A deputy’s first experience of observing a Court of Protection hearing

By Jamal L. Din, 27th July 2022

For some time now I’ve wanted to observe a hearing in the Court of Protection to gain experience of how the court hearing is run, and understand how the interests of the protected parties (and their families) are supported.

I am a Deputy for Property and Finance for my son and have made several COP applications that have been decided “on the papers”, i.e.  without a hearing. It can only be a matter of time before, as a family, we are likely to be more involved as parties in a COP hearing. 

I have previously tried to observe remote hearings in the COP with mixed success. Having read through the guides, set aside some time and meticulously prepared the email requests to the courts, I waited. The auto-email responses from each court came through so all looked positive but then nothing, no response and the court times passed me by.   

The Open Justice Court of Protection Project made some enquiries on my behalf and discovered that one of the hearings was cancelled; at another, a member of staff sent my contact details to the wrong person asking them to provide the link;  and another  (the RCJ) had a technical issue that day which prevented them from responding (and I’d only sent to one of the two email addresses provided).  

For another hearing I asked to observe, I received a response saying “Her Honour Judge Cronin has asked for more information, such as occupation, for yourself, and if you have any link to the case at all”.  I replied saying that I had no link to the case, but I didn’t provide my occupation, simply explaining that I was “applying to observe the hearing as a member of the public, in line with the Court of Protection’s transparency project”.  I didn’t receive an MS link and was not able to observe the hearing.

The hearing I was finally able to observe (COP 13913527 BR-v-LB Richmond & MR) on 22nd July 2022 was before DDJ Kaufman at First Avenue House and was listed as concerned with s.21A and Deprivation of Liberty.  I located it from the Open Justice Court of Protection twitter feed.

I received the MS Teams link 40 minutes before the listed hearing time, and a copy of the Remote Hearing Order was attached to email.  I was not sent a Transparency Order but the judge made it very clear to me (and the parties) that it was important to keep the identity of P (the protected party at the centre of this case) and his family confidential.  The judge also asked all parties individually if there were any objections to an observer being present and then approved my presence as an observer. 

At the beginning of the hearing the judge asked counsel for P (via his litigation friend the Official Solicitor) for a summary for my benefit as an observer – and for everyone’s benefit.   Counsel only stated the current position and nothing about the history of the case. The judge picked up on that and confirmed this was a challenge under s.21A of the Mental Capacity Act [MCA] 2005. At this stage I was unaware of the nature of P’s impairment (more on this later) or what his objections were to the Deprivation of Liberty Order or with the current Care home.  

Later I was able to work out that P was unhappy with where he lived and was challenging the DOL Standard Authorisation. He sought either an alternative home or care in the community with a bit more freedom. The local authority and current care home were respondents. 

P’s daughter had previously stated that she didn’t want to be litigation friend (this had been established at an earlier hearing). However, she was on the video call. It  was challenging for her as she had her 2-year-old daughter on her lap. The judge was very particular to ensure that she was included in the discussions and carefully tried to understand her views and thoughts. She was asked if she had visited the current care home or any of the alternatives. P’s daughter said she just wanted her dad to be happy.

P was also present on the call. His current care home had facilitated a room for him to participate (not on screen though). The judge specifically addressed P whilst acknowledging that P may be able to hear but not respond.

The Judge offered P a face-to-face meeting with the judge appointed to decide the case at either at the care home, the court’s offices or at the offices of counsel for the Official Solicitor. Alternatively, she offered him the opportunity to have a discussion on the telephone, whatever works best.   

P did not speak to the court.  I also don’t know how much of the hearing P understood or knew what was going on.

Counsel for the local authority was adamant that their position was unlikely to change, irrespective of any further care home assessments. In their view, the current care home is in P’s ’s best interests as P needs 24-hour care. 

The judge summarised the order she was going to make, and the next steps, to P’s daughter to ensure she understood it and was happy with it.  The judge ordered:

  • An assessment of the possible alternative care home in question.
  • Final witness statements from all parties.
  • Extension of the current Standard Authorisation to expire at midnight on the day of the final hearing.
  • A final attended hearing in mid-August with a time estimate of one hour and hearing to be on a submission basis.  

I was pleased that the judge made a great effort to involve P and his daughter in the hearing.  I hope this is followed through at the final hearing where it appears that the options are limited for P’s care.  

In terms of transparency and open justice, my sense was that the court clerk, the judge and the office were very accommodating – the judge especially so in making sure all parties were aware of the observer and the legal responsibilities that attach.  

There are some unanswered questions. What are P’s objections to the current care home or the DOL? To what extent will P be able communicate his concerns during his face-to-face meeting with the judge who will make the final decision?  What are the LA’s reasons why 24-hour care cannot be provided in the community for P?  I am sure all of these questions are answered in the ‘bundle’ of paperwork before the judge, but as an observer I was left in the dark.

The courts are complex and can be daunting.  My previous dealings with the COP gave me an advantage,  however I was still apprehensive.  I didn’t want to attract attention to myself.  I didn’t expect to be addressed directly by the judge at the beginning of the hearing.  (She asked me to confirm that I understood and agreed to keep P’s identity confidential. In addition, I had to confirm there was no one with me on the call: she explained that these would be a contempt of court risk.)

Overall, my impression of this hearing was very positive, and I am encouraged by the emphasis placed on P and his family. Watching this hearing was really helpful for me as someone who may be involved in a Court of Protection hearing in future.

Jamal L. Din is a volunteer supporting people and charities, offering support and campaigning for the rights of people, a voice for people who cannot be heard. He is also a court-appointed Deputy.

Determining capacity for sex with her abuser

By Celia Kitzinger, 25th July 2022

UPDATE: The judgment has now been published: Hull City Council v KF [2022] EWCOP 33 (28 July 2022)

This is a desperately sad story about a woman (K) who is pleading to have intimate unsupervised contact with her abuser before she dies[1].  

She’s been diagnosed with triple negative breast cancer which has spread to her bones, liver and lungs.  Her life-expectancy is somewhere between a matter of months and (at the very most) two years.

Her abuser ( W ) has entered a guilty plea and is due to be sentenced on 29th July 2022. He’s likely to be facing a custodial sentence, and there’s a realistic chance that by the time he’s released from prison, she’ll have died from her cancer. In light of these facts, she’s “expressed a very strong wish to have unsupervised overnight contact with him” before 29th July 2022.

The sexual assault W committed against K was very serious.  Joseph O’Brien described it as “horrific”.  It resulted in serious internal damage requiring hospital admission, surgery and a blood transfusion.  More broadly, W is said to have been violent and abusive towards K and to have engaged in “coercive control”. There’s also a history of concern about his financial abuse of her.

Initially K requested contact with W at the flat where she and W lived – and from which she was removed by court order on 23rd February 2022.  She’s willing, alternatively, to have that contact at a hotel.

Since she was removed from their flat, contact between the two “has taken place sporadically”, but I think not in person. There was mention of “concern about things said during telephone and video contact”. 

According to Joseph O’Brien QC (acting for K via her litigation friend, the Official Solicitor), “it is a fact in this case that it may well be that that contact will be intimate and could lead to sexual activity between her and WBoth K and W are adamant that they would object to very close supervision of that contact.  And so, in the light of [K’s] expressed wish, this application was made on 8th July for the court to determine whether it’s in K’s best interests to have unsupported unsupervised contact with W in the knowledge that could lead to sexual intimacy between them”. 

The case was heard before Mr Justice Poole on Wednesday 13th July 2022.  He was sitting in Teesside at the time, and brought the case with him – meaning that it was not (as would be usual for cases heard before Tier 3 judges) listed in the Royal Courts of Justice cause list[1]. I almost missed the opportunity to observe it as a result. It was listed for a 30 minute hearing, but actually lasted for around an hour and a quarter.

Capacity issues

K is 34 and has a moderate learning disability (diagnosed in the 1990s).  She has been assessed by an experienced independent expert (Dr Laurence Mynors-Wallis) as lacking capacity to conduct proceedings, as well as to make decisions about where she lives, the care she receives, her contact with others, and her property and affairs. She does however have capacity to engage in sexual relations, on the basis of the test applied by the independent expert following the Supreme Court decision in Re JB.

According to Joseph O’Brien QC, “The case of JB in the Supreme Court was a bit of a watershed in terms of how we approached capacity to engage in sexual relations.  We’d regarded it as a decision-specific and act-specific test, but certainly not as a person-specific test.  There had been a chipping away over the years at the actual test.  So, pregnancy would not be relevant information if you had two 85-year-olds, and where certain relationships were monogamous the court was unwilling to say that the protected party needed to understand information on sexually transmissible disease,s when it was clear there was no risk of sex with other partners.”

Joseph O’Brien QC referred to §§72-74 of the judgment in Re JB to make the point that the court had recognised “that person-specific characteristics of a sexual partner could be relevant, and the court is not prepared to lay down when or how, because each case is truly fact-sensitive.

In this case, said Joseph O’Brien QC, the local authority has a significant concern that if W has sexual contact with K, “there is a real risk that W may inflict physical harm on K”.  

Joseph O’Brien QC pointed out that the independent expert who’d assessed K as having capacity to engage in sex also said that “K is not able to weigh up the reasonably foreseeable risks if she has contact with [W]”.  He suggested that must surely mean that in fact she lacks capacity to engage in sex, since that must be relevant information for the decision that needs to be made. 

O’Brien:  That must raise the real likelihood, bearing in mind the factual scenario, that this is relevant information for capacity to consent to sex.  As I say in my Position Statement, it’s difficult to see, in the facts of this case, how this could not be relevant information.

Judge: In terms of contact, at the moment the court’s position is not only a declaration that she lacks capacity concerning contact with others, but also that it’s not in her best interests to have contact with W save in a public place and supervised.  That being the position, isn’t that the end of the matter, if the court considers that best interests decision remains applicable? 

O’Brien: It would, My Lord, except that she has capacity to consent to sexual relations.  She wishes to exercise that capacitous right. The circumstances she faces are such that she’s saying that this may be her last chance to have intimate contact with W.  The local authority has not ruled that out, but is anxious as to whether that can be achieved without serious risk.

Judge:  There are no conditions on W’s bail?  I find that slightly surprising, that there are no restrictions on his contact with K.

O’Brien:  Nothing like that appears on W’s bail.  So, the court’s available options are not restricted by the jurisdiction of the Crown Court.  The decision has to be taken by this court.

It was agreed that the independent expert should be asked to reconsider the question of K’s capacity to engage in sex, given the specific facts of this case.  “If he changes his view that K has capacity to enter into sexual relations, then in those circumstances the court is in a very different position from if she has capacity.  If she lacks capacity, there can be no intimate relations” (said Simon Batt, the solicitor for the local authority, Hull County Council).

The judge remarked that “K is not able to weigh up the reasonably foreseeable consequences of contact with W, so it might be difficult to see how that could be different if the contact was sexual.

Without pre-judging what [the expert] will say,” said Simon Batt, “the writing may be on the wall, if I may put it that way”.

Advance plans

Given that time is tight (due to the sentencing and likely custodial sentence on 29th July 2022), contingency plans were put in place, in the event that the expert assessment continues to find that K has capacity for sexual relations.  

Discussions have already taken place about booking a hotel for K and W “without prejudice to any decision, just so we’re not stymied, and we’ve had discussions about what the hotel needs to be told”.

The solicitor for the local authority (Simon Batt) said they would be content, given the circumstances, to fund the cost of a hotel room for the carers, and the cost of the carers themselves: “we’d require the carers to be awake throughout the night in case their assistance is required”. 

There was a question about whether W should be a party to this case.  I think it was agreed that he would be notified of the application and invited to join as a party.

The judge also made clear his willingness to speak with K prior to the hearing.  “It’s very clear she wishes to discuss matters directly with you, and to ensure that her views and her reasoning behind those views are clear to the court,” said Simon Batt

The decision before the court

Joseph O’Brien summed up the dilemma before the court:

Many people would ask objectively why would anyone allow a woman in the circumstances of this case to have contact with the man who has inflicted this harm on her, four days before he’s sentenced for inflicting that harm.  There’s no doubt the risk is real.  But My Lord, you are dealing with someone facing the end of her life, and she is very clear about what she wants.”  (Joseph O’Brien)

The next hearing is listed for 10.30am on Tuesday 26th July 2022 before Mr Justice Poole in the Royal Courts of Justice, via MS Teams.  It will be heard in open court.

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


[1] This was a “hidden” hearing, inaccessible to most members of the public who might have wished to observe it.  It was not in the Court of Protection list on CourtServe, nor did it appear in the Royal Courts of Justice Daily Cause list where hearings before Tier 3 judges usually appear. I found it because I was trawling through the court lists for the County Courts, knowing that important hearings are sometimes incorrectly listed there. And I found this (see photo) under the heading, “Teesside (Middlesbrough) Daily Cause”.   Nowhere does it say it’s a Court of Protection hearing.  I only recognised it as such because of the case number: I know that eight-digit numbers with no letters are characteristic of Court of Protection case numbers.  It was also impossible to read what time the hearing was listed for: the cut-off left hand margin is as it appeared on CourtServe (not my error).  I’m grateful to the staff at the Newcastle hub who spent time sorting this out so that I was able to observe the hearing, but this really shouldn’t be happening – and these hidden hearings happen repeatedly. Between a quarter and a half of all COP hearings each day do not appear in the COP list but are ‘hidden’ in the County Court lists instead. Note also that I have also not received Position Statements from the parties so have had to rely in this blog post solely on what I heard in court. Quotations are as accurate as I could make them, based on contemporaneous touch-typed notes, but they are unlikely to be entirely accurate.

From CourtServe, under the County Court list for Teesside (Middlesbrough) County Court

Serious Medical Treatment and Restraint: A young woman with HIV

By Daniel Clark, 25th July 2022

This case (COP 139622855) was heard before Mrs Justice Artbuthnot as an “Urgent” application at 10:30am, on Tuesday 19th July.

I asked for the link to observe the hearing late on Monday night, and received the link at 8am Tuesday morning. This was a refreshing change to having to send repeated requests, and allowed me to ensure I had everything I needed prior to the hearing. 

I requested a copy of the Transparency Order, which I did not receive (though Celia Kitzinger, who observed the first half hour of this hearing, did receive it). The key restrictions in the Transparency Order were explained verbally at the start of the hearing. Unfortunately, despite requesting them, I also did not receive Position Statements from either parties. This is unfortunate as it would have allowed me to better understand P, and the decisions to be made.

I chose to observe this case at random as (characteristically of hearings listed in the Royal Courts of Justice) there was no information available as to what matter was before the Court. This is a great shame as I believe more people may have requested to observe the hearing if its content matter (in this case, serious medical treatment) was made known. To observe a Court of Protection hearing can be educational, and it would improve the transparency of the Court if there was a more concerted effort to ensure that information about the issues before the court was available in advance on the daily cause list.

This hearing was particularly technical at times, and concerned multiple medical conditions and treatments. I am grateful to Conrad Hallin, of Serjeants’ Inn Chambers (Counsel for the applicant NHS Trust) for acknowledging the presence of observers, and for providing a detailed background of the case. I have tried my best to make the medical information as clear and concise as possible, and have chosen to focus here on two particular issues that stood out for me in observing this hearing: the extent to which P was (or wasn’t) involved in the hearing; and the question of restraint.

It is worth noting that P’s family (her aunt and brother) were not present but that they have expressed support for the proposed treatment plan at a previous best interests meeting. 

Background to the case

At the centre of this case is a 17-year-old woman (P), born overseas, who is living with HIV. It is believed she acquired HIV vertically at birth, and her mother died when she was young. P has been raised by her grandmother in this country, and in recent years it appears that she has been looking after her grandmother, who is now elderly with health issues of her own.

P requires consistent and regular antiretrovirals to keep HIV “at bay” but “consistent compliance hasn’t happened in the community and in recent times P has suffered a deterioration of her condition[1]”. 

In May, P was admitted to hospital, complaining of headaches, vomiting, and a general feeling of being unwell. It transpired that “she has been inconsistent with her antiretrovirals” since last year, and possibly stopped them altogether in January. Whilst in hospital, she was diagnosed with Progressive Multifocal Leuko-encephalopathy (PML), which is a neurological condition in which a virus targets the cells that make myelin. It has affected P’s brain, causing cognitive difficulties and particularly damaging her short-term memory. Her capacity to consent to treatment has been assessed on a number of occasions in hospital and each time she’s been found to lack capacity due to impairment in her cognitive functioning.

The treatment for PML is sustained re-introduction of antiretrovirals. However, a possible complication of this is Immune Reconstitution Inflammatory Syndrome (IRIS). This occurs when a person’s immune system begins to recover from immunosuppression but responds to a previous infection in an aggressive way. Paradoxically, this makes the infection worse. It is feared, as a result of a deterioration in P’s condition, that she now has IRIS. This needs to be confirmed via MRI, so that steroid treatment can begin. Without treatment, the condition “could be damaging her brain further”. However, although P has previously agreed to the idea of an MRI in principle, clinicians have tried unsuccessfully a number of times and found that P is “incapable of seeing it through”. This is because “she doesn’t tolerate at all well any injections or cannulation”, which is needed for the MRI contrast. Without treatment P’s prognosis is poor, and she may only live for another year. 

The applicant Trust has brought proceedings for orders to allow the MRI scan to be undertaken under a general anaesthetic – with physical restraint and sedation if necessary to provide the anaesthesia safely. 

It took a while for the point of contention between the applicant Trust and the Official Solicitor (represented by Parishil Patel of 39 Essex Chambers) to become clear. 

Both parties agreed that P lacks the capacity to make the decisions before the Court. Both parties agreed that it was in P’s best interests to be administered general anaesthetic for the purposes of having an MRI scan. During this period, a PICC line would be inserted so that some medication could be administered to her, and bloods could be taken. Both parties also agreed that it was in P’s best interests to have a PEG inserted, so that she can receive some nutrition and her HIV medication (which cannot be administered via a PICC line). The point of contention was the timing of the procedures. 

The MRI and insertion of the PICC line could happen as soon as Friday, when a specialist clinic is held. A clinician who can insert the PEG, however, is not available until next week. The position of the Official Solicitor is that it is least restrictive, and “less risky”, for all of this to happen ‘in one go’; that is, be administered general anaesthetic once, and all three treatments be given. The applicant Trust argues that diagnosis and treatment of IRIS is urgent, and the MRI cannot wait until next week.

The involvement of P

P was present on camera at the start of the hearing – a young, slender woman, in a hospital bed propped up against the pillows, and at one point snacking on something (dried fruit and nuts?) from a tub. She was being supported by a member of her healthcare team, who was holding her hand. 

Parishil Patel referred to her presence (“P is with us”) at the beginning of the hearing.. However, it didn’t seem to me that P’s participation in the hearing was managed at all well.

It transpired that the consultant was to give her evidence in the same room as P, who had just listened to Conrad Hallin providing an opening summary of the case.

Arbuthnot J observed that P seemed to be becoming distressed.

Consultant: She’s a little bit bewildered by the conversation that seems to be about her but isn’t really including her.

Judge: I don’t want to exclude her but if she’s going to be harmed by it [hearing the evidence], would it be better to proceed without her?

Consultant: Her main question is ‘what do you want from me’, and if she was able to respond to that it would be helpful.

Parishil Patel intervened to say that P had expressed a wish to attend the hearing and to speak to the judge in court: “maybe she can do that and then we can carry on without her”.

Judge: We’re all talking about you and what treatment you should have. What treatment would you want?

P: Nothing at all

The judge then asked P if she would like the consultant and laptop to move to another room, to which the answer was yes.

This brief exchange struck me as quite surprising. It had already been established that P is living with a significant cognitive impairment which affects her memory. I feel it would have been beneficial for the judge, or the consultant, to reiterate (for P’s benefit), what was happening, and what sort of decisions were going to be made. She then may have had something to offer. 

Furthermore, Arbuthnot J said that the hearing may return to P’s bedside if there’s anything she wanted to know from her but this never happened. As a result of these two decisions, P’s opinion was never really heard. 

In fact, P’s voice didn’t really shine through in this hearing at all.

It was reiterated on multiple occasions that P has a history of not taking her antiretrovirals, and (according to her consultant) will “delay and procrastinate” taking them whilst in hospital. It was not discussed in the hearing why P has been so resistant to taking her medication, which is all the more surprising given that one of the purposes of inserting a PEG was so that she could be given her antiretrovirals consistently. The Mental Capacity Act (2005) stipulates that those making a best interests decision should consider “the person’s past and present wishes and feelings” (s.4(6)). It struck me as rather odd, therefore, that time was not given to P’s long history of aversion to medication.

Although it was not raised orally in the hearing, Celia Kitzinger notes that the Official Solicitor’s Position Statement (which I don’t have) records that P has had the treatment explained to her on a number of occasions and is unable to recall the conversation when asked about it shortly afterwards, and is “unable to articulate what cause[s] her alarm or upset about the treatment”. She has also “consistently expressed the view that she does not wish to die”. 

After the consultant left P’s bedside and had moved to another room, she was affirmed as a witness, and questioned by both counsel.

Restraint

During Conrad Hallin’’s questioning of P’s consultant, it became clear that nobody knew whether P’s antiretrovirals were working because they have been unable to take bloods. The importance of this became clear during examination by Parishil Patel. 

In sum, it is important for blood tests to be carried out to see whether P’s CD4 count is rising. If it is, her antiretrovirals are working, and would therefore indicate that it is IRIS that has caused her cognitive deterioration. If they have not, it would indicate that her deterioration is a result of the progression of PML. 

If the medical team had this information, they could start steroid treatment for IRIS and delay the MRI until it was possible to insert a PEG on the same day. As they do not, and because P is continually declining, the consultant believes it is extremely important to go ahead with the MRI on Friday rather than delaying it so that it can be done at the same time as the PEG insertion. To begin steroid treatment without some confirmation could, the consultant explained, “precipitate psychosis”, which would make the eventual MRI very confusing to interpret.  

Parishil Patel then made a suggestion that I found quite disturbing. After clarifying that P may not accept an oral sedative ahead of her MRI, and therefore require an intramuscular injection for which she would have to be restrained, he explained that his job is to “see the least restrictive path”. Therefore, he suggested, would it be the “least restrictive option” if P was physically restrained for the purposes of blood taking, and then the MRI and PEG insertion can all happen on the same day. The consultant’s response was quick: “It doesn’t appeal to me because it would be traumatising for her and the staff”. There is an increased risk of needle stick injury, and could involve half-an-hour of physical restraint. She concluded that “having been in a similar situation before, I don’t relish it”. I absolutely understand why she took this position. 

Unfortunately, during the course of my work in health and social care, I have physically restrained people. I say unfortunately because physical restraint is far from pleasant. It’s physically and emotionally demanding, and consists of at least two people forcing somebody to do something that they do not wish to do (because they are a danger to themselves or others). During restraint, I’ve been kicked; I’ve been spat at; I’ve been seriously verbally abused (the most disturbing of which occurred when I was called a paedophile, which was followed by a long description of the abuse of children). The people I have restrained have been extremely angry but, at times, have cried. A lot of the restraint I have been involved with has been for the purposes of supporting somebody with their personal care following incontinence, and this has been re-traumatising for people who have experienced sexual abuse. As a trainer on a recent course put it, a room where restraint takes place ‘is a room full of trauma’. 

One type of restraint I’ve never been involved with has been restraint for the purposes of blood taking. This is because it’s relatively rare. It can be dangerous for all parties, and is usually reserved for when there is a desperate need to take somebody’s blood. In this case, no such desperate need was evident. With the insertion of the PICC line, under the same round of general anaesthetic as when the MRI takes place, nursing staff will be able to take blood with ease, and assess the efficacy of P’s antiretrovirals. I imagine the Position Statement might have shed more light on how and why the OS came to suggest this. Unfortunately, as I did not receive the position statement, I can only write about what happened in the hearing.

In this case, restraint may be necessary to give P a sedative through the intramuscular route, if she does not accept one orally (or, it is not effective). However, this restraint would take “a matter of seconds”, and would be much less traumatic. To put P through a traumatic (and potentially prolonged) restraint, when it could be wholly avoided, would not be the least restrictive option at all. If anything, it was the most restrictive option put on the table. I’m relieved that P’s consultant was so firmly against it but also shocked that it was proposed as a viable option – especially when you consider that, if P’s CD4 count is high enough, she would still potentially have had to be restrained again for the administration of sedation. In my view, one possible restraint is better than one definite restraint and one possible restraint. 

Some cause for hope

Towards the end of giving evidence, P’s consultant informed the Court that “she [P] may have capacity for neuro-regeneration” following treatment and (possibly) neurological rehabilitation. This was a glimmer of hope in an otherwise sad story, and was well received.

During final submissions, Conrad Hallin asserted that the Trust’s “submission remains as was” and Parishil Patel said “the evidence is clear all three treatments are necessary and in her best interests”. Therefore, as it is not practically possible for all three treatments to occur at the same time, “we can agree that these orders should be made”

Arbuthnot J was in agreement, and made clear that the Order should “cater for” the possibility of P regaining capacity (which included instructions on accommodating a further capacity assessment as and when it seems to be appropriate). It was also clear that, should an appropriate clinician become available on the day of the MRI, the Order did not stand in the way of the PEG being inserted on the same day. 

The possibility of P regaining capacity is a very real one, and I sincerely hope that P goes on to live a fulfilling life.

Daniel Clark works for the NHS as a healthcare assistant. He is also deputy director of Backbench: an unaffiliated, open platform, blog that publishes a range of articles about current affairs. In October, he will start a PhD in the Department of Politics and International Relations at Sheffield University on the changing meaning of old age. He has written and contributed to previous blogs for the Open Justice Court of Protection website including: “Challenging behaviours? The importance of language” and “The politics of the pandemic in the Court of Protection” He tweets@DanielClark132.


[1] We are not allowed to audio-record hearings.  All quotations from the hearing are taken from contemporaneous notes and are as accurate as I can make them but are unlikely to be entirely verbatim.

An “unacceptable” care placement – and why public observers help to hold the state to account

By Jordan Briggs, 22nd July 2022

This hearing, listed before His Honour Judge Berkley at Manchester County Court (via MS Teams) on Wednesday 20th July 2022, concerned a woman in her early twenties with complex emotional needs (‘P’) who had absconded from her placement on 18th March 2022. 

There’s a previous blog post on the Open Justice Court of Protection Project site about two of the earlier hearings in this case (COP 138365220) under the title “Absconded”.

She had moved to the current placement in February 2022 from prison. 

It’s a specialist placement with restrictive care conditions (e.g. accompaniment by two staff members at all times and use of a security vehicle for transport).

P was still missing and nobody knew where she was at the last hearing on 24th March 2022.

At that hearing, Ben McCormack (acting for P via her litigation friend the Official Solicitor) made three key points:

  1. The court, other parties and probation service need a proper explanation of what has happened since P ran away.
  2. The local authority needs to think about and explain what will happen when P is brought back unwillingly into the restrictive special placement. 
  3. The case should come back for an urgent hearing, preferably with P attending. 

We’re told there were subsequently three hearings in this case (on 1 April, 14 April and then 27 May 2022), ie between the hearing on 24 March and the one on 18 July which I observed. They were all in court in Manchester rather than online, and I’m not aware that any member of the public observed them. So I don’t know what active case management had been done during that period – only what was revealed in the hearing I observed.

The Local Authority was represented on this occasion by Adam Fullwood.

Although nobody said expressly that P had returned to her placement (and she didn’t attend this hearing), updates on her progress therein implied that she has. 

My blog post deals first with issues concerned with open justice and accessing this hearing, and then with its substantive content. 

Accessing the hearing

Accessing this hearing was hard. I initially emailed Manchester County Court for the link, first at 10.16am and again at 12.21pm. I didn’t receive a reply to either email. 

I then telephoned Manchester County Court, first at 2.23pm. I was told that I would be emailed the link at 2.45pm. That didn’t happen. I called again at 2.53pm. I was told that HHJ Berkley was still hearing the case before this one, meaning this one would be delayed. I was assured that the link would be emailed to be in due course.

I received the link at 3.04pm. It said “the ink will be available for advocates discussions” [sic] and “His Honour will join the link at the allotted time”, which was (now) at 3.45pm. I clicked the link. Microsoft Teams displayed a message saying “When the meeting starts, we’ll let people know you’re waiting”. I presumed that the meeting had started, but that the advocates were discussing the case privately, which the public would not be allowed to observe even during in-person hearings. So, I waited.

Nothing changed at 3.45pm, save for a car outside the library in which I was seated beginning to very loudly play Thin Lizzy’s “The Boys Are Back In Town”. The irony was not lost on me: on my screen precisely nobody – boys or otherwise – had returned to public view.

At 3.51pm, Microsoft Teams asked for permission to use my microphone. I granted it, yet still nothing changed. At 4.05pm, the hearing began. 

Beginning the hearing

At the beginning of the hearing, only HHJ Berkley and Adam Fullwood had their cameras switched on. HHJ Berkley apologised for the delay, but hoped that that “some progress could be made moving forward”. HHJ Berkley specifically welcomed observers to the hearing, but reminded us that transparency and confidentiality orders prevent us from revealing the case’s sensitive details (although I’ve not been sent the Transparency Order). 

The judge asked whether advocates had been discussing the case whilst he was delayed. Adam Fullwood nodded. The judge accordingly invited Adam Fullwood to “assist… with whether they’ve been productive and where the parties stand at the beginning of the hearing”.

Adam Fullwood: Counsel for the Local Authority

Adam Fullwood obliged by saying that the directions he would invite the court to make were “almost all agreed” between the Official Solicitor and the Local Authority, who had discussed them while waiting for the hearing to start. 

The directions fell into two categories, namely that the court should: (i) authorise a continuation of P’s current arrangements, which amount to a deprivation of liberty, and (ii) have another hearing in about 4 weeks’ time.

Adam Fullwood did not, at this stage, provide an opening summary of the facts of the case, despite  Mr Justice Hayden in March 2020 stressing that it is “helpful, for a variety of reasons”, for advocates to do so. The facts were eventually summarised, but halfway through the hearing by Ben McCormack. The absence of an opening summary did not inhibit my understanding, because I had read previous blogs from the Open Justice Court of Protection Project, and I’d familiarised myself with the case before joining the hearing. But, without that assistance, the absence of an opening summary would have prevented me from understanding the hearing’s facts and history. 

Rather, after outlining the two categories of directions, Adam Fullwood expanded on them by listing seven issues that were agreed between the Official Solicitor and Local Authority. 

Issue 1: Capacity

Adam Fullwood said that he had received a report from ‘Dr Todd’. Adam Fullwood did not explain what that report contained, but Ben McCormack later mentioned that Dr. Todd was a clinical psychologist. 

Adam Fullwood said it was agreed that Dr Todd needed to be asked two further questions. These concerned clarification of: (i) what is causing P to lack capacity and; (ii) what “model” of care Dr Todd considers is in P’s best interests.   

Expanding the need for a different care “model”, Adam Fullwood said that P’s existing care placement was “fraught”. Eighteen staff members, Adam Fullwood said, have now refused to work with P on account of her behaviour. Accordingly, while previously only restraint-trained staff would supervise P, the care placement is now using staff without formal restraint training albeit with instructions to nevertheless restrain if necessary. 

In light of this, Adam Fullwood reminded the judge that the Local Authority “has always accepted and continues to accept that the [current] placement itself is unacceptable”, thereby underlining the aptness of its revision.

Issue 2: Alternative placement options

Adam Fullwood said that the Official Solicitor has been provided with “limited evidence” about the parameters of a search for alternative placement, but wished for richer evidence – showing precisely what had been looked for, and why no search had yet succeeded. This point was taken no further. 

Issue 3: Drug misuse 

Adam Fullwood said there was a “dramatic conflict of evidence” about whether P was currently misusing drugs. P’s care staff say there’s no evidence that P is misusing drugs. Yet P says that she is. Adam Fullwood suggested that the matter be kept under review. Ben McCormack would shortly return to the issue, as detailed below.

Issue 4: Smartphone

Adam Fullwood said that P had recently purchased a smartphone, and had said that she uses it to contact her “sugar daddy”. There was, he continued, no evidence that she had met this man in person.

Here, my internet momentarily failed. I regained access to the hearing within twenty seconds. I heard Adam Fullwood saying that he was not applying today to restrict P’s smartphone use, but that he may do so in future if that becomes appropriate. 

Issue 5: Community access and transport

Adam Fullwood relayed that, in the words of P’s social worker, P has “caused chaos” travelling into – and when in – the community. Adam Fullwood explained that, although secure vehicles have been commissioned specifically to transport P, their drivers are refusing to drive her because P threatens to cause them to crash during the journey. Once in the community, Adam Fullwood explained, P has participated in “street homeless and/or begging activities” 

In light of this, Adam Fullwood invited the judge to direct that placement staff may adopt a “consequential approach” with P. That envisages P’s community access continuing, albeit under the proviso that if P misbehaves, the following day’s access would be cancelled. I think I saw the judge nod, ever so slightly. 

Issue 6: “Restrictions”

This issue was difficult to follow. Adam Fullwood directed the judge to page 271-2 of “the bundle”. “The bundle” is legal shorthand for a package of documents given to the judge by a lawyer. It usually contains relevant evidence and documents expressing the lawyer’s submissions about how the case should be decided. (There’s a previous blog post explaining what ‘the bundle’ is” (”Bundles and bundles of Documents”) 

The public rarely has access to these bundles. Accordingly, when advocates invite judges to read parts of the bundle without explaining in open court what those parts contain, it is impossible for the public to know what the judge is reading (unless they read it aloud).

I understood, from what passed between Adam Fullwood and the judge, that P’s care team would not allow her to use public transport to access the community. Accordingly, until P’s drivers resumed transporting her, she presently had no practical access to the community. However, once P’s drivers resume transport, I understood the plan to be that P travels with them and under two staff members’ supervision.

Issue 7: Property and affairs deputyship

A ‘deputy’ is someone appointed by the Court of Protection to make decisions on behalf of somebody who lacks capacity to make those decisions for themselves. There are two types of deputy: (i) a ‘property and financial affairs’ deputy, who can make financial decisions like paying bills or organising a pension, and (ii) a ‘personal welfare deputy’, who can make decisions about medical treatment or care. [For more information about deputies, see: https://www.gov.uk/become-deputy)

Adam Fullwood reported that the Local Authority had applied to become P’s financial and affairs deputy, so as to make financial decisions on P’s behalf, but that they had not yet been approved to so act. Adam Fullwood said that “there’s a delay of up to six-months when we send [the application] to London” before applications are answered. 

Accordingly, Adam Fullwood invited the judge to approve the Local Authority’s deputyship application. The Court of Protection is empowered to approve these applications by virtue of ss 16(1)(b) and 16(2)(b) of the Mental Capacity Act 2005 (which say that “if a person (“P”) lacks capacity in relation to a matter or matters concerning… P’s property and affairs…The court may… appoint a person (“a deputy”) to make decisions on P’s behalf in relation to the matter or matters). Again, I think I saw the judge nod. 

Adam Fullwood concluded by asking that the court reconvene on the 18th or 19th of August 2022. He conceded that “whilst arrangements are clearly suboptimal, we invite, at least in the interim, for the court to authorise this deprivation of liberty”

Adam Fullwood also said that, rather soon, it may become necessary to hold a full hearing conclusively addressing whether P has capacity. Saying “the longer someone is deprived of liberty, the greater the need to consider grappling [with] and determining capacity becomes”, Adam Fullwood invited a capacity hearing sometime after the above mid-August hearing. By that time, he hoped, Dr. Todd should have answered to the additional questions that the Official Solicitor and Local Authority would shortly put to him.  

HHJ Berkley thanked Adam Fullwood, then asked Ben McCormack whether he had anything to add. Ben McCormack turned his camera on and began speaking. 

Ben McCormack: Counsel for P (via the Official Solicitor)

Ben McCormack began by repeating the facts of the case, and saying that the “nub of the problem” was finding suitable arrangements for P. There was “no doubt that [care staff] are doing the best that they can”, he said, “but the bottom line is that they’re just not equipped” to deal with P. 

Ben McCormack accepted that the existing arrangements are the “best option for [P]”, given that the alternative was life “effectively on the streets or close to that”, which brings a “far greater risk of harm”. Yet Ben McCormack underlined the inappropriateness of a care plan which envisages restraint, but knowingly allocates staff who have no training in it.

Ben McCormack suggested that P was exhibited disruptive behaviour because she was “just bored” in her current arrangements, leading her to do things which “she probably shouldn’t”. Connectedly, Ben McCormack said P is “lonely, meaning when people reach out to her on the internet, she says yes”. 

Against this background, Ben McCormack revisited five of the seven issues which were agreed between the Local Authority and Official Solicitor. 

Issue 1: Smartphone

Ben McCormack said that P’s smartphone use had generated some discussion amongst her multidisciplinary team. All in that meeting knew that she is now contacting a “sugar daddy”. Ben McCormack related that, according to one social worker, “someone had been paying [P] for ‘certain services’”, but Ben McCormack had “no idea” whether that was true.  What was clear, Ben McCormack said, was that P was no longer seeing the “boyfriend” who had been mentioned in previous hearings.

Yet, Ben McCormack re-stressed that P was simply “bored out of her skull” in her current arrangements. “Taking her phone off her”, he said, “would be quite a step in that situation”.

Ultimately, Ben McCormack said that the court needed “better and clearer evidence about the edges of [P’s] life that need intervention”. That is, whilst in future the “dial [c]ould tip towards problems” which clearly necessitated intervention, Ben McCormack said that the facts were presently too unclear to justify restricting P’s smartphone use.

Issue 2: Drug Misuse

Ben McCormack said that his instructing solicitor had recently visited P three times. On the first and second occasions, the instructing solicitor had smelled cannabis in her residence. On the third, P told the instructing solicitor that she was smoking cannabis “every day”. Ben McCormack said “it seems odd that she’d lie about that”.

HHJ Beckley interjected, adding “especially [so] given her history”. The judge suggested that perhaps “the monitoring of that issue hasn’t been as good as it ought to have been”, and said he had “no doubt that [P] will continue to misuse cannabis”

Ben McCormack suggested that social workers’ and P’s evidence are not mutually exclusive: P could have been smoking cannabis, perhaps late at night, with staff simply not noticing it. The judge did not reply.  

Issue 3: Alternative placement options

Ben McCormack accepted that Dr Todd could be asked his opinion on the “model” of care that might suit P. Realistically, Ben McCormack doubted that Dr Todd could recommend specific locations to house P, as Dr Todd was not based locally, but had “no problem with him being asked”.  

As regards the search for alternative placements, Ben McCormack said that it would be useful if lawyers were given the minutes of P’s multidisciplinary team meetings. At present, Ben McCormack said, he was only being updated about complaints towards the end of P’s caring periods. Reading minutes throughout the period, and not merely at their end, would allow him to “spot in advance [any] issues that are properly the business of this court”. Later the judge asked Adam Fullwood whether he disagreed with his suggestion: he did not.

Issue 4: Capacity

Concluding his remarks, Ben McCormack related that, according to Dr. Todd, “emotional dysregulation” and,“probably”, a “learning disability” together rendered P incapacitous, with the former being the more significant. Against that background, Ben McCormack aligned with Adam Fullwood by saying that at some point “reasonably soon”, the Court of Protection would have to deal with P’s capacity head-on.

Ben McCormack said there was “no doubt that [P] can’t make decisions – the question is why”. He was “not absolutely sure that ‘emotional distress’ is a sufficiently good explanation of ‘impairment in the functioning of mind or brain’”, as must be the case if a person is deemed to lack capacity under s.2(1) Mental Capacity Act 2005. 

Ben McCormack assured the judge that the court could proceed on an interim basis because there is “reason to believe that P lacks capacity”. He  was referring to s.48 of the Mental Capacity Act 2005, which says “[t]he court may, pending the [final] determination of an application… make an [interim] order or give directions if […] there is  reason to believe that P lacks capacity… [and] it is in P’s best interests to make the order, or give the directions, without delay”). However, Ben McCormack said that there was a “lot riding on the capacity issue”, and so agreed that a full capacity hearing may well be necessary. 

HHJ Berkley

The judge began his concluding remarks by saying that, in his “instinctive view”, a full capacity determination would be necessary after the next directions hearing. He suggested that next directions could fall on 18thAugust 2022, but was concerned that Dr Todd might not supply “full and proper replies” to his new questions by that date. 

Ben McCormack assured the judge that the 18th August date was workable in two ways. First, Ben McCormack said that Dr Todd’s provision or non-provision of answers doesn’t affect the court’s continuing jurisdiction to hear the case. Rather, “if [the court] has it [i.e. jurisdiction] today, nothing will have changed by the 18th of August”, so the court needn’t worry. Second, Ben McCormack said Dr Todd is not a “necessary ingredient” in the search for P’s alternative placement. That search would fall to the Local Authority in any event. Indeed, Ben McCormack said, given “all the indications of a place[ment] that isn’t working”, the search “has to start right away”, with or without Dr Todd’s help.

Satisfied, HHJ Berkley proceeded to authorise all the directions above. Namely, he had “no difficulties with the proposed way forward about capacity or best interests”, and accepted that smartphone use and community access would be kept under review. He said there was “no alternative” to authorising the continuation of P’s deprivation of liberty, adding that it was “absolutely necessary given the risk that she currently faces”. He also approved Adam Fullwood’s “consequential approach” (i.e. community access is revoked if P exhibited disruptive behaviour) as “necessary and proportionate at this point in time”.

HHJ Berkley also accepted control of the property and affairs deputyship issue, saying that he had issued a similar direction in another recent hearing. 

And he approved P’s multidisciplinary team meetings being shared with lawyers, adding that it would “no doubt help the Official Solicitor’s understanding between hearings”.

Finally, the judge fixed the return date for 2pm on 18th of August 2022, “on an attended basis” (i.e. in person). The judge gave no reason for moving the hearing offline. 

Adam Fullwood indicated that he would draft the directions order, and that if any application to restrict smartphone use became necessary, he would draft it as soon as possible. 

Reflections

I think there were three barriers to open justice in this hearing.

The first barrier was the onerousness of obtaining the Microsoft Teams link. Two emails and two telephone calls were required to discover whether I could observe. I don’t criticise the court staff for that: courts are busy places, and I think it’s unreasonable to expect administrative staff to email and mediate between lawyers, judges, Ps and other implicated parties, all at the same time, and over numerous hearings happening all at once. 

Yet, it would have been helpful to receive a brief reply to my 10.16am email, saying that I would receive the link 15 minutes before the hearing, whether that be at 2.45pm as planned, or later if there were delays. Ultimately, I persevered with accessing this hearing because I had successfully accessed hearings before, and because I was supported by the Open Justice Court of Protection Project. Had I been a curious first-time observer, however, I probably would have given up. It’s not optimal, in my view: open justice shouldn’t require such determination and stamina from would-be observers.  

The second barrier to open justice was the public’s exclusion from advocates’ discussions. Effectively, in this hearing advocates agreed all matters off-camera, then had them ‘rubber stamped’ by the judge in open court. 

However, again, this barrier is not necessarily objectionable. I have undergone work experience as a barrister and so have observed advocates’ discussions myself. I therefore know that advocates’ discussions involve openly exchanging relevant but sensitive details about P (and connected persons).

So, whilst open justice favours transparency, individual privacy points the other way. In my view, it’s right that advocates’ discussions aren’t indiscriminately broadcast to the public,  especially where P is highly vulnerable. Yet, I remain somewhat uneasy that in hearings like today’s, all open justice exposes is a hearing’s scripted and closing act.  

The third, and least forgivable barrier, was the absence of an opening summary. The judge effectively reminded advocates that observers were attending when he welcomed observers at the outset. Especially after such a reminder, there was no good reason why an opening summary did not follow. 

To my mind, opening summaries transform observers from mere spectators into helpful scrutinisers. Without a basic understanding of the facts and issues in the hearing, observers cannot tell whether important issues are given due weight, or whether the court is exercising its power appropriately. With a basic understanding, however, observers are empowered to hold the court and its actors to account. 

Accordingly, while the absence of an opening summary did not inhibit me today because I could read online blogs on the case, its omission in other cases risks undermining the comprehension and utility of public observers.

The facts of this case justify my protracted focus on open justice. P is a young lady who, without having had her lack of capacity firmly established, is being subjected to highly restrictive conditions that are agitating her and resulting in harm to persons around her. Effectively, the state is expending its scarce resources to coercively restrict the autonomy of somebody whose decisions, while perhaps reckless, cannot yet be attributed to a mental disorder. 

The idea that the state could privately so restrict is frightening. Accordingly, cases like these are precisely those in which open justice becomes a functionally important principle, as a means of holding courts to account for their treatment of vulnerable persons. That is why the three barriers to open justice in this case merited such close, balanced reflection.  

Jordan Briggs works as a Paralegal and is a trained, unregistered Barrister. His previous blogs on legal matters include a brief history of legal aid and a 3-part series on the government’s response to Covid-19 and the rule of law. Jordan has previously published blog posts for the Open Justice Court of Protection Project including “Advocacy in the William Verden hearing” and “Covid vaccination and a Christmas visit”.  He tweets @JordanBr1995

Family members as parties to proceedings: Pros and cons

By Astral Heaven, 21st July 2022

I am a Local Authority Approved Mental Health Professional (AMHP) and Deprivation of Liberty Safeguards (DoLS) Lead and a practising Best Interests Assessor (BIA). 

Part of my role as BIA when I’m undertaking DoLS assessments is to talk with the person I am assessing, and with their family and friends, about their right to challenge through the Court of Protection, my assessment that they lack capacity to make a decision about whether or not they should be accommodated in the hospital or care home for the purpose of being given care and/or treatment and/or my decision that it is in their best interests for them to be deprived of their liberty

As part of this discussion, I need to explain about the Relevant Person’s Representative (RPR) role. This is the person the Council as ‘Supervisory Body’ must appoint when a Standard Authorisation under DoLS is granted, to maintain regular contact and to represent and support the person in all matters related to the authorisation. This includes requesting a review of the DoLS, requesting an Independent Mental Capacity Advocate, or challenging the DoLS authorisation in the Court of Protection if the person wishes or would wish to do so. The RPR can also bring an appeal if they believe it would be in the best interests of the person subject to DoLS to do so. 

If the person being assessed has mental capacity to choose an RPR and they have a friend or family member aged over 18, willing to act and eligible for the rolethey select the person to act as RPR. If the BIA assesses that the person lacks the mental capacity to select their RPR then any attorney or deputy with personal welfare authority can select one for them (including selecting themselves). If the person themselves or their deputy cannot select anyone, then the selection is made by the BIA – and if they too are unable to make a selection because there is no one who can meet the requirements of the role, then the council will appoint a professional independent paid RPR. 

When we have discussions with the person and their friends and family about the RPR role, very often we will be asked questions about the court process if an appeal is brought and how much they can be involved in this. In cases where a family member may wish to be appointed as RPR but the BIA assesses they do not meet the requirements for the role or there is a potential conflict of interest and a Paid Representative is appointed rather than a family member, the friend or family member might feel upset that a challenge is being made or concerned they will not be included within the process. Therefore, being able to provide them with information about how the court process works, and reassurance that they can be fully involved, is very important when we are having these discussions. 

As BIAs, our involvement in the DoLS process ends at the point we submit our report, and it’s been scrutinised and a Standard Authorisation has been granted. We rarely then get the opportunity to follow what happens next when the person wishes to challenge the authorisation.  It is therefore really valuable learning to have the opportunity to observe hearings to see what happens once a s21A challenge reaches Court. Personally for me, it significantly increases my understanding of the process and means I am then able more clearly and confidently to explain the process to others, including families.

I have previously observed around 15 Court of Protection hearings and I’ve written or contributed to blogs to the Open Justice Court of Protection Project before (e.g. “Why covid vaccination is NOT in this care home resident’s best interestsIs it lawful for C’s carers to support him in accessing a sex worker?)

Having a little space in my diary one Friday recently (8th July 2022), I applied to observe 2 directions hearings I found from the list published by the Open Justice Court of Protection (OJCOP) Project, and – as it turned out – both raised issues relating to the question of what was entailed for family members who wanted to be involved in proceedings, and whether they should participate as “parties” or not. One of the hearings had been brought as a challenge to a DoLS authorisation.

I’ll start by writing about my experience of gaining access to the hearings and issues relating to Open Justice and then I’ll turn to the questions that watching these hearings raised for me.   

Open justice matters – and why I didn’t send my CV to the court

The first hearing I observed was before Her Honour Judge Bloom (COP 13953155 Re DM) at Luton Justice Centre & Bedfordshire County Court for 1 hour starting at 10am on 8th July 2022.  It was listed as an interim and directions hearing concerning residence and care and deprivation of liberty.  

The second was before Her Honour Judge Smith (COP 13953702) at Newcastle County Court at 12pm, again for one hour on 8th July 2022: it was listed as concerned with where P should live, healthcare, and appointment of deputy for personal welfare. 

Both requests to observe were responded to very quickly and I was sent the Transparency Orders for both. Having now observed so many remote hearings over the past couple of years, I would say it’s been fairly rare to have been sent the Transparency Order without requesting it, so I noticed a very clear improvement in this respect. 

One concerning issue is that for the second hearing, I was initially advised that the Judge required a copy of my CV to be sent to her. This was a surprise – and it is only due to the  confidence I have from regularly reading the OJCOP blogs and from observing previous hearings, that I felt able to reply to the court, saying that I should not need to send a copy of my CV as I was applying to observe the hearing as a member of the public, in line with the Court of Protection’s transparency project. This project arose from a pilot in 2006 which has since been adopted into court practice and enables professionals working with the Mental Capacity Act 2005 and other members of the public to gain really helpful insights into the work of the COP and see first-hand how such important and often life or death decisions are made (without reference to our CVs).

Had I not held the level of certainty I did, that sending my CV was NOT a requirement of being allowed to observe a hearing, I know I would probably not have questioned this and it would have put me off observing – both that hearing and probably future hearings too, largely (for me) because my CV would have needed some updating, which I simply would not have had time to do. 

I am quite certain that a request for a CV would put others off from observing hearings too. Many people would not question the request: after all you would not normally query a request from a court. For example, when I told my husband that I had challenged this request, his mouth dropped open and he replied ‘only you could do that!’ So, this type of request could be detrimental to open justice. In addition, although I am a professional requesting the link to observe hearings, this opportunity is not just open to professionals, but to any member of the public – not all of whom would have a CV to send.

Despite this shaky start, however, I feel HHJ Smith actually went out of her way to accommodate my request to observe this hearing. I was a little late logging on and court staff both emailed and then called me to make sure I was able to log on. The judge spent some time in making sure everyone had read and fully understood the Transparency Order and time was given to ensure this was done. 

Unfortunately, there was no summary of the case in either hearing and with each being a directions hearing only lasting less than an hour, I was limited in my understanding of the cases. 

Family members as parties

The interesting shared element of my experience of watching these two short hearings on the same day was the issue of whether or not family members should be joined as a ‘party to proceedings’ – and for the first hearing a large part of the hearing was dedicated to discussing this. 

In the first hearing (before HHJ Bloom), there were 2 sons, seemingly in dispute as to the best interests of their mother (P). She had been living with Son A, but Son B had made allegations (these were not discussed), which appear to have led to her moving to a care home. There was a Standard Authorisation under DoLS in place and an appeal had been brought by her RPR (who was also attending as litigation friend). The first half of the hearing comprised a discussion about whether or not each of the sons wanted to be a ‘party to proceedings’ in their own right or not. Son B, who had made the allegations about his brother, said he wished to be made a full party.  Son A, with whom P had been living with, said he did not. 

Son A was advised that if not made a party to proceedings he could still submit evidence, ‘but not as a party’, and would still be provided with copies of the orders, served with statements obtained, and would be able to attend all hearings. 

It was explained to son B, that if made a full party there can be cost consequences, because if expert reports are required, he would, as a party, be responsible for part of the cost of any assessments. The judge said it was unlikely in this case that an expert report would be needed as there was no query about capacity and the court was looking at best interests and whether P could go home with a care package or whether that would be untenable. 

Son B, who wished to be made a party, said he would not have any money to contribute toward reports –  so it was suggested he could be made a party, but could then step out from being a party if an expert report was needed, in order to avoid him being impacted financially. 

Son A, although not being made a party, was advised he would get invited to round table meetings, receive copies of the orders and attend hearings, so would still be able to participate fully. 

In the second hearing before HHJ Smith, which appeared to be about an order to remove P from her property to a care home, it was stated (during the discussion as to whether family were to be made party to proceedings, that if they were parties, this would mean they were ‘formally and actively involved in proceedings and can present arguments to the court rather than being an observer’. There was no mention of this involving any possible costs. 

Listening to these two approaches led me to want to understand more about what being a party to proceedings means and whether or not (and under what circumstances) this would be the better option for family members.  If in fact this risks incurring costs, and families can still be fully involved in proceedings without being a party, then what would actually be the benefit? Also, what information is provided to families to enable them to make this decision?

In my view it would be really useful to have a guide for families – maybe in a Q&A format. “What is a party to a case?” “Why have I been asked to be a party?” “Why haven’t I been asked to be a party” “How do I participate in a case if I’m not a party?” “Can the judge make someone a party if they don’t want to be?” “Can I change my mind about being a party and join/drop out later?” “Will there be financial implications of being a party?”. 

Closing remarks

I was very pleased to have watched these two hearings as they forced me to think about what information I should be providing to families about s.21A appeals. 

I am currently in the process of updating our RPR pack for families so it would be really helpful to have a guide for families about the s21A appeals process and information on what it means to be a party to proceedings.  

So this is a call to lawyers in the Court of Protection: please can someone write a guide for families informing them about the pros and cons of being formally a party to proceedings – something that I and others can then include in our packs. 

Astral Heaven is a qualified social worker and AMHP and has been practising as a BIA since 2009. She is currently AMHP and DoLS Lead for a Local Authority in the West Midlands. She tweets as @AstiHeaven

After more than 4 months in hospital (for “assessment”), there’s a new placement and a transition plan for Mr M

By Celia Kitzinger, 19th July 2022

This was a short hearing in a long-running case – and if things go according to plan, it will have been the final hearing.

There were two hearings in February 2022, the second of which approved Mr M’s transfer to hospital for what was projected to be an overnight stay.  At the time of this hearing (6th July 2022), he was still there, more than four months later.

There have been three subsequent hearings (one in each of March, April and June 2022) followed by this hearing in July 2022 at which a discharge plan and a transition plan to a new placement were finally approved.  (See the Appendix for a list of previous blogs – with links – about this case.)

Background

This case (COP 13883671) first came before the Court of Protection on 8th February 2022 as an “Urgent” application from the local authority to convey Mr M (who has schizophrenia) into hospital against his wishes, so that the ulcers on his legs could be assessed.  

He didn’t want his legs to be assessed and had declined to go outpatient appointments.

The local authority  (represented by Ulele Burnham) was concerned that the ulcers were “suppurating”  and “malodorous”.  Mr M was allegedly injecting Class A street drugs into his wounds, and there was a risk of sepsis. Both the local authority and the NHS Trust, represented by Emma Galland, agreed there should be an order to convey him to hospital.

However, at the first February hearing the judge (Peel J) declined to authorise transfer to hospital because Mr M was not represented (i.e. did not have a barrister in court to address the judge about his best interests).

A next hearing was arranged in short order and took place on 14th February 2022 before Mrs Justice Theis (who has been the judge at all subsequent hearings). At the second February  hearing, a barrister, Katie Gollop was in court to represent Mr M (via his litigation friend, the Official Solicitor). She agreed that he should be transferred him to hospital (against his wishes) because this was in his best interests.

Mrs Justice Theis approved the order that Mr M should be taken to hospital (forcibly if necessary) for assessment of his leg ulcers.   

He was taken to hospital (apparently without the need for force) on 21st February 2022.

Although the assessment visit to hospital was predicted not to involve more than one overnight stay, Mr M was still in hospital 18 days later, at the next hearing on 11th March 2022. A consultant vascular surgeon had examined his legs and said that there was currently “no clinical urgency to treatment” but that the infection of his legs, if combined with “non- compliance” with treatment in the community, could lead to sepsis and death.  At that point Mr M was willingly taking antibiotics for his infection and that was “holding the ring”, and the infection had not moved into the bloodstream. During his time in hospital Mr M had been assessed by two consultant psychiatrists, both of whom agreed that he did not have  capacity to make decisions about his physical health and treatment options.  He had also been seen by the ‘drug abuse team’ and prescribed methadone, which he was taking. 

Everyone seemed to think it was clear that Mr M couldn’t go home to where he’d been living. The NHS Trust position statement said: “… it is noted and accepted that he will not be returning to his previous accommodation”. 

At the next hearing, on 8th April 2022 (by which time Mr M had been in hospital for 40 days),  the medical assessment and recommendations were now agreed: there is only one treatment option: regular and frequent (3 times a week) dressing changes to Mr M’s ulcerated legs.  Neither amputation nor debridement is required. It is likely that the ulcer will never heal and that Mr M will remain at risk of repeated infection and deterioration.  

The issue now was the parties involved in Mr M’s care working out a solution, either with, or for, Mr M about where he lives and how his needs can best be met. There was a suggestion that he might regain capacity to make decisions about his medical care and where he lives. 

The next hearing, due to be held on 20th May 2022, was vacated, but on 23rd June 2022 the case was back in court for another hearing before Theis J.  The question now was where he would be discharged to and the concern was that if he returns to his flat, he would fall back on his previous refusal to accept care for his ulcerated legs. After a “protracted search” for a placement, a nursing home had been identified where he can get wound care. All parties agreed that the placement looks appropriate and he could move on 7thJuly 2022.  

The issue now was whether a decision to move him to the placement could be made in his best interests, or whether he has mental capacity to decide for himself where he lives and receives care.  A mental capacity assessment was needed, and the judge was clear that she also wanted details about the ‘transition plan’ (i.e. how Mr M would be moved from the hospital to the new care home that has been identified for him).

Hearing on 6th July 2022

Counsel for the local authority (Ulele Burnham) gave a brief and very helpful opening summary.  

She reported that a capacity assessment had been done and “he lacks capacity in the relevant areas … ”.    

“All parties in the case agree that it’s in Mr M’s best interests to be moved to that placement.  So, what is before the court is in essence an agreed order seeking the court’s approval for the move, and for deprivation of his liberty until such time as the statutory declaration can be given. … A discharge placement has been identified and a transition plan created for his conveyance.”.  

The move to the new placement was now planned for 12th July 2022.

Mr M’s own views about the move were reported.  “His objections are not as strenuous as had been thought and the hope and expectation is that he will comply with the terms of the order”. 

The transition plan permits sedation (with oral diazepam) and “guidance and encouragement” from the police, “with physical restraint only so far as it amounts to guidance.  If more restraint is needed, it will be put before the court for further authorisation”.

There were also some issues about funding to be sorted out (I didn’t understand quite what those were) but the expectation is that Mr M will move to his new placement on the afternoon of 12th July 2022.

If for any reason the move doesn’t take place on 12th July 2022, there will need to be a further hearing, but the hope was that this wouldn’t be necessary.

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

Appendix: Previous Blog Posts about this case (by Celia Kitzinger, Claire Martin and Diana Sant Angelo)

  1. No decision without representation 
  2. A man with a diagnosis of schizophrenia can be conveyed to hospital against his wishes for assessment of his ulcerated legs
  3. A long wait for medical recommendations – still in hospital after 18 days 
  4.  More on Mr M: Medical recommendations, still awaiting discharge and final hearing plans
  5. Mental capacity assessment and transition plan for a man with schizophrenia and ulcerated legs 

“Grave concerns”: Funding arrangements, capacity for sex, and a TZ-style care plan

By Celia Kitzinger, 13th July 2022

The protected party at the centre of this case (COP 13627568 before DJ Glassbrook sitting in Northampton on 8th July 2022[i]) was described as “ a 19-year-old lady with diagnoses including Mild Learning Disability. Mixed Disorders of Conduct and Emotion, and Reactive Attachment Disorder of childhood”.  

Introducing the hearing for the benefit of the observer, the judge said that there were two issues before the court today: the funding arrangements for the protected party’s (P’s) accommodation, and P’s capacity to engage in sexual relations.  

The latter issue was clearly something he was concerned about:

Some time ago, I believe at the beginning of the year, I made declarations about capacity.  Having reviewed that, I expressed reservations about the soundness of some of those declaration in April.  I expressed the same reservations in May.  There was to be a TZ-style care plan before the court today. It has not come into being. Those declarations will be reviewed today.”

There were two barristers in court. For the local authority, Catherine Rowlands of Cornerstone Barristers and  Benjamin Harrison (covering for Jake Rylatt) of Serjeants’ Inn Chambers for P, via her litigation friend, the Official Solicitor,

The Head of Operations of the Registered Provider of P’s placement was also in court because the judge had issued a witness summons. Also in connection with the placement, the local authority Revenues and Benefits Manager was present.

Funding arrangements for the placement

The parties had previously agreed in principle (at a hearing in December 2021) that it was in P’s best interests to move to a particular placement, but the funding arrangements have still not been resolved. 

This is despite the fact that P has already moved to the new placement because her previous placement experienced issues with the heating and water supply: it was necessary to turn off the heating and hot water completely and remove the kitchen sub-floor.  She simply couldn’t live there while that was going on.   

So, she’s living in the new placement with various concerns (from the judge) about the basis on which she occupies it, and about “due diligence” issues.  

The Head of Operations for the housing provider had been summoned (i.e. ordered) to appear in court – an unusual move for the Court of Protection.  The judge said:  “It’s is not something we do regularly, but if we don’t get to the bottom of funding arrangements it could all fall down”.  He explained to that it had proved impossible to get the necessary information any other way and this had “been going on for many months”.  The judge was concerned that P should not have to move again from a placement that “falls down” – “that’s why the sustainability of the package is so important”, and it had “proved necessary”, he said, to summons her as a witness to get the information needed.

I don’t know enough about housing law or funding arrangements for placements to understand the significance of the exchanges between the judge, counsel and the Head of Operations for the placement.  

A key problem seems to have been a delay in the provision of “statutory compliance certificates” (the judge confirmed that meant “fire safety, gas, electrical, that sort of thing?”) which had been awaited for many months. Once they’re received, they need to be reviewed by the Board and there may then need to be remedial work, so it sounded as though this could take many months more. 

But this year, not next?” asked the judge.  “Yes”, said the Head of Operations: “Any later would raise significant questions as to the ability of the freeholder to maintain a compliant asset”.

The property is one of 17 in a wider portfolio under consideration by this provider.  Counsel for P checked that it would be possible to pull out this particular property as soon as the statutory compliance certificates are in hand and take it to the Board separately and try to get it approved then, rather than present all 17 properties to the Board “en bloc”.  The Head of Operations confirmed that this was “very much an option we’d consider” and that under the circumstances it could be done between scheduled Board meetings, to minimise further delay.

A concern that the provider had received a regulatory notice was also discussed.

I’m not sure how (or whether) the evidence of the Head of Operations influenced the court’s decision-making.  

After the Head of Operations left the platform, the judge returned swiftly to the matter of P’s capacity to engage in sex, and the missing TZ-style care plan (and nobody returned to the housing issue at the end of the hearing).

Capacity to engage in sex

The judge then announced that he understood there had been “a delay with the TZ-style care plan” which “should be here by now” (as was accepted by counsel).

A “TZ-style care plan” is a reference to a case heard by Mr Justice Baker (A Local Authority v TZ (no. 2) [2014] EWHC 973 (COP).  In that case, Baker J, finding that TZ had capacity for sex but not for contact, said there needed to be a care plan that aimed “to identify the support to be provided to assist [TZ] in developing a sexual relationship without exposing him to a risk of harm” (§56(6)). The judge emphasised that  “[w]hen delivering a plan to address TZ’s lack of capacity to decide whether someone with whom he may wish to have sexual relations is safe, the principal focus should be on educating and empowering him to make these decisions. Any provisions in the plan directed at protecting him and restricting his contact should be seen as interim measures until the time when he acquires skills to make such decisions for himself”. The judge wanted to see, in practical terms, the support TZ would receive if he were to meet a potential sexual partner, and a plan that clarified circumstances under which care workers might intervene to protect TZ and how they would do this. 

Returning to the current case, according to the local authority’s position statement:

“The Court has asked the applicant to prepare a “TZ-style plan”, in other words a care plan which makes provision for sexual relations in accordance with the guidance given in A Local Authority v TZ (No2) [2014] EWCOP 973). A TZ style care plan is in draft form, but is still awaiting comments from the care providers. The applicant seeks a short extension for it to be filed and served.”

The judge then expressed his “grave concerns”:

As things stand, there is a peculiar declaration that P does not have capacity for ordinary social contact, but does have capacity for sexual relations.  On reviewing that, I was unhappy with the situation, and said so in April and May.  I don’t see how it can be right that an individual lacks capacity to decide to sit down in a café and have a brew, but does have capacity to have sex.  It’s completely illogical.  I was persuaded in April not to upset those declarations, pending the document that should have been here today.  So certainly, I had anticipated that by the time we got here, I would have had the opportunity to review them.  I have grave concerns about the (he pauses and sighscommon-sense of the declarations that have been made, and consequently of the validity of them.”

Counsel for the local authority said “it may be of some comfort that you are not the first judge to express concerns about this issue”, which is “unusual but not unique”.  She outlined a version of how the care plan would potentially work – such that P’s contact with others (for which she lacks capacity) would be circumscribed to keep her safe, so that she would not be in a position to have sex with a dangerous stranger. The TZ-style care plan would, she said, “be with you for the 3rd August hearing.  We’d seen this hearing as focussing on finance and rent”.

But the declaration doesn’t set things out as you just have”, responded the judge.  “You could interpret the declaration that if there is somebody who is new to P, she does not have capacity to go and sit with him or her in a café and have a brew, but can decide that a one-night stand is on. […]. In April, the Order made it plain I was unhappy with the situation.  Back in May, the recordings are more extensive because I was again unhappy with the situation.  And of course, if this is a contested issue- and even if the parties agree, I don’t! – and if there’s a contest between the parties and what I have said, I have a strong suspicion that this will need reallocating – possibly the whole case, but certainly that discrete issue.  This issue may not be one for a Tier 1 judge.  Today’s Order should reflect this.” (Judge)

Some discussion of the need for reallocating the case to a higher tier judge followed – and also some discussion of the importance and relevance of a TZ-style care plan in a context in which “the Court of Protection can make best interests decisions for P about contact if she doesn’t have capacity, but it can’t make best interests decisions about engaging in sex once a person is found to lack capacity.  It’s over. You can’t do it.  So, the plan is a way of squaring the circle” (Benjamin Harrison, Counsel for P via the Official Solicitor)

The judge clearly remained troubled.

It’s important that we deal with this in August.  The standard wording on declarations (sighs) are possibly, or the ones used in this case (pause)…. It may be that it isn’t full enough. I can appreciate that there is an argument that if one has an existing contact, an existing safe contact, then there may be occasions when a protected party might have capacity for that social contact to become a sexual contact.  But the wording completely ignores the possibility of P happening upon a stranger that she finds attractive, and deciding that there will be sexual contact, even though she’s incapable of deciding to have a cup of tea with them.”

That”, said counsel for P, “is why the TZ-style care plan is so important”.

With that care plan, I hope Mr Rylatt may be able to persuade me there’s some sense in it”, said the judge.  “It is with some considerable disappointment that I note that we don’t have the care plan. But there we go. I’ve said my piece.”

There was a  brief discussion of a few other matters – a capacity assessment of P’s social media use, my request for the parties’ position statements (many thanks to both counsel for sending these over to me), and the judge’s request for the bundle to sent in a timely manner for the next hearing.   

On the basis of today’s hearing, I anticipate that the hearing on 3rd August will be of interest to those concerned with issues relating to capacity for sex and TZ-style care plans – especially in view of the decision in the JB case in the Supreme Court.  

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


[i] As is very common for remote hearings, the list said that this hearing was “Private”.  As is also very common for remote hearings heard “in private”, I was admitted without question.  I’m grateful to the court staff and to the judge for successfully admitting me to this hearing which I asked to observe only because it was listed to start at  9.30am (and in the absence of any information as to what the hearing would be about).  In my experience, despite everyone’s commitment to open justice, it often fails for hearings listed to start before 10am, because staff don’t have time to read their emails and get the request to the judge.  My request was sent at 18.20 the day before this hearing.  I re-sent it at 09.12 the morning of the hearing saying that I’d not had a response and the hearing was due to begin in just over 15 minutes.  I was told the hearing would start slightly late and received the link at 09.15, and which point I tried to join the platform. At 09.36, I emailed court staff again worrying that I was not in the hearing and was continuing to receive the message “When the meeting starts, we’ll let people know you’re waiting”.  At 10.42 I received a response explaining that the judge was running late and the hearing actually began a few minutes later.  (It turned out he’d needed more time to read the bundle).  

Trial of living at home – successful so far

By Celia Kitzinger, 9th July 2022

A woman in her nineties who’s been “trapped [in a care home] by some Kafkaesque nightmare” for more than a year, has finally returned home.

The judge has yet to determine whether it’s in her best interests to stay there: this is a “trial at home” to see how it works out.  But it’s been going well – despite some glitches.  

Most importantly, she’s “happy” and “content” to be home – having previously been “extremely unhappy and distressed” about being compelled to live in the care home.

Background 

The story began in August 2020 when the woman at the centre of this case (T), who’d been living alone in her own flat, was admitted to hospital after a fall.  

When she was ready to leave hospital, she agreed to be discharged to a care home to see if she would like it.  She did not – and started asking to go home within a few weeks.  She was deemed not to have capacity to make her own decision about residence and care and has remained in the care home ever since, pending the outcome of the ongoing Section S21A proceedings.

She was placed [in the care home] by the NHS as a means of getting her out of hospital. Nobody chose this placement for her. She was put there for an assessment and then left there. It was a short-term expedient in which she’s got trapped by some Kafkaesque nightmare”. (Christine Cooper of Field Court Chambers, instructed by Amy Butler of Atkins & Palmer as T’s  Accredited Legal Representative

Section 21A proceedings were issued on 22nd April 2021 and slowly progressed through the court, eventually resulting in a direction that a “trial at home” should begin on 17th June 2022.  I blogged about the two most recent hearings here:

The trial at home actually started five days after it should have, on 22nd June 2022, due to the wrong type of transport having been booked for her journey home on the planned date – yet another delay in the long series of delays that has beleaguered this case.

This hearing on 7th July 2022

This hearing (COP 13744224 before DJ John Beckley on 7th July 2022) was listed, as is usual for remote hearings, as a “PRIVATE HEARING NOT OPEN TO PUBLIC” (upper case as in the listing).  I mention this because most members of the public, not surprisingly, think this wording means we’re not allowed to observe hearings, and so don’t ask.  It doesn’t mean that at all – and the wording has a chilling effect on open justice.  I am in discussion with Her Majesty’s Court and Tribunal Service (and the relevant judge) about how this can be fixed. For more information about why this misleading wording is used, see my blog here: “Why are so many Court of Protection hearings labelled “PRIVATE”. As usual for hearings so designated, I was admitted without anyone suggesting that I could not be. 

 At this hearing, no party disputed that it was in T’s best interests for the trial of living at home to continue.

This was a relief after the submissions from the Local Authority (then represented by Thomas Boden) at the last hearing.  They had argued that it would be “too great a risk to be borne” and “reckless”  for T to move homebecause“ it may leave some of T’s basic needs unmet”.  

One of the local authority concerns was the proper management of T’s diabetes: they wanted more time to ensure that T’s blood glucose monitoring would be done correctly at home, and that carers would have appropriate training and experience.  In fact, this seems not to have been a problem at all.  Counsel reported that “the nursing team say that in terms of diabetes care, things are going well.  They are able to take readings, and she’s not objecting – they say there’s ‘implied consent’, so she’s holding her finger up so they can do the test, and lifting her skirt so they can inject her” (Lucy Lodewhyke, representing what used to be the Clinical Commissioning Group (CCG), now the Integrated Care Board (ICB)).  The district nurses were praised by T’s friend (and Health and Welfare Attorney), M, who said they were “really very helpful and very supportive with me. They come on time and wait for her to be okay when the sugar level is on the boarder. They gave me their telephone number so I can be in touch with them. I’ve very pleased with them, and I’m very grateful”.  

Another local authority concern was related to mobility issues in T’s home, including “transfer” between seating and standing positions and using the toilet, as well as entering and leaving the flat (there are steps).  At this hearing, now that T has returned home, here was no mention of any mobility difficulties inside the home (although apparently a chair lift is going to be fitted), but I got the impression (it wasn’t explicitly stated) that T has not been able to leave her home since returning there.  This was implied by M (T’s close friend and Health and Welfare Attorney) who reported that:

T has been sitting in the window looking out and luckily for me, for us, it’s been raining and windy and there has been nobody in the street – her home is on a cul de sac – so we are telling her it is too cold and too raining to go out.  She’s content. She’s playing cards, watching TV, listening to music.

While we were in the virtual courtroom waiting for the hearing to begin, there was a discussion between counsel about how to get hold of a wheelchair as quickly as possible Carol Knotts, representing the local authority, said she had family experience with the Red Cross wheelchair service.

A third concern raised by the local authority at the last hearing related to provision of care. The local authority asked for (but I think did not get) assurances that a second nominal carer would be identified in case of the illness of the nominated live-in carer. This last concern turns out to have been prescient, since the mother of T’s live-in carer has become ill and T’s carer wants to return home to her country of origin to visit her.  She and M thought they had successfully arranged cover with a former colleague of the live-in carer, but have run into difficulties because this colleague is not a UK-national, but comes from the same (EU) country of origin as T, M and the live-in carer.  She has no UK bank account or national insurance number.   The local authority was clearly not being obstructive in raising a concern about this.  Rather as counsel said, “this raises questions for the local authority in relation to the legality of that person working in the UK. All the local authority is seeking to ensure is that the employment laws of this country are complied with”.  As the judge pointed out, “Pre-Brexit it would have been fine for [an EU] national to come and work in this country…”. (I think it’s still possible with a “Health and Care Worker Visa”, but the website says it takes 3 weeks to get a decision after submitting a visa application, so I doubt that will work for T’s live-in carer). The current live-in carer has delayed leaving to see her mother (“She’s saying she can’t abandon T” , said M). It’s unfortunate that there wasn’t a nominated second carer in place, thereby avoiding these last-minute emergency decisions. “Please God, fingers crossed, her mother doesn’t get worse”, said M. “We are still looking for someone to cover for her”.  If cover is not found, then M and T’s other friends will step in to fill the gap (as they had previously promised).

At the time of the hearing, T was actually in hospital being treated for a urinary tract infection (she’s incontinent which increases her risk of UTIs).  This was described by M (not a first-language English speaker) as “a little stone in the way” of the otherwise generally positive experience of T’s return home.  She said, with obvious affection, that she’d visited T recently and found her “fully awake and getting better”:  “today she said she’s hungry and why they are not feeding her?  The doctor laughed and said, ‘okay, order some breakfast for her’ She’s saying she wants to go home again, because in the hospital they don’t treat her properly, she says”.  She’ll be discharged soon: “the doctor said maybe keep her today and then tomorrow do another test. If she’s still infected, they will keep her another couple of days”. 

Money

The biggest obstacle at the moment to T remaining in her own home is financial. 

Counsel for T (Christine Cooper) raised a raft of financial issues that needed to be resolved

(1) Direct payments

The local authority has not yet confirmed that the shortfall paid by T for her live-in carer is “disability related expenditure”.  She said, “Direct payments are capped at the level the local authority would pay for a residential care-home, but subject to a contribution based on ability to pay.  If the local authority sees the shortfall as disability-related, T doesn’t have to pay it.  If they don’t, she does – for T it’s about £100 per week –  and that has implications for the financial viability of care at home. […]. It seems to me an unanswerable case that paying a carer to deliver the care that is in your care plan is ‘disability-related care’.”

Judge: Who arbitrates on the question if the local authority were to consider it’s not disability-related, and obviously T and those representing her say that it is?

Cooper: If the local authority decision appears wrong as a matter of law, this court would be asked to authorise a judicial review on T’s behalf. One hopes the local authority will take account of the most recent case law and it won’t come to that.  But the point is that it’s not a quick process and can’t be left to the last minute.

(2) The amount the local authority will pay for her placement from the date upon which her assets (other than her home) fell below the upper capital threshold and the date upon which that occurred

The local authority accepted (in a statement on 24th May 2022) that T was a temporary resident in the care home pending the determination by the court as to whether she should return home. Until then, it had treated her as a permanent care home resident.  Initially T’s placement was funded by the NHS under the discharge to assess policy, but that funding ended in December 2020 when the continuing healthcare assessment was completed – and since then M has paid the care home from T’s savings, until they were depleted.  Because it treated T as a permanent resident, when her savings were exhausted the local authority expected T to sell her home, or enter into a deferred payment agreement, to pay the care home.  The position of T’s counsel is that T was a temporary resident and that the local authority should have started to provide funding when her other assets (i.e. excluding the property) fell below the upper capital threshold of £23,250.  (For information about care home fees, click here).

(3) Reimbursement for T

Counsel for T said a decision was needed “on how much the local authority should reimburse T for the care she paid for when it was treating her as a self-funder, rather than as a temporary resident”.  I understand that the local authority has indicated that the care home T was in was more expensive than its usual rate (it charges £1,312 per week) and it intends to limit any reimbursement to its usual (lower) rate: “but we say they didn’t offer her an alternative placement that was within their usual rate, so therefore they’re going to have to reimburse the whole cost”. Again, this is a significant decision for T because: “if the local authority apply the law in the way we think it should be applied, it does look as though living at home could be a viable option, and the court could decide that remaining at home is in T’s best interests.  But our concern is that she gets to the end of the trial and is in the situation of being at home with a carer who can’t be paid [… ] and it all collapses for reasons that shouldn’t have had any impact on it.” 

(4) Funding to extend the trial – and for long-term care at home if the trial is successful

The local authority has agreed to fund the 4-week trial, but there is no decision about funding after that.  

The judge said: “If the local authority makes the decision that it’s not financially feasible for the trial to run beyond the four weeks originally agreed, T would be returned to the care home, on 2-days notice, on the Monday. That’s not a good position to put T in”.  

Final Order

I haven’t seen a copy of either the draft order or the final order, but my understanding (based on what was discussed in court) is that the judge directed the local authority to make a decision about whether or not it’s going to continue to provide the direct payments that T needs for the trial to continue within seven days (so by 15th July 2022).  If the local authority decides not to continue the payments, then T’s counsel is authorised to investigate the merits of an urgent application for judicial review. 

He also directed the local authority to make and communicate decisions about the disability-related payments and reimbursements by 18th July 2022.  Those decisions are needed before the final hearing, because the judge can’t make a best interests decision for T to return home without knowing that it’s an available (i.e, affordable) option.

The judge asked for an emergency application to be submitted for the day he returns from vacation (3pm on 19th July 2022) if those decisions have not been made and communicated or if the local authority declines to provide any more funding for T’s trial at home.  

Otherwise, the trial of living at home will continue to run (if everything goes smoothly) until the final hearing, listed for 10.30am on Wednesday 31st August 2022.  This will be an in-person hearing in First Avenue House in London, with oral evidence from M and from the local authority.  

The CCG (now ICB) asked to be discharged as a party (saying that it has no responsibility in relation to this patient) and there was some disagreement about whether it was necessary and proportionate for them remain as a party in relation to “some unidentified and speculative risk that we don’t know anything about and may never transpire”.  The judge directed they should stay as a party but excused their attendance at future hearings (unless he received seven days notice from another party setting out their reasons as to why the CCG/ICB should attend).

There were some challenges in fixing the date for the final hearing and unfortunately Christine Cooper (T’s counsel via her ALR) has said she won’t be able to act for T on this occasion, so there will be a different barrister for T in her place.  Whoever takes over from Ms Cooper has a hard act to follow: she’s crisp, incisive, clear, utterly committed to her client, and skilful in her presentation of forceful arguments – certainly someone I’d like to advocate for me if I were ever in T’s position!

I hope T is discharged from hospital soon and gets to enjoy her time at home between now and the end of August.

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

Mental capacity assessment and transition plan for a man with schizophrenia and ulcerated legs

By Diana Sant Angelo, 4th July 2022

I am a Best Interests Assessor and I wanted to observe a hearing in the Court of Protection because I have always been interested in law – and now as a BIA, I am working in the overlap between the care and legal systems. 

On a more personal note,  I trained in a long stay learning disability hospital where people had no rights. Although there were staff who did their very best in a dreadful situation and felt affection for the residents, I saw gross abuses of people’s liberty, privacy, dignity, and health. The people who lived there were not valued by society. I vividly recall some of those people who had no chance of a decent life. We have come a long way and the existence of the Court of Protection is to be celebrated.

The hearing I observed (COP 133883671, via MS Teams) was before Mrs Justice Theis on 23rd June 2022.  It turned out to be a short hearing of only 40 minutes, starting at 3.10pm and ending at 3.50pm. 

It was a case that has been previously blogged by Claire Martin of the Open Justice Court of Protection Project, so I already knew some of the background to the case.

At the beginning of the hearing, counsel for the local authority, Ulele Burnham provided a short summary for the public observers.  She said that the protected party at the centre of this case (referred to as ‘Mr M’ in our blog posts) was conveyed to hospital in February 2022. No force was required. He was treated by the vascular team and needs no further invasive treatment. He is fit for discharge.  The question now is where he would be discharged to and the concern that if he returns to his flat, he would fall back on his previous refusal to accept care for his ulcerated legs. After a “protracted search” for a placement, a nursing home has been identified where he can get wound care. All parties agree that the placement looks appropriate and he could move on 7thJuly 2022.  The issue now is whether a decision to move him to the placement can be made in his best interests, or whether he has mental capacity to decide for himself where he lives and receives care.  A mental capacity assessment is needed.

Capacity Assessment and Mr M’s views

Counsel for Mr M via his litigation friend the Official Solicitor, Katie Gollop,  asked for evidence of Mr M’w current lack of mental capacity to decide about residence and treatment, given that no placement had been identified at the time of the last assessment.

It was reported that Mr M has expressed ambivalence about the nursing home and the NHS Trust has asked a doctor to do another mental capacity assessment prior to the move on 7 July 2022.

There was no expansion of what was meant by Mr M’s “ambivalence” and no reporting to the court of what his views are.

Discussion then took place to the effect that a mental capacity assessment needs to be completed by 1st July 2022 and reported back to Mrs Justice Theis. 

The judge  could either decide on 2nd July 2022 that the draft order can be approved, or it will go on to a hearing on 6th July 2022.

Counsel for the hospital confirmed that Mr M is fit for discharge and said that discharge planning should involve staff from his new placement as he has formed relationships with current nursing staff and needs to make relationships with new staff if the placement is to succeed. A discharge planning meeting is needed by 1st July 2022.

Counsel for the CCG asked if the doctor is actually available to do the mental capacity assessment by the anticipated date (concerned that – for example – he might be on holiday). 

Counsel for Mr M, Katie Gollop, said that they would like to see evidence of work done to help Mr M understand that his options are limited, i.e. he can’t stay in hospital and his only option is to go the nursing home.  I inferred from this that Mr M has now got used to being in the hospital and likes it. Again, it would have been useful at this point to know how he has got on in hospital – what have been the benefits to him of being in hospital? Has he responded well to the staff and having daily care?

Questions were raised about whether the doctor is going to include education in his capacity assessment.  Is Mr M going to be shown the care home as part of supporting him to make a decision about moving? Katie Gollop referred to s 3(2) Mental Capacity Act and the principle requiring that support should be given to make a decision.

Mrs Justice Theis asked who is going to do this education and Katie Gollop said that the Official Solicitor would want educative work in the Order.

Ulele Burnham, counsel for local authority, reported that the social worker had emailed her (during the hearing) and offered to do the mental capacity assessment.

All agreed (having got advice by emailing other parties during the hearing) that the social worker would be an appropriate person to do the assessment as it is a normal part of their remit to do this. The only question was whether the element of the treatment of his ulcers might have made a doctor a more appropriate person. The fact of the social worker offering to do the assessment was more compelling to those present and his offer was accepted.

The judge said she would like to have an outline for the mental capacity assessment.

Transition plans 

The judge said she does not like contingent orders and if there were any ambiguity she would go for another hearing.  She then asked Katie Gollop about the transition plan (i.e. how Mr M’s physical move from hospital to nursing home would be accomplished).  Katie Gollop replied that the previous order (moving Mr M into hospital) had included authorisation for the use of force and the presence of the police. In fact, the police had not been needed. Mr M now knows the security staff at hospital, and she suggested that the move take place when they are on duty. 

Mrs Justice Theis said that she needs to know precisely what is going to be done during the move, e.g. police presence, use of medication, use of restraint.  Ulele Burnham (for the local authority) suggested this could be discussed at the discharge planning meeting.  Mrs Justice Theis said that, regardless of how this is agreed,  it needs to be recorded in the transition plan for her to approve at the next hearing.  

The judge then thanked the social worker for offering to do the mental capacity assessment and noted that continuity was beneficial rather than having a new person completing this. She said the outcome of the mental capacity assessment was to be with her by 2pm on Monday 4th July 2022, with the next hearing listed for the afternoon of Wednesday 6th July 2022.

Reflections

As is commented on in previous blogs, Mr M’s own voice did not really come through in this hearing.

There was no mention of Mr M’s illegal drug use and I infer that he is not using illegal drugs now, as he has been an in-patient for 3 months. It would have been helpful and have given Mr M a presence in the hearing (if indirectly) if we had heard how he is now. For example, has his drug misuse been treated, how is his mental health, and what does he want for himself?  

Also in the last blog there is reference to Mr M’s drug misuse as being a factor affecting his mental capacity to make decisions. I wonder if he is on a therapeutic substitute, and if his cognitions are now more ordered, such that he may have regained capacity to make his own decisions about residence and care.  If he has regained mental capacity – what next?

If his illegal drug use has not successfully been treated, how much is there a risk that he will try to get drugs again? 

The social worker has really stepped up to help. I wonder if he will have the time to do the educative work needed to help Mr M understand the information needed to make the decision.

I got the impression that the barristers were going through the process of the hearing as if they knew what was happening for Mr M when I infer that, in fact, they did not know much detail about his daily life. 

This was an interesting hearing to observe because I have come across a person in my past professional experience who also had leg ulcers which they refused to have dressed. This case demonstrates that there are legal means to help people in similar situations – situations that can be challenging for health and social care staff to respond to.

Diana Sant Angelo is an Independent BIA/ Registered Nurse working in Hampshire. She tweets @DianaStAngelo

A first experience of observing in the Court of Protection

By Georgina Baidoun, 30th June 2022

I had no intention of becoming an observer of any of the Court of Protection cases so admirably reported by others, although I read most of the reports on the Open Justice Court of Protection blog avidly and am fascinated by both the individual stories and the principles raised. 

But I found myself waiting for the next instalment of the case of the allegedly abusive wife whose husband (with dementia and Parkinson’s)  was in a care home. The local authority was asking the judge to rule that she must move out of “the matrimonial home”, so that her husband could move back and live there without her (“When P can’t go home to his “abusive” wife: Another ineffective hearing).

So, when I chanced to see Celia’s twitter post that the hearing (Case number COP13861341 before Mr Justice Francis on Monday 27th June 2022) was about to start, I couldn’t resist giving it a go. Without Celia’s instant replies to my calls for help, and the fact that the hearing was delayed, it wouldn’t have been possible but technically it went without a hitch.

Several things about the case intrigued me. The first was that the Court of Protection apparently had the right to order a wife to leave her marital home so that her husband could return to it. Celia explained that the Court of Protection Judge was also sitting as a High Court Judge in the Family Division. That made sense but was quite a surprise.

The second was what possible grounds could there be to order a wife to leave her marital home? It had been reported that there were children involved who had already been removed from the home and that the wife was accused of being abusive. I wanted to hear more about this, and the social worker was due to give evidence.

Also, I was intrigued by the wife. She apparently needed an interpreter to understand English. She also refused to engage a lawyer, even though the costs would have been paid by her husband through his Court of Protection Deputy for Property and Financial Affairs. And yet, by somehow not engaging with the court, seemingly because of various problems including lack of money for transport, she had managed to obtain more than one ‘stay of execution’. I sort of admired her for that!

But probably most of all, I was struck by what happens when someone whose English is limited and who  knows still less, presumably, of English law, marries and settles down here and then finds herself engaged with the authorities, in this case social workers and the courts (and no doubt others outside of this story). I’m not sure how aware we are generally of how different family law is in other countries, even countries as close to us as France (I am thinking of their inheritance law in particular). The wife in this case originated in the Far East (as we think of it!) and I can only imagine how different things are there.

Anyway, to some extent I was disappointed by today’s hearing as it turned out to be short and uncontested. The delayed start was caused not by the wife not turning up again, as I suspected, but by all the parties having at last met each other in person (previously the wife had attended only by phone with an interpreter on another phone!) and reached agreement. (She would move out of the house, but continue with contact by letter and phone and the situation would be reviewed in 3 months).

It was, nonetheless, an interesting experience to observe law in action.

And I can add a postscript.

After the hearing had ended and it had been agreed that the wife would vacate the family home and possibly return to her country of origin, almost everyone left the courtroom except the wife, her husband, still on screen sitting in his care home, and me (Celia too had gone). The wife remained for quite a while, looking at the screen, waving and eventually blowing kisses to her husband. I’m afraid I didn’t manage to see if he waved back but he certainly appeared to be smiling whenever I looked at him.

Georgina Baidoun, is a sometime Court of Protection Lay Deputy for Property and Financial Affairs. She tweets as @georgemkeynes

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