Unplanned disclosure and (still) no agreed ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44 continues

By Celia Kitzinger, 18th April 2023

The case concerns a 23-year-old woman (“A’), deprived of her liberty in a residential placement against her wishes, who is being given medication, covertly, that she consistently says she doesn’t want.  

The court has already made declarations that she lacks capacity to make decisions about residence, care, contact, and medical treatment (as a result of a Mild Learning Disability and Asperger’s Syndrome, plus ‘undue influence’ from her mother).  This was based on the report of an independent expert, back in September 2018.

She’s been refusing treatment for primary ovarian failure (also known as primary ovarian insufficiency).  The recommended treatment is hormone medication designed to ensure, first, that she goes through puberty, and then to reduce the risk of osteoporosis, cardiovascular disease and other health conditions associated with this diagnosis. Due to covert medication, she has now gone through puberty, but doctors recommend ongoing ‘maintenance’ treatment for the next thirty years or more.

Every day for two years she’s been offered the prescribed hormone treatment tablet and every day so far, she has declined to take it. That’s more than 700 treatment refusals. Each day, she is then given the medication covertly via her food or drink. 

The problem the court, and the professionals caring for her, face now is how to manage the situation long-term.  Obviously,  she can’t be kept in a care home and covertly medicated for three decades.  The question weighing on everyone’s mind is whether and how to tell her that she’s been covertly medicated, and how to persuade her to take the maintenance medication voluntarily.  

In an earlier judgment, Mr Justice Poole said that covert medication was “unsustainable in the long run”.  He directed that:
 “… a treatment plan should be devised, for review by the court, for how to exit the covert medication regime with the least possible harm being caused to A. The plan will cover the question of imparting information to A about the past use of covert medication – should that be done and if so, when, where and by whom….” (§48(iv) Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44  15 September 2022)

The judge laid out detailed directions as to the work that needed to be done on this in preparation for a hearing in November 2022, but in the event, very little progress had been made by the time of the November hearing. and the judge expressed his disappointment with how little had been achieved.

So, the hearing of 13 March 2023 was primarily concerned with the same thing – what was the plan for telling A about the ongoing covert medication, and how was she to be persuaded to take it voluntarily. 

Background

When someone lacks capacity to make their own decision about whether or not to take medication, and they are refusing to take it, and attempts to persuade them have failed, carers are faced with a choice: either abandon the attempt, or hide the medication in the person’s food or drink so that they take it without knowing.

Each case is different.  The benefits of medication (or the risks of not taking it) vary depending on what the medication is for and the physical health of the patient.  These benefits need to be weighed up against the harm caused by deceiving the patient, and violating their wishes by secretly administering the medication they’ve refused.  There are other risks of covert medication too: unknown or variable amounts of medication may be ingested; the person receiving it cannot monitor possible side effects; and there’s also the risk of the patient discovering the pill ground up in the yoghurt or dissolved in the apple juice – and losing all trust in the people who are caring for them. 

Covert medication can be lawful if it’s determined to be in the best interests of someone who lacks capacity to make decisions for themselves, and in this case the young woman has been assessed as not being able to understand, retain or weigh the information necessary to make a capacitous decision about medication. (For a lawyer’s view on covert medication, take a look at the blog post by Aswini Weereratne KC.)  In this case, it’s lawful because a judge (HHJ Moir) considered the evidence, decided that A lacked capacity in relation to medication, and ruled that covert medication was in A’s best interests – and also that it was in her best interests that she should remain in residential care and have no contact with her mother, who was considered to be a bad influence on her, and that her mother should not be told about the covert medication. It was feared that the mother would tell her daughter about the covert medication, and that she would then stop accepting food and drink from carers.

The judge, HHJ Moir, made these decisions in a secret closed hearing – a hearing that wasn’t open to the public, and that neither the mother, nor the mother’s legal team, knew anything about at the time.  The case is now before a different (more senior) judge, Poole J, and is being heard in public.

This has been a long-running and complex case.  Observers blogged about hearings we’d watched in May 2020 before covert medication was authorised, and then in April 2022 after covert medication had been authorised but we didn’t know that it had because the court deceived the mother and her legal team into believing that her daughter was not being medicated, and we were deceived too (see “Medical treatment, undue influence and delayed puberty”).  In October 2022, we discovered the true facts and published a correction (“Statement from the Open Justice Court of Protection Project concerning an inaccurate and misleading blog post”). 

This case has raised challenging issues about covert medication.  It’s also highlighted the way in which the Court of Protection can use secret (‘closed’) court hearings to make decisions without family members being present and without them even being told that a hearing is happening – and how this can breach a family member’s rights to a fair trial.   We raised the alarm about ‘closed’ hearings when we discovered what had happened in this case, both via our blog post (Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44) and on the Radio 4 Law in Action programme (“Secrecy in the Court of Protection?” 27th October 2022).  The matter was then considered by a sub-committee of the Court of Protection Rules Committee (to which I made a submission: Closed Hearings: Submission to the Rules Committee).  In February 2023, the (then) Vice President published new Guidance on closed hearings.

Meanwhile, hearings for this young woman continue.

The last hearing was in November 2022 and it felt (as I wrote in my blog post, “No ‘exit plan’) “thoroughly dispiriting”.  Despite the efforts of counsel for the Trust (Joseph O’Brien KC) to inject a note of positivity into the proceedings by reminding everyone that the strategy of covert medication and secret hearings had “worked” and been “successful” (in the sense that A has now gone through puberty, which was certainly a key goal), the tone of proceedings felt (to me) rather muted and despondent.  The positive aspect (attainment of puberty) has to be weighed against the deception that has been involved and the public opprobrium the case has occasioned.  

I was very concerned, as was the judge, that no adequate and agreed exit plan had been put before the court, in line with his directions, at the November hearing. The judge pointed out – as he had previously – that if A were to discover in an unplanned way that she’d been treated without her knowledge and after explicitly refusing treatment, this could be harmful to her: the longer covert medication continues, the longer that risk continues.  At the end of the November hearing, it was agreed that there would be a hearing in mid-March at which (the judge said) the court will “review the updated medication plan, its implementation, issues of contact and whether there’s a need for any directions in relation to the residence application”. 

The hearing of 13th March 2023

This case (COP 13236134) was heard, remotely, at 10.30am on 13th March 2023 before Mr Justice Poole, sitting in Leeds.  

The parties and their representatives were the same as at the previous hearing. The applicant local authority was represented by Jodie James-Stadden.  The first respondent, the protected party in this case (“A”), was represented (via her litigation friend the Official Solicitor) by Sam Karim KC.  The second respondent was A’s mother, represented by Mike O’Brien KC. The third respondent was the hospital trust, represented by Joseph O’Brien KC.

A key part of this hearing was supposed to be a review of the updated plan for moving from the current position in which A is being given involuntary covert medication, to the ideal position in which A voluntarily agrees to take medication.  Some work had been done on this plan during February – but 10 days before the hearing (on 3rd March 2023), the situation suddenly changed.  Staff conducting an ‘educational’ session with A informed her that she had reached puberty. This hadn’t been anticipated in the plan, so it’s back to the drawing board to determine how the plan should now be developed. There is an additional problem now in that A seems to believe that, as she has gone through puberty ‘naturally’ (she has no reason to believe otherwise), she does not have Primary Ovarian Failure (POF).  The Multi-Disciplinary Team (MDT)  “is now required to decipher how to overcome A’s resistance in accepting the diagnosis of POF” – and with it, the need for continued endocrine treatment (Official Solicitor’s Position Statement).

Instead of reviewing an updated plan, the hearing covered a number of issues that I’ll deal with separately: (1) transparency matters; (2) the unplanned disclosure to A that she’s gone through puberty; (3) expert reassessment of A’s capacity and related issues; (4) contact between mother and daughter; (5) permission to appeal out of time against earlier decisions by HHJ Moir.

1. Transparency Matters

I almost didn’t get to observe this hearing because it hadn’t been listed properly.  This is a repeated problem when Tier 3 judges (who usually hear cases in the Royal Courts of Justice in London) sit in other courts across England and Wales.  These hearings are not included in the Royal Courts of Justice cause list (which is where we normally find Tier 3 judges’ hearings) but are supposed instead to be listed in the Court of Protection list in CourtServe – which is the only way for members of the public to find out about court hearings outside of London.  They are often not there.  I’ve blogged about the problem previously (e.g. here) and raised it with the (former) Vice President and with His Majesty’s Courts and Tribunal Service (HMCTS).  I’ve also written previously to Poole J about this very problem when it affected a different hearing before him.

Poole J opened the hearing by stating that it had been “noteworthy, given the history of the case” that he’d not received any observer requests and that he’d learnt it was “because of the way it’s listed”, which he described as “an unsatisfactory situation” that  occurs “regularly” and “needs to be remedied”.  I’m very pleased (finally!) to see a judge take listing problems seriously and hope communication with HMCTS  from Poole J might be more successful than my communications with them in effecting change. I only found out about the hearing when the judge’s clerk emailed me shortly beforehand to let me know it was happening, and I was able to drop everything and attend. (I think the judge also delayed the start of the hearing by 45 minutes to allow me to be there from the beginning.)  I’m very grateful to Mr Justice Poole for supporting open justice in this way – but of course it shouldn’t be necessary – and other members of the public who wanted to observe hearings in this case were excluded because it wasn’t listed correctly.

I also note that there continues to be a draconian set of reporting restrictions relating to this hearing.  In addition to the usual restrictions on identifying the protected party at the centre of the case, and her family members, we are prohibited from identifying the public bodies (the local authority and NHS Trust) and the expert witness (Transparency Order signed by Mr Justice Poole, dated 15th September 2022). 

2. Unplanned disclosure to A that she’s gone through puberty

Counsel for the local authority said that the plan had been that A was not to be told that she’d achieved puberty “and if she raised questions that was to be taken back to the MDT for responses to be formulated”.  Now that – contrary to the plan – she has been told she’s gone through puberty, “there needs to be an urgent MDT to revisit the plan”. Meanwhile, everyone agrees (said counsel) that the maintenance medication should continue to be given covertly while the MDT works out “what narrative she is going to be told”.  

“At the moment, there’s a confusing narrative before her, as she’s been told she has POI and that without taking the medications – the medications she’s been offered and refused daily – she would not experience puberty.  Now she’s been told that while she still has POI, she has experienced puberty – and she’s gone through puberty without taking medication, as far as she’s concerned.  That is a difficult and inconsistent position to be in.  The MDT needs to reconsider the plan and come up with a coherent explanation to help P make sense of what is happening to her.” (Counsel for the local authority)

The mother’s Position Statement describes what happened in more detail.  

“At a session on 3 March 2023, A suggested to health staff that she had breasts and that she had therefore reached puberty.  A therefore now knows she has reached puberty.  Staff implied it had occurred naturally in order to keep the covert medication secret from her.  They said she continued to need to take the medication for her heart and bones.  It looks like A was left with the impression that she had achieved puberty naturally but late and therefore she seemed to think she did not have Primary Ovarian Insufficiency (‘POI’ or ‘POF’).”

The Position Statement goes on to quote from an email from the local authority’s solicitor describing what was reported to him about the conversation with A.  Apparently during the course of a health education session involving a talking mat, A was asked what Primary Ovarian Failure was and placed the response “a ladies breast will grow” (sic) under the “don’t know/depends” category.  She was then informed that “if you have POF breasts won’t grow” and “immediately questioned this as she stated I have breasts”. Asked whether she thoughts she had gone through puberty, A said, “I’ve not given it a thought, but subconsciously thought I had. But I don’t have the problem [i.e. POF]”. When told she does have a diagnosis of POF, “she continues to fail to accept the diagnosis”.  One of the professionals working with her explained that she’d gone through puberty later than other girls and explained that a review of her medical records confirms the diagnosis, to which A said, “You are going to say something completely different to what I’ve said in an extremely long-winded way”. 

Her mother is concerned that A has been told that puberty happened naturally but late, and consequently thinks she has not got POI and does not need medication to deal with it. She’s also worried that A will guess that she’s been covertly medicated. She wants to be involved in explaining to A why she should (voluntarily) take the maintenance medication, and believes that she would be able to persuade her – whereas professionals have failed to over the last four years.  She’s currently forbidden to talk to A about medication issues.  This is because the  MDT members distrust A’s mother, and don’t believe she really wants A to take the medication. The Trust “continues to have some concerns as to whether [the mother’s] wish to support A in taking the maintenance medication reflects a genuine recognition and acceptance on her part that such medication is life sustaining and enhancing for A” (from the Trust Position Statement).  

In court, Counsel for the mother described “an incident on Friday where A confronted her mother about the fact that she’s reached puberty”.  He said:

“[Mother] had been picked up in a bus with two care staff and A joined them.  She turned to her mother and said she’d been told she’d achieved puberty and she was wondering why, then, she was still detained and whether she could come home.  [Her mother] realised that carers had reacted in some alarm, and said ‘what can I say?’. Carers then cut off the discussion and [the mother] changed the conversation to what they were doing next.  So this signals that A is well aware of the implications of having achieved puberty, and her mother is concerned about this.”

He added that the concept of covert medication is not new to A and that – at some time in the past – she had avoided drinks that could have been tampered with in this way and insisted on bottled water.

The judge intervened to say simply (as he has said before) that “covert medication cannot continue for ever.  It is not sustainable in the long term. It is best that it should come to an end in a managed way.”

Counsel for the Trust was also concerned that “A believing that she has gone through puberty without medication may lead her to become entrenched in her position that she does not need maintenance medication”. Despite concerns about the mother’s involvement, he accepted that she did now need to be involved in the collective effort to “get A on side in terms of taking medication voluntarily”. 

The Official Solicitor (appointed to represent A’s best interests) now believes that the mother “must be intrinsically involved, and be at the forefront, of any plan that seeks to promote A accepting the diagnosis of POF and the need for treatment… Her positive involvement is of magnetic importance”. 

So, the matter of the revised plan (with the mother centrally involved) will return at the next hearing.

In the closing judgment, Poole J said that the situation needed to be handled both with urgency and with delicacy, sensitivity and professionalism.  He directed that there should be an MDT meeting and then a round table meeting with the legal representatives from all parties with a focus on communication with A and formulation of involvement of the mother.  “The ideal outcome is that A will accept maintenance medication in a sustained way for the rest of her life. That will be achieved most easily – or most effectively, I should say, not easily! – in full knowledge of the truth.  The worst outcome is that she finds out inadvertently and reacts with hostility.  I leave it for the professionals to work it out and the plan will be reviewed by me in four to six weeks from now.”

(3) Expert reassessment of A’s capacity and related issues

The impetus for reassessment of A’s capacity (in all the relevant domains) came from the Official Solicitor.  It was motivated, in part, by the independent expert’s observation (back in September 2018) that “A may gain capacity having regard to her young age, and if a range of support structures are in place to empower A, including increasing her skill-base and knowledge”. The expert also said that “achieving puberty may improve cognitive maturation and help her to gain capacity”.  An independent expert could also be asked to consider related issues e.g. the likely consequences of A being informed that she’s been covertly medicated, why she’s resistant to treatment, and what can be done to change her mind. 

Counsel for the local authority said they were neutral on the subject of an expert being appointed, but were “not convinced that further professionals are going to assist in the mix”.  The local authority has “some concern with overwhelming A with professionals, as she is quite resistant”.  However, if there is to be appointment of an expert, then they are in favour of appointing the same one as last time.

Counsel for the mother said there were fears that A would not cooperate with the previous expert and that “a new set of eyes” were more likely to elicit her cooperation.  The mother would also like the  expert appointed to assess the effects on A of a four-year separation from her family.

The Trust took the position that this was an appropriate time to revisit capacity because “the current evidence is quite old” and “puberty may be relevant to her cognitive functioning”; and that there are compelling reasons for appointing the same expert as previously because “he knows the background; he is aware of the relationship between mother and daughter; he knows where to tread delicately.  There are considerable dangers in inviting another expert without that knowledge and experience”.  This seemed to resonate with the judge who said he “wouldn’t want the involvement of an expert assessing capacity and having to discuss issues of medication with A at this delicate time to interfere with the MDT process of deciding what information should be imparted and how.  “This sounds disrespectful but (laughs), I don’t want an expert crashing in, as it were, on this delicate process”.  With the previous expert, it seems, that is “less likely to happen”.  Counsel also said that the Trust “don’t see the point of asking the expert to look at the impact of four years separation from her family – that’s not relevant to capacity or to the medication plan”. 

In the closing judgment, Poole J said that he had to be satisfied that it was “necessary” before appointing an expert to give further evidence.  “On the issue of capacity, I am persuaded it’s necessary.  She’s achieved puberty and it was foreseen in earlier expert evidence that changes and maturation of the brain with puberty may impact on her capacity. I am not persuaded that the other issues floated need to be revisited but an assessment of capacity, especially in relation to residence, care and treatment, is necessary.  As to the identity of the expert, Mr Mike O’Brien says on behalf of the mother that A distrusts the expert who saw her last time, but he has knowledge of the context and there is a benefit to continuity.  The qualification is that he should not meet A until after the next hearing.  Priority should now be given to providing information for A.  I am a little fearful that involvement of an expert, even [the same one as last time], at the same time as that process is ongoing could disrupt it inadvertently.”

4. Contact between mother and daughter

Current contact arrangements are two half-hour supervised telephone calls a week, and supervised weekly face-to-face visit of one hour, with discretion to extend that up to two hours.  Contact has generally gone well, and the mother would like to increase the weekly visit for up to three hours.  She also wants A to be able to attend her grandfather’s funeral.

Counsel for the local authority said they do not recommend any changes to the contact arrangements because “the focus should be on enhancing the health promotional work, and there shouldn’t be additional distractions to A at the present time. She has an awful lot going on at the moment. She’s been informed she’s gone through puberty. Her grandfather passed away a week ago, and there’s the suggestion of additional experts. So, the local authority would prefer to restrict contact to up to two hours and review this in four to six weeks.”

Counsel for the mother said that in fact contact has never been two hours:  “the longest visit has been an hour and a half”.  He drew attention to the Official Solicitor’s view that the mother’s involvement in persuading A to agree to maintenance medication is of “magnetic importance” and said  that longer visits would make it more likely that the mother can fulfil this role.  “[Mother] knows A can be stubborn and difficult, particularly about professional advice.  It may take her a bit of time, but she thinks she can persuade her.” 

In the closing judgment, Poole J reflected on the fact that contact has gone well.  “There’s no evidence that [A’s mother] has given inappropriate information. This is a suitable time for contact to be extended to supervised face-to-face contact once a week for up to three hours. Arrangements should also be made for A to attend her grandfather’s funeral.”

(5) Permission to appeal out of time against earlier decisions by HHJ Moir

Counsel for the mother asked for permission to appeal against the decisions made by HHJ Moir in the closed hearing of 25th September 2020, from which the mother and her legal team were excluded.  He set out detailed reasons why permission should be granted.  The judge did not grant permission and gave a full and separate judgment giving his reasons for not granting permission to file an appeal.  A transcript of Poole J’s decision will be made available to the parties and (the judge has said) to me when it is ready.  I will blog separately about this aspect of the hearing when I have received the transcript and can be sure that I am entirely accurate in reporting the reasons for the judge’s decision.

Concluding remarks

In his closing judgment, Poole J effectively pursued the same line of reasoning as in previous hearings.  He remains concerned that A might realise that she has been covertly medicated and lose all further trust in professionals.  He wants a plan as to how she is to be told about the covert medication and an ‘exit plan’ to enable a move from covert to voluntary medication.  He continues to request this of the MDT,  which has so far failed to provide an adequate (and agreed) plan despite this having been requested since November 2022 – and subsequent events have overtaken the draft ‘exit plan’ they had expected to present to the court.  He’s also increased face-to-face contact between mother and daughter, which is surely necessary given the central role the mother is now envisaged as having in implementing the ‘exit plan’ with her daughter.  Meanwhile, covert medication remains in place, as does A’s deprivation of liberty which the judge considers “necessary, proportionate and in her best interests”.  The question of where A will live “will be considered once there’s more clarity on the use of medications and communications with A”.  

It seems to me that the court is now in the unenviable position of trying to help the MDT extricate itself from the entirely untenable situation it’s in following the directions of HHJ Moir.  I am left wondering how everyone thought this would be brought to a satisfactory conclusion.  What  ‘exit plan’ was envisaged at the point the judge set the wheels in motion for covert medication?  Nobody can have imagined that A could be detained and covertly medicated for the next 30 years – but nobody seems to have planned for any alternative.  

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She’s personally observed more than 420 hearings. You can follow her on Twitter @KitzingerCelia

After the kidney transplant: The view from “Team William”

By Ami McLennan, 16th April 2023

Editorial note:  This is a blog post by Ami McLennan whose son, William Verden, was at the centre of Court of Protection proceedings in 2022.  The key issue before the court was whether it was in William’s best interests to have a kidney transplant (if a donor could be found so that this would be possible).  Several observers blogged about the hearings from a range of difference perspectives (e.g. Introducing an upcoming hearing: Is a kidney transplant in his best interests?; Is a kidney transplant in his best interests?; Listen to him, listen to his mother: The William Verden hearing; Advocacy in the William Verden hearing: Observations from a trainee barrister).  The judge concluded that a transplant would be in William’s best interests.  The judgment is publicly available: Manchester University NHS Foundation Trust v William Verden & Amy McLennan [2022] EWCOP 9.  (Note: There’s an earlier judgment which explains why  – unusually – we can name William and identify him publicly: Manchester University NHS Foundation Trust v Verden & Anor [2022] EWCOP 4).  The transplant took place on 7th August 2022.  In this blog post Ami McLennan reflects on the circumstances that led up to the court case, and brings us up-to-date on what’s happened since William had his kidney transplant.  

In December 2019, my son William Verden was diagnosed with a rare kidney disease which required kidney dialysis to keep him alive. He also has autism and a learning disability. This means he finds it more difficult to cope with going to hospital and receiving medical treatment. 

William began to show signs of anxiety and occasionally aggressive behaviour while he was in the hospital as an inpatient for an infection whilst on peritoneal dialysis.  It was all unknown to William and he had no idea he was so poorly and no idea why he was there.  Due to William’s needs, he requires time to process things and it’s very important he’s given the opportunity to do this. Whilst receiving dialysis, clinicians were frequently unable to complete some of the tests required, such as taking William’s blood pressure every 30 minutes as William would present in an anxious manner, due to needing the time to process what is happening. Many routine medical procedures, when not carried out with proper concern for William’s needs, could cause William to behave in ways that professionals find challenging. I felt that some doctors and nurses became agitated because they were unable to complete tests in what is deemed a ‘normal’ timeline. 

Clinicians felt that it was not in William’s best interests to continue on haemodialysis, which was the next best available treatment, as the peritoneal dialysis was not working properly; the only alternative options proposed were  kidney transplant or palliative care. We were told by his clinicians that William’s behaviours were so aggressive that he would not tolerate dialysis long-term and would not be able to cope with the care needed post-transplant, without a long period of sedation and ventilation in the Intensive Care Unit.  

I was devastated by the news that there appeared to be no active treatment options available for William. I was told that the risks of the period of time in intensive care were likely to outweigh the benefit of William receiving a new kidney.  So that left palliative care.  I felt angry and upset – his life didn’t seem to matter because he was thought of as “broken”. But surely, he deserves the same chance at life as anyone else.

There was a delay of a year before William was put on the transplant list, while doctors continued to recommend the palliative care route, which was very wrong in my opinion. The only way he got on to the transplant list in the end was because we went to court – and I don’t think that should have been necessary. 

I was over the moon when the clinicians agreed, during the court proceedings, that the risks of 14 days of sedation and ventilation, although not without risk, would not outweigh the benefits of having the kidney transplant. 

Then I thought it would be difficult to find a donor but the call came through about five months later that there was a deceased donor. I was in complete shock and dropped the phone. I kept pinching myself. My boy has a chance at last – this was all we’d ever hoped for. My anxiety was running high but my heart was exploding with sheer relief. 

William had his kidney transplant in August 2022. It all happened really quickly once the donor was found, which in my opinion was better for William. When we went into hospital for the transplant he just thought he was having a dialysis session – but he was sedated and taken to theatre.  His time in intensive care was hard both emotionally and mentally for both William and for me. William’s kidney took a long time to work, meaning he required further dialysis to remove fluid. I just kept praying, and I kept reading to him and talking to him. It helped me to help him in a strange way.  William coped very well with both recovery from the transplant itself and the sedation and ventilation. 

When William was extubated, a team was on standby to restrain him as the doctors expressed concern that he would pull lines out and act aggressively. However, William did not touch anything and did not attempt to do so.

After being weaned off sedation, there were only a couple of incidents where William hallucinated and thought that someone was pulling the central line in his neck. As this line was not being used, I requested that it be removed to minimise the risk of him pulling it and making him more anxious. 

When in ITU, William contracted sepsis and E.coli, and had urine infections constantly until December 2022. However, his blood tests from January, February and March 2023 show that he is improving all the time. Recovery is a work in progress, and we still do struggle to encourage William to drink 3 litres of fluids and urinate. The doctors were concerned that William’s stay in ITU could have an impact on his mental health and general wellbeing following the surgery. However, none of the psychological risks have occurred. William does not appear to remember being in ITU or having a transplant. William is back to his old self and is able to enjoy his life again, playing golf, snooker and just being back at home.

When he was poorly after the transplant, the doctors were saying “we said this would happen” and “don’t get your hopes up” – but he pulled through,  like I always knew he would.  If I’d listened to them and not taken the case to court, William would have been sent home in September last year, and had palliative care, and he would be dead now.

Parents know their children best and medical professionals need to listen more to parents, and learn more about children and adults with additional needs –  because in my experience there is a lot of ignorance among health care professionals about people with learning disabilities and autism.

If I were presented with this situation again, I would most definitely do it all again in a heartbeat. William’s situation demonstrated to me that although there are risks to being placed in intensive care, it was absolutely the right decision for William.  

Finally I want to say to parents of other children with autism and learning disabilities that it’s worth going to court when you don’t agree with what doctors are saying is in your child’s best interests.  Judges can be fair and you can get the right outcome.

Ami McLennan is William Verden’s mother. 

Note: With thanks to Ami McLennan for the photograph of her son.

Disadvantaged litigants in person and a long search for a placement

By Celia Kitzinger, 14th April 2023

This very short hearing (just half an hour) interested me for two reasons.  First, it tells yet another story indicative of the horrendous pressures on social care in England, with suitable placements hard to come by.  Second, it raised for me some worries about the way the judge treated the parents, who were unrepresented parties (‘litigants in person’) in this case.

Background

It’s a recurrent theme. A vulnerable person is in unsuitable – even dangerous – accommodation, with care that doesn’t meet their needs.  Everyone agrees the current placement is not in their best interests and they should move somewhere else.  But there’s nothing else available.  And this goes on for months or years. 

The young man at the centre of this case (“P”) is a teenager diagnosed with a severe learning disability.  He also has epilepsy and glaucoma affecting his eyesight.  It’s reported that he can “exhibit challenging behaviours” and that he “requires a high level of support to meet his needs, currently 2:1 care”. 

The local authority, London Borough of Hammersmith and Fulham, made an application in June 2021 to determine where he should live after turning 18 and since then there have been many hearings – none I which I’ve observed, until now.

In April 2022, under circumstances that weren’t discussed in court, the local authority moved P to his current supported living placement “without court authorisation or the agreement of [P’s] family or his litigation friend. The local authority’s statement… addresses this move with an apology”.  He’s been there ever since and it’s not worked out well for him.

There’s been ongoing concern about care provision. By the end of 2022, after eight months in the new placement, there was “a marked deterioration” in P’s wellbeing – including two hospital admissions due to epileptic seizures.  The provider had no permanent staff and was relying on agency workers.  Faced with different and unfamiliar staff, P was refusing medication, activities and personal care. A safeguarding investigation found problems with staff knowledge about seizures and medication, the Official Solicitor has “serious concerns about the current placement”, and family members have been raising multiple concerns about the impact of poor quality care on P’s physical health. All parties have been agreed since November 2022 that it’s not in P’s best interests to stay at this placement.  

But there isn’t anywhere else for him to go.  

He’s been in a placement that doesn’t meet his needs for a year now, and clearly something needs to be done. Enquiries with appropriate placements within the borough have drawn a blank.  And the family are concerned about an out-of-borough placement. It would take P away from his familiar local area and make it harder for them to visit him. The parents are (separately) parties to this case as litigants in person.

The position at the beginning of this hearing was that the applicant local authority and the Official Solicitor have agreed that the search should now be broadened to consider possible out-of-borough placements.  But it turns out that the parents have not read the draft order so they’re in no position to agree (or disagree) with it.  I have some concerns about the way this was managed in court: the outcome of the hearing was that the judge ordered that out-of-borough options are now to be considered, without properly eliciting the parents’ views on the matter, despite their party status. 

The hearing

The hearing (COP 13796659) was listed for 2pm on Thursday 13th April 2023 before Deputy District Judge Chahal, sitting remotely (via MS Teams) at First Avenue House in London.  

There were three observers, and (unusually) we were sent the Transparency Order in advance. It’s in the standard terms, i.e. we can report and comment on these proceedings so long as we don’t publish anything that “identifies or is likely to identify” P and his family members, or where any of them live, or their contact details.  

The parents were both in court, sharing the same screen and joined (on a different screen) by their interpreter (for a Central Asian language).  His sister, fluent in English, and articulate in her interventions, was also present.

The applicant party, the London Borough of Hammersmith and Fulham, was represented by Darren Ward of 5 Pump Court. The young man at the centre of the case (P) was not in court in person. He was represented, via his litigation friend the Official Solicitor, by Gemma Daly of Doughty Street Chambers. The parents were (separate) litigants in person (i.e. each of them was party to the case, but neither had a legal team).  

There was some faffing around before the hearing started to ensure that the parents had video and audio access, and then some issues to resolve with the interpreter, who spoke a different version of the same language as the parents, with variations in pronunciation, grammar and vocabulary.  It was established that this was unlikely to cause problems – and the judge did check on this when the hearing started, a few minutes later than listed.

Although the judge acknowledged the presence of observers by referring to the Transparency Order and reminding us that we were not allowed to record the hearing, she did not ask the applicant for an opening summary, and nor did she provide one herself.  This is not in accordance with the memo from the former Vice President of the Court of Protection, which reads: 

… a small practical suggestion to improve access to the business of the Court when press or other members of the public join a virtual hearing. Whilst the judge and the lawyers will have read the papers and be able to move quickly to engage with the identified issues, those who are present as observers will often find it initially difficult fully to grasp what the case is about. I think it would be helpful, for a variety of reasons, if the applicant’s advocate began the case with a short opening helping to place the identified issues in some context. (as reproduced on the Mental Capacity Law and Policy blog) 

Sometimes when judges forget (or don’t know about) the need for an opening summary, one of the barristers will step in helpfully to provide one anyway (as Ben McCormack did in a case I blogged recently).  But that didn’t happen here, and so it was hard to follow what was happening especially in the first half of the hearing.  Failure to provide opening summaries undermines the judicial commitment to transparency.

The facts provided in the beginning of this blog post only began to emerge towards the end of the hearing, and many of them are taken from the Position Statement I requested and received from the Official Solicitor. (There was no response to my request for the local authority’s Position Statement.) Especially in the absence of opening summaries, but also as a general practice, it is worth googling the names of the lawyers at the beginning of the hearing, obtaining their emails, and then contacting them right away to ask each one for their Position Statement.  A Position Statement is the document prepared in advance by each (represented) party, laying out the background to the case and the position they take now on what should happen next and the order they want the judge to make.

In this hearing, the draft order had been agreed in advance between the local authority and the Official Solicitor – but not with the parents, who said they hadn’t read it.  I expected the judge to call a short adjournment so that the parents could read it and/or have it explained to them via one of the lawyers, but instead the judge explained very briefly what was in it and said they could read it after the hearing.

“It outlines further steps to take to progress the case –  so there are further documents disclosed and further searches for a residential placement, with the case coming back before the court at the earliest available date after 29th May.  And I’m going to ask someone for the Official Solicitor to run through the order with you after the end of this hearing so that you’re aware of its content. The important thing is that there’s now agreement, it seems, that there will be a wider search for a placement, including out of borough, which is a very welcome development, I think, that will assist in taking matters forward.[1]”

The judge then said that “unless there’s anything further, I will ask for the order by 10am tomorrow” and seemed ready to end the hearing, without giving the parents the opportunity to express their (possibly divergent) views about the draft order that had been agreed by the other parties.  I’m fairly sure, from what happened next, that the parents did indeed have views about out-of-borough placement options, and this was the place in the hearing where they should have been able to share them. But they were not invited to do so.  I found this somewhat concerning – especially as the parents are litigants in person. It didn’t seem fair.

Fortunately, Gemma Daly (counsel for P via the Official Solicitor) intervened with a “practical point” about the searches that would now (assuming the order were to be approved, as the judge had already indicated it would be) extend out of borough.  She raised a concern about whether and how family could travel to get to any new proposed placement, and recommended consultation with the parents about this.  The judge then asked “Does anyone know if the parents drive?” (I don’t know why she didn’t ask them directly via the interpreter) – and was told the father did.  At which point P’s sister intervened  – in my view, very helpfully since she corrected my misapprehension at this point (which might also have been the judge’s misapprehension) that her father would be able unproblematically to drive her mother to visit P.

“Can I just say something in regard to the driving part.  My parents are actually today attending a funeral, which is why they are here together.  But they are separated.  Dad does drive, but he only visits P about once a week.  He is at work during the day.  Mum does not drive, and she is the person who visits a lot.  Sometimes I drive Mum there, but I am at work so I cannot always do that.  At the moment there is a convenient bus route for Mum to visit P.  I am just putting that out there.”

The judge responded by saying that in considering proposed new placements, ease of family visits would be “one of the issues that will be taken into account in determining P’s best interests”, but that it was “not determinative”. She suggested that the social worker (who I think was also in court) should discuss with the mother how the transportation issues would work in relation to putative placements, and said “these are very much practical issues which I hope will be capable of resolution if the parties are able to discuss them fully and frankly”. But as far as I know there is nothing in the order that says anything about the way in which the widening of the search for a placement should take account of the mother’s ability to visit. If there had been, surely the judge would have said so as a way of reassuring the family at this point.

Reflections

From what I heard, and have since read in the Position Statement from the Official Solicitor, I absolutely understand the need for the search to be broadened out-of-borough, since P’s current placement is clearly failing to meet his needs.  But it’s also, presumably, in P’s best interests, for his mother (and other family members) to be able to visit regularly – and it’s his mother who seems to have been picking up some of the problems with his care at the moment, and is likely to be an important person in supporting him with the transition to a new home and new carers.  

There has been some resistance from the family to moving P out of the borough.  Earlier this year, they apparently “refused to visit the out of borough available placement due to its location” – so I’m troubled that they were not given the opportunity to express their views on the “agreed” order during this hearing.  

I’m really uncomfortable that the parents, two parties to this case, were apparently caught by surprise in this hearing: they had not read the draft order[2], were not offered a short adjournment to do so, got only a very cursory summary of it in court, and were not given the opportunity to comment on the key issue in the order concerning widening the search to out-of-borough placement options.  I don’t suppose expressing their views would have made a difference to the judge’s decision to widen the search in this difficult situation, but the parents should have had an opportunity to express their concerns and those concerns should have been properly addressed in the hearing and taken into account in the order.

If one or both parents had benefited from legal representation, I’m certain the judge would have provided their lawyers with a slot to raise concerns about the order agreed by the other parties – and maybe the lawyer would have been able to ensure something went into the order about giving full consideration to the mother’s ability to visit in selecting between possible out-of-borough options (if, in fact, there turn out to be any options).  This seems to me clearly one of those situation where litigants in person were at a disadvantage, and the judge did not provide the kind of support for them that I’ve (repeatedly) witnessed in other Court of Protection hearings. Usually, in my experience,  judges go out of their way to help litigants in person. In this hearing, it felt as though they were side-lined. It also seemed not in accord with the usual display of empathy I see from Court of Protection judges engaging with litigants in person – in this case, with an obviously devoted mother whose commitment to visiting her son seemed to be treated as a potential impediment to effecting his best interests.  Despite my sense that they were not treated as they should have been, neither parent showed any upset or anger at what was happing in court (as far as I could tell).

The barrister representing P (via the Official Solicitor), Gemma Daly, played a wholly positive role in these proceedings in relation to the family litigants in person[3].  She raised early on the point that the parents had not agreed to the order (“I haven’t received a response from them about it”) and she alerted the court to the problem of family transportation to visit P – after the judge had indicated she was ready to approve the order and end the hearing without giving the parents the opportunity to express their views.  She also asked about using the existing video-platform link to discuss the order with the parents once the observers and judge left (the benefit of this, presumably, was that the interpreter and P’s sister would remain and participate) – and that discussion was just beginning as I left the hearing. But of course, by that time the judge had approved the order without hearing from these two parties.

So, this was a troubling hearing both because it exposed the shortcomings of social care and because it raised – at least for me – concerns about procedural fairness for litigants in person.  In my view, this hearing (which lasted for only 30 minutes of its scheduled hour) would have better exemplified what I have come to expect from the Court of Protection if time had been taken during the hearing itself to provide a fuller explanation of the ‘agreed’ draft order to broaden the search out of borough, and if the parents, as litigants in person, had been given the opportunity to address the judge and explain their views about that. As the judiciary’s Equal Treatment Handbook says: “When parties do not get the outcome they would like or expect, it is particularly important that they feel they were fairly treated, fully heard and fully understood.”

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has personally observed more than 400 hearings.  You can follow her on Twitter @KitzingerCelia

[1] Quotations from the hearing are based on touch-typed contemporaneous notes and are as accurate as I can make them, but are unlikely to be exactly verbatim.

[2] Counsel for the Official Solicitor said the draft order had been sent to the parents, but the parents said they hadn’t read it, without giving any reasons. So I don’t know why they hadn’t read the order. It may have been that it was sent only in English and their English was not good enough to make sense of it without an interpreter, or simply that the legal language was baffling, as it often is even for first-language English speakers.  I’m also guessing that the order was sent only the day before the hearing (the Position Statement is dated 12th April 2023, the day before the hearing, which leads me to think the draft order may also be of that date). Their daughter told the court that her parents were at a funeral on the day of the hearing, so they may simply not have opened their emails or had time to read what was sent.  I wonder, too, if they’d been represented, whether their lawyers might have asked for an adjournment due to the funeral – it must have been a stressful experience to attend both the court hearing and the funeral on the same day.           

[3] There is useful guidance for lawyers on dealing with litigants in person: https://www.lawsociety.org.uk/topics/civil-litigation/litigants-in-person-guidelines-for-lawyers  The Equal Treatment Bench Book (for judges) also has a chapter on litigants in person.

Conflating capacity and best interests? Cross-examining a neuropsychiatrist

By Claire Martin, 25th March 2023

Mr A is the applicant in this case. He is currently deprived of his liberty in a care home setting.  He has made a s.21A application challenging his deprivation of liberty on the grounds that he has capacity to make the relevant decisions about his care, residence and finances, and he wants to return home. Mr A’s case has been before the Court of Protection for around a year, since March 2022.

The position of the Local Authority (which the Transparency Order prevents me from naming)[1] is that Mr A lacks capacity to make the relevant decisions.  The Local Authority is, however, considering a return home as possibly in Mr A’s best interests and will support a trial of his living at home (for a month) once his home has been decluttered and made habitable. They are also exploring a supported living placement.

I’ll begin by laying out the background to this hearing insofar as I understand it.  I’ll then give a sense of the way this hybrid hearing was conducted, illustrated in detail by the expert witness evidence to show the type of questioning that can be faced by witnesses in court.  Finally, I’ll reflect on the hearing, including the potential difficulties that assessors come up against when assessing capacity at one moment in time for capacity to make decisions that, in practice, will need to be made at another point in time. 

Background

Unfortunately for me as an observer the Position Statement says ‘The background to these proceedings is well known to the court. The matter was also last before the court on 6 February 2023. As such, the background to proceedings will not be set out here“. 

There have been four capacity assessment reports from psychiatrists (I don’t think four different psychiatrists though) all of which have concluded that Mr A lacks capacity for the decisions in question, to:

a. Conduct the proceedings;

b. Make decisions about his residence;

c. Make decision about his care; and

d. Manage his finances.

The expert witness at today’s hearing, Dr Thomas Elanjithara, wrote one of those reports (in February 2023), and also reached the view that Mr A lacked capacity for all of those areas.

Mr A ‘strongly asserts his capacity’ (counsel) and my understanding is that a final declaration that he lacks capacity has not yet been made, so this hearing was to enable the cross-examination of the expert witness to enable the court to reach a determination about Mr A’s capacity for the decisions in question.  

The respondent in the case (the Local Authority) does not dispute Dr Elanjithara’s evidence, and has made an application to be appointed Property and Financial Affairs deputy for Mr A (which he is worried about) and at the same time is in the process of exploring options for different types of less restrictive accommodation for Mr A, including a trial in his own home. They are also trying to sort out other things for Mr A, such as helping him with ‘community access’, ‘reablement’ and to do some volunteering. 

What I’ve gleaned from the Position Statement, and the hearing that I observed, is that Mr A is a 70-year-old man who had a haematoma in 2021 and has been living in his current care setting since then. He has a history of alcohol misuse and Dr Elanjithara has diagnosed Mr A with alcohol related brain damage (ARBD) (commonly referred to as alcohol-related dementia) caused by thiamine and nutritional deficiency. He uses the term ‘alcohol related neurocognitive disorder,’ which describes alcohol related brain injury where there are cognitive and executive functioning problems. 

Hannah Bakshani gave a helpful introduction to the case, explaining that Mr A had struggled with alcohol dependency and had been found at home with blood in his bed (I think was in 2021) and, following a stay in hospital, has subsequently lived at his current care setting. I am not sure what sort of a setting this is, but it is quite ‘restrictive’ and that there is a lot of support in place, Mr A himself feels restricted and does not want to live there. As Hannah Bakshani said, Mr A ‘strongly objects’ to being kept in the care setting. I don’t think Mr A is currently drinking – I formed the impression during the hearing that he is closely monitored at all times and he does not go out on his own.

In this hearing, the expert witness, whilst saying he assessed Mr A as lacking capacity for relevant decisions, also says that his tests were not sophisticated enough to be conclusive about  the cognitive impairment (which is asserted as the cause for lack of capacity). In particular, it didn’t sound as if any more detailed cognitive assessments had ever been done – which is why the Litigation Friend is challenging the conclusions.

The Hearing

The hearing I observed for this case (COP 13881941 SA) was on 6th March 2023 before District Judge Read sitting at Middlesbrough County Court. Hannah Bakshani represented Mr A (via his Litigation Friend) and the Local Authority was represented by Stephen Williams.

It was a hybrid hearing – meaning that some people were in the court room and some were attending remotely. This often means that sound quality is not ideal and, despite the court official trying to ensure that the microphones were audible, I was often unable to hear the barristers in the echoey courtroom. The witness (attending remotely) and the judge (as he sat with the microphone right in front of him) were crystal clear, but when the barristers stand to address the judge, they are not close to their microphones. At those times, barristers often refer to their position statements and the loudest sound is then the judge rustling papers to find the relevant paragraphs, because the dominant microphone is the judge’s. A clip-on mic for the barristers would be really helpful for anyone attending or observing remotely, to balance out what is amplified and enable clearer hearing of the proceedings. So, my notes from this hearing have frequent gaps, due to inaudibility. 

The hearing was on CVP (Cloud Video Platform) which is a court service remote video platform – and the main image on my screen was the witness giving evidence. The courtroom itself was a tiny square on my screen and I couldn’t change it (as is easy to do with Microsoft Teams). This could be my lack of technical know-how, and as a consequence I only realised at the end of the hearing (when the witness had left and the courtroom was the main image on my screen) that Mr A was at the hearing, sitting behind Hannah Bakshani. He hadn’t been addressed or spoken himself throughout the hearing. This is very unusual, certainly in my experience of observing many hearings where P is present, remotely or in person. At every other hearing I have observed, the judge has welcomed P and often has made it clear that they will be given the opportunity to speak if they would like to. 

In many CoP cases it is often simply reported that the expert capacity assessment has deemed P to lack capacity for the relevant decisions, without further elaboration. This hearing piqued my curiosity, because the examination of the expert witness meant that this evidence would be scrutinised in detail. In my department at work, we conduct neuropsychological assessments in the context of potential dementia, so the fact that the witness was discussing his cognitive assessments was of additional interest to me. 

Evidence in chief

Hannah Bakshani opened by asking Dr Elanjithara about the tests he had used to assess Mr A’s memory ability and how he reached his conclusions about Mr A’s capacity. What was notable to me was Dr Elanjithara’s assertion that Mr A required further, more detailed, neuropsychological assessment. 

HB: Memory – is this something that is acute or early stage and can improve over time?

Dr E: Correct …. So when we say impairments improve over time, [the] level of accumulated damage that can happen with more alcohol consumed, recovery becomes less and less … cumulative damage increases. Memory improvement can happen but not every time.

HB: You say there are limits with the ACE [Addenbrooke’s Cognitive Examination]  [unclear] … you recommended more robust neuropsychological testing take place. Can you describe?

Dr E: A full WAIS battery and DKEFS for executive functioning – neuropsychologists tend to start with those and then choose other batteries if they wish. [It is a] matter for specialist neuropsychologists. From what I have seen there is a need for these tests to take place to understand his neurocognitive function better.

Dr Elanjithara went on to explain that a further screening assessment had been conducted (as well as the ACE-III), which he had not administered himself, called the Cambridge Brain Sciences test. This is an online screening assessment that was developed to track recovery and cognitive function. It tests abilities such as short-term memory, reasoning, verbal ability and attention. There was some uncertainty about this test and the validity of the results for Mr A: 

HB: Your tests … at the bottom there’s a further table but I have not been able to find what that table references. Can you explain where those results are taken from?

Dr E: The Cambridge Brain Sciences further cognitive screening. …. [It is a] screening not a diagnostic test – it indicated the need for further comprehensive testing with more validity. Again, one has to put the screening tests – both of which show potential impaired cognitive and executive function – [with the] next step [which] is to ask for more robust testing, through neuropsychological testing. 

HB:  [MrA] … he’s explained to us today that when he completed the assessment [Cambridge Brain Sciences test] I understand you weren’t present?

Dr E:  [The one] online. … Yes I was not present.

HB:  The member of staff he found unhelpful, they ate a packet of crisps while he completed the assessment. Could this have impacted his performance?

Dr E: It could have impacted his understanding of the instructions. I have not relied on the [results] and …. there is need for further robust assessment. [It would be a] different picture if [Mr A] had scored high on these testings. I would have gone back and sought further assessment before completing the report.

This was an interesting exchange to me. Mr A had not scored highly on the online assessment, and Dr Elanjithara was confirming that this might have been because the administration of the test confounded the results. Yet the results had been included as part of the assessment report. The person doing the test with Mr A was eating crisps at the time! I found this quite astonishing. 

Hannah Bakshani continued to explore the meaning of the cognitive assessment results, checking that Mr A ‘would fall into the category of MCI (Mild Cognitive Impairment)?’ Dr Elanjithara said that ‘It is clear that [Mr A] does not have dementia’ and, at the same time, that the assessments indicated an executive functioning difficulty which concerned him in relation to the prospect of independent living: 

Executive function can impact on the ability to learn, if not orchestrating information appropriately and retrieving it appropriately, new learning is not as good. The screening test can only screen out MAJOR pathology and impairment – other things are missed out. This can have a devastating effect if he were to return to independent living without support. [Dr Elanjithara’s emphasis]

Dr Elanjithara went on to explain his reservations about the OT assessment and report that was carried out last year. He said that ‘it’s not impossible’ for Mr A to improve his capacity for the decisions in question, but cautioned that ‘an in-house assessment taking place within a short period of time with a therapist present in the room with him …. takes away the self-initiation part of it. The problem is executive function – self-governance’. 

For me, this echoed the discussion between Alex Ruck Keene KC and two addiction psychiatrists (Julia Lewis and Ken Wilson) in a recent podcast about ARBD and mental capacity. Interestingly, both emphasised the ‘paradox’ of frontal lobe functioning in ARBD: “in a cued environment [there is] a normative way of behaving. In more complex, social decisions, it falls apart.” (Ken Wilson) and asked about OT assessments to see functioning, to complement self-report, Julia Lewis said “OT yes, but a sparkly clean kitchen, all the cues are there. … At home, it’s not the same”. 

Hannah Bakshani asked how this has an impact on Mr A’s ability to manage his own self-care: 

Dr E: In the current setting he is looking after himself fine. … Things are likely to be different … there is a potential underlying deficit, if we expose him suddenly to independent living with limited support, it will overwhelm him quickly, and his default position is likely to go back into alcoholism. So any change has to be gradual supported and stepwise … 

HB: So, you weren’t able to test these because they were masked in the environment?

Dr E: Yes, and that’s the reason I have asked for more neuropsychological testing to put it into context. At the moment, from my assessment, those deficits are present – it is highly likely those deficits are present. 

HB: In which case, were you able to properly assess [Mr A’s] capacity without those tests available?

Dr E: To a great extent in terms of probable ability. [Now we need] fine tuning – we need those tests. From screening and superficial assessment there are lots of soft signs – so more comprehensive tests could then help us fine tune to help [Mr A]. 

I wondered why the further, detailed neuropsychological assessment had not been sought prior to the hearing. Perhaps there wasn’t time? Dr Elanjithara is an expert witness, not Mr A’s treating clinician, and was recommending this to the court though – and it made me think that, if this were necessary (as part of Mr A’s care) to understand his needs, why is Mr A’s care team waiting to be ordered by the court? Professionals carrying out mental capacity assessments need to understand what a person’s needs and limitations are to enable them to present relevant information in the assessment – this is to enable P to demonstrate an ability to understand and weigh up “reasonably foreseeable consequences of— (a) deciding one way or another, or (b) failing to make the decision” (Mental Capacity Act 2005 Section 3(4))

Capacity or Best Interests? 

I felt confused by Dr Elanjithara’s reasoning behind reaching the conclusions he did about Mr A’s capacity, given that he was recommending further assessment. This exchange about Mr A’s capacity to decide where to live highlights the issue: 

Dr E: The next steps are important to be more supported, based on further neuropsychological testing. The current placement is far too restrictive but going home at the present moment could unmask difficulties and cause a spiralling down. There is a step in between the two, as a clinician I would recommend for him to consolidate, then further steps could be taken. Currently he’s looking after himself, but it’s too restrictive.

HB: You have provided his best interests. I’m asking you about his capacity to make that decision. [counsel’s emphasis]

[later]

Dr E: There’s a helpful breakdown in the initial bundle 2018-2021 describing multiple incidents observed by paramedics over time, patterns repeated over and over again despite measures being put in. [Mr A] acknowledged those happened but clearly minimised the impact at the time and in future.

HB: [Mr A has] informed his solicitor during a meeting that when he lived at home he had carers – up, dressed, medicated – he now accepts he needs 4 calls a day. Does that not demonstrate understanding of his care needs in different settings?

Dr E: It represents some understanding. As it stands – those 4 visits are not sufficient to ensure his safety. I explained to him that he needs more robust support and could consider stepping down. Three states: highly exposed, highly supported, and a middle ground. 

HB: Your assessment is an assessment of capacity. What I am asking is: Was P able to understand the residential options, considering the information you’d provided him about care needs?

Dr E:  There’s overlap – [it is] important for me to understand what the care needs are. I would not be able to assess capacity without the knowledge of care needs. I wouldn’t be able to check his understanding. There were no clear pre-existing clinical recommendations that his care team was following. I would have tested his understanding against that. There were no available reports from the care side about his care needs. I would have checked this with him if I had had this.

HB: You were provided with information about his care needs — I can take you to C1 dated 14 December 2022. … Also to the OT assessment at F65: it shows that [Mr A] has independence with walking with aids, is able to use roads safely, is orientated and able to engage in familiar tasks, is able to learn, showers, manages oral care, is aware of medications regime. Although the OT identified some difficulties with meal preparation, they thought he could become independent if using a timer. So, you did have information about care needs.

Judge: Had you seen this assessment?

Dr E: Yes that’s correct. 

HB: So, it’s not quite right to say you didn’t have the relevant information to assess the residence options against. What [Mr A] has said is that he would like to go home with a package of care. The Local Authority has concluded that those residence options would be able to meet his needs. Why do you say different?

Dr E: I agree those reports were set out from an OT and social side of things. In a complex presentation such as [Mr A’s] it is important to have a more integrative MDT assimilation of the information and at the centre is an understanding of the clinical diagnosis and risks. At the time of my assessment, I did not have oversight of the comprehensive medical assessment of risks and prognosis. In the absence of this, from the available information, I put together and integrated information. An understanding of the progression of [Mr A’s] presentation, what are the future risks … [it] led me to integrate to a clinical understanding. [There are] areas of concerns and rehabilitation, as well as areas of improvement. The ability for new learning gives hope, there is also risk of significant destabilisation. 

HB: Are you not setting the bar too high for [Mr A’s] understanding?  You have taken a significant amount of information – clinical – are you not setting the bar too high for his capacity?

Dr Elanjithara said that he did not think he had set the bar too high when assessing Mr A’s capacity and that there has been a pattern of decline over the past 4-5 years when aspects of daily living overwhelm Mr A and he returns to drinking excessive alcohol. He argued that Mr A cannot weigh up this information in reaching a decision. 

HB: So, the assessment was based on how he previously presented in the community and risks on those occasions?

Dr E: It partly did involve that, but capacity is time specific so … it’s important to reflect on how he is able to use information generally, in the past as well. And to consider what has changed. What are the changes from the past to now? 

HB: What evidence do you have that he can’t adapt to those changes?

Dr E: At this moment – he’s in a supportive environment where those things are masked. The last 4 years or so [there have been] repeated patterns of how those risks – personal and environmental safety, risk of exploitation, health risks – have repeated over a period of time. That’s an important factor. It’s unfair on him to purely report on him in a very supported environment. Unfair to rely on day-to-day observations in his current placement. 

HB: You’re saying that [Mr A] needs to consider information about what could happen, what has happened, and analyse that from a clinical perspective. But what you’re being asked to do is consider whether he can use and weigh information in order to make a capacitous decision. Going back to residence – those 3 options. The Local Authority is suggesting he could live at home with a package of care. You have described that to him. Why is he unable to use and weigh that information to make a capacitous decision?

Dr E: It has to be based on the factors you see and the clinical presentation, risks etc. I was given a partial view of this, a report from the OT and other information. [There’s an] absence of a collective report. I wouldn’t be doing my job if I didn’t integrate the bigger picture. Is that clear? 

At this point, my notes say ‘No, not to me.’ I was getting really lost in the questioning and evidence. I don’t know whether Dr Elanjithara had asked, specifically, about ‘reasonably foreseeable consequences’ of deciding one way or another (S3(4) MCA), based on his established needs. I think he was saying that, when he did the assessment, he did not have a comprehensive picture of established needs to test Mr A’s understanding against, and that he was trying to ensure he did not miss anything important when he was assessing Mr A, especially because of the history and what that might indicate for Mr A in future. This was certainly a position put forward by Julia Lewis and Ken Wilson in the podcast mentioned earlier. They suggested that ‘performative decisions’ (future, complex scenarios) are harder to assess in ARBD than ‘decisional decisions’ (such as what to wear now), and that ‘you need to pick up on old behaviours to predict the future’, and that ‘it is almost negligent not to have baseline information from others in alcohol and mental capacity assessments’. 

There was a similar tussle over whether all of the relevant information was available to assess Mr A’s capacity to manage his finances. And a similar assertion that, in the confines of a structured environment, Mr A was able to demonstrate some financial understanding, but that if in a less supported place, Dr Elanjithara predicted this could break down, mainly due to the risk of alcohol relapse. And in relation to litigation capacity Hannah Bakshani noted that Dr Elanjithara’s report changed over time, from not rebutting capacity to the opposite. It wasn’t quite clear (to me) why that was. 

Cross-Examination

After a lunch break, Stephen Williams, counsel for the Local Authority cross-questioned Dr Elanjithara. I very much felt for Dr Elanjithara. Having recently given evidence myself at a hearing (not the Court of Protection), I empathise with how stressful and exposing an experience it is. 

SW: Throughout your evidence today, Dr Elanjithara, you referred to risks and [Mr A’s] understanding and ability to weigh up those risks. Is it your opinion, doctor, that the crucial issue for [Mr A] in lacking capacity to make relevant decisions, is his inability to weigh up and use the information about those risks?

Dr E: Yes that is a particularly important factor, I felt. 

SW: If I could refer you to your report at F127 in the bundle. At 6.3.4. – you say that [Mr A] struggles to [quotes Dr Elanjithara’s report – lost what was said here] … risk of rapid breakdown in safety – risk of rapid and severe relapse. ARBD (alcohol-related brain disease) falls etc. So you confirm that using and weighing in particular is an important factor. You answered questions about ability to retain information. Is it your view that the crucial element is the ability to use and weigh?

Dr E: That’s correct. 

[later]

SW: Would you agree that this inability to identify, initiate seeking help and the concern you had about self-governance, shows a lack of insight into the risks?

Dr E: There is an overlap. Insight is knowledge – what we are talking about is being able to use that knowledge when it is required to be acted upon. That is required for anyone to keep themselves safe.

Overall, I think this longitudinal perspective is what Dr Elanjithara was getting at. Stephen Williams enabled Dr Elanjithara to more succinctly state his position: 

SW: One final question. Does it remain your opinion that [Mr A] lacks capacity to make decisions as to residence, care and support, finances and these proceedings? And if yes why?

Dr E: I do agree with that. It is because of an organic brain impairment and functioning – neurocognitive impairment with the potential for worsening in future. The impairment in the function of the brain affects his ability to weigh up and use information to deal with those tasks mentioned. 

SW: No further questions.

Closing Submissions

Hannah Bakshani submitted that Dr Elanjithara had ‘treated a capacity assessment as a best interests assessment’ and assessed Mr A against those best interest options. She argued that people are ‘routinely assessed in care homes and this is not a barrier to assessing capacity’. She reminded the court that people are allowed to make unwise decisions. Reference was made to PB and Tower Hamlets [2020] EWCOP 34, a case of a man with alcohol-related brain disease heard by Mr Justice Hayden, in which the judge said: 

“Within this context, a person cannot be considered to be unable to use and weigh information simply on the basis that he or she has applied his or her own values or outlook to that information in making the decision in question and chosen to attach no weight to that information in the decision-making process.” (§14 (§14 PB and Tower Hamlets [2020] EWCOP 34, Hayden is quoting from Kings College NHS Foundation Trust v C and V [2015] EWCOP 80 at §38, MacDonald J).

“The professional instinct to achieve that which is objectively in P’s best interests should never influence the formulation of the criteria on which capacity is assessed.” (§51 (ii) PB and Tower Hamlets [2020] EWCOP 34, Hayden)

Judge Read confirmed that ‘we must never eclipse the fundamental right to make decisions when [they] have the capacity to do so.’

So Hannah Bakshani’s submission was that “the litigation friend would invite the court to consider further assessment. My position is that there are significant benefits to a further assessment taking place.” To which the judge replied: “We have already had two neuropsychiatrists! Never mind though there is no limit to that number”.

My notes at this point express my own view that the court needs a neuropsychologist as recommended by Dr Elanjithara. A neuropsychologist is a specialist psychologist (either clinical or educational) who has completed further post-graduate training in the assessment of the functioning of the brain. They use tests that assess in detail abilities such as attention, memory, language, visual problem solving and ‘executive’ function (the ability to organise and plan, as well as the ability to ‘regulate’ our responses, use judgment and the ability to inhibit or stop ourselves from acting inappropriately). Neuropsychologists often work alongside neuropsychiatrists who are medical doctors specialising in the diagnosis and treatment of brain disorders e.g. following traumatic brain injury, or in the context of mental health problems including alcoholism and other addictions.  

On behalf of the Local Authority, Stephen Williams submitted that his client did not accept that Dr Elanjithara ‘set the bar too high’. He referenced the case of TB v KB and LH (Capacity to Conduct Proceedings) [2019] EWCOP 14 concerning executive dysfunction and alcohol consumption, quoting the judge stating that such capacity decisions are a ‘dynamic transactional process …. decisions to be taken over a number of years ….’ Stephen Williams said that ‘we do not think yet another report from yet another psychiatrist is necessary.’ 

Judicial decision

The judge referred back to previous decisions for Mr A, directions for assessments and court reports and then summed up: 

“There are a range of possibilities – if the court makes a decision in favour of [Mr A] having capacity, that’s the end of it. If the court holds he holds capacity in regards to some areas and not others, it would end in respect of those areas that he has capacity for and not for the others. If, however, either the court decides that [Mr A] is not capacitous to any extent, or decides he lacks capacity in one of the substantive areas, we have to move on and look at best interests. I don’t think the court can a make substantive decision for best interests without further evidence. This is a particularly finely balanced decision and I am not going to rush.” 

There was discussion about living options being explored, including a return home, but only in the spirit of enabling all options to be considered, pending a decision on capacity and best interests. 

At the end of the hearing, the judge said ‘Good to see you [Mr A] – thanks for bearing with us.’ Hannah Bakshani then said ‘[Mr A] would like to speak to you – perhaps now is not the forum.’ 

Judge: I said at the last one he could have one! Might be an idea to do it when I have handed judgment down. It would be a good idea then – couple or three weeks or so. You’ll remember I said if you’d like to speak to me again that is fine. 

This final exchange was curious to me. In previous hearings I have observed, when P has been present, able and willing to speak to the judge, they have been able to fully participate in proceedings. I wondered why this was not the case for Mr A. His counsel had not asked throughout the hearing for Mr A to be able to speak, though at the end she was aware that he wanted to. Clearly, from Judge Read’s comment, Mr A has spoken to him before. Perhaps the judge thought that the decisions regarding capacity were still so up in the air there was little point in discussing things further. In any event, Mr A sat quietly, listening throughout the day, from 11am to 3pm, with a lunch break, without being addressed (by the court) or speaking himself (to the court). I have imagined what that would be like myself – especially listening to other people discuss me, my abilities and my future. My image is not of myself sitting silently throughout the whole process! 

Reflections

I felt frustrated for Mr A that a final declaration regarding his capacity to make his own decisions about these things has not yet been made. And that further assessment is now recommended and being considered by the judge. However, the cognitive assessments carried out by Dr Elanjithara are screening tools (as he said) and do not provide a detailed assessment of Mr A’s abilities. Why hasn’t the system around him commissioned those assessments already? Perhaps this is what Dr Elanjithara meant when he said ‘at the time of my assessment, I did not have oversight of the comprehensive medical assessment of risks and prognosis’. 

Hannah Bakshani’s contention was that the expert witness strayed into best interests recommendations rather than focusing on a capacity assessment. Did he? I think he might have at times – in particular here: 

“The current placement is far too restrictive but going home at the present moment could unmask difficulties and cause a spiralling down. There is a step in between the two, as a clinician I would recommend for him to consolidate, then further steps could be taken.”

I empathise with Dr Elanjithara. Clinicians find it so hard to set aside what they think is best for people and, instead, solely focus on whether P understands (retains, weighs and can communicate) the relevant information about a decision – regardless of whatever decision is then made. But doing that is crucial to upholding the spirit and letter of the Mental Capacity Act. 

However, he was grappling with the difficulty of assessing capacity in the context of a calm conversation whilst knowing that Mr A would be acting upon such decisions in a completely different situation (as HHJ Lieven points out, below). Another case, observed and blogged by Jenny Kitzinger has similarities and also involved alcohol-related issues. I am not familiar with case law on addictions but I have had experience with patients (in the absence of dementia, but experiencing mental health problems or with other diagnoses such as Parkinson’s disease) who have been told, time and again, by various organisations (such as Social Services, NHS, banks), that they ‘have capacity’ to decide to drink or gamble. 

Is theoretical capacity the same as actual capacity if you are not making the decision, doing the ‘thing’, then and there? This particular point reminds me of a recent case that I observed (and blogged here with Josie Seydel). A key issue for P in that case was the difference between being able to talk, intellectually, about a future situation and what she asserted she would do, and being able to similarly weigh and use that information when actually in that future situation. As Lieven J. said in that hearing:

“This is a classic case of lawyers meeting clinicians, particularly psychologists and psychiatrists. Life just isn’t as simple as lawyers want it to be.  What I’m getting from your evidence is how complicated it is. We can’t dissect P’s mind to get at every instance. Things change depending on different variables. ….   I’m getting a picture of P being quite calm at home, less so in the community. My focus must be on decision-making – when she’s faced with an actual DECISION”.  (Lieven J, as blogged here)

The judgment in that case took a ‘longitudinal view’ of P’s capacity in different situations at different times, and the practicability (for people working with P on the ground) of acting on court orders. HHJ Lieven said, in that judgment: 

“It is a principle of statutory construction that the Court must have regard to the “mischief” of the statute. One of the mischiefs of the MCA is to seek to preserve an individual’s autonomy, but in a way that ensures that when they do not have capacity, their best interests are protected.” (Re PG [2023] EWCOP 9, Lieven J)

Perhaps Dr Elanjithara wrestled with this ‘mischief’ when trying to complete his capacity assessments. 

I very much hope that decisions will be made soon for Mr A, to enable him to get on with his life, wherever that may be. 

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

[1] I don’t know why it was thought necessary to refuse permission to identify the local authority in any publication about this case.  On the basis of what I have learnt about this case I could not see any reason why the Article 8/Article 10 balancing exercise should have resulted in a decision that it was necessary to conceal the name of the public body involved.

Emergency placement order in a closed hearing

By Celia Kitzinger, 20th March 2023

At a closed hearing by telephone, out-of-hours on Saturday 25th February 2023, Mr Justice Hayden granted an order that it was in P’s best interests to be removed from the home where she lives with her sister (Q) and taken to an emergency placement.  

Mr Justice Hayden also approved an injunction against P’s sister saying that she must not prevent or obstruct that move.  

The local authority, the Royal Borough of Greenwich, hadn’t told Q that they were making this application.  She didn’t know that the hearing was happening and was not invited to attend.  She is a litigant in person in ongoing Court of Protection proceedings and she was deliberately excluded from the Saturday hearing.

I didn’t observe this hearing. It was arranged at short notice, never appeared in any lists, and I doubt – even if I had known about it – that it was open to members of the public or to journalists.

The hearing I did watch, COP 13490547 on 6th March 2023 before Mrs Justice Arbuthnot, arose out of this earlier hearing and the events that followed.  

What had happened after the urgent closed hearing?

Presumably the first Q knew about any of this was when officials turned up with the court orders on 1st March 2023 and took her sister away.  

Counsel reported that it had all  “proceeded peacefully and without incident or obstruction” and P was “not visibly upset” but “came with the social worker willingly and has settled in well” at the emergency placement – whose location has still not (at the time of the return hearing) been disclosed to Q or to other members of P’s family.

What precipitated the urgent closed hearing?

The woman at the centre of this case (P) is in her sixties. She has Downs Syndrome, a “significant” learning disability, and autism. She was described as “non-verbal and registered blind”.  She was initially living with her parents, and then with her brother until 2018, when he couldn’t cope anymore.  She was then in residential accommodation (with the Royal Borough of Greenwich) for a period, since when she’s been living with her sister – and the circumstances under which P moved from the placement to live with her sister are disputed.

Before the emergency hearing, there was already a case concerning P in the Court of Protection, before District Judge Grosse.  It had started in February 2022 and concerned two matters:

1.  an application from the local authority under s.16 Mental Capacity Act 2005 to determine P’s best interests in respect of residence, care and support (i.e. is it in P’s best interests to live with and be cared for by Q); 

2. an application made by Q and her daughter (P’s niece) to be appointed as P’s joint Deputies for Property and Affairs. 

Two days before the last hearing before the District Judge there was an “incident”.  Q had been arrested on suspicion of assaulting a police officer.  

And although both Q and her daughter had communicated with the court and the other parties ahead of the hearing on 23rd February 2023 (though they failed to attend the hearing) and they did not mention the incident or Q’s arrest.  The local authority learnt about it from the police.  

The police had interrupted Q’s grandson in the course of committing an alleged attempted robbery somewhere near the block of flats where P and Q live.  He ran into their flat, pursued by the police, who were met at the door by Q who was “resistant” to allowing officers inside.  When they did make their way inside, the grandson resisted arrest: he “fought officers, trying to assault them, screaming and shouting”.  

Although Q had nothing to do with the robbery, it’s alleged (and she denies it) that she tried to assist her grandson in resisting arrest and that she “punched an officer in the face multiple times”.  She was also arrested, and has been released on bail but has not been charged: it’s “under investigation”.  

During this episode, according to the police, P was standing just inside the bathroom watching, and she appeared to be distressed: she was “visibly scared and rocking and shaking”.  It’s also alleged that the grandson was keeping an exposed knife in the bedroom he was staying in.

When the local authority received the police report, they became seriously concerned for P’s safety, which is why they applied for the order to remove P, which was granted by Hayden J at the closed hearing on Saturday 25th February 2023.

The hearing of 6th March 2023

The key issue before the court was whether to authorise P’s continued residence in the placement (which is what the local authority and the Official Solicitor ask for), or whether to immediately authorise her return home (which is what Q wants).  

And if the judge authorises P’s deprivation of liberty in the placement, then what is the plan for contact between P and Q (and the rest of the family)?

Applicant local authority

The applicant local authority (represented by Tara O’Leary of Cornerstone Barristers) said that P is “stable and settled” in her current placement.  She’s “struck up a friendly relationship with another resident” and doesn’t appear to be distressed by being away from home.  They don’t think it’s safe or in P’s best interests to return to her flat to live with her sister.  They’re also concerned about visits from Q because, they say, when P was in another placement, Q simply took her away to her home unilaterally.  “Given this history, and the strained relationship between the family and the local authority”, the local authority wanted to draw up a “contact plan” for supervised contact, and proposed to do so in the next 14 days. (The judge said that was a long time and asked them to sort it out within a week.)

Family

Two members of the family are in court: Q is a litigant in person and Q’s daughter is there to support her.  Q has submitted a list of concerns about P being in care.  She says that last time P was in care, she was neglected, assaulted, and abused: P suffered burns (she says)  and possibly sexual abuse at the hands of staff she labels “institutional criminals”.  

Apparently, Q’s submissions (which run to 100 pages or so) do not address the events of 21st February 2023.  What she’s written deals mostly with “historic complaints and allegations” about P’s former care placement and accusations against local authority staff.  The local authority disputes these claims.

When Q addresses the court, she focuses almost exclusively on her concerns about the alleged (“historic”) abuse. The judge establishes which care home this relates to and asks the local authority whether they can provide assurances that P is not currently in that care home or any care home associated with it. Ms O’Leary undertakes to find out about that. 

Q’s daughter (R) does address recent events.  She says it’s “really unfortunate, what happened” and that her son has agreed not to come to the flat except with his parents, not to stay overnight, and not to see P.  

Judge:  But the trouble is that on 21st February 2023, the police arrived to arrest your son. There was some kind of scrum, it’s said he was resisting arrest, and police officers  noted P was shaking and was frightened by what was going on.  That is not a safe placement – not at that moment.  I appreciate that [your son] is being removed from the scene.  And a knife! Whether it was on a kitchen surface or, as the police say, on a dresser in a bedroom.  And then not to mention it to the court, not to write an email saying, “we’ve had some problems with the police”.  In fact you were hiding it. That the police were arresting your son and grandson.

R:  I explained it in a phone call to the social worker on the 21st and again on 24th and said I was happy for someone to come to the property.

Judge:  But what about the court?

R: It didn’t come into our heads, to be honest.

Judge: But, I’m sorry!, there was a hearing on 23rd February in front of a district judge, so why not say to him-

R: We weren’t attending that hearing. We was never coming to the court. We wanted an adjournment to get legal representation.  But they went ahead.

Judge:  This incident is said by the local authority and the Official Solicitor to be the ‘final straw’.  Before this there was you not granting access, non-compliance with court orders, refusing to sign a Working Agreement, you and your mother holding yourselves out as P’s Deputy when this wasn’t the case, requesting medical procedures inappropriately (to find out if P had been sexually abused), saying she had hepatitis, which she doesn’t.  This is so upsetting for her.  That’s not a stable place for her to live.

This was followed by the judge asking for information about which members of the (large) family would want to make arrangements for contact with P, if P were to remain where she is. She doesn’t really get an answer.  Instead, Q and R talk about how much they love P, how difficult it would be for P to have her family visit and then go away and leave her there – and they describe activities they do as a family with P (including shopping and going to church regularly).

In a final plea to the court, R said:

“I feel completely awful over the incident with my son.  P has really had a bad deal in this situation. I would like to reassure the local authority that P is not an orphan. Please will the court consider her coming back home.  We’re happy for the therapist to visit.  We want to work with the local authority and do feel that in future we could work together.  I feel personally that P would benefit by getting back home to her bedroom and her community rather than starting all over again with people she’s not familiar with”.

Official Solicitor (for P)

Ms Alison Meacher,  counsel for P via her litigation friend the Official Solicitor, said:

“We support the application that P should remain where she’s currently living.  It is not a safe environment for her to live with Q, notwithstanding that she loves her very much.  The difficulty we have is that statements about wanting to work with the local authority have been made at previous hearings but that is not what happens after the hearing.  For example, the Working Agreement discussed in September and drafted by the local authority with counsel for Q, provided by Advocate on a pro-bono basis, was then not signed by Q.  It was agreed, but she then did not sign it.  There are other examples – e.g. the information sought by P’s deputy about P’s activities so that decisions can be made about whether to use part of P’s personal allowance to get a mobility car.  It was explained to Q that information was needed so a decision could be made. The information asked for has not been provided.  Then on 20th January there was a prearranged visit from the OS’s representative, and Q had agreed that she could have a small amount of time with P on her own – but she wouldn’t let her spend any time alone with P on the day.  So, agreement is proffered at the hearings, and intentions are set out – which is of course very positive. And we would love to see them then seen through, but they are not seen through.  Things are said in court, but that’s not what materialises afterwards.”

Counsel for the Local Authority again

Ms Tara O’Leary confirms that “the current placement is entirely unconnected to [the previous one]”.  She also confirmed that (as the family have apparently requested) P has only female carers at the moment.  The judge asked for a recital recording the expectation of the court that this would remain the case – at least in relation to “toileting and personal washing type care”.

She then said she wanted to “endorse every word Ms Meacher has said. The headline is the disconnect between what’s said in court and what happens afterwards”. 

She also raised a missed appointment. It had been agreed that a social worker would visit with an Occupational Therapist to discuss access to the community, but when they arrived at the flat, nobody was home.  “Q and R said they’d gone shopping to IKEA with P and hadn’t managed to get home in time – so it was a complete waste of time and resources.  That was on 25th January, and that visit still hasn’t happened.”

Judgment

The judge found it was in P’s best interests to stay in her current placement while assessments take place, with an expectation of female carers and a contact plan required within seven days.  She asked for a list of family members who ought to have contact and approved a timetable for witness statements, other evidence (including P’s wishes and feelings) and the date of a round table meeting.  She encouraged Q to contact another solicitor who (the OS said) would be willing to take her on.

The next hearing will be before District Judge Grosse on 10th May 2023.

Reflections

It is obviously a very serious matter for a court to make an order against a person without giving them an opportunity to be heard. All the cases I know about – with the significant exception of Re A [2022] EWCOP 44 (which I’ve blogged about several times, including: “Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44“) have concerned ’emergencies’. They include, for example, the risk of P being taken out of the country for a forced marriage, or physically abused by a partner, or (as in this case) some other possible high risk to P’s physical and emotional well-being. The court decides it needs to act quickly to remove P and does so without alerting parties who might cause harm to P.

Given the history of this case, as presented by the lawyers – even bearing in mind the different version of that history presented by P’s sister and niece – I could understand why the court felt it imperative to act as they did.

Given that Hayden J was the author of the recent ‘Closed Hearings’ and Closed Materials’ Guidance [2023] EWCOP 6, it is not surprising that he seems to have acted in compliance with it – in particular by fixing a date for a full hearing as soon as possible after the closed proceedings, giving the excluded party an opportunity to attend. This was that hearing.[1].

My concerns about the way closed hearings were managed in Re A [2022] EWCOP 44 are largely inapplicable to this case. In this case, the family was informed about the closed hearing and the order resulting from it very shortly thereafter; the case was back in court for full consideration; and the intractable problem of the parallel open and closed hearings that plagued Re A does not apply to this case.

It seems to me a good example – as in other cases I’ve watched (e.g. “Forced Marriage Protection Order“) of the court balancing the requirements of open justice (with parties on an equal footing) with the imperative of protecting the vulnerable adult at the centre of the case, and acting quickly and effectively in P’s best interests.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project and has personally observed more than 400 hearings since 1st May 2020. She is on LinkedIn and tweets as @KitzingerCelia

[1] Hayden J ordered that a return hearing should be listed in the urgent business list on Monday 27th February 2023.  That hearing was not effective because the local authority had been unable to locate P and Q.  So the judge (Roberts J) had adjourned the return hearing for a week, until this hearing on 6th March 2023.

‘Deprived of her liberty’: My experience of the court procedure for my mum

By Amanda Hill, formerly Anna, 17th March 2023

Update April 2025: Amanda can now reveal that she is the author of this blog and has updated the story: https://openjusticecourtofprotection.org/2025/04/09/our-ordinary-story-and-how-it-became-an-unbelievable-family-experience-of-the-court-of-protection/

“She’s been deprived of her liberty since 27 February 2020.” When I read this sentence in an Open Justice Court of Protection Project blog recently (“When wishes and feelings change”) it felt as though a shard of glass was piercing my soul. 

“Deprived of her liberty” is a common legal term that I have heard many times over the past few months and to some extent I have become used to it. But occasionally, like this time, it hits me emotionally. Because it is a term used to refer to my mother’s situation. 

And whereas the law regards her as being deprived of her liberty, we, her family, believe that she is a vulnerable adult who is somewhere safe, protected and well cared for. 

Due to my mother’s “deprivation of liberty”, I have experienced what it means to be part of a Court of Protection process. Through this, I have learned a lot about the Court of Protection and it’s safe to say that my opinion about it has vastly changed from the beginning to where I am now, at the end of the process. 

I am sharing these thoughts in the hope that it might help other families in similar situations – and I’m writing also for the legal and social work professionals involved in what is, for them, probably routine work, to help them understand more about what it feels like for a family member. 

Starting at the beginning

In 2013, mum was demonstrating the first signs of memory loss. 

Her four children all agreed that to help protect her, we should set in motion the process of helping her to appoint a Lasting Power of Attorneys (LPA), for Property and Finance, and an LPA for Health and Welfare. Mum agreed to this and it was done officially through a solicitor, who agreed that mum had mental capacity to understand what she was doing. For practical reasons, my sister and her husband were appointed LPAs. We as a family were very relieved that this legal position had been set up, so that we could ensure mum and her affairs were going to be looked after. 

Mum’s memory continued to decline, and in 2016 she was formally medically diagnosed with “Dementia of Alzheimer type, atypical or mixed type” (I’ll call this Alzheimer’s from now on to keep it simple.)  

My sister spent more and more time over the years caring for both my mum and dad, despite working full time and having school age children. Having the LPAs in place proved to be a godsend, especially for managing mum’s finances and arranging care. Mum didn’t have a formal care package herself, but the carers who went in to see my dad “kept an eye” on mum too. 

Then in 2019 dad died, and social services became involved directly with mum’s care, with a package being set up.  This was despite mum’s resistance. She believed that she didn’t need care, or if she did that my sister should provide it. My other sister offered to go and live with her but she refused that too. She was convinced she was going to get better and her health situation was only temporary. She refused to acknowledge that her memory was getting worse. It’s easy to feel that she should have accepted her diagnosis and not fought it, but I feel that it was her way of coping. I can’t imagine what it felt like for her. 

Things continued to deteriorate, despite the care package in place. Mum was becoming unsafe in her own house, dropping lit cigarettes on the floor and developing very unhygienic habits. Then she started going out on her own, putting herself at risk.  She went with a (thankfully well meaning) stranger into the town centre, and then one evening she was picked up away from her home by an off-duty police officer, with her having no idea where she was or what time it was. 

As a family, and after discussing the situation with mum’s social worker, we agreed that the time had come for mum to go into care, for her own well-being and protection. We believed that mum did not have the mental capacity to decide for herself and that it was in her “best interests”. 

An appropriate care home was identified with the help of the social worker, which specialized in dementia care and was known to us. Luckily it had space for mum.

The social worker informed the Care Home manager that mum would be coming in, initially for a 6-week period of respite care. She also added that the manager would need to apply for an “Urgent DOLS authorization” (DoLS meaning Deprivation of Liberty Safeguards). Of course, I now recognize those words but at the time we had no real idea of what that meant. Looking back at the exchange of emails with the social worker before mum went in, when my sister asked if the placement would be permanent, the social worker did clearly spell out that the placement was initially for the 6-week period and that she would complete a review at the end of that period. However, we weren’t overly worried as we could not see how there was any way that mum would return home, given the advancing nature of her dementia, and therefore her staying in full time care would be a formality. How naïve we were. 

We knew that mum would not agree to go in by herself: in fact that she believed she didn’t need any care at all, let alone care in a home. So, we came up with a plan. My brother would take her, telling her she was going there to buy cigarettes. True, it was deception but for us it was the means to a good end. We thought it was a kind way to carry out something we truly believed was in mum’s best interests. We were nervous when the day arrived, but she willingly went in. Later that day, the home sent a video to my sister, showing her singing along to some old melodies. She seemed happy. We were happy that she was safe. We all breathed a collective sigh of relief. 

But what we thought was the end of a process was really the beginning of another. A legal process that we had no knowledge and understanding of. 

It was August 2021: mum was 87 years old and, according to the law, she had just been deprived of her liberty. 

The limits of Lasting Power of Attorney

When my sister became mum’s LPA for health and welfare, we assumed that this was precisely to cover this situation: due to her Alzheimer’s, mum had lost the capacity to make decisions about her health and welfare and therefore my sister could make those decisions on her behalf. 

This is what the official LPA mum registered says on the front page: 

“This lasting power of attorney allows you to choose people to act on your behalf (as an attorney) and make decisions about your health and personal welfare[1], when you are unable to make decisions for yourself. This can include decisions about your healthcare and medical treatment, decisions about where you live and day-to-day decisions about your personal welfare, such as your diet, dress or daily routine.” [2]

We assumed that the Alzheimer’s diagnosis in itself was enough proof that mum was losing capacity to make decisions for herself, particularly (using the term I am now familiar with) “in her best interests”[3]. Her deteriorating condition that had led to the urgent entry to the care home seemed enough evidence to us that she had in fact lost capacity to make important decisions and therefore, the power to make those decisions had passed to my sister. 

What we didn’t know or understand ,was that in fact capacity can be deemed to “fluctuate”, even with a progressive condition like Alzheimer’s, and therefore the “Urgent DOLS authorization” under which mum had been admitted had only been made until a permanent order could be issued, establishing that mum’s loss of capacity was permanent and that her deprivation of liberty was fully authorized. We also didn’t realise that even once she had been deemed to have lost capacity, that the power to make decisions did not then belong to the person acting as Health and Welfare Attorney (my sister), but that a specific legal framework was relevant, relating to DoLS and ultimately, in some cases, a role for the Court of Protection with a judge making decisions based on evidence. 

Mum started to have Deprivation of Liberty assessments (DoLS) by independent Best Interest Assessors, as part of the legal process for making her admission authorised, as opposed to an “urgent” authorisation[4]. We knew about these because the social worker would update my sister, as the LPA. But as mum was objecting to being in the care home each assessment was another renewal/ extension of the urgent authorization. 

Each time mum was asked if she was happy in the home she said “no” and used words like “I’m a prisoner here”. When this was fed back to us, we weren’t surprised, as we knew that mum had never wanted to go into a home where she couldn’t smoke when she wanted to and because she felt that she could look after herself and was going to get better. We weren’t particularly worried about her saying this because we assumed that my sister would have the final say anyway. And the care home staff reassured us that unless she was specifically asked by someone official, she never mentioned feeling like a prisoner. I think that mum also had a Paid Relevant Person’s Representative (PRPR) appointed at this time too, although we didn’t know about this at first. It has only become apparent to me that this happened as part of going through the process, although there was still a lack of clarity around what their role was and why they had been appointed. I now understand (through attending a training course for families with Edge Training) that in some cases the LPA is also a person’s representative. To this day, it is still not clear to me precisely why my sister as LPA was not appointed as mum’s representative. Was it to do with the fact that my mum blamed my sister for “putting” her in the home? And that, as became apparent later, the lawyers mistakenly thought my sister was an only child and was abusing her power?

In the meantime, as a family we agreed that we should sell the family home. This was because there was an equity release contract on the house and under the terms of that arrangement the house had to be sold and the equity returned within one year of the last person living there leaving, either because of death or on going into permanent care. In any case, we needed the remaining proceeds from the sale of the house to pay for the care home fees – mum is what is known as a “self-funder”, paying for her own care home fees. And to us, there was no way imaginable that mum would be returning to live in the house. It was sold in November 2021 and the proceeds received in February 2022. We agreed not to tell mum as we didn’t think she would be fully able to take it on board and mostly because we didn’t want to distress her. Afterwards, we were told that somebody could query whether there was a mental capacity assessment about the house sale, but we had no idea about this, and again, assumed that the LPA authority my sister had covered this situation. 

Court Proceedings

Early in 2022, the social worker started to talk about the possibility of “court proceedings”. This started to concern us, although not unduly, as we didn’t think it would come to that, due to my sister having LPA.

And if I mentioned “court proceedings” to friends, they would say “Oh, it won’t come to that”.  Again, how naïve we were!

On 31st March 2022 I had the following WhatsApp message from my sister: “Had a call from [Social Worker] yesterday to confirm it is going to court and my input is required. I asked that you be consulted too”.

A court hearing had been set for June 2022. 

We were truly shocked, distressed and – to be honest – angry. We had no idea what this meant. We could not believe that it had got that far. What court? Why? What was the purpose? Would it mean mum being discharged from the care home? How would we be consulted? Were we as a family being judged – did they think we didn’t care for mum or were after the money from the house sale?  My immediate reaction was that it was a way of lawyers making money, and the only thing I could think of was to write to mum’s MP. Surely the whole point of the LPA was that my sister had the power to make decisions in mum’s best interests once she no longer had capacity. Which in our eyes was the case now, due to her Alzheimer’s and her resulting behaviour which was putting her at risk.

In early April, after I had contacted the social worker to ask her more about the court process, and what it was exactly, we had a brief 15-minute meeting using Microsoft Teams. I sensed a change in her attitude towards us. Whereas before we had communicated very effectively and openly, this time she seemed more cagey, as if she shouldn’t really be talking to us. I know that it was the first time she’d had a case going to “court” so maybe she was nervous about this. She told us that the court was the Court of Protection and the case was a Section 21A appeal. I subsequently learned that s21A of the Mental Capacity Act 2005 relates to appeals against standard or urgent authorisations (of deprivation of liberty of a person in a placement like a care home which is registered by the Care Quality Commission). 

The legal wheels began to turn.  A Litigation Friend was appointed to represent mum and she was going to become known as “P” (Protected Party) and she was apparently bringing a case against the Local Authority who had organized the standard authorization depriving her of her liberty. There was mention of the need to consider “less restrictive” living conditions. 

We were told that my sister, even though she had authority as the LPA, had no formal role in the proceedings and neither did the rest of us siblings. We were advised that if we wanted to become formally involved, we should find our own legal representatives, at our own cost. Mum’s costs would be covered by legal aid. 

It had all suddenly become very real and concerning. We had used deception to admit mum to the Home. We had sold the house. Mum said that she was a prisoner. I realized how it could look to other people. And we would have no formal role in the proceedings. We knew that if mum was moved it would be us picking up the pieces and dealing with the consequences. But most of all, with our lifelong in-depth knowledge of her, we believed she was in the right place for her well-being and safety: she had got to know the staff, she didn’t try and leave and we thought it would be cruel and distressing for her to move. 

I started by trying to contact the solicitors whose details had been provided to my sister. But they refused / couldn’t talk to me. First, because they weren’t aware that my sister had any siblings (the first of several errors of fact, which could have been avoided if we had been consulted earlier); and secondly, because I was not officially linked to the case and they were not allowed to talk to me. I fully admit that in my early email communications with them they could probably sense an underlying tone of anger and frustration (although I tried to keep my tone polite).  They probably felt threatened or that I was trouble. For my part, in my head they were “the enemy”, interfering in our family affairs. How could they know what was best for mum when they didn’t know her or her life story? 

I started searching the internet to try and find out more about the COP and s21A appeals. I was determined to do what I could to help my sister and mum and ensure that the family’s voice was heard. 

And then, by chance, I found the Open Justice Court of Protection Project website. I sent an email, explaining our situation and pleading for help. Celia Kitzinger (Co-Director of the Project) replied to my email and I am so thankful that she did. 

Over the course of a few months, Celia, acting personally to help me, completely changed my understanding of the COP, of the legal process, of the role of the lawyers, and the law behind s.21A. Although I still have questions about the process and thoughts on how it can be improved for families, I no longer see the legal representatives involved in the COP as “the enemy” and in fact I admire them for the work that they do in often difficult circumstances and for not very much money. I think they are unsung heroes (as well as social workers). 

Celia explained to me that, unlike a criminal court, the COP was was not an adversarial court but an inquisitorial one, with parties providing evidence that would enable the court to make the best decision for the individual. It is (usually) a largely collaborative process, with parties working together to find the best solution for P. She said that the case going to court did not automatically mean that mum was going to be moved: “less restrictive” meant making sure that her desires and wishes were being catered for as much as possible. For example, ensuring access to the community where possible, or ensuring that somebody’s religious and cultural needs were being catered for. And she explained about the concept of “fluctuating capacity”, that somebody deemed not to have capacity at a certain moment in time could be deemed to have capacity later, as it is time specific; and that people can have capacity to make some decisions (like what clothes to wear) and not others (like whether or not to consent to a medical treatment).

She suggested that I might like to observe some hearings before my mother’s hearing in court – to develop my understanding of how a hearing worked – and she was willing to come along with me to (virtual) court.  I will always remember that first hearing, as I was so nervous. But I learned a lot from it, especially about the tone of the meeting and how judges are. Each of the few hearings I have observed has been conducted in a positive spirit, even as difficult circumstances are discussed. Lay people involved have always been treated with respect and concern for their understanding. And the judge has always done their best to make observers welcome. 

I wanted my voice to be heard in the Court of Protection when the judge was making decisions about my mother. I now knew I could attend hearings as her daughter, but I decided that I would have more ‘entitlement’ to participate if I were formally joined as a party[5].  This meant I would be able, but also required, to participate in all court hearings. As I didn’t want to have to pay a solicitor and barrister, I would be a “litigant in person”, representing myself. I would be copied in on all communication between the two legal teams (my mother’s and the local authority’s) including having access to all orders. I would be granted permission to submit a Position Statement before each hearing, as well as having access to the other party’s Position Statements. And I would automatically have an allocated ‘speaking slot’ in court. I applied to be a formal party to the case and during the June ‘directions’ hearing, the judge agreed to this and I became Respondent 2. It did seem to cause some concern that it was me who wanted to be joined to the case and not my sister, as she was the LPA. But she really did not want to and my siblings were happy for me to undertake that responsibility. 

One aspect that has been the most difficult to deal with has been the Transparency Order (TO). Once I joined the case, I felt I had to agree to the TO, basically an injunction forbidding me to talk about the case in order to protect mum’s privacy. As it says on the front of the injunction, if I breach its conditions I could be held in contempt of court and sent to prison, fined, or have my assets seized. This is quite frightening and I have become slightly paranoid about what I can and cannot say and share. My sister was given express permission to attend court hearings and be given all documents too. We were also given permission to talk to our other two siblings about the case. It is sometimes hard to fathom that they were not automatically given access to information about a case involving their mother, especially as all four of us have always been in agreement about caring for her. Sometimes I wonder whether it wouldn’t be better to make access automatic to direct family members, and to expressly forbid sharing information where it is necessary. But of course, I’m no legal expert. And I accept that there will be cases where family members are sometimes the problem and not everybody’s relatives are loving and caring. It just feels to me, rightly or wrongly, that the presumed position is that the family are not loving and caring. 

I have since learned that I can apply to vary the TO (‘amend it’, in layman’s terms) to enable more visibility. This is something I may well consider at a later point, when I am not so worried about protecting my mother’s privacy. I am happy to share our story in the hope of helping other families, but mum has always been a very private person. This is one of the reasons why I am writing under a pseudonym. 

The hearing was conducted in June and there were two subsequent Round Table Meetings (RTMs) to discuss how things are going and to agree on ways forward. Mum did not attend any of these, as she would not have been able to understand what was going on and we believe it would have been distressing for her. 

A final agreed court order was approved after the second RTM, which meant the December hearing was ‘vacated’ (i.e. cancelled) and the case came to an end.  If for some reason future issues arise, this would mean a new case. 

There remains a standard authorization in place, depriving mum of her liberty and authorizing restrictive measures in the care plan. However, as a result of the case, conditions have been put in place, specifying actions such as ensuring mum’s cultural needs are met. This is a positive outcome as a result of the case. Mum still has an allocated PRPR to represent her, whose name was shared with us after the case, and who will review mum’s situation frequently. The social worker will still be involved too. I exchanged messages with the lawyers at the end of the case and we all agreed that we had worked well together. This is certainly not an outcome I would have expected without learning more about the COP through the Open Justice Court of Protection Project. 

It has been quite a journey. Learning from being involved and my experience, there are a number of observations and recommendations I would like to make in conclusion, as a family member: 

  1. Transparency with the family

 From the start, it felt as though this was a process that was happening “behind the scenes”. We didn’t understand what the legal process was or anything about the Court of Protection. We felt that it was a very secretive process and we were being excluded, almost to the point that we were being judged as a family and seen as not acting in mum’s best interests.

I feel that better communication up front, with all the parties working together, would lead to better outcomes. Families know their loved ones best, and notwithstanding the fact that the law is looking after the human rights of an individual, I imagine that in the vast majority of cases an individual’s family want the best for them.  The family working with the legal representatives to ensure the best outcome seems to me something to aim for, if at all possible.

In our case, it felt as if the presumed position was that the family had nothing to add and should not be consulted. Involvement of the family and transparency about the process should be immediate from admission to a care home under an urgent DoLS authorisation, so that the family understands the consequences and are not surprised if a hearing is eventually reached. It would also improve the chances of the family being on board with the process. We have no idea how mum came to be legally represented, for example.

I’m sure that being “sidelined/ excluded” was not deliberate, more a lack of communication or a lack of clarity for professionals about how families should be involved. (Participating in the Edge training session for families involved in COP hearings showed me that sometimes communication can work very well).  

Family involvement would also ensure that there are no errors of fact in documents such as Position Statements which are submitted to the Court, as happened in our case. In fact, Position Statements, such important documents for the hearings, are often not provided in advance to families, who unless they become parties, are not officially part of the process. Best practice guidance on how to involve families in the COP process could be provided to social care representatives and legal representatives.

I’m sure that many families believe that once they have a registered LPA for Health and Welfare, it allows them to make all decisions about their loved one’s health and welfare in the event that capacity is lost. We certainly thought that mum’s increasingly dangerous behaviour due to her Alzheimer’s had reached the point where she wasn’t safe in her own home, even with a care package in place, and therefore she lacked capacity to make decisions for herself. We didn’t understand the formal mechanisms for assessing whether that capacity had been lost forever (the issue of fluctuating capacity). And we certainly didn’t understand that once capacity had been lost, with regards to DoLS, there is a separate legal framework and it is the Court of Protection which can make decisions on that person’s behalf, in certain situations.

I have since learned that if somebody objects to their detention, as mum did, it is their human right to have access to a court/tribunal to challenge the decision-makers otherwise the people around them are ‘judge and jury’. However, I have also learned that only approximately 1.7% of DoLS authorisations are subject to ‘appeal’ under Section 21A and I still find it surprising that mum is in this small percentage. I come back to “why us”? Even at the end of our process, I still struggle with this.

I also feel that this limit to the power of an LPA is not fully appreciated.  Searching the internet, the implication is that the power for all matters of Health and Welfare, including where the person will live, will transfer to the attorney in the event of capacity being lost (see examples below). I imagine that many families believe this to be the case. Mum did have an attorney and there was no dispute over its validity. But an LPA cannot authorise deprivation of liberty.[6]Again, this is why DoLS and the role of the COP should be communicated more widely. 

2. Managing distressing information

There were certain aspects of the process that I believe increased our mother’s distress. For example, we didn’t tell her that the house had been sold, because we wanted to protect her feelings and save her from distress. We knew it would upset her. We also didn’t want to take away her hope. But we were told we should tell her as otherwise, at the hearing, it would look as though we were hiding things from her.

My siblings agreed that I would tell her, due to the dynamics of our family. It is a moment I will never forget. When I told her, mum told me she hated me and would never forgive me. She even told me that she didn’t love me anymore and not to go to her funeral. She was very upset and distressed and obviously I was too. I left. The next day I went to see her again, not sure what reaction I would get. When I saw her, she was pleased to see me and had forgotten about the previous day’s conversation. However, she had retained an element of the conversation as she knew that the house had been sold. To this day, she blames my sister for that. I do question whether mum really needed to be told about the house being sold, even if I understand why it was suggested we needed to tell her. I have since been told that in order to assess people’s mental capacity, they need to be given the ‘relevant information’. Even if there is an LPA in place, it doesn’t mean a person automatically loses mental capacity over all their decisions. Sometimes this means telling people information that they will find distressing to hear. 

The other aspect that increased mum’s distress were the meetings with various official people as part of the process, for example the expert commissioned to write the section 49 report on mum’s capacity, mum’s lawyer and the social worker. Mum has always reacted badly to people in authority and just “wanted to be left alone”. For the final meeting with her (new) social worker, the social worker described herself as a “helper”. This really alleviated any potential distress for mum and in these circumstances, I believe that some deception was justified and helped the process. There is no doubt in my mind that the whole process added to mum’s distress but maybe that is just a necessary part of ensuring that the best decision was made on her behalf. 

3. Becoming a litigant in person

Applying, and being approved, to be joined as a party to the case led to the family definitely feeling that we had a formal voice in the proceedings. I believe it really helped the case to be conducted in a positive spirit. I would encourage other family members not to be fearful about being joined as a party and becoming a Litigant in Person. This not only avoided legal costs for us but helped us to feel more directly included. The legal profession should have the confidence to involve family members in this way and indeed the Equal Treatment Bench Book provides guidance for legal professionals on how to treat Litigants in Person. For our part, we didn’t want to threaten the legal personnel involved but to help them. Again, however, this attitude was really informed and helped by the Open Justice Court of Protection Project and by being able to observe hearings to understand more about how they worked. 

4. Communication

One aspect of having family members involved in hearings and meetings such as Round Table Meetings (RTMs) is for legal professionals being mindful in their use of language, and modifying it as necessary. For example, “P “is the legal term for the “Protected Party”, and often that person is referred to by their initials to protect their privacy, even though anyone observing or involved is subject to a TO. It’s important to remember that P is a human being. To illustrate this point, suppose that my mum is called Elizabeth Jones (not, obviously, her real name). In our last RTM, one lawyer referred to her as “EJ”. The barrister initially called her “Elizabeth” and the care home worker called her “Betty”, as that is how she is known to them. The barrister picked up on this, and started using Betty too. However, one of the solicitors, not intentionally I’m sure but just by habit, kept referring to mum as EJ. Again, it’s probably a question of confidence and knowing what is allowed. For us, mum being referred to as “Betty” helped us to feel that Betty-the-person was at the centre of discussions, and not some abstract P. The use of acronyms is also very common to those who are involved in the COP routinely, but I appreciated the barrister correcting herself to “Official Solicitor” just after using the initialization “OS”, for example. 

5. Benefits

Looking back, I can now see that the case has had benefits for mum. Part of the case was seeing how mum’s care arrangements could be made “less restrictive”. This included assessing what community access could be available to her and how her cultural and spiritual needs could be catered for in the home. I don’t believe that we as a family would have thought about this as much if it wasn’t for the case. We assumed care meant she was safe and well looked after in terms of her basic needs. We also didn’t realise that the COP has a role in directing care providers to consider wider aspects of well-being.  Ensuring that this happens, though, when care home staff are so stretched is a different matter. The case directly led to me taking mum out into the community more than I thought was possible. The memory of those trips and the enjoyment for her and me will stay with me, and for that I am grateful. 

6. COP overload

The system is under a lot of stresses and strains. I observed one hearing during the course of which the judge mentioned that there were 44,000 outstanding COP cases. I admire how the judges can assimilate all the information that they have to for each individual case, sometimes information that has been received at short notice, and with at least three cases to be heard in a few short hours. The court staff, too, have a lot to deal with, in what is I understand not very lucrative work. Involving families earlier could help with the efficiency of this process. At the very least, educating families about the COP could help with understanding of how the law works so that families don’t misunderstand the nature and purpose of the COP. 

Conclusion

Open justice and transparency don’t just belong to court hearings. Exposing more widely how the Court of Protection works and why it exists is vital. Ensuring that families caring for loved ones know how the COP works could prevent a lot of angst for families, especially if they have LPAs which they think gives them the power to make all decisions with regards to Health and Welfare if that loved one loses capacity. I’m sure greater understanding for families would lead to a better process for everyone. 

When I imagine what it would have been like for our hearing if I hadn’t come across the Open Justice for Court of Protection Project, I imagine a much more conflictual process, due to our lack of understanding. I like to think that our family’s involvement in the case helped to ensure that the process ran smoother for everyone involved. 

And whilst a case like this is usually P vs Local Authority, where there is an LPA and other family members who have been involved in the care of their loved one for many years, it is so much better if they can bring that knowledge to the process and feel a part of it. For most families in this situation, it is a highly emotional time anyway, watching their loved one fade away to become a different person due to Alzheimer’s. Whilst the focus of the law is, quite rightly, on their loved ones, better awareness would help families understand the legal process better and enable emotions to be channeled positively, to ensure the best outcome possible. 

I’d like finally to come back to the term “Deprivation of Liberty”. It is such a loaded term. To us, mum was being supported in a caring and safe environment where, mostly, she seemed happy. And what is liberty? For us, she had more freedom when in care than at home. At home she had lost the ability to do most things. She couldn’t use the remote control to change the channel on the television. She couldn’t use a telephone to contact people. She couldn’t heat up a meal in the kitchen. She spent most days alone, apart from visits by carers or family members. In my eyes, the Alzheimer’s had taken away her liberty. But I now understand that the law views things differently. And of course, not all families are good families, with their loved one’s best interests at heart. But I imagine that most are. And I hope that sharing our experiences will help shine a light on the Court of Protection, to help other families in similar situations. 

Epilogue

This time last year, we had no idea we would be going to court. However, it’s my understanding that most cases are not resolved as quickly as ours was. I mentioned that the case was closed in December. In fact, in many ways, time caught up with mum and the legal process. Discussions about community access became moot after mum’s physical condition deteriorated. Access to outside space to be able to smoke, an issue that had been so important for mum, became irrelevant as she has now mostly forgotten that she smokes. Mum forgets within an hour that somebody has visited her. We take comfort that she is being well looked after and cared for. But it is also important to recognize that the law is looking after her too, something I have come to learn over the last few months.

Anna was the pseudonym of a woman whose mother was a P in a Court of Protection s.21A application.  Since March 2025, Amanda Hill is allowed to reveal that she is Anna, because the Transparency Order covering her Mum’s case has been varied (changed). Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social). 

Appendix

Searches on “Lasting Power of Attorney for Health and Welfare” – some examples of what the internet says (searches don’t routinely reveal results that mention the role of the Court of Protection): 

  1. From the NHS UK website: https://www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/giving-someone-power-of-attorney/

« A health and welfare LPA gives your attorney the power to make decisions about your daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining medical treatment. It can only be used if you’re unable to make your own decisions. »

The guidance on the website goes on to say: “What health and welfare power of attorney cannot do: A health and welfare LPA does not come into force until the donor has lost the capacity to make decisions for themselves. »

2)    From the UK Government website: https://www.gov.uk/lasting-power-attorney-duties/health-welfare. “Health and welfare attorneys: As a health and welfare attorney, you make (or help the donor make) decisions about things like:

  • daily routine, for example washing, dressing and eating
  • medical care
  • where the donor lives

You can only make decisions when the donor does not have mental capacity to make them.You must tell people involved in the donor’s care when you start making decisions. This includes the donor’s:

  • friends and family
  • doctor and other healthcare staff
  • care workers, social worker and other social care staff

You may need to use your lasting power of attorney to prove to staff that you can act for the donor.

3)    What does a Lasting Power of Attorney for Health and Welfare involve? (https://ukcareguide.co.uk/lasting-power-attorney-health-welfare/)

There are two types of Lasting Power of Attorney. One is responsible for your assets and financial affairs – this is known as a Lasting Power of Attorney for Property and Financial Affairs. The other type is a Lasting Power of Attorney for Health and Welfare.

An LPA health and welfare enables a nominated family member or friend to make decisions on your behalf regarding your day-to-day care and wellbeing. These include:

  • Personal care and care provision (such as choosing a home care company or residential placement for you, arranging meals, enabling you to take part in social activities)
  • Medical treatment (your attorney may be asked to make decisions on your behalf regarding your medical care )
  • Palliative care (your attorney may be asked to make a decision regarding life-saving treatment or end of life care)

The responsibilities listed above will directly affect you. For this reason, it is very important that the person you choose as your LPA for Health and Welfare is somebody you know and trust.

4)    From Age UK:  https://www.ageuk.org.uk/information-advice/money-legal/legal-issues/power-of-attorney/

LPA for health and care decisions

This covers health and care decisions and can only be used once you have lost mental capacity. An attorney can generally make decisions about things such as:

  • where you should live
  • your medical care
  • what you should eat
  • who you should have contact with
  • what kind of social activities you should take part in.

You can also give special permission for your attorney to make decisions about life-saving treatment.

Endnotes

[1] Bold on the form itself

[2] This seemed to us to suggest power for making decisions would pass to the LPA. See below for the results of internet searches on this matter, which seem to suggest the same. 

[3] If a person is deemed still to have capacity, they can make decisions that others may consider not to be in their own best interests, for example to live in a house that is full of stuff (evidence of hoarding). It’s not a way for others to judge a person’s individual choices.

[4] I’ve since learned that the DoLS makes admission legal and puts the legal safeguards in for P, to authorise the breach in her human rights

[5] With the court’s agreement, family members can attend and be listened to, without being formally appointed as parties, but would not always have access to all documents 

[6] See Section 4A Mental Capacity Act and para 7.44 MCA Code of Practice.

Where shall P live?

By Celia Kitzinger, 16th March 2023

“The person at the centre of this case, JF, is a woman in her early 70s with dementia and a delusional disorder. She’s living in a care home and she’s very unhappy there and would like to leave. This application was brought around nine months ago and the court needs to decide whether it’s going to work for her to go home, and if not, would she be better off in some other care home; and if not, can something be done to improve her lot where she is. These cases are very common in the Court of Protection. Questions like these are hugely important tasks for the judges of this Court, especially in relation to older people.  One issue in this case is whether she needs care in a specialist nursing home given (especially) her mental health needs.[i]” (Ben McCormack, counsel for JF)

The applicant in this case is Mrs F herself, via her litigation friend, represented by Ben McCormack of Garden Court North – and this was his summary of the case at the beginning of the hearing.  

It is thanks to this lawyer’s keen awareness of, and commitment to, the needs of transparency that I’m able to quote this introductory summary, since the judge didn’t invite one. When Ben McCormack suggested “spending a few minutes sketching out the background”,  the judge simply said (rather discouragingly) “you must do as you wish”.  For any judges reading this – please realise that transparency means more than simply letting observers into the courtroom: we need to be able to understand what we’re observing, and without an opening summary that’s often difficult.

The judge, HHJ Simon Burrows, was hearing the case from home because he’s tested positive for COVID-19.  He apologised for the “slightly odd backdrop”: instead of a courtroom, he’s seated in what looks like maybe a spare bedroom, with deep blue floral wallpaper. He doesn’t show any signs of not feeling well.

The two respondents are Cumbria County Council represented by Judith Nailer and Mrs F’s sister who is a litigant in person.

The case (COP 13948314 on 9th March 2023) is a s.21A challenge brought by Mrs F against her deprivation of liberty in the care home.

Issues before the court today

This is a ‘case management’ hearing.  The court won’t decide today where it’s in Mrs F’s best interests to live.  What’s happening today is (mostly) making sure that the necessary information is obtained in order to make that decision in the future – including what Mrs F’s options are. 

Nobody is arguing that it would be in Mrs F’s best interests to return home – she simply couldn’t be safe there.  The question is whether it’s in her best interests to stay in the familiar environment of her current care home, or whether she would be happier in another care home – although “one of the problems in Cumbria – and in other areas of the country too – is lack of availability of care homes” (says her counsel).

And there’s another problem too.  The Trust (Cumbria, Northumberland, Tyne and Ware NHS Foundation Trust) is not a party to the case, but they are are jointly responsible, along with the local authority, for Mrs F’s accommodation and support package.  They have provided a statement to the court saying that Mrs F needs to be in a nursing home (i.e. a residential care facility that has on-site nursing care available). 

Mrs F’s representatives don’t agree that she needs a nursing home. Although she’s currently on the nursing floor of the care home she’s living in, her needs are much lower and less complex.  She’s able to do many things for herself and is physically very well.  She recently walked with her sister for about a mile (unaided) on a trip to a local beauty spot.  Her solicitor has reviewed her day-to-day records and can’t see any reason for requiring her to live in a nursing home.  Her legal team wants further information about why the Trust is saying that she needs nursing care – and the Trust (which would prefer not to be joined as a party) has said they will provide information within 14 days about that.  

Counsel for Mrs F is concerned that limiting the search for an alternative residence to nursing homes will greatly restrict what’s available.

“You might think ‘what’s the benefit to Mrs F of moving to another care home when she’d like to live at home?’ She’s not interested in living in another care home. But if she can’t go home, her sisters think if she lived in a more rural area, with a garden she could help to tend, she would be happier.  In not quite such an urban landscape as her current home, where she’s confined to the upper floor of a care home, with another resident who – as a result of his own mental impairments –  make a  lot of noise that she finds disturbing and upsetting.  At the moment, her sister says, she has “no quality of life”.  This is a woman who led walking groups for much of her adult life, loved the outdoors, loves gardening and has found great-   what in modern parlance we’d call ‘well-being’ in those things, but really they are things she enjoys doing and has found in them great joy and solace.  So, even if at the minute she can’t see the benefit of a different nursing home – she’s fixated on ‘I’d just like to be back in my own home please’ (no disrespect to her),  but parties are agreed it’s definitely worth a try. To do that, we need to see if there’s somewhere else available and it  would greatly assist to be able to interrogate the Trust more and ask them ‘what are P’s needs that require a nursing home?’.  And the Trust answer will be what it is. That will be their professional opinion.”

Mrs F’s sister has identified two potential homes on the Cumbrian coast that she thinks would suit her.  There are often difficulties when moving patients with dementia from one care home to another, but Mrs F’s sister said in court that if she can move some of Mrs F’s furniture and possessions into her room before she moves into the new placement, she may settle in much better, perhaps believing it to be her own home.  (She’s refused to have her own belongings brought into the current care home because she doesn’t wish to stay there.)  But it seems the new placement possibilities won’t work if a nursing home (rather than a care home without a nurse on site) is what the Trust says is required.

Meanwhile, her legal team is asking for steps to improve her lot where she is – for  help to get her out and about, gardening, walking, “breathing in a bit of fresh air”. Counsel reported that Mrs F has not been offered any outside activity recently and, when asked about this, a member of staff at the care home said ““we might do that when the weather improves”.  This demonstrates, said counsel, “a poverty of ambition” for Mrs F.  “People who like to go walking don’t wait ‘til the weather is nice – they put their boots and coats on and go out in it!”.  And Mrs F has some money of her own that her deputy can put towards one-to-one support for trips out into the community.

The next hearing is listed for 3rd May 2023.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has observed more than 400 hearings and is a frequent blogger.  She’s on LinkedIn and tweets as @KitzingerCelia

[i] The court is making decisions about JF’s best interests because it has already been declared (I see from the position statements) that she lacks capacity to make this decision for herself.  She does not understand that she has dementia, nor the risks that her dementia causes her, nor how her current residence and care arrangements help to keep her safe.  This quotation from the court hearing is, like others in this post, as accurate as I can make it given that we are not allowed to audio-record hearings.  

Treatment escalation for a teenager in ICU

By Rhiannon Snaith, 16th March 2023

Editorial note 3: (added 30 April 2024) There is a Court of Appeal hearing on 1st and 2nd May 2024 – the parents (supported by Christian Concern) are challenging Mrs Justice Roberts’ finding that ST lacked capacity to litigate the case, and lacked capacity to make her own medical decisions. You can watch the hearing (live-streamed, no need to request the link, and you can drop in and out, like watching TV, here: https://www.youtube.com/channel/UCn_a8COiB_KbaEvXKFk7lng?view_as=subscriber). It will also be recorded and available on You tube afterwards.

Editorial note 2 (added 14 September 2023): Sadly, the Mail reported today that ST has now died.

Editorial note 1 (added 9 September 2023): Since the hearing reported here (in March 2023) there have been other hearings in this case, which we’ve not observed. A judgment was published following a hearing on 7 August 2023 (so 5 months after the hearing reported here) at which Roberts J found that ST lacks capacity to make her own decisions about her medical treatment due to her “complete inability to accept the medical reality of her position, or to contemplate the possibility that her doctors may be giving her accurate information” which “is likely to be the result of an impairment of, or a disturbance in the functioning of, her mind or brain” (although the judge did not attach a diagnosis). She also found that ST lacks capacity to instruct her own legal team. That judgment is here (click on the case name): A NHS Trust v ST & Ors [2023] EWCOP 40 (25 August 2023). The Daily Mail has also covered the case since that judgment (click on the title of the article): “EXCLUSIVE: My doctors insist it’s time I died – but I will fight them“. The next hearing will address the question of whether or not continued treatment is in ST’s best interests or not. The case will be back in court shortly and we’ll announce the date when we know it.

*******

I am a PhD student at Cardiff University researching media representations of end-of-life decisions. I have previously observed a number of hearings in the Court of Protection (CoP) and have blogged about several cases (see bio). I was keen to watch this hearing as I’d learnt that it was about serious medical treatment, and as it turned out, it was different from other cases I had observed in the sense that P may have the capacity to make her own decisions, which I’d not seen in hearings that I’d previously observed. 

This case (COP 1405715T, before Mr Justice Francis) was heard in the Royal Courts of Justice, on the morning of Tuesday 14th March 2023. It was listed as a ‘hybrid’ hearing, which meant that some people would attend in the physical courtroom in London, while others would attend (as I did) remotely via Cloud Video Platform. 

At the heart of this case is ST, a young woman who has been in intensive care since August 2022 after contracting COVID-19. Prior to this, ST had numerous health problems due to a genetic mitochondrial disorder, though none that caused any neurological problems. It was only after contracting COVID-19 that ST became ill with pneumonia and was admitted to an intensive care unit and was placed on mechanical ventilation, and regular and frequent kidney dialysis. 

It seems that the primary goal of this hearing was not to determine whether treatment should be withdrawn/continued but to ascertain what should happen if ST’s condition deteriorates. Questions relating to ST’s capacity to make such decisions for herself was also raised, as well as the issues relating to her awareness of her condition and prognosis. It seems that ST’s parents had initially not wanted to distress ST by telling her about her condition, and that ST herself had expressed the view that she did not want to acknowledge it. However, it was important for all parties that ST’s wishes be taken into consideration.

The hearing

The applicant in this hearing was the Trust, represented by Victoria Butler-Cole KC. The parents were represented (pro bono, via Advocate) by Jake Thorold (they were not eligible for legal aid). Katie Gollop KC was also present as a potential advocate for ST via her litigation friend, the Official Solicitor, though she played only a minimal role in this hearing and it was decided during the hearing that she would not be taking an active role unless otherwise advised. 

Counsel for the Trust 

Victoria Butler-Cole KC, counsel for the Trust, gave a helpful introduction to the case for those attending the hearing. She explained that while ST had underlying health conditions, it was not simply her genetic disorder that had led to her current condition, but COVID-19. After contracting COVID-19, ST was placed in intensive care, has been put on mechanical ventilation and is in need of regular dialysis. Attempts to wean ST off mechanical ventilation had been unsuccessful: the doctors believe it will never be successful and that she will require mechanical ventilation for the rest of her life. Counsel also said that ST is not a candidate for a kidney transplant: “the very sad view of medical doctors that she’s now to be treated as someone who’s in the terminal phase of her underlying medical condition. A kidney transplant is not on offer. That is something the parents understand”.

The application made by the Trust was to address the question of what should happen if ST’s condition deteriorated. It was made clear that the hospital was not willing to offer certain treatments. They were not willing to offer a kidney transplant or CPR (in particular, chest compressions). These were not ‘best interests’ decisions but clinical decisions by the hospital. Counsel said they were made on the grounds of futility. For example, “If it got to the point that chest compressions were needed, there would be no prospect of her coming back to life, if I can put it in very lay terms –  or if she did, only for very short period”.

It seemed that the main issues between the hospital and ST’s parents were in determining what limits should be placed on treatments in future if there is deterioration, e.g., in relation to infection, or problem with organ function.  

Counsel for the Trust said there was a question about ST’s capacity and her ability to make decisions about her medical treatment for herself.  In order to have capacity to make a decision, a person needs to be able to understand, retain, and weigh information relevant to the decision they need to make (s. 3.1 Mental Capacity Act 2005) and then communicate their decision.  But at the time the application was made to court, ST’s parents did not want ST to be told about her condition or prognosis as it would be very distressing for her. There are also “certainly times when ST herself has expressed unwillingness to talk about very upsetting matters”. But the doctors need to know the basis on which they are providing medical treatment.  Is it because ST capacitously consents to it, or is it because it is in her best interests?  And capacitous consent can only be established if ST is given the information about her illness and her prognosis (and so is potentially able to understand, retain and weigh it).

An additional complication is that ST registered a Lasting Power of Attorney (LPA) in 2022. However, concerns were raised as to its validity as ST had just had major surgery and doctors thought she was not in a position to make such a decision at that time. Counsel added that ST was in a better condition now than she was at that time and she may now have capacity to make an LPA. 

It is important to note here that since the application was made, and since ST’s barrister was appointed (on Friday), ST’s parents no longer object to ST being provided with the relevant information. 

It was only at a meeting yesterday that ST has expressed her own views in any level of detail.  She says she doesn’t trust the doctors and believes they are making things worse. This is also the view of her parents. The doctors had told ST that she would have to be on a ventilator for the rest of her life.   Counsel said: “She was very upset by that, understandably.  She’d wanted to go home and thought she would come off the ventilator and be able to do so, and now she is looking at spending the rest of her life in hospital or possibly a nursing home if one could be found that could manage both dialysis and ventilation. This is devastating news for a [teenager] who until she got COVID was doing very well”.

According to Counsel, common ground had been reached following recent discussions between the hospital and family members trying to establish a practical way forward. It was agreed that if ST has capacity to make her own medical decisions, then everyone wants her to do that, but on the basis of informed discussions. It was also stressed that any information passed on to ST should be set out beforehand to ensure minimal distress and confusion. This was agreed upon by the hospital and the parents. As communicating with a tracheostomy is difficult, it was stated that ST would be able to communicate via writing (on an iPad), a method of communication which she had previously expressed a preference for.

It seemed imperative that the process of involving ST in discussions regarding her condition and prognosis be handled in a sensitive way, and that ST would be able to have discussions without her parents present in some cases. It may be that she has capacity to make her own decisions if she is given the information sensitively and supported to understand it. 

Counsel for the Trust concluded by putting forward three options in terms of the possible next steps:

Option 1: The hospital brings in an intensive care consultant from outside the Trust, who has no links to either ST or the hospital she is currently in and who can provide independent information to ST and her parents. In this instance, the Trust would be happy to facilitate (and pay for) this.

Option 2: Follows a similar process to option 1 but with the Official Solicitor (OS) involved. There is currently sufficient evidence (said counsel) for an interim order that ST is unable, at the moment, to make decisions as she is overwhelmed by her condition and does not have all the relevant information.

Option 3: A ‘Harbin v Masterman’ order was the third option (See here). This allows the Official Solicitor to advise the court, rather than represent ST. 

“So, you are not asking me to make a decision about capacity today”, asked the judge.

It seemed not.  

Counsel stated that a discussion to discern what issues the court may need to deal with was needed.  

Counsel for ST

Katie Gollop KC spoke next. She was present as the potential advocate for ST via her litigation friend, the Official Solicitor [OS]. She acknowledged the very sensitive nature of the case and said she did not know much about it at present. She said her “instinct” at the moment was to take a step back for now, particularly when there is a possibility of a contested hearing. Additionally, she made the point that “it is not immediately obvious that ST lacks litigation capacity – especially having looked at the note of yesterday’s meeting”.

Counsel was also concerned that the way the application was originally framed was the OS giving ST information (about her illness and prognosis) that was going to be life-changing and very upsetting – purely for the purposes of giving her a capacity assessment.  This didn’t seem the best use of the time ST has left to her.  

She added that Issues regarding communication were very unclear as well. The Trust has said ST is blind while her parents said they didn’t believe this, and there was evidence in a note by ST’s nurse that says she facilitates communication by providing ST with a pen and paper. As a result, the OS is unsure of ST’s communicative ability. She suggested that an intermediary or a speech and language therapist could be involved, or that a speaking valve could be fitted to ST’s tracheostomy tube.

In summary, it may be more beneficial for the OS to not withdraw from the proceedings but to take a step back while ‘option one’ was explored. 

Counsel for Parents 

The court heard next from Jake Thorold as counsel for the parents, but there was an adjournment of around 45 minutes for him to consult with the parents before he made his submissions. This was because he had been so recently appointed and matters had been evolving so rapidly that he had not had time to take full instructions from them.  Also, ST’s mother is not fluent in English.  There was no interpreter in court for her today and her husband had taken on that role. 

When the hearing started again, the judge checked with counsel: “Are you satisfied you’ve had enough time with your clients, bearing in mind you’re dealing with them remotely and there are language issues?”  He said he was.

Counsel said that there was some upset from ST’s parents that the case had been brought to court. They had now discussed the issues with him, and subsequently with ST (during the adjournment), and they were happy for all the relevant information to be given to ST regarding her condition and prognosis. They were also happy with the proposal to bring in an independent expert, as long as agreements were made as to what the process would be in providing this information and what is told to ST. It was also stressed that ST’s parents were happy for some conversations to happen with just ST and the expert present (without their involvement) as long as nobody from the Trust was present at that time.

Counsel had also explained the Transparency Order (TO) to the parents (who had now discussed it with their daughter). Counsel informed the court that both ST and her parents “want these proceedings to take place in public and for all parties to be named”.  This clearly surprised the other parties, and the judge. Counsel for the Trust responded by stating that the names of the Trust, hospital and staff should not be made public because “inevitably there’s a risk that completely unacceptable behaviour by the press or members of the public will occur, as have occurred before in cases involving children”.

The judge was concerned and said, “once we unbolt the door, we can’t close it again”.  The judge’s view was that it would be best to keep the Transparency Order as it is and review it at the next hearing.

The last 5 or 10 minutes of the hearing were difficult to hear due to distorted sound – which was particularly unfortunate for ST’s parents: the judge reassured the parents and those attending online that discussions within this time frame were purely in relation to the transparency order.  

Reflections 

Three things struck me about this case. 

The first, and perhaps most obvious, was the fact that ST may have capacity to make her own medical decisions. This was striking as up until this point the cases I had previously observed did not involve Ps for whom there was any possibility of capacitous medical decision-making (because they were not conscious). The diversity of cases that come through to the CoP often stands out to me and as someone who is studying representations of end-of-life decisions, specifically for those without capacity, it is always interesting to see how the decision-making process is handled in court – including, in this case, the question of support for ST to enable her to make her own decision about treatment if she has capacity to do so.

The second thing that struck me, as has been clear to me previously, is the care and consideration taken by the judge and legal teams when it comes to P, and also their family. In this case, the judge made it clear throughout the hearing that a priority was to ensure that ST’s parents were given and understood all the relevant information, including the potential ramifications of making all information regarding the case public. It is something that I would want to be assured of for my family if I were ever in a similar position. 

The third thing that struck me was how young ST is to be facing such a challenging situation. Often, when I attend hearings, I am struck by the emotional aspects of these cases. In this case, ST is a young woman, younger than me, who not only is facing the very upsetting prospect of her condition and her prognosis, meaning she will not be able to return home, but may also have to make very difficult decisions in terms of her treatment. I can’t help but think about how I might feel in that situation. Would I want to be fully aware of my condition and prognosis? What limits, if any, would I put on my treatment if my condition worsened? They are difficult questions to consider for anyone, and perhaps especially for a teenager.

Attending hearings is always an eye-opening experience for me, not just in terms of developing an understanding of the court process and how decisions are made but also personally. In this case, it brings home to me the many devastating and, frankly, scary implications of ST’s condition, both emotionally and physically on her and her family. I wish both ST and her family well and hope that the plans developed help to ensure that she feels supported and cared for.    

Rhiannon Snaith is an ESRC funded PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on media representations of decisions about life-sustaining treatment, specifically for those without the capacity to make such decisions for themselves. She has previously blogged for the Project here and here.  You can learn more about her work by checking out her academic profile. She tweets @Rhiannon_Snaith

When P objects to an expert

By Celia Kitzinger, 14th March 2023

“Professor X has no expertise”, says Laura Wareham[1] – the protected party at the centre of this case.  She does not want him involved in drawing up her care plan.  

This is partly (she says) because of very negative things she’s heard about him from a friend and partly because Professor X “doesn’t believe in Hypermobile Ehlers-Danlos Syndrome. His job is to discount it” (click here for more information about hEDS).  She makes an accusation of criminal behaviour against him too, which seems to startle the judge. Her parents, who are parties to this case, also object: “Laura, don’t say that!”.  

Laura  – who has “a hugely complicated medical background”, including “autistic spectrum disorder”, “bipolar affective disorder” and “Bodily Distress Syndrome – has been in hospital  since April 2022 following an emergency admission.  She’s been intubated, ventilated and very seriously ill.  She’s now stable and is attending the remote hearing (COP 1397774T) from her hospital bed.

Everyone agrees that Laura doesn’t require care in an acute hospital setting and hasn’t done for some time. Everyone agrees she should be discharged.  An expert (Dr A) is currently developing a care plan for her and there is a view (from whom is not quite clear) that he needs to work jointly with an expert in infectious diseases.  The expert he chose, Professor X, is not someone Laura wants involved.

Background

This case has been in court at least three times before (since August 2022), and I blogged the February hearing at which the problem of the expert was first raised (“Standoff about the appropriate expert: A pragmatic judicial solution”).  

At the February hearing, the judge had come up with a pragmatic solution.  Since Professor X wasn’t acceptable to Laura, counsel should go back to Dr A and “explain that the confidence of Laura and her parents will be fatally undermined by Professor X’s involvement. Ask [Dr A] if there is someone else who can fulfil that role” – and then see if that person could be available to help with Laura’s care plan.  Laura’s parents recommended the name of someone they thought could help and the judge required that name to be put to Dr A as a candidate expert too (if in fact that expert was available).

I hoped to hear today that a suitable infectious diseases expert had been found to work with Dr A,  and that Laura’s care plan could be finalised so that she could be discharged soon.

Today’s hearing: 22nd February 2023

The case was heard by Mrs Justice Arbuthnot. At the beginning of the hearing, Scott Mathewson, counsel for the Health Board, briefly summarised the case to date and reported that the parents’ preferred expert was not able and willing to take instruction.  But there was “good news”: “There is another doctor, a colleague of Professor X, who is an infectious diseases expert, Dr N. He is also an international expert and he has accepted instruction and Dr A is happy for him to act as his second. My Lady, we regard this as a breakthrough.” (Counsel for the Health Board)

Laura wasn’t happy.  In response to the judge’s observation that “Laura has no confidence in Professor X”, Laura added “Or anyone contaminated by him.  Which includes a colleague.”  Later she said, “I don’t want to be condemned for the rest of my life by someone who isn’t educated or compassionate enough to….” (I don’t know where she was headed with that because her father intervened and spoke over her.)

The view of the Health Board is that “in an ideal world, only experts that Laura approved of would be instructed” but that given the need to find someone quickly (Dr A was to assess Laura in two days’ time and then submit a report with a proposal for discharge), “the balance falls in favour of making the order so that Laura may be discharged to a suitable placement as soon as possible”.

Laura’s father raised a question as to whether in fact an infectious diseases expert was needed: “We’d always been surprised at Dr A’s apparent request to have input from someone in infectious diseases…. Looking at the correspondence we got this morning from our ex-solicitor, it seems it was at the suggestion at the Health Board that an infectious diseases specialist was brought in.  And Dr A simply agreed – presumably in ignorance of the extreme distress that would bring to Laura.” (Laura’s father)

Ian Brownhill, counsel representing Laura (via her litigation friend the Official Solicitor) said it is “perfectly clear from Laura that she doesn’t want anything to do with Professor X” and suggested that when Dr A visits Laura in two days’ time to conduct his assessment, he should say what other expert input (if any) he needs, acknowledging that (as the judge put it) Professor X is “out of the question now”.  He said: “The Official Solicitor’s position remains the same – Laura ought not to be where she is.  Laura doesn’t want to, and ought not to be- I don’t want to say ‘stuck with’- but have something on her medical records that she feels is fundamentally flawed.  We are trying to find an even keel while progressing this case.  This is important, but there are are many other important issues to resolve – her capacity, her contact with her parents.” (Counsel for Laura)

Both counsel invited the judge to order that Dr A should be “in the driving seat… so if he deems it necessary to have input from Dr N he has permission to rely on that input, and also if the Warehams believe further input is required, there is no objection to them obtaining additional evidence”.

I haven’t seen the final order, but I think it’s to the effect that Dr A should decide if he needs any additional input or not, and if so what kind of additional input, and that he can ask anyone he wants except Professor X (including Dr N,  Professor X’s colleague).  The judge (apparently reluctantly) indicated that Dr N could be considered as an “expert desktop reviewer of Dr A’s work … if there is nobody else available and the discharge proposals can’t otherwise be done within the timescale.  But Dr A will realise there is a risk his work will be undermined by [the Wareham’s] strong views about Dr N – whatever the rights and wrongs of the case, and this is no reflection on either Dr N or Professor X by the way”.

An articulate and eloquent ‘P’

It’s unusual, in my experience, for a protected party to speak out as clearly and confidently as Laura does throughout this hearing.  

But Laura Wareham has spoken out publicly before – about her own medical treatment for Ehlers-Danlos Syndrome and the death of her sister Tania who suffered from the same condition and also had cancer (Nottinghamshire Post) and about her fundraising activity for an operation, not available to her on the NHS, to stabilise her neck (ITV, Daily Star)

She’s been very ill and her parents accept that Laura lost capacity to make some or all of her own decisions for a while, but they believe that she has now regained it.  So does Laura.

When counsel for the Trust provided a helpful introductory summary for observers, he mentioned the finding from consultant psychiatrist Dr Claudia Camden-Smith that Laura lacks capacity to make her own medical decisions.  Laura intervened: “It’s been disputed”.  He  acknowledged this,  explaining that “the matter of capacity is to be determined at the final hearing”.  Laura’s intervention led to a rebuke from the judge. 

Judge: Don’t interrupt!

Laura: I had my hand up and you ignored me.

Judge: You will have your moment, but not now.

Laura: Fine! (My note: this was said as the kind of ‘fine!’ that means exactly the opposite.)

Later,  Laura’s mother raised concerns that Laura’s psychiatric diagnoses amount to a claim that “there’s nothing wrong with [Laura], it’s all in her head” and was going on to explain this when the judge interrupted her, saying “Let’s go back to-“.  

Laura:  No. I would rather you let her finish her sentence.

Judge: If you interrupt, I’m afraid I’m going to exclude you from the hearing.

I found this quite a challenging exchange: the judge ‘interrupted’ Erica Wareham (literally mid-sentence), but objected to Laura Wareham interjecting in just the same way, to call her out on that. What’s happening here (and in the judge’s earlier exchange with Laura on the matter of ‘interruption’) is a consequence of the judge taking for granted the specialised turn-taking system of the courtroom[2], of which Laura (like most lay participants) is unaware. 

Court of Protection hearings are supposed to put “P” (the protected party) at the centre of the case, and that’s clearly where Laura wants to be.   She’s asked for full access to both her own medical records and to the Court of Protection bundle. (It wasn’t clear to me that either was forthcoming.)

Laura also complained about the way the case had been listed on the Royal Courts of Justice Daily Cause List  (using just her initials, “LW”):

Laura: I’m offended that you’ve taken my name off the case.

Judge: I don’t know what you mean.

Laura:  It says ‘LW’.  I am me, and I will be referred to as me.

Judge:  Oh, right. That is to do with listings.

Laura also corrected the judge at one point when she heard the judge mis-speak the family name: “Our name is WareHAM, not WareING”.

This was an interesting hearing because – like other hearings in which articulate and determined protected parties participate fully – the role of the person’s own wishes and feelings, and their place in ‘best interests’ decision-making is thrown into sharp relief.  I have no doubt that Laura (and her parents) will oppose a court determination that Laura continues to lack capacity.  And whatever the court finding on capacity, Laura’s wishes are going to have to play a key role in any future ‘best interests’ decisions made about her[3].

The next hearing will be for a date after 17th April 2023 (we’ll update when we have a precise date), and I believe it will be concerned with Laura Wareham’s capacity to make her own decisions.  I will be interested to see if Laura’s name appears on the listing, as she has requested.  The Open Justice Court of Protection Project has many concerns about errors and omission in listings and regularly raises them with HMCTS, with mixed success!

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She’s observed more than 400 hearings and is a frequent blogger.  You can find her on LinkedIn, and on Twitter @KitzingerCelia

[1] The court order enables me to name Laura Wareham (and her parents, Conrad Wareham and Erica Wareham) but not the hospital where she is being treated, or any of the professionals involved in her care.  All quotations are based on touch-typed contemporaneous notes and are as accurate as I can make them, given that we are not allowed to audio-record court hearings. They are unlikely to be 100% verbatim.

[2] See J Maxwell Atkinson & Paul Drew, Order in Court (1979) Palgrave Macmillan

[3] Compare Influencing ‘best interests’ decisions: An eloquent incapacitious P and Articulate, Eloquent and Passionate – but does P have the Mental Capacity to Make Decisions about Four Areas of her own Life

“This is a quagmire and it needs to be urgently done”: LPA objections, disputed capacity and an imperative need for a panel deputy

By Eleanor Tallon, 12th March 2023

Very little was revealed about the woman at the centre of this case – other than she has been living in a care home since the end of 2021, whilst her son remained living in her home. 

In June 2021, she had made a Power of Attorney for Property and Affairs appointing her son as her attorney. Then in March 2022 she instructed solicitors to revoke that LPA to appoint her daughter-in-law and grandson as joint LPAs instead. But then both she and her son objected to this change. This led to questions being raised about her capacity to make an LPA and to revoke the registered LPA. 

A Special Court Visitor was instructed to assess retrospective capacity for the LPA, and various other decisions, but her son disputes all the conclusions reached. Further complicating issues include concerns raised around her son’s conduct in managing her affairs, his occupational interest in her property and the fact that the woman does not want contact with the other family members.

No one is able to administrate her affairs and the Local Authority cannot proceed with financial assessments to secure payment for the care home placement, which leaves her in a tenuous position.

“This is a quagmire, and it needs to be urgently done. A panel deputy could resolve this, though there may be an issue about getting one on board quickly. The end result would be the court making full enquiries as to appointing a panel deputy, or her son, or indeed anybody else.” (Carol Davies, Counsel for the Applicant)

The woman isn’t party to the proceedings, but she is aware of them and wants to explain to the judge directly how she feels.

Access to the hearing

Having held a professional role within Court of Protection proceedings, I have a keen interest in the Open Justice Court of Protection Project to support my continuing development. I have observed several hearings before (and have blogged about three of them here, here, and here) so I felt somewhat prepared as to what to expect as a public observer. I knew it was best to email the court staff the evening before, and to choose 2 hearings in succession of each other (to provide a back-up plan in case my first choice was vacated). 

On the evening of 21st February 2023, I scrolled through the listings (which are helpfully provided on the Twitter feed for the Open Justice Court of Protection Project [OJCOP]) and I noticed two hearings related to DOL, one at 9.30am and another at 3pm. I emailed to request access for both hearings, feeling suitably organised.

However, the next morning, I chased up the access link for the 9.30am hearing, only to receive an email from the court enquiries officer (shortly before the hearing was about to start), advising that I had sent the request to the wrong place (I sent the request to the ‘enquiries’ address rather than the ‘hearings’ email address) and they had only just passed it on. How frustrating!

This was a regrettable faux pas, as it was clearly too late to gain access and I didn’t hear back. I did hear back about my second choice, but unfortunately that one had been vacated. 

I felt dismayed (mainly with myself) and was reminded of my first hapless attempts at gaining access to a COP hearing as a public observer. I decided to admit defeat for that day and re-strategise for the following day, as I had a meeting that had been cancelled in the afternoon. 

That evening I looked at the listings and the following case (at 2pm) – tweeted by OJCOP – stood out to me:

I was interested because a Local Authority Solicitor (Laura Wrixon) had publicly commented on the tweet explaining:

“The 2pm hearing is not as listed. It’s about capacity re finances, registration of an LPA/appointment of a deputy and P’s participation in the proceedings.”

This was appealing, particularly when considering some of my recent work (as an Independent Social Worker), where I have been involved more often in assessing decisions around finances and litigation capacity. It’s been interesting to explore related case law, after spending many years (as a Social Worker and Best Interest Assessor) mainly focusing on capacity decisions around welfare, support, residence, and DOL. I felt enthused to observe the hearing, as a further learning tool for assessing capacity on financial affairs and understanding the legal processes related to deputyship. 

That night I emailed the County Court, as well as requesting another hearing as a reserve. On the morning of 23rdFebruary, I chased up the request and by lunch time I received an email back with confirmation that the judge had approved my request, and a link to the hearing was provided.

Further to this, I noticed that the link had been passed on directly by a solicitor, named Laura Wrixon (presumably the same solicitor who had commented on the Tweet). It seemed that she was the instructing solicitor for Local Authority in the case, which gave me a perfect opportunity to request the transparency order and position statements, which I did. 

Shortly after I received the transparency order (and my request for position statements was being considered). It certainly felt like the obligations around open justice were being upheld, and maybe synchronicity was working in my favour?

I read through the transparency order, which highlighted the typical subject matters (which basically prevent attendees from sharing any personal details or sensitive information disclosed, which could identify those involved in the proceedings).

So, to protect confidentiality, I will use the pseudonyms; Mrs King, who is subject to the proceedings and her son will be referred to as Mr King (first respondent).

By reading the transparency order, I also gleaned that the original application was made in September 2022 by Hampshire County Council, with Mr King as first respondent and the Southern Health NHS Trust as second respondent. 

It was also apparent that an earlier hearing took place in November 2022 which considered issues of capacity around welfare and property and affairs. 

The hearing

Upon gaining access to the hearing (COP 13994886), Judge Emerson was already in the process of leading the introductions. I initially attempted to familiarise myself with who was who from the assortment of faces and names on screen, and I observed the following attendees:

  • Mr King, first respondent, who was represented by a Legal Executive, Clare English (CE) of Martin Searle Solicitors
  • Carol Davies (CD), Barrister of College Chambers and Counsel for the Applicant (Hampshire County Council).
  • Laura Wrixon (LW), Instructing Solicitor at Hampshire County Council (the Applicant).
  • Mr Christopher McGowan (CM), Solicitor at the Office of Public Guardian (OPG). 
  • Ms Y, Social Worker at County Council.

The judge then advised the court that that I (Eleanor Tallon) had requested to observe the hearing, 

Judge: I have been made aware and I have no issues with it, does anyone else? I take it from the resounding silence that everyone agrees to Ms Tallon observing the hearing.

Counsel for the Applicant: Ms Tallon has received the transparency order. She has also requested position statements which we have considered, but it may be that Ms Tallon hears enough today to not need the position statements.

The judge then discussed the papers he had before him, which included a draft order, an order for a section 49 report, the statement of the Special Court Visitor, and position statements for the County Council, Mr King, and for the OPG.

At this point I was wondering whether the NHS Trust was no longer a respondent and if the OPG had now been joined as a respondent? And if so, was that the reason that a section 49 order had required a Special Court Visitor to conduct the capacity assessments? (Position statements would certainly have been helpful to make more sense of it all!)

Having checked the government website I was informed of the following:

Section 49(2) of the act provides that the Court of Protection (‘the court’) may request a report to be made to itself, either by the Public Guardian or by a Court of Protection visitor, to help with decision-making.

Court of Protection visitors can visit anyone they are directed to by the court. They can be directed by the Public Guardian to visit people who have a deputy appointed by the court to make decisions for them, as well as donors and attorneys acting under registered enduring or lasting powers of attorney. (A ‘donor’ makes a power of attorney; an ‘attorney’ makes decisions for the donor.) They may in some circumstances visit someone before the registration of a lasting or enduring power of attorney.

The judge asked whether there were any disputes regarding the reports.

Counsel for the Respondent: There is a disagreement on capacity, Mr King has some key points to make.

The judge advised that although the disputes would be considered, today’s case management hearing was not to determine factual issues about capacity. There was then some discussion around Ms English (Counsel for the Respondent) having access to Judge Emerson’s email address. It was agreed that Ms Wrixon would arrange this, followed by the judge requesting that an overview of the case was provided to the court for the benefit of the observer.

Ms Davies, Counsel for the Applicant,  then proceeded to outline the events which had led to the current position, which appeared to be quite complex, contentious, and protracted. 

From what I could gather, it seems that Mrs King spent some time in hospital from September 2021, following which she was moved to a care home, but there was a dispute as to her capacity to decide on where to reside. This wasn’t resolved until January 2023, at which point it was concluded that she had capacity to decide on residence, and her decision was to remain living in the care home.

However, there remained an issue around Power of Attorney. Mrs King had apparently appointed her son Mr King as her Lasting Power of Attorney (LPA) in June 2021. However in March 2022 she instructed solicitors to revoke the LPA in favour of her son, and instead appoint her daughter-in-law and her grandson (who both live in overseas) as joint LPAs. The LPA paperwork was sent to the OPG to be registered.

Following this, objections were raised by Mr King and Mrs King via a letter, which stated that she did not want her daughter-in-law or grandson to be registered as LPAs.

The OPG then considered the aspect of the LPA (for Property and Affairs) being revoked. Mrs King’s capacity to decide on appointing an LPA was in question, along with other decisions. Dr B was instructed to assess her capacity, followed by another expert, Dr H being asked to give further opinions. 

The parties then agreed to Dr N, Special Court Visitor, being appointed to provide a further capacity report, which was due to be completed by the end of March 2023 but had already been submitted some weeks early. 

The Special Court Visitor identified that Mrs King had capacity when requesting to revoke the LPA in favour of her son and had capacity to appoint her daughter-in-law and grandson. The Special Court Visitor also concluded that Mrs King currently lacks capacity to manage her property and affairs, lacks capacity to make decisions on the proceedings, lacks capacity to make a will, and lacks capacity to decide on the occupation of her home (as well as a couple of other issues which I was unable to capture, as I couldn’t write them down quickly enough!)

Counsel for the Applicant then highlighted that there is now an agreement that an update report is required as to Mrs King’s cognitive impairment and capacity. It wasn’t specified as to which decision this would be for and without having seen the position statements for this case (and with so many sub-issues) it certainly wasn’t clear what exactly was being contested, but I assumed a further report was agreed on account of ongoing disputes. 

I felt quite sorry for Mrs King, who I knew so little about, other than the fact that she had been subject to various mental capacity assessments on a number of convoluted matters, which could be an arduous and emotive process for anyone, with or without a cognitive impairment.

Further to this, Counsel for the Applicant related that Mr King had made an application via a COP 9 form for a judicial visit to his mother, and that this was the main purpose of today’s hearing.

Judge: I need to understand the need for the visit and what the practicalities would entail, instead of simply agreeing to it.

Counsel for the Respondent: The position statement from Mr King explains his reasoning for the request.

Judge: I also have to consider the timing of the visit. I have some hesitation. If I was to visit, I need to consider when it should take place. From what I’ve seen, it struck me that we don’t have an update on capacity on a number of issues. If I was to visit it should be done after the assessment has been done and people have had a chance to consider the outcome. One of the issues is capacity to litigate, and that’s one of the concerns I have.

Counsel for the Respondent referred to Mr King’s position statement and highlighted a point around Mrs King’s ability to participate and have her voice heard in the proceedings.

Counsel for the Respondent: Mrs King is aware of the proceedings and wants to explain to you directly how she feels.

Judge: I understand that, but do you understand my point?

Counsel for the Respondent: Yes, though if she does lack capacity her wishes and feelings are still pertinent and her comments will inform the court.

(My BIA senses were tingling listening to this exchange).

Judge: Absolutely. The point I’m making is this. You are effectively asking a Special Court Visitor to review all capacity issues. I understand the point about participation but not knowing what the answers to the capacity questions are… If I don’t know what any difficulties are and how to approach her, I fear that I will be beating around in the dark not knowing the answer.

Counsel for the Respondent conceded that if Mrs King was found to have capacity overall then a visit might not be necessary.

Judge: I understand that practice directions mean there is a desire to enable participation and there is an indicated desirability for judicial visits, which I have sympathy with. But I don’t think at the moment, I should make a decision until I know what the mental capacity assessment says.

Counsel for the Respondent: If she has capacity to litigate then that makes a difference.

Judge: The purpose is not to gather information.  If she has capacity, the court has no jurisdiction in any event.

A recent blog from the Open Justice Court of Protection Project springs to mind here, which relates to situations in which a person may have capacity to litigate but not to make the decisions in question, though in practice this appears to be fairly unusual.

Judge: We will wait for the assessment, and we can make a decision at that point. It’s not helpful to make a decision today.

Counsel for the Applicant: That matter can be adjourned until the next hearing. I don’t know if a Special Court Visitor could complete the report within that period. We may need to think about vacating the hearing for the 25th April.

Judge: I suggest we keep that hearing for now. In terms of the directions for the report, how quickly can it be provided?

There was discussion about hearing dates and timescales for the report. The judge then went through recitals for a further draft order, and the issues that need to be covered going forward which included: the need for an updated mental capacity assessment;  a note of what experts did agree on; Mrs King’s views on contact with her daughter-in-law and grandson; and the reasons to believe that Mrs King may have lacked capacity on appointing a Power of Attorney (Property and Affairs). (I assumed that this latter issue was in reference to the subsequent application made for her daughter-in-law and grandson but it wasn’t entirely clear).

Mr McGowan, Solicitor for the OPG, discussed whether there was a pragmatic solution as an interim position which could be agreed between parties.

Counsel for the Applicant: Mr King does not agree for a panel deputy.

A panel deputy is a professional deputy appointed by the Office of Public Guardian. The Court of Protection will choose such deputies from a list when no one else is able to act for a person who lacks capacity on the relevant scope of decisions.

Counsel for the Respondent: Mr King refutes the statement that he’s unsuitable to act as deputy and is concerned that the costs for a panel deputy would impact on her estate.

Judge: I’m not going to make a determination as to a final appointment of a panel deputy, but we need to consider what should happen in the interim. What do you say Ms Davies?

Counsel for the Applicant: It’s a hornet’s nest, as to registering the previous LPA. The report from the OPG last year, raised concerns as to Mr King being responsible. We are not recommending a deputy, other than that an interim deputy would be appropriate. The County Council Charging Assessment Team are extremely busy and it wouldn’t be feasible for them to act, as they would not want to hold the deputyship whilst there is a dispute. The only option is for a panel deputy to ensure neutrality. There are ongoing difficulties to date as there is no control over Mrs King’s finances, which means the council can’t get going with the financial assessment to work out what she should contribute to the costs of her care. This is a quagmire, and it needs to be urgently done. A panel deputy could resolve this, though there may be an issue about getting one on board quickly. The end result would be the court making full enquiries as to appointing a panel deputy, or Mr King, or indeed anybody else.

Solicitor for the OPG: I just want to point out a further nuance when deciding whether Mrs King’s property should be considered into the financial assessment. If Mr King remains in the property that would raise issues.

I would just explain here for the reader that when a Local Authority arranges a permanent care placement, they complete a financial assessment in terms of the personal contribution the resident is able to make towards the costs. The LA takes the person’s property into account, possibly initiating a deferred payment agreement (DPA) until the property is sold. 

However, there are certain conditions in which a property owned solely by the individual can be disregarded, and this includes when a family member is still living in the property as their main or only home (and therefore has ownership rights). This is known as ‘the relative’s property disregard’ and guidance on how LA are to apply the disregard is provided by DoH in the light of the Walford v Worcestershire County Council judicial review [2015] EWCA Cov 22.

Mr King’s age wasn’t confirmed and the disregard can be applied regardless of age, but the property must be disregarded where the relative meets the qualifying conditions (i.e. is aged 60 or over or is incapacitated) and has occupied the property since before the resident entered the care home.

Judge: What you are suggesting is a potential conflict of interest between Mr King and Mrs King in respect of ownership of property, in that the management of her affairs could be compromised. Yet the property and affairs of Mrs King do need to be administrated. The council have concerns as to Mr King being suitable to exercise the deputyship and the OPG has also raised concerns to this effect. I’m only dealing here with the interim and to decide the best interests of Mrs King before we get to a final hearing. There is a need for her Property and Affairs to be dealt with urgently and an assessment of her care fees. There were concerns regarding the previous conduct of Mr King and Dr H reported issues. Within the position statements there is evidence of a conflict of interests. Mr King has an occupational interest in the property. I must consider the proportionality of a deputy being appointed, as well as the potential delays in a professional being appointed when there is a family member willing, but the concerns are reiterated. On balance, for an interim position, it seems an interim deputy is appropriate notwithstanding the costs and delays that may cause. I have not made this decision based on findings of fact against Mr King. It’s a holding position until that determination can be made.

However, the quagmire didn’t end there.

Respondent for the Applicant: I’m just flagging the point on the current LPA, we don’t have a registration of the LPA made in favour of the grandson and daughter-in-law and it is unclear whether a deed of revocation has been registered for the LPA made in June 2021. Maybe Mr McGowan can assist.

The judge queried whether any current LPAs were suspended.

Mr McGowan (Solicitor for the OPG) discussed the process of removing an LPA in order to appoint a deputy and highlighted that there stands an objection (I assumed he meant from Mr King?). Mr McGowan went on to say that the OPG could not be sure that Mrs King had capacity to revoke the LPA for her son and said that the LPA is still live but needs to be suspended. 

(I hadn’t heard of an LPA being suspended but it does seem to be ‘a thing’. Please see this commentary for further clarity).

Judge: I just about understood that.  Thank you for explaining. I will now move on to the next recital that needs to be determined.

The judge then made reference to the recitals asking the parties if they were happy with (a) to (g) (which I was not privy to, so I found this difficult to follow). However, it appeared that Mr King was not in agreement with some of the points.

Counsel for the Respondent: Mr King disputes that he moved into the home after his mother was hospitalised and he has evidence that he occupied the property for 7 years. He has concerns regarding (f) to (g).

Solicitor for the OPG: We need to determine Mrs King’s capacity to object to the LPA in March 2022. We need an opinion on her capacity to make that objection.

Counsel for the Applicant: In relation to the purported attorneys, Mrs King’s grandson and daughter- in-law, we are all clear that she doesn’t want contact with them. The question is around the position of these two people, should they challenge the revocation. They have not been notified of these proceedings or asked whether they want to be actively involved to push for their LPA. I am proposing whether to make a provision for them to be notified and if they seek to join, to file a COP 5. 

A discussion ensued around gaining permission to serve notice by email (given these relatives live overseas) and the limits of information that would be shared with them when notifying them of the proceedings. Dates were discussed for a further hearing in June and it was agreed that Mrs King would be offered an opportunity to attend the next hearing in April if she so wishes.

The judge then went through the requirements for a further section 49 order and systematically went through the recitals for directions, commenting that it can be ‘painstaking and difficult’ to go through the order but it’s helpful to clarify the directions and decisions needed. 

Finally, the judge asked whether there was anything further from the representatives, which they declined, and he thanked those involved and brought the hearing to a close.

Reflections

Counsel described this situation as a hornet’s nest and indicated that the legal ground they were covering was a quagmire. These metaphors seem entirely fitting. Though, what didn’t come across enough for me, was any real impression of Mrs King, or her views. 

I was concerned that Mrs King had indicated that she wanted to play a part, yet had she been offered the opportunity to attend the hearing? The social worker was present within this hearing: could Mrs King have attended alongside her social worker to support her participation?

I accept the point that the judge made in relation to not wishing to visit with Mrs King until a further mental capacity assessment had been completed, though I envisage from her point of view, that she might be tired of repeated assessments covering the same boggy issues, only to find that parties have remained in conflict as to the conclusions made, thus leaving her in a place of uncertainty and confusion. Could it be that she simply wants to be involved and retain a feeling of dignity and control within these proceedings?

In my professional experience, I have often seen families feud when it comes to decisions around finances and property, and not infrequently, this can be the subject of safeguarding concerns. Under the Care Act (2014), the person must remain at the heart of safeguarding enquiries and their wellbeing and what they want as an outcome should be ascertained and upheld as much as possible throughout the process. 

The principles of the Care Act (2014) and the Mental Capacity Act (2005) are clear and congruent to one another, and both advocate for participation. To that end, I hope that Mrs King gets the opportunity to have her say, in a way that is meaningful to her. I also hope that these complicated matters are resolved soon, to enable her to feel settled, rather than being stuck in the middle of crossfire.

Of course, I am mindful that the purpose of the proceedings is certainly not to disempower Mrs King. On the contrary, the objective of the Court of Protection is to uphold the rights of vulnerable individuals who are assessed as lacking capacity to make decisions, promoting their autonomy and happiness, whilst balancing this with an acceptable level of risk. 

At times, the complexities of a situation are such that the court will need to take meticulous steps to work towards achieving the best and most appropriate outcome for the individual concerned. This often means wading through a treacherous waste ground before that solution is reached.

In terms of determining that elusive balance between empowerment and protection,  I pose a few reflective questions:

  • How will the mental capacity assessment be re-approached to ensure the conclusions withstand further challenge?
  • Has the relevant information been broken down in a way which is accessible to Mrs King, to support her in making the requisite decisions?
  • Has Mrs King been made aware of the concerns raised around her son managing her finances, and what are her views on him continuing to live in the property? 
  • If Mrs King has capacity around contact with her family who live abroad (and is declining to share information with them), would it even be viable for them to seek to be her POA?
  • Does she have an advocate to support her (or an IMCA if there are statutory investigations around financial abuse)? 
  • Are there any suggestions as to further ways in which she could regain capacity on specific areas?

I was left with many unanswered queries, which may have been addressed by the professionals involved already. This might have been clearer had I been provided with position statements, which I have pursued and not received, though I recognise the workload pressures (which create ever-increasing to do lists!).

Further thoughts

Overall, what struck me about this case, was the importance of providing a clear record of a person’s decisions and reasoning, at the time when their capacity isn’t questioned. In contrast to appointing a deputy through the court (after the person has lost capacity to make decisions on managing their financial affairs), appointing a Power of Attorney (whilst the person has capacity to do so) is a relatively simple process. The court is rarely involved, the documentation can be completed online by the person (or their representative) fairly quickly and with minimal expense (here https://www.gov.uk/power-of-attorney/make-lasting-power).

But if the evidence that supports the LPA application is less than comprehensive, then this lends itself to controversy if the person’s capacity to appoint an LPA is later challenged.

When supporting a person to apply for an LPA, it would be prudent to record the discussions held with the person, which clearly evidence their ability to understand, retain, weigh and communicate the following (as set down by Mr Justice Poole in the following judgment, paragraph 16):

The Public Guardian v RI & Ors [2022] EWCOP 22

I proceed on the basis that the relevant information in relation to the execution of an LPA is: 

a. The effect of the LPA. 

b. Who the attorneys are. 

c. The scope of the attorneys’ powers and that the MCA 2005 restricts the exercise of their powers. 

d. When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective. 

e. The scope of the assets the attorneys can deal with under the LPA. 

f. The power of the donor to revoke the LPA when he has capacity to do so. 

g. The pros and cons of executing the particular LPA and of not doing so.

And when considering capacity to execute an LPA, it is emphasised that the bar for capacity should not be set too high and that explanations should be given in a way that is appropriate, for example by use of simple language. There should be a clear breakdown as to the relevant information which is shared with the person, using communication aids and other support as necessary. 

An independent report from a suitably trained professional may help to ensure that a POA application is rigorous, with accurate recording that stands up to future scrutiny. This might help to avoid a legal quagmire such as the one Mrs King has found herself in, and to ensure that the most empowering decision is made.

Yet, there is the potential for unforeseen circumstances, such as concerns arising from the conduct of a registered LPA, which may mean that an investigation needs to be carried out by the OPG (possibly alongside the Local Authority) and further steps may be required, to safeguard the person’s financial security and well-being. 

As noted within this case, appointing a professional deputy in such circumstances is not a decision that is made lightly. It follows a conscientious decision-making process with careful regard to the merits and disadvantages, when weighing up the options. But ultimately, this may be the only feasible option where a higher level of scrutiny, neutrality and professional accountability are warranted. 

From my observation of this hearing, I feel reassured that Mrs King’s case will be dealt with diligently, when a final determination is made on the appointment of a deputyship.

Eleanor Tallon is an Independent Social Worker and Best Interests Assessor. She can be contacted via her website mcaprofessional.co.uk and found on LinkedIn. She also Tweets @Eleanor_Tallon