made permanent in October 2019.

At the hearing the applicant was the Relevant Person’s Representative for P, represented in court by Mr Conroy, who was challenging the DOLS order. P and her husband have been married for over 40 years and P’s husband has full involvement in P’s care and treatment. P’s husband had taken legal advice but was representing himself during these proceedings. P has a number of children, some more involved than others and at least one had been served with notice of this hearing, but none were in attendance.

HHJ Horton made it explicitly clear that P had ‘consistently expressed a wish to return home and P’s husband wants P to be home’. This was the first case management hearing before the court on this challenge and there had been no previous hearings to date.

How was it conducted?

Due to the coronavirus restrictions this hearing was held remotely on BT Meet Me. I was served a Transparency Order and had to confirm in writing in advance that I would be bound by it, and to several other conditions, all very sensible ones, like I would be on my own, that I understood I must not record any part of the proceedings and that my role was purely as an observer and I must take no part in the proceedings.

HHJ Horton made clear that the hearing was being recorded for HMCTS purposes only. It was also clear that there had been significant amounts of paperwork including position statements, documents and assessments provided to the court and that parties had an advocates’ meeting prior to this hearing taking place.

Who was in court?

HHJ Horton dialled me into the meeting and as I was the last to join, I’m not completely certain about who else was there, even though the judge did do a round of introductions.

  • Mr Conroy was representing P and he had an assistant Ms Riley with him.
  • Mention was made of a relevant person’s representative (RPR) but it was unclear to me whether she was in attendance at the hearing.
  • Mr Pullen (sp?) represented the local authority and the NHS Trust.
  • P’s husband was attending having taken legal advice but was representing himself.
  • At least one social worker was present, and a couple of other people whose names and roles I did not catch.
  • I was the only observer.

How the hearing proceeded

HHJ Horton introduced the purpose of the hearing, as above, and invited Mr Conroy to talk the court through the draft order that had been shared in advance with the parties. He went through the draft order line by line, paragraph by paragraph and HHJ Horton invited Mr Pullen and P’s husband to comment.

This was exceedingly helpful for me as I had no line of sight of the paperwork. I imagine it may also have helped P’s husband who did not have access to a written copy of the draft order either, due to not having access to email.

It became apparent that the relevant person’s representative was bringing proceedings ‘not because she says anything in respect of best interests of P, but because she has a role to protect P and P has clearly expressed to anyone who would listen that she wishes to return home’. The RPR sought legal advice on her appointment and these proceedings were issued ‘very shortly after’.

HHJ Horton checked with P’s husband that he did not wish to be a formal party and was instead content to receive documents and tell the court his point of view. P’s husband confirmed he did not wish to be a full party but instead he promised to do his best to get his point across.

All parties were agreed that there were only two options available: that P remained at the care home, or that P returned to the matrimonial home. Another care home was not considered necessary as neither P nor her husband, nor Mr Conroy, expressed any dissatisfaction with the care provided at the home.

P’s husband’s contributions and HHJ Horton’s compassion

While Mr Conroy did the most work in terms of presenting arguments to the court and explaining the draft order and positions taken, it was P’s husband’s contributions that caused me to sit up and listen a little more carefully. I think on reflection because it was he who brought P alive to the court, and to myself as someone with no prior knowledge.

He recalled a meeting held when P was admitted to the home for respite in October:

‘I thought she was only going in for respite, I got upset in that meeting and said I want to take her home. The social worker said you’re not taking her home, I’m going to stop you’.

It became apparent that P’s daughters wished for P to remain in the home, and P and her husband were desperate for P to return to their matrimonial home. P’s husband described P blaming him for not being allowed home and being desperate to see their little dog who she’d not seen in ages. He became quite emotional sharing this with the court ‘I gets upset, I’m sorry’.

HHJ Horton immediately sought to reassure P’s husband:

‘there’s nothing to apologise for, you’ve put your position very clearly, I anticipated that was where you were coming from. The upside is the case is now before the court, it will be for a judge to decide what is in the best interests of P, you’ll get an opportunity to have your say, and her representative will, and the professionals. On the ground I can see it’s an incredibly upsetting case, you’ve been together for a very long period of time and the fact she’s now blaming you for putting her in the home must be difficult’.

It was at this point P’s husband shared the statement this post opened with. The conversation developed and he explained how the move to the residential home had come about:

‘I was trying to convince her to have some respite and she said no; that’s when she fired off and I had to get social services in, and the police was involved as well, and ever since then I’ve been trying to get her home because I’m guilty’.

Again, quick as a flash, HHJ Horton responded, showing not only that he was paying close attention but also displaying a level of compassion and humanity that I’ve rarely seen in court (albeit most of my court time is spent in coroner’s courts). The interaction went like this:

HHJ Horton: You’re not guilty, this is what happens when people become unwell and not as well as they were. I’m very, very sorry it’s happening to your family.

Just take a moment, take a moment

P’s husband: I’m OK.

HHJH: Are you ok? You’re at your home? Have you got the dog there?

P’s husband: I have, I’ve just put her outside

HHJH: You’re very welcome to bring her in if you wish some comfort.

A little later P’s husband explained his concerns about coronavirus and his fear that P would catch it, and asks how long it will take to get P home:

‘I was frightened by the coronavirus, in a lot of homes people have died. I know the home hasn’t had any cases, but there’s nothing to say it won’t, it’s blowing up in different places. I was really worried if she got coronavirus I’d never see her again. I can’t wait to see her and hold her and hug her. If you can help me any way please do…. shame she ended up in the home and I’ve all this stress put on me trying to get her home. Thank you for listening to me, Your Honour’.

HHJ Horton responds in such a reassuring and calming way, simply stating:

‘I’m delighted to listen to you. We’ll continue going through this order; the purpose of this order is to get all the information the court needs to make decisions and see if there’s an agreed way forward; get some reports in, is it agreed, if not the court needs to decide. I’ll make direction for another hearing in a little while, it’s not being kicked into the long grass’.

The contentious bit

The whole hearing was incredibly cordial and genuinely inquisitorial, the focus on P’s wishes and those of her husband, and what was required to move this forward to a final hearing.

Conversation moved on to discuss permissions to share documents with various parties, what paperwork family members would be required to file if they wished to take part in the proceedings, and dates for disclosure to be made, and witness statements to be filed with the court. HHJ Horton gently reminding the parties of the need to be specific, and also ensuring that P’s husband’s views were incorporated into and reflected within the documents, despite his role being that of an interested party.

We heard little from Mr Pullen, acting for the local council and the NHS Trust, with the exception of one contentious point. The draft order that Mr Conroy was talking the court through included reference to accommodation ‘available and unavailable’. The interaction went as follows. Mr Pullen relayed that his clients were:

‘a bit confused by this and wanted it to read best interests and accommodation options… it just seemed clearer to my client, available and unavailable is a bit vague, what does unavailable mean? If P’s condition changed between now and assessments taking place, and preparation of statement, obviously that will be taken into account automatically by my client. What does unavailable accommodation options mean? Some sort of independent flat?’

HHJ Horton: ‘If I could interrupt you, could I ask Mr Conroy what is the magic in the wording available and unavailable please?’

Mr Conroy: ‘…the family matrimonial home could technically be available in bricks and mortar but becomes unavailable because the local authority costs that returning home, but they won’t pay for the care…’.

The discussion moved to how that could be worded differently, to reflect the two options on the table (remain in the care home or return to the matrimonial home) and incorporate costs issues. I think it’s fair to say that P’s husband struggled to understand the cost issue, in his mind it was simply about P returning to their home, and they would care for each other as they had previously.

HHJ Horton explained that he was getting the Local Authority to do their job by telling him what it would cost and what help would be put in; that there was a need to look and balance the costs of P remaining where she was and the quality of care that can be provided to her.

Mr Pullen was at pains to point out that it was not ‘all about costs’ and that his client’s:

‘concern has really been that because of the nature of P’s condition it’s simply not in her best interests, or practical, for her to return home. I’m anxious P’s husband doesn’t go away thinking it’s just cost preventing her coming home’.

HHJ Horton ensured P’s husband understood and placed a requirement on the assessing team to speak with P’s husband and find out what he was offering and ensure any assessment fairly reflects what support he could offer. He returned to this point a little later reiterating:

‘That needs to factor in the emotional support that P’s husband can provide, they have been together for 40 years and are obviously dependent and devoted to each other; that needs to be taken into account please… Everybody has heard me say it, it’s an obvious point and I know anyone carrying out an assessment would take it into account; I’ve made the obvious point because P’s husband is taking part in these proceedings and I want everyone to recognise the importance of him to the case’.

Where next

A number of further assessments will take place and a roundtable meeting will be scheduled with all interested parties and legal representatives towards the end of September.

It was decided that HHJ Horton could dispense with the requirement for a pre-trial hearing, given this roundtable, and he would move to list a full day hearing two weeks later. He placed a duty on the applicant and respondents to bring to the attention of the court immediately any concerns arising at the roundtable that would put the final hearing in jeopardy.

It was decided that this final hearing would be held by video-link on Microsoft Teams or Skype for Business, although it was also confirmed that P’s husband does not have the hardware or software to participate. His legal representative and P’s solicitor will work together to try and find a work-around; HHJ Horton urged Mr Conroy, P’s solicitor, and Mr Pullen, representative for the Local Authority and NHS Trust to try and make available a clean room and the technical kit required to enable P’s husband to join by video link.

In the event that all parties reach consensus and confirm that in writing, the final hearing may be substituted with an email exchange with the judge on the day, or the day before. HHJ Horton also decided that the most important thing was to get this case in front of a judge who can sit in the Court of Protection, either a circuit judge or a district judge, whoever has got time, so he did not seek to retain it himself.

The call came to a close with HHJ Horton thanking everyone for their contributions and the final word from P’s husband:

‘Thank you, Your Honour. You’ve explained it well to me and Ben Conroy has too’.

My thoughts and reflections

I found following the case both saddening and reassuring in equal measure. It feels desperately sad to me that an emergency respite admission could potentially result in someone not returning to the matrimonial home and their husband of 40 years.

Despite the suggestion that it was not solely about costs, I couldn’t help feel that was the unspoken (or barely spoken) elephant in the room. For all the rhetoric about person-centred care, and community support that has been promised in health and social care in the last few decades, at the end of the day I get the impression that institutionalisation (even in a very good care home) still appears to be the preferred option for those holding the purse strings. I acknowledge however that this is a complicated situation and I have the barest of details after 90 minutes on the end of a telephone.

Which is where the reassurance and hope comes in. I was left absolutely 100% certain that HHJ Horton was focused on P’s best interests throughout, and hopefully that laser sharp focus will translate into the final hearing. It is such a difficult decision it only seems appropriate that a judge make it.

My final reflection was on how compassionate, supportive and inquisitorial this Court of Protection hearing was. I have spent hundreds of hours in coroner’s courts, which the Ministry of Justice would have us believe are inquisitorial not adversarial and I have rarely found that to be true. This experience left me reassured that an inquisitorial approach was possible, and not only possible but genuinely beneficial, in terms of enabling the court to keep its focus on P and achieve its aims, but also in ensuring interested parties have a supportive and kindly experience, as opposed to being left traumatised as I have so often seen in coroner’s courts.

I will attempt to continue following this case and hope that I will be able to join the final hearing to observe. I’d recommend others try to join a hearing too, and don’t be put off if you don’t get to join the first, second, third… one you ask to join, you might, like me, be eighth time lucky.

Dr George Julian is an open justice campaigner who live-tweets coronial inquests into the deaths of learning disabled and autistic people [see @LBinquest@HandleyInquest@TozerInquest@JusticeforCol@JoeInquest and @SashaInquest]. She also spends her time as a freelance knowledge transfer consultant, a representative for bereaved families in death investigations, as an activist and a craftivist.

George tweets @GeorgeJulian and her DMs are always open. 

Older People and Decision-Making in the Court of Protection – View from a Psychologist

By Claire Martin – 9th July 2020


[Editor’s Note: In her reflection on the hearings she observed, Claire mentions a number of questions with which she was left – one of these, relating to what is meant by terms such as “applicant” and “respondent”, is addressed in a post we have published since we received Claire’s submission: Who’s Who in the Court of Protection?by Tor Butler-Cole, published 7th July, 2020.

The Open Justice Court of Protection Project would love to hear from any professionals who would be interested in helping us to clarify some of the other points Claire raises – see below, and get in touch!].


My interest in attending a Court of Protection hearing is because I am a psychologist working with older people in the NHS. My job includes assessments of people’s cognitive functioning, capacity and so on but I have never observed a CoP hearing before. I am also aware that, had I not been a psychologist, in a sliding doors scenario, law would be the draw for me! So, when I saw Celia’s tweet about the public being able to observe CoP hearings remotely, due to COVID, I wanted to join in.

The Hearings

It was fortunate for me that both of the hearings I attended turned out to be about making a best interests decision for an older person. That was pot luck though – as the issues weren’t stated in the CoP listings.

Where should P live?

The first hearing, before District Judge Ellington, was about where P should live – home or a care home. P was currently at home, has a diagnosis of dementia and has been deemed to lack capacity to make the decision about where she should live herself.  The Local Authority (LA) had made an application to the court to revoke the Lasting Power of Attorneys (LPAs) for Health and Welfare, and Property and Finance, which were held by one of P’s children, who had made a decision that she should remain at home. This seemed a very tricky issue to judge – and indeed the case is coming back at a later date following further evidence from the Office of the Public Guardian. Meantime, the judgment was that the care home was in P’s best interests.  It felt very difficult to assess what had actually happened in the LPA’s navigation of care for P. The LA’s statements were vociferously rebutted by the LPA and indeed he stated that the yearly LA checks of the LPA had been satisfactory.

Where P lived (at home) was considered by the LPA to be in his mother’s best interests because he reported she was ‘unhappy, depressed and self-harming’ in the care home and happier at home. P’s own current or previous wishes were not reported at the hearing – however, this could have been because she was unable to express them verbally now and that she simply had not done so in the past. This must make CoP decisions harder, especially when there are fiercely contested views about a person’s best interests, as in this case – including within the family.  One would hope that people would discuss their future care wishes (if they have a view on them) with the person they appoint to be their Attorney at the time when they appoint them, but unfortunately it’s common for this not to happen. It would be interesting to understand this a bit more – why don’t people discuss these things, even though they are appointing a LPA?

I was very interested in the rationale and evidence provided from the Local Authority regarding the risks to P in remaining at home. There was disagreement about whether she ‘wandered’ riskily when at her own home versus in the care home. There were no objective records of ‘wandering’ provided for either setting, however, nor any analysis of the possible triggers and potential ways to help keep her safe. There was a district nurse report saying she could not be kept safe at home due to ‘wandering’, but no actual evidence from this report was offered to support this assertion, such as occasions when P had left the house and been at risk. There was an allegation that the LPA had, at times, locked P in her home – which would obviously create further risk – but the LPA denied this. I was unclear whether P was under the care of the local Community Mental Health Team (CMHT) for older people, and if so, whether they had engaged the specialist Behaviour Support Service (which are teams – sometimes called Challenging Behaviour Teams – across the country for older people with dementia and their carers to assess, formulate and help with “Behaviour that Challenges”, such as ‘wandering’ – or ‘walking with purpose’  or ‘walking about’ as it is less pejoratively called). This could have been part of a previous hearing, though no reference was made to such evidence. I found myself wanting to know when, where and how the ‘wandering’ occurred, and what had been tried to help keep her safe at home, for a fuller picture of the level of risk the situation posed. It felt like a big gap not to have this information to consider as part of making this decision.

It was academic in any event, as the Local Authority argued that there was not enough money to fund staying at home, even with P’s own money to top-up what she was entitled to. It was decided that P would move to the care home in 3 days as a ‘transition plan’, with a clearer analysis of ‘challenging behaviours’ in the care home setting to be considered at a further best interests hearing in August  – the LA was given this task. In my job I would usually be able to follow-up how someone is doing, and I have found myself thinking of P over this past week and wondering how she is getting on in her new surroundings. The CoP sees snippets of people’s lives and makes enormous decisions for them – and I was heartened to hear the judge address all the family members present, one by one, to ensure that they understood her judgment and had a chance to ask questions.

What should happen with P’s possessions?

The second hearing (before District Judge Beckley) was about an older person also currently in a care home.  His daughter was also present at the hearing (and contributed clearly and articulately).  At a previous hearing it had been decided that P did not have the capacity to make his own decision about where to live, and despite his wish to return home (where he had lived alone), this was not in his best interests.  Among other issues, he has limited mobility and his home was a flat on the fourth floor of an old converted building, without the potential for a lift.  He had been offered an alternative possibility – a ground floor flat – which he had declined.  The main issue for this hearing was surrendering P’s tenancy of his flat (which everyone agreed was in his best interests ) and (therefore) removing P’s possessions from the flat  (about which there was some disagreement).

P had not visited his flat since April 2018, when he had been admitted to hospital and then discharged into a care home.  It was unclear whether or not P knew that he would not be returning to his home, or that clearing his possessions was being planned. I wondered about this – he had a functional mental health problem and I had the sense (from what his daughter and Official Solicitor said) that he might have been able to take part in and express a view about at least some of what was happening in his life. We were told that, prior to COVID, the plan had been to take him back to his flat to support him in making decisions about which of his possessions he wanted to keep, which to recycle, and which should be discarded.  I was a bit confused, then, about why no conversations with him concerning the current plan were reported during this hearing (from either his daughter or his legal representative).  At the hearing, the plan around clearing his flat seemed contingent upon his having a role in making decisions about his possessions. The Official Solicitor, acting for P, argued strongly that P needed to be given the chance to say what he wanted to happen with his possessions: ‘don’t pull up the drawbridge because of a lack of effort and understanding of his mental health condition’.

The judge decided that the decision to terminate the tenancy could not be delayed until further investigation had been conducted into P’s wishes concerning all of his possessions. The tenancy would be surrendered by 27 July.  Family were invited to list items that they believed should be retained because it has material or sentimental value, and the local authority would save items like books and wall-hangings but everything else (toiletries, magazines and newspapers, food, electrical appliances, household stuff etc) would be disposed of.  The remaining property would be put into a storage facility paid for by the local authority until 27 October after which it, too, would be disposed of.  The plan was that P would have support – either from his family or from care workers – to go through his personal property while it is in storage and give him the opportunity to retrieve items of value to him.  The judge said it was ‘important to put into place steps for P to express his wishes and feelings about his property and say what he would like to keep.  It felt like case management, which I didn’t expect at a CoP hearing!

Reflections

What really struck me in both hearings was the very careful and courteous manner with which the judges included family members, and the time that they gave to all parties. In both hearings, the judges put a lot of effort into enabling the family members to express their views, concerns and disagreements, in a very ‘non-judgmental’ manner. In neither hearing, however, were P’s views referred to in any detail, which really surprised me.

I would have found it really helpful to have been able to read position papers and draft orders prior to the hearings.  At times I found it hard to follow what was going on – some conversations were based upon previous decisions in previous hearings of which I was unaware, and (although a brief summary of attendees was given at the start) I wasn’t always sure who was who at the hearing until I’d worked it out as I went along. 

It was very steep learning curve for me – not having any legal knowledge or experience. I left both hearings with many questions about terminology! Who is the ‘applicant’? Who is the ‘second respondent’? What is the difference between Public Law and where the Court of Protection sits? What is a Section 16 Determination? Some of these feel like naïve questions now that I am typing them, but I hope that Open Justice Court of Protection can commission some blogs that will introduce this area of law to people like me who are interested in learning from watching hearings and who, like me, have no legal training.

In older people’s multidisciplinary mental health teams, decisions are regularly made about a person’s capacity, best interests, treatment and care. We work with people with mental health distress that can temporarily (and longer term) affect their capacity to make specific decisions for themselves, as well as people who have a diagnosis of dementia who are living with a degenerative condition that progressively removes their cognitive skills (amongst other things). Best practice is to ensure that the person, and others important to them, are supported to have a voice and be central to decisions about their care – whether that is small, day-to-day decisions or far-reaching decisions such as where people live, what medication or other interventions are decided upon. Being able to observe CoP hearings, where there are disputes and deliberations about the ethics (‘best interests’) and legalities of such decisions, teaches us all about how we care for each other when we lose capacity to advocate for ourselves. Understanding the judgments is instructive for those of us at the coalface contributing to such decisions. I intend to observe more hearings when I have time, to deepen my knowledge and understanding of the legal nuances of such issues, and to help me to learn about and change my own blind spots in my practice as a psychologist. The more I can learn the better my practice will be, and I can cascade and pass on this knowledge to my colleagues too. Even though we are only present as observers at the actual hearings, we can be part of a reciprocal dialogue and collaboration between ‘law’ and ‘care’ with blogs such as these and the work of Open Justice Court of Protection – and that must be ‘good thing’!

Finally, I want to pay tribute to the family members in both cases – they spoke up for themselves in what is most likely an intimidating setting. There were solicitors present for various parties, often in disagreement with family members and having the benefit of a legal training on their side. Both judges were very helpful to family members and (I thought) conveyed the importance they placed on their presence as equal parties in the deliberations. That was uplifting to witness and the remote open court process is likely to boost this further – there’s nothing like being watched to promote good practice. What a great opportunity, brought about by the dreadful situation we are in.

Claire Martin is Head of Clinical Psychology for Older People at Bensham Hospital in Gateshead. 

She tweets @DocCMartin

Observing Court Hearings – Valuable Training for Solicitors

By Natalie Matthews – 8th July 2020

Editor’s Note: You can find another account of this hearing in our blog of 24th June, 2020 by NB – here

On 22 June 2020, I attended a hearing in the Court of Protection before Mr Justice Hayden. The case concerned a young lady, who had learning difficulties, who had recently been diagnosed with stage 3 cervical cancer. The judgment has since been published here.

By way of background, I am a solicitor working for NWSSP Legal & Risk Services. I started working for Legal & Risk Services on 9th March 2020 (so just before lockdown was imposed). I represent Health Boards across Wales. I primarily deal with applications concerning Deprivation of Liberty Safeguards (DoLS) but I also deal with serious medical disputes and other welfare applications i.e. to decide where a person should live if they are deemed to not have capacity to make their own decisions about that. DoLS is a safeguard created by legislation which allows patients speedy access to the Court of Protection if a review of their placement is deemed necessary i.e. because the patient or their family are unhappy about it or if the patient is requesting to go home. My role involves drafting witness statements for Court and then attending the hearings on behalf of the Health Board.

As I am new to my role, I thought it would be helpful to attend this hearing as part of my training. As part of my professional obligations as a solicitor, I am expected to carry out training throughout the year. The Solicitors Regulation Authority does not specify what types of training this needs to be. I thought that perhaps observing a hearing would be a good form of training.

I knew nothing about the hearing prior to it taking place but I am very pleased that I chose to observe it. As I said, this case concerned a young lady who had recently been diagnosed with stage 3 cervical cancer. The application had been brought by the NHS Trust responsible for her care as there were some concerns that she did not properly understand her diagnosis and what this meant for her future. She understood that it was something bad but the doctors were not convinced that she understood the real seriousness of it. Essentially, without the treatment, she had a high likelihood of dying within 12 months. That time was also likely to be uncomfortable and painful. With the treatment (which was highly intrusive), she had a 30-40% chance of surviving for 5 years. If she survived that 5-year term, she would then be considered as cured. However, the downside to the treatment would be that K would be rendered infertile and she would enter the early menopause. This was explained to K as being unable to have babies.

In addition to the concerns about her capacity, there were also concerns that she would withdraw from treatment. As I said, the treatment was highly intrusive and it was stated in the Court that even the most robust person would struggle with it. Therefore, the Trust rightly wished to have the Court’s guidance in advance. Mr Justice Hayden stated as follows:

“If K consistently refuses to attend the hospital for treatment, they consider that it will not be in her best interests to take coercive measures to compel her to travel to hospital, using restraint. I agree. To do so would compromise her dignity and would be inimical to her best interests. The clinicians have made the utilitarian and thoughtful calculation that this type of restraint is more likely to exacerbate K’s withdrawal than encourage her cooperation”.

Mr Justice Hayden

Therefore, the Court endorsed the approach of the Trust that K would not be forced to attend hospital if she did not wish to do so. To force her would probably result in K further refusing the treatment later down the line.

Mr Justice Hayden concluded that the Trust had appropriately brought the application. This was on the basis that: (1) the treatment was highly intrusive; (2) it would bring on the early menopause and (3) the treatment plan was so onerous that there was a distinct possibility that K would withdraw from it when it became more challenging. K’s mother (who was sitting by her daughter’s side throughout the hearing) was in full support of her daughter but she was concerned that when the initial novelty wore off, K may not wish to continue with the treatment, as K did not understand that she was at risk of death. One comment made by Mum really highlighted this to me – when she had discussed with her daughter about the possibility of her dying one day, k thought that her mother would live forever.

This hearing took place virtually via Microsoft Teams. Since the lockdown in March, the Court of Protection has swiftly adapted to these hearings taking place virtually. This is to be congratulated, considering that the Court deals with some very serious issues. In light of the serious issues being dealt with, I think it is important that the hearings continue to be public and it should not be underestimated how much work goes on behind the scenes.

For myself, I found the hearing very interesting and helpful for my training. It was interesting to see the doctor giving evidence and also hearing from K’s mother. As I’ve said above, my role involves drafting the witness statements of clinicians like the doctor who gave evidence in this hearing. In my short time at the NHS, whilst I have attended Directions hearings, I have not attended a final hearing and therefore, I am yet to see a clinician give evidence in this way. Mr Justice Hayden challenged the doctor and he was not frightened to question him thoroughly. When it is time for me to attend a final hearing with an NHS Health Board, this experience will be invaluable in preparing them for what is to come.

In terms of what I’ll take from it, I will definitely take the lesson that NHS Trusts should not be frightened to make these applications and actually they will be highly regarded by the Court for doing so. Being proactive in this type of situation, which can often become very urgent very quickly, is so much better than being reactive.

I have read the Judgment following the drafting of this blog. Whilst the content is very similar to what Mr Justice Hayden said in Court, there was some additional references to his Serious Medical Treatment Guidance. Whilst it is important to read the Judgment afterwards, it is not the same as actually listening to the hearing as the Judgement does not go into detail of the questions and answers posed. However, after listening to the hearing, and reading the Judgment, the doctor’s answers are subtly included and you can tell that they influenced the decision of Mr Justice Hayden.

I would also say to other solicitors – please listen to these hearings.

Natalie Matthews is a solicitor for the Complex Patient Team of NWSSP Legal & Risk Services. The Complex Patient Team assist Health Boards across Wales with some of the most complex cases and issues facing clinicians in the NHS today. Natalie obtained her degree from Cardiff University in 2013 and qualified as a solicitor in May 2019. When not in work, she is busily caring for her 2 young children.

Natalie tweets @natalielorna1

Who’s Who in the Court of Protection?

By Victoria Butler-Cole – 7th July 2020

There can be a large number of people involved in a hearing in the Court of Protection, and as an observer who does not have access to the court papers, it is not always easy to figure out who is who.  This Explainer may help.

The Judge.  There are three levels (tiers) of judge in the Court of Protection.  If you observe a case listed on the Family Division of the High Court (here) it will be a Tier 3 Judge.  It could be the President or the Vice-President of the Court of Protection.  Otherwise it will be a High Court Judge who also sits in the Family Division of the High Court.  All medical treatment cases are heard by High Court Judges.  There are no clear rules about when other cases will be allocated to a High Court Judge, but generally speaking, the more complex the case, the more likely it is to be heard by a High Court Judge.   Tier 2 judges are Circuit Judges, and include the Senior Judge of the Court of Protection (Judge Hilder).   Tier 1 judges are District Judges.  Generally, cases listed at First Avenue House (here) and the regional cases listed in CourtServe are before Tier 1 and Tier 2 judges.

P.  All Court of Protection cases are about a person whose mental capacity is in question.  That person is routinely referred to as P, although during a hearing they may be referred to by their actual name or by their initials.  P is almost always a party to the proceedings in a welfare or medical treatment case, but may not be a party in a case that is about financial matters.  If P is a party, P will often have a litigation friend – that means someone who can instruct lawyers on P’s behalf, if P lacks the mental capacity to do so him or herself.  Very often, the litigation friend is a professional – either the Official Solicitor, or a paid advocate[CK1] .  Sometimes the litigation friend may be a family member, friend or carer, someone P had appointed with a lasting power of attorney, or a court-appointed deputy.

The Official Solicitor.  The Official Solicitor is a real person – presently Sarah Castle.  Her department employs a number of solicitors and one of these solicitors will be appointed for each case.  That solicitor will then instruct a solicitor from an external company in most cases – although in medical treatment cases the Official Solicitor’s office generally doesn’t use external firms.  What this means in practice is that as well as P, you may have P’s solicitor (instructed by the Official Solicitor) and P’s caseworker within the Official Solicitor’s office, who is also a solicitor. 

Relevant Person’s Representative (RPR).  If P is subject to a deprivation of liberty authorisation under the Deprivation of Liberty Safeguards in Schedule A1 to the MCA 2005, they must have an RPR. The RPR could be a friend or family member, or an independent advocate.  Sometimes RPRs act as litigation friends in the Court of Protection.  They could instead be a party to an application in their own right.

Accredited Legal Representative (ALR).  The court can decide to appoint an ALR under rule 1.2 of the Court of Protection Rules as an alternative to a litigation friend or as another way to ensure that P’s views are before the court. An ALR is a solicitor, barrister or chartered legal executive who has completed a training course run by the Law Society.

Statutory bodies.  There is very often a public authority involved in a Court of Protection case.  This might be a local authority who owes duties to P under the Care Act 2014 (to provide social care services), or through the deprivation of liberty system.   If P is in receipt of NHS Continuing Healthcare, then a CCG might be the relevant public body.  If the case is about medical treatment, then the NHS Trust involved is likely to be a party.  Sometimes there may be two NHS Trusts, if P is also a detained patient under the Mental Health Act 1983 and the dispute is about treatment for a physical condition in a general hospital.

Other people. Depending on the issues raised by the case, there may be other parties including members of P’s family, P’s partner or friend, a court-appointed deputy, P’s attorney, a care home or a supported living provider.  Only parties are formally permitted to address the court, although sometimes a judge may want to ask someone who is attending a hearing for their view even though they are not a party to the proceedings – for example if P’s support worker is present.

Witnesses.  People who have written statements for the court or have prepared expert reports may be required to give their evidence orally and be cross-examined.  These people could be parties to the proceedings, or employed by a party – for example a doctor or social worker.  Or they could be a member of P’s family, or a friend of P.  Or, they could be an expert who has been required to prepare a report for the court.  Expert reports about P’s capacity and best interests are often required and can be provided by independent experts – commonly psychiatrists, psychologists, hospital doctors and social workers, or by Court Visitors, who are psychiatrists and social workers who are on a panel of experts that the court instructs.

Terminology.  The person who issued the application is called the applicant.  Everyone else is called a respondent.  If there are a number of respondents, they are called the first, second, third, fourth respondent – and so on.  

Order of speaking.  Usually, the applicant speaks first, through their barrister.  They should introduce everyone who is at the hearing.  There will often be more than one person for each party – a barrister, a solicitor, the party themselves, and potentially other people such as the manager of P’s assigned social worker, P’s advocate and so on. When a witness is being questioned the party who is calling that witness starts off, and is usually permitted to ask the witness one or two questions to expand on what is in their written statement.  Then the other parties can cross-examine the witness.  The person representing P tends to ask questions last.  The party who called the witness may have some questions in re-examination, to clarify matters that arose in cross-examination.  The judge may also want to ask the witness questions.

Victoria Butler-Cole QC is a barrister at 39 Essex Chambers where she specialises in health and social care law, including the Court of Protection.


A Case Manager observes in the Court of Protection

By Jackie Waggott – 6th July 2020

I’m Director of Operations at Social Return Case Management, managing a team of Case Managers, providing support, supervision and oversight of the case management service, as well as holding a caseload of my own. As case managers we work with the Court of Protection frequently, as many of our clients have sustained a life changing injury which means that they lack capacity to make certain (specific) decisions on an area of their life.  Lots of our clients have a Property and Affairs Deputy (appointed by the court) and we work closely with these representatives when supporting clinical and social needs.

My interest in wanting to observe a case is really one of professional development and wanting to learn more, so that I can better represent the clients I work with.  I also want to be able to enhance my ability to support the team in understanding how the court works and what to expect if we’re called to court or asked to provide information, such as a statement for a hearing.  I decided that observing a hearing – one which I have no professional involvement with – would give me the opportunity to hear and evaluate processes and outcomes and deepen my experiences to date. So off I went to find the opportunity to be an observer of a Court of Protection case.

The First Avenue House list didn’t go up until after 5pm the day before the date I’d arranged to spend time observing.  I emailed that evening and sometime after 9am on the day of the hearing I got an email back saying that the judge (Senior Judge Hilder) had agreed that I could observe and also that the hearing would start at 10.30am (half an hour later than listed).

They sent me the Transparency Order with the instruction to read it before the hearing. It’s quite anxiety-provoking to get it 30 minutes before the hearing: you have to read it, and you have to declare to the judge that you’ve read it and that you understand  it. The order just isn’t clear and takes more time than that to be able to say ‘I thoroughly understand that’. I felt a real sense of responsibility to read, digest and understand the order so I could make the declaration in court, and ensure I was abiding by it. It would be good to make the Transparency Order more transparent!

The hearing I had identified was to be held by telephone conference. At exactly 10.30am they called and dialled me in.  There was an introduction that the judge said was “for the benefit of the observer…” which covered some information about the previous hearings they’d had.  It was really useful for me and enabled me to understand the context.  I would have struggled if I hadn’t had that at the beginning. I hadn’t really expected to be going into a second or third hearing in a series, and without an introduction it would have been very difficult to follow indeed. Also, although the context was given, it wasn’t stated exactly who was there in the hearing and I had to pick up names and roles and match them to voices as we went along.

It was a case where P was a thirteen-year-old child and there was an application for authority to purchase property.  The Court of Protection has jurisdiction over the property of children if they are likely to continue to lack capacity post the age of 18 years:

“The powers under section 16 as respects any other matter relating to P’s property and affairs may be exercised even though P has not reached 16, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18.” ((Mental Capacity Act s. 18 (3))

This case concerned the proposal to purchase two properties on behalf of a child whose parents were separated – using money the child had acquired, I assume, via a medical negligence claim.  The plan, I gathered along the way, was that the child would be able to live with each parent separately and both houses would be accessible and appropriately equipped. The case was about how the child could retain enough liquidity of funds to meet care needs, whilst having access to the two properties, as in essence some of the funds would be invested on each property.  Consideration was given to how the money would come back to the child, and when, and how a Deed of Trust should be drawn up.  Both parents were in court, along with a professional Property and Affairs Deputy and the Official Solicitor.

There were lots of numbers and financial information discussed, and in a technical level of detail. The parents came with their own ideas of what they wanted to contribute and when, and these were contrasted with the needs of P.  Issues discussed were things like: do they start to pay back the child when they move into the property, or when the properties are purchased – because adaptations had to be made.  The parents sounded very reasonable and level-headed but clearly had some understandable personal investments in this issue: it was of course their lives and futures that were being discussed. The judge was able to bring an objective perspective and also to consider factors which in her experience have come up in the past, to forward-plan and mitigate issues that may otherwise need to return to the court for a decision in the future. What I felt unfortunately was that the Deputy was representing the parents and not the child – and that was very much picked up by the judge.

The judge was brilliant.  She said she was concerned that the Deputy wasn’t independent of the parents. And I felt she was frustrated that the Deputy hadn’t done enough to prepare and sort things out in advance of a hearing being needed.  By contrast, I felt that the judge absolutely was standing in the shoes of P and totally upholding his rights. She was just crystal clear with what she thought should happen.  It was about fairness and drawing a line, which was good to see.  She kept bringing it back to P.  She kept saying things like, “but that doesn’t seem fair (for P)”. It was all dealt with extremely logically, which I know you’d think, “well yes, it would be” but it was impressive how there was no mess; there was no tangling up of wood for trees, just decisive resolution.

I really felt the judge knew all the inside details of the case. She was really on top of it: she knew all the family’s personal circumstances, all of their financial circumstances and small factors that made me feel she understood the family. I do wonder, as a family, what that would be like; to have the reassurance that the judge understands, but to also have all of your personal information discussed in court in such depth, and in a public hearing. I also wonder what the family were told about an observer being present. I hope they were reassured. Nevertheless, for the judge, that was a lot of (crucial) information to hold in your head for one hearing when you’ve got another hearing in the second part of your day and you have to do just the same all over again.

Having observed, I won’t be so concerned, if I’m needed for a hearing in the Court of Protection professionally in the future. It helped me understand too what the expectations are in advance of a case being in court, so you’re not in a position where the judge tells you to go away and sort something out and come back again when you’ve done it. You need to have explored all the avenues and exhausted all the opportunities to sort it – in a logical and timely manner – before it lands on the desk of the judge.

I did expect justice to prevail.  And I have to say that I do feel reassured that on the one time I’ve been in court that’s exactly what happened.

Jackie Waggott works as a case manager in the North East of England, heading up a team of Case Managers at Social Return Case Management. She has a clinical background as a specialist physiotherapist and has over twenty years of experience of working with clients with neurological difficulties in the community. Her interests lie particularly in brain injury rehabilitation and supporting clients who experience disorders of consciousness.  She can be contacted by email at jackie.waggott@social-return.co.uk.  Jackie tweets @jackiewaggott

Protection versus Autonomy and Pragmatism versus Principle: A Balancing Act in the Court of Protection

By Patrick – 2nd July, 2020

This is an account of a Court of Protection hearing before Mr Justice Hayden in the case of Re ‘D’ on Friday 19th June 2020. In it I aim to provide an insight into the hearing itself, and — as someone with a keen interest in the law but no legal qualifications — what it was like to observe.

Gaining Access

This was my second time observing a hearing at the Court of Protection. Again I followed the advice here, and my experience of gaining access was much as described inmy first blog. One difference was that I emailed to request access the night before, rather than on the morning of the hearing. That I received a reply with an access link at 9:41 pm is some indication of how hard people are working, and over what long hours, to make open justice possible in this time of remote hearings.

Of course, that’s not to say everything is perfect: again, there was no reply to the email requesting a Transparency Order or paperwork to help me follow the hearing, and there were no details or keywords on the listing to indicate what it would be about.

The hearing took place using the Microsoft Teams video conferencing platform. Once the judge had arrived, the clerk announced the hearing was beginning and all those present should ensure that they did not make any recording of it, that they were in a quiet, private place, and that they had taken measures to minimise potential distractions. There were 17 people in attendance to begin with, including the judge (Mr Justice Hayden, who had presided at the first Court of Protection hearing I observed), the barristers, the clerk, solicitors, social and care workers, and observers.

The barrister for the local authority began by saying he had received the judge’s request for him to help those observing proceedings understand what was going on by introducing the facts and background of the case. The judge clarified that this was the practice to be followed in all remote Court of Protection hearings, and was in accordance with guidance that had been published for barristers. He directed counsel to that guidance and encouraged him to bring it to the attention of other members of the Bar.

Background

From the barrister’s introduction, it soon became apparent that this hearing was dealing with the same P (“D”) as the hearing I had read about here. D is a young autistic woman with ADHD, cognitive impairment, anxiety, depression and other conditions. She had previously been found to lack capacity in regard to various decisions.

She had at some stage become pregnant and given birth to a child, and the effect on her had been “catastrophic”: she hadn’t been able to recognise when she was in labour, had discharged herself from hospital very soon after giving birth, would not return to hospital when an ambulance was dispatched for her, and would not take pain medication despite the fact she must have been “in agony”.

In September last year she had been provided with accommodation, but chose not to avail herself of it and instead lived with a boyfriend. There was a suggestion that the relationship had not been a positive one, and she was at risk of exploitation. Once the pandemic had taken hold, there was also concern that she was vulnerable to contracting Covid-19, and was not abiding by social distancing and other guidelines. In April, an Order was made that she could be removed to another location, where she would be able to self-isolate for 14 days before returning to the accommodation she had been provided with in September.

By the time of the hearing I observed, there had been some happy developments. D had forged friendships with the other residents in her new accommodation and she had a new boyfriend.  Overall, she was making good progress and enjoying life, and wanted to remain where she was.

The main issues discussed in this hearing were whether D had capacity to make decisions regarding a) contraception and b) other healthcare, specifically with regard to Covid-19.

Not only did the deliberations provide an insight into the balancing act between autonomy and protection that lies at the heart of the Court of Protection’s operation — they ultimately illustrated what Mr Justice Hayden has described elsewhere as “the fundamental principle that the promotion of autonomous decision making is itself a facet of protection”.

Contraception

It was established that D’s social worker had performed a thorough and competent assessment that concluded D did have capacity to make her own decisions about contraception. The barrister for the local authority, however, submitted that because the matter was of such fundamental importance to D, the court should base its determination on the best possible information. An expert with more experience in the area should conduct another assessment. The recent assessment, for example, had not indicated that D could discuss the pros and cons of different methods of contraception.

The judge acknowledged that this request was “appropriately kind, protective and reflective”, but asked for it to be framed in the context of the Mental Capacity Act 2005 and the presumption of capacity that lies at its core.

Counsel for D, instructed by the Official Solicitor, argued that all the available evidence indicated capacity, so the presumption of capacity had not been rebutted and there was no justification for further intrusion or infringement of D’s autonomy. Moreover, D had been able, with support, to understand, retain and weigh the information relevant to these decisions. (It is one of the five principles of the Mental Capacity Act that “[a] person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”.) Among other things, D knew that the point of contraception was to avoid pregnancy, and had identified that the pill might not be a suitable option for her because she was liable to forget to take it.

The barrister for the local authority raised concerns about D’s capacity to retain the relevant information. Counsel for D argued that she did not need to retain the information for any prolonged period of time because she would receive support at the point of making the decision. The envisaged method of contraception was an injection that would be effective for three months. There were no grounds to worry that the necessary support would not be available at the appropriate time, because D was living in a residential care setting and receiving a minimum of 14 or 15 hours’ care a day.

The judge described the issues involved here as “exquisitely difficult”, and he seemed wary of getting lost in a morass. There was no direct discussion, for example, of whether if she decided not to have the injection, she would then be required to have retained the relevant information before deciding to engage in sexual relations two months later. The court may have been satisfied that the support she needed to exercise capacity in that regard would be available whether or not she had retained the relevant information on her own. Interestingly, D’s barrister raised the prospect that such discussions could lead down the road to a “person-specific” approach to capacity in dealing with sexual relations. As someone new to the functioning and jurisprudence of the court, it was surprising for me to learn how reluctant it has been to follow that road.

Concerns about the retention of information aside, the local authority’s barrister argued that as contraception was a type of medical care, and it had already been agreed that an expert should be appointed to assess D’s capacity in other areas of medical care, the disruption and cost implications of also assessing her capacity with regard to contraception would be negligible. Moreover, the information gleaned from another assessment might be of use in the reduction of support that the Official Solicitor had been seeking.

In response, D’s barrister articulated a general underlying concern that the appearance of a case before the Court of Protection should not become a licence to open up all areas of P’s life to invasive scrutiny and assessment. The judge made it clear that he was of the same view, and would never allow that to happen in his court. However, he encouraged counsel to “stay micro not macro”, hinting at another balancing act – between pragmatism and principle – that the court must perform.

Eventually the judge resolved that although “on a human level [he] would like to yield to the application”, the court must not let well-meaning paternalism dilute the autonomy enshrined by the Mental Capacity Act. D’s capacity to make decisions around contraception would not be assessed again.

Medical Treatment

This second issue demonstrated how fine distinctions can shift the balance of the court’s judgement from autonomy to protection.

Initially I was slightly confused that the barrister for the local authority had separated contraception and medical treatment into two separate issues, given that he also argued contraception was a form of medical treatment. However, in his submissions he made the point that medical treatment covers a broad spectrum, from putting a plaster on a grazed knee to carrying out major surgery. He conceded (without prompting) that the local authority needed to be more precise about the specific decisions with regard to which it considered D incapacitous.

The pressing concern was that D was at “serious risk” from Covid-19. This risk was exacerbated by the particularly severe impact of the pandemic on care homes, and by the fact that D was in the habit of leaving her accommodation to meet friends. The barrister sought an interim order that should D contract Covid-19, she would lack capacity regarding hospital admission. The need for such a remedy could be inferred from witness evidence that she would find it hard to recognise symptoms and seek help. The ordeal surrounding the birth of her child was cited as further indication that such a step was necessary.

The barrister for D agreed that if there were reasonable grounds to suspect D lacked capacity in that regard, an Interim Order could be made in accordance with the local authority’s request. She sought clarity, though, on the precise content of the Order — would the use of force be permitted if D refused to go to hospital, for example?

Here, the judge seemed pragmatically to prefer the ‘macro’ to the ‘micro’: he said it was possible to over-analyse these matters, and pointed out that in the many cases where he and the barrister had previously discussed such eventualities, P had “invariably” gone willingly. He made pains, however, to stress that the test, even for an Interim Order, was not a low bar. Neither should it be, he said — after all, the Order would represent a significant interference with P’s liberties and Article 5 (ECHR) rights.

Still, he was satisfied that in this case the test was made out. He had begun curating the ambit of the Order and would leave counsel to work out the precise wording between themselves. The matter was not so pressing that the Order had to be in place on the same day, and it would be helpful to the Official Solicitor to have some time to find an appropriate expert, so it was decided that they would have until midday Monday.

Observations on tone, technology and the presence of D

The tone of the hearing was calm and cooperative, with no sense of adversarialism. It was clear throughout that this was an inquisitorial jurisdiction, and the aim was to make sure the judge had the necessary evidence before him, rather than trying to ‘win the argument’. Arguments were raised and considered, of course, but not doggedly pressed. The impression was that everyone was working to strike the balance of protecting D while upholding her autonomy.

It also seems worth mentioning – especially in a hearing involving the issues this one did – that not only were the care and social workers, the clerk and some of the observers women, but one of the barristers was too. Given that D spoke only one word throughout, it must surely be a good thing that the voices discussing the case were not exclusively male.

Despite D’s limited verbal contribution, this hearing showed that remote hearings could, despite their limitations, maintain P at their centre. Though support workers from her accommodation were in attendance from the start, D was not initially present on the video call. The judge asked where she was and why she was not present; he had hoped and expected she might be able to join the hearing. He was, he said, “very keen that in the exigencies of remote hearings we don’t lose sight of P”.

It was explained that the hearing had been playing on D’s mind for the last few days, and she had decided this morning that she did not want to attend. The support worker then said that her manager had gone to find D and check whether that was still the case; the judge said again that he would very much like to see her, but emphasised that he did not want to cause any extra anxiety.

The barrister for the local authority suggested that a one-on-one virtual meeting (with a support worker if desired) might be a possibility if that would be easier for D. The judge suspected that such a meeting could indeed be arranged, because the potential of the video platform seemed unlimited: earlier this week, for example, he had ‘visited’ a hospital with a father and his very sick baby.

It was then announced that D had been found and was happy to participate, at least for a short while. The judge welcomed her warmly and gave her the option of a smaller, more private meeting, explaining that it could easily be facilitated by the technology. (It was, he remarked, “a wonderful thing to be able to press a button and get rid of counsel”.) D declined, but she remained visible, if not always obviously engaged, for almost the entire hearing. Although she was relatively uncommunicative, her presence helped the court fulfil its duty to identify her wishes and feelings in a more complete way than pure reliance on her care workers or the lawyers would have done.

There seemed to me a slight tonal shift once D had arrived, with counsel using more accessible language and speaking more slowly. This was especially true while discussions centred on her present circumstances and feelings, like her frustration at not being able to go out alone. Though it might not always have been understood by D, there was the humanising influence of humour, too: when the argument was put that solo outings were unsuitable because D might not understand the Coronavirus restrictions, the essence of the reply was that she wouldn’t be the only one.

As the hearing turned to matters of law, the language inevitably became less accessible and the pace picked up again. Still, D’s presence on camera was a live reminder of the human being at the heart of proceedings.

In making these observations I should note that I don’t have any experience of attending non-remote Court of Protection hearings. I couldn’t therefore say, for instance, whether or how far the presence of D was diminished by her appearing on video rather than in the flesh. It’s true that when, at some point not long before the end of the hearing, D “popped out”, I didn’t immediately notice, and neither did the judge.

On the other hand, I doubt whether, in the normal course of events, D would have been present at all. The journey from her accommodation and the stress and formality of the court building would at the very least have presented a far higher obstacle to her participation than did a webcam in an office a stone’s throw from her bedroom. And her decision that morning not to attend would have been much harder to reverse. That’s not to mention the benefits of remote hearings for other participants — not just lawyers saved a commute, but care workers who might have travelled hours for a hearing that lasted less than fifty minutes, or had to submit a statement instead of attending at all.

Although D had left by the end of the hearing, the judge closed proceedings by asking the care worker to thank her and say it had been nice to meet her. This had the effect of bookending the hearing with consciousness of, and care for D. It certainly seems fair to say that the judge succeeded in making sure that, whatever the exigencies of a remote hearing, the court did not lose sight of her.

Patrick studied languages at university, before training as an actor and going on to work internationally in film, television and theatre. Alongside acting, he has pursued his interest in legal issues by other work and volunteering, including with the Southwark Pensioners Centre, the Belarus Free Theatre and the United Nations Relief and Works Agency in Syria. He is planning to start the Graduate Diploma in Law (GDL) next year, with a view to practising at the Bar. He would be delighted to hear of any and all opportunities for gaining further legal insight or experience, especially in these challenging times.

He can be reached at patricklawmail@gmail.com or @patricklawtweet on Twitter

Seven Perspectives on a Court of Protection hearing

By Celia Kitzinger – with Upeka De Silva, Grace Carter, Patrick, Observer D, Observer E, and Katharine Shipley – on 1st July 2020

There were more than 10 public observers at a recent hearing
– we’re not sure exactly how many because it’s sometimes difficult to know which of the names that pop up on the screen are those of observers, and who might be an instructing solicitor, a journalist or a member of the court staff. 

Rather than separate blogs, some of us decided to write down our individual observations and put them together in a single blog post, not least because it illustrates the different perspectives people from a range of different backgrounds bring – and hence the diversity of things they “see” – when observing the same case. These pieces were written independently and then edited and compiled by Celia.

Rather than an integrated narrative then, here are our seven loosely dove-tailing perspectives.

Celia Kitzinger@kitzingercelia

The judge, Mrs Justice Lieven, made a point of saying at the beginning of the hearing that she’d not previously had public observers at any of her remote hearings (only journalists) and she obviously valued our presence and wanted to be helpful.  She thanked us for attending at the end and pointed out that it’s not “open justice” if nobody comes.   She did remember – belatedly as the applicant started his opening presentation – that an introduction would be helpful (in line with Mr Justice Hayden’s recommendations here) but as it turned out she wasn’t able to provide the helpful and succinct background to the issues that we were hoping for.  Asked if she’d received some of the documents she said, “I’ve had a really non-stop day and I’m not conscious of having had them”.  What she offered as summary was as follows (as closely as I could scribble it down at the time):

“This concerns a young lady who is the first respondent represented by the Official Solicitor and the second respondent is the local authority, and the third respondent is the subject of an injunction to prevent contact with the first respondent and the first respondent’s mother is the applicant”

And then we were into the substance of the hearing. 

This raised a lot of questions.  Why was the mother the applicant, and what was she applying for?  Why was this case before the Court of Protection: what did (or might) P lack capacity to decide for herself (and why)?  What decisions was the Court being asked to make in her best interests?  It would have been so helpful to have this information. 

Information emerged piecemeal over the course of the hearing.  I was very confused when one of the barristers said that “P has the mental and physical functioning to do as she chooses” (so why is this case in the Court of Protection?).  The judge responded by saying, “When I met her, she was very keen on engaging in education and going back to university this Autumn”.  This was a puzzle.  Finally, someone mentioned that P had a brain injury received in a road traffic accident last year, and that although she’d hoped to return to full-time tertiary education, this was now looking unlikely.  The judge said of P (based presumably on something she’d read in the bundle) that it “sounds as if P’s having – in a non-technical sense – a psychotic episode perhaps?”.  Much later, someone else said that P had been assessed as lacking capacity in relation to her care and her contact with others.  At no point was it clear to us as observers what P wanted to get out of this hearing or what her values, wishes, feelings and beliefs were. I assume that the Official Solicitor had this information, but he didn’t convey it in court.

The two key issues discussed in court were:

 First, an injunction to restrain contact with P against a man who’d been released from prison earlier this year and had been in contact with her pretty much every day, and spending the occasional nights at hotels with her until the Covid-19 lockdown.  This man was described later as “not her boyfriend or partner”.  The injunction against him was “to protect her from risk”.  There was a short discussion about “a TZ number 2 sort of care and support plan” which I didn’t understand (and which someone referred to as involving “lofty principles but quite what they mean in practice it’s not so easy to say”).  Plans were made for a next hearing at which an injunction would be served on this man (at either an in-person or a remote hearing).

Second, what care should P receive and paid for by whom.  She was the subject of a personal injury claim in respect of the road traffic accident and it seemed likely there had been some interim payments but nobody seemed to know what these were, what was being claimed for her, or what was likely to be available in future. There seemed to have been a lack of coordination and communication on this matter, which could surely have been settled by the Official Solicitor, acting on P’s behalf, obtaining this information from the Personal Injury solicitor and sharing it with the court.  There was also a muddle about whether P was or was not currently receiving psychological support – sufficient that the judge sounded exasperated when she said “It wasn’t ten minutes ago you said she wasn’t getting any psychological help and now it turns out she’s seeing a neuropsychologist on as much as a weekly basis”.  

This somewhat acerbic comment was characteristic of Mrs Justice Lieven in this hearing.  As a social psychologist with expertise in conversation analysis and institutional interaction, I was particularly interested in how the judge asked questions of the advocates and engaged with their answers.  For example, she concurred with the suggestion that there should be a Round Table Meeting (“RTM”) to sort out the care plan and this led to a discussion about whether or not lawyers should be involved in that. The judge was initially of the view that having lawyers involved was a bad idea – that “the less lawyers are involved the better”, that “it shouldn’t be necessary to drag lawyers into something like this” and that their presence would divert health care professionals from focussing on the care plan.  In response, the barrister representing P’s mother pointed out that if P’s mother were included in this meeting, as, surely, she should be, she would be disadvantaged by being the only non-professional present: he asked for his instructing solicitor to be allowed to attend to support her.  The judge accepted that this solicitor (only) should attend the meeting, but that they should be “urged not to speak more than is proportionate, restrain their lawyerly instincts and just be there to support P’s mother”.  A subsequent discussion about whether or not P’s mother was in fact to be included in the meeting led to another exasperated-sounding comment from the judge:

“Mother is a key part of whatever care plan is put together.  What are a bunch of professionals doing sitting around deciding how P is going to be supported at home if the person she’s going to be living with isn’t there?”. 

 When there was further demur, she commented:

“I’m not going to micro-manage your meeting, but if you rock up to the next hearing and it’s all gone horribly wrong because you didn’t include P’s mother, you can imagine how supportive I’m going to be.”

Upeka De Silva@de_upeka

What I appreciated the most was the Judge’s discussion about allowing the mother of the woman in question to have a solicitor with her so that she was appropriately supported when faced with “a bunch of professionals“. The fact that English was not the mother’s first language made that even more appropriate.  Counsel for the local authority argued that having a lawyer present makes other professionals behave differently but this was considered less important. This to me was once again what I appreciate about the Court of Protection – making sure people’s voices are heard.

Grace Carter@GraceCarterECR

I am a law PhD student at Nottingham University interested in observing hearings because my key research interest is on how we can make advance planning under the Mental Capacity Act – which for people with disabilities often means making decisions on their behalf in their “best interests” – more compatible with Article 12 of the Convention on the Rights of Persons with Disabilities. 

Article 12 states that “persons with disabilities have the right to recognition everywhere as persons before the law”, and that all appropriate measures should be taken “to provide access by persons with disabilities to the support they may require in exercising their legal capacity”.  The Mental Capacity Act, by contrast, allows substituted decision making which has the effect of denying a person with disabilities the full legal capacity to make legally enforceable decisions. The conclusion that someone lacks capacity to make their own decisions, and the making of decisions on their behalf by a court, is problematic from this perspective.  An article by Alex Ruck Keene suggest that the Court is achieving greater CRPD compatibility by adhering to the individual’s wishes and feelings in best interest rulings, and by requiring clear and convincing justification before they are departed from. I wanted to see to what extent this was true first-hand.

In this hearing the court was conducting advance planning on behalf of someone with a disability and making decisions relevant to their future. As I was watching the hearing I was thinking about the extent to which the individual was included in decision-making, and how meaningful that inclusion was. I was glad to see that the judge included P’s mother in the multi-disciplinary discussion of her care plan – although I did wonder why this sentiment did not extend to P herself. I was also glad that the judge critiqued counsel for the local authority who used P staying out until 4am as an example of ‘risky’ behaviour. I wonder what other examples of ‘risky behaviour’ P was exhibiting however, given that a young woman without a disability staying out til 4am isn’t uncommon and likely wouldn’t be viewed as being as comparatively ‘risky’ as it was for P.

I believe P should be offered support in her decision making – in regards to both her intermediate and long-term care plan, and her relationship with the man she is meeting with. It was not made clear whether an injunction to stop his contact with her is in line with her will and preference. It was not clear how much support she had been offered or would be offered in making decisions about her care and contact, nor was it clear whether and on what grounds it had been decided that she lacked capacity to make these decisions for herself. It also wasn’t clear (to us as observers) what P’s own wishes were.  Overall, it’s hard to make any meaningful judgments on the content of the hearing without knowing more information. Having more detailed facts about the case at the start of the hearing would have been very beneficial.

Patrick@Patricklawtweet

I was interested in the reference to “TZ Number Two” — particularly the care plan reached in that case, which was advanced here as a model for dealing with P’s “risky behaviour” in terms of contact with other people. It turns out that A Local Authority v TZ (No.2) [2013] was a very interesting case involving, as it happens, one of the barristers from this hearing.

TZ was a 24-year-old man with mild learning disabilities, atypical autism and hyperactivity disorder, who wanted to seek out sexual partners. He had, (in No.1), been deemed to have capacity to consent to and engage in sexual relations. In the second case, though, it was found that he did not have capacity to decide whether or not a potential sexual partner was safe, or to decide what support he would need when having contact with a potential sexual partner. 

Accordingly, a care support plan was made to help TZ develop a sexual relationship without exposing him to a risk of harm. The plan focused on educating him and empowering him to make his own decisions, but until he was able to do so, various measures were put in place to protect him. His care workers, rather than an appointed deputy, were entrusted with responsibility regarding day-to-day matters: they would remind him of appropriate behaviour, for example, and encourage him to progress slowly with relationships. It was not their job to vet his potential sexual partners, but to step in — as unobtrusively as possible — if there was reason to think he was at real risk of abuse. The court retained its role with regard to more serious and long-term questions.

The Court of Protection has generally treated capacity to decide to have sex as an ‘act-specific’ rather than ‘situation-specific’ or ‘person-specific’ issue. So if P is found to have capacity to decide to have sex with one person, it is very difficult (and potentially very intrusive) for the court to find he or she does not have capacity to decide to have sex with any other person. This has led to concern about vulnerable people being left at intolerable risk of sexual exploitation by predatory actors. On the other hand, if P is found to lack the capacity to consent to sex, the Court of Protection is prohibited by section 27 of the Mental Capacity Act from deciding on their behalf that they may do so, even with a particular person, or when P has expressed a positive desire. This has led to concern about disabled people being prevented from enjoying their full human rights and freedoms, and cut off from intimacy with others. 

The judgment in TZ strove to strike a pragmatic balance between protection and autonomy — neither to shirk the court’s responsibilities to TZ nor to prevent him living his life in the way he wanted.

Observer D

I am in a Court of Protection hearing myself at the moment. And I find the whole process extremely intimidating. So it was very nice to see a hearing that I’m not involved in!  I recognised one of the barristers from my own case. He seemed nicer than when he comes up against me. 

And I thought that the judge in this case was absolutely brilliant.  She was clearly concentrating on what was happening and she was concerned that the right thing be done for P. The judge tried to get solutions efficiently that were probably in the best interests of the victim. I particularly liked the way that she tried to make everything as easy to follow as possible.  For example, when acronyms were used unnecessarily and excessively (like RTM meaning Round Table Meeting”) she pointed out that she would prefer to reduce the number of acronyms being used. “Do we need to acronymise everything – even roundtable meetings?” she said.  The reason I like what she did is that it becomes very hard to follow if people are speaking in acronyms. It is just jargon. 

She was also really interested in making sure that not too many legal professionals stayed involved in this case and to get as much agreement as possible outside the court.  She tried to create opportunities for people to work things out outside the courtroom. 

She also noticed that something misleading happened. There was a question as to whether or not the patient was receiving any psychological help from the NHS 

One of the barristers said the patient was not receiving any help from the mental health team. This clearly concerned the judge.  She said, “given the seriousness of her brain injury last year – she was an in-patient for a very long time – there must be some mental health follow-up on that, mustn’t there?”  The mother’s barrister said “I agree that there should be, but there isn’t“.  A bit later it turned out that the patient was receiving support from an NHS neuropsychologist every week.   The judge pointed out that she had been told that the patient was not receiving psychological help and then everybody corrected themselves.  Nobody really apologized for the misleading comments but it’s interesting that it was known by at least some people in the hearing that the patient was receiving frequent  psychological treatment on the NHS and yet for quite a few minutes they allowed it to seem to the judge as though the patient was not receiving any psychological treatment at all. 

The  truth came out in the end and it didn’t seem sinister,  but it was very interesting for me,  as somebody who has to use the Court of Protection, to see how something which is not true can seem to be true for some time – and I could see that it might not always get corrected. 

I’m not going to pretend that I fully understood everything that happened.  It involved a lot of different institutions and organisations: insurance companies, payments for crash victims, concerns about the behaviour of vulnerable people, possibly abusive relationships, the role of families, local authorities, hearings and prisons and roundtables and all this type of thing 

I could tell all of these things were in play but because I don’t have the understanding of how these different institutions work and collaborate together (the word ‘multidisciplinary’ was used many times) I don’t really know exactly what was going on.

If I were a bit more familiar with the case then I might have found it a bit easier to follow but I certainly am grateful for the opportunity to have been able to listen to this case and I will take up the offer to observe a Court of Protection hearing again in the future..

Observer E

This hearing is the first experience I have had of observing the Court of Protection ‘in action’. Admittedly, the fact it has taken me so long to actually observe the Court (in light of me having spent many years writing, reflecting, and teaching on the Mental Capacity Act 2005 and the work of the Court) is perhaps a slight indictment on how the Court of Protection has been presented over the years. The ‘secret court’ narrative which seems now well-established has probably been a block to many members of the public accessing open Court hearings, and even thinking they can. I was pleased to hear the judge’s thanks at the end for the public: encouraging the public to attend like this will massively help to demystify the Court’s processes. Her comment, “they’re not actually public if nobody turns up” made an important point. However, I would add to this that not only is it important that the public do turn up, but that the public have sufficient details of the case in order to make their ‘turning up’ purposeful.  

Although members of the public were welcomed to the hearing and clear instruction was given on the Transparency Order, I felt a precis of the case would have been immensely helpful to have included the public in a more meaningful way. Although I ‘worked out’ the circumstances of the case as the hearing went on, particular elements of the discussion were difficult to follow as sufficient information was not known prior to the observation. If the public really are welcome in open Court settings then I would suggest a clear precis is offered at the start of the hearing.

Nonetheless, observing the hearing was fascinating. I was surprised by how informal it seemed (apart from the obvious deference to the judge e.g. “I’m sorry M’Lady for the acronyms” etc).  Some of the informality of the hearing might have been because insufficient information had been passed to the Judge in time for her to sufficiently process prior to the commencement of the hearing. As a result of this, the initial questions she asked of those representing the respondents were conversational in nature as she tried to tease out information. The hearing presented itself more as a meeting and discussion rather than a Court hearing. Of course, this may be good in order to further demystify the Court of Protection and make it even more accessible, but it was in my opinion that the judge would have benefitted from more time to read the particular circumstances of the case before the hearing started.

I will use this, and my observation of further hearings.  to inform my work on supporting other professionals to understand the Mental Capacity Act 2005 ‘in action’.

Katharine Shipley – @KatharineShipl2

Access to observe this case was extremely easy.  I was emailed the Zoom meeting details within 10 minutes of requesting access.  The Transparency Order was emailed to me directly following the meeting and the judge outlined the main points of this at the start of the hearing.

I found this case somewhat difficult to follow at first.  It was helpful that the judge outlined the parties involved in the case, when she had realised that the public would not understand the context.  Even so, it took a while to work out what the key issues were (although the judge was clearly also struggling with this at times!). 

In terms of the content, as a Clinical Psychologist and Court of Protection Special Visitor, I was familiar with the mental health issues, although other members of the public might have struggled to follow some of the language.  Even the judge was flummoxed by the acronym RTM (round table meeting).

I did find myself wondering why much of the discussion was happening amongst legal professionals, when the issues related so centrally to mental health support and treatment.  The judge helpfully stated that a multi-disciplinary meeting regarding P’s needs would ideally take place without lawyers.  There was a thoughtful discussion about the effect of lawyers upon such a process and I was impressed with the judge’s consideration of the applicant’s potentially disadvantaged position in professional meetings.  

The confusion about P’s current care and support was evident and I was concerned at one point that her immediate needs might be misunderstood.  My hunch was that her needs had not been well identified by the right service/s.  It was evident that the legal professionals understandably struggled to comprehend what these needs were and the uncertainty about who was providing what care appeared to reflect inefficient communication between the involved parties.  I found this somewhat depressing as I suspect that it at least partly reflects the current burden and pressures upon public services. 

During a discussion about a committal application, consideration was given to conducting this virtually, as opposed to in-person.  It was felt that the issues might be taken less seriously in a virtual hearing and that the gravity of the situation would be conveyed more successfully with a physical appearance in court.  I found this quite fascinating and the idea resonated with me.  Many of our usual rules and social conventions have been bent or cast aside since the start of lockdown and the new methods of working can appear as a kind of game.  There is also definitely a kind of distancing involved in the use of virtual platforms.   My teenage daughter told me that when she talks to her friends on a video call, she feels that she can speak more freely, as if the interactions are not quite real!

The thing that struck me most of all, was how little mention there was of mental capacity.  Although this was only mentioned in passing, I gathered that it had recently been established that P did not have mental capacity in relation to the issues of concern, and there was mention of a proposed further assessment of her capacity in the coming months.  She had apparently sustained a head injury in the past year and considering that there can be significant recovery over the first year or two following such an injury, regular reviews of her capacity will be crucial.  There was also mention of P’s capacity in relation to her engagement with social media, but this was not discussed in detail. P sounded very vulnerable and I hope that the immediate risks to her will be addressed.  There appeared to be some confusion about the questions for this hearing, but at least by the end, these were better formed.

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