Family members as parties to proceedings: Pros and cons

By Astral Heaven, 21st July 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Family members as parties

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

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

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

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

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

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

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

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

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

Closing remarks

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

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

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

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

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

By Celia Kitzinger, 19th July 2022

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

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

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

Background

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

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

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

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

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

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

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

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

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

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

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

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

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

Hearing on 6th July 2022

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

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

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

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

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

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

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

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

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

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

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

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

By Celia Kitzinger, 13th July 2022

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

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

The latter issue was clearly something he was concerned about:

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

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

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

Funding arrangements for the placement

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

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

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

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

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

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

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

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

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

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

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

Capacity to engage in sex

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

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

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

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

The judge then expressed his “grave concerns”:

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

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

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

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

The judge clearly remained troubled.

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

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

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

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

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

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

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

Trial of living at home – successful so far

By Celia Kitzinger, 9th July 2022

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

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

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

Background 

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

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

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

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

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

This hearing on 7th July 2022

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

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

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

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

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

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

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

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

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

Money

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

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

(1) Direct payments

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

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

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

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

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

(3) Reimbursement for T

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

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

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

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

Final Order

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

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

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

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

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

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

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

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

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

By Diana Sant Angelo, 4th July 2022

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

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

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

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

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

Capacity Assessment and Mr M’s views

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

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

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

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

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

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

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

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

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

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

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

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

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

Transition plans 

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

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

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

Reflections

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

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

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

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

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

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

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

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

A first experience of observing in the Court of Protection

By Georgina Baidoun, 30th June 2022

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

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

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

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

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

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

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

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

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

And I can add a postscript.

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

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

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

By Bridget Penhale, 28th June 2022

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

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

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

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

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

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

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

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

The hearing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Claire Martin, 27th June 2022

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

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

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

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

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

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

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

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

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

Victoria Butler-Cole QC clearly outlined three main issues:

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

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

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

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

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

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

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

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

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

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

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

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

Judge: Why are you agreeing to this hearing then?

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

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

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

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

Broadfoot: One point on paragraph 9 on Deprivation of Liberty in future. It is safe to say at this stage, it’s very very uncertain what the timing framework will be for ending of S17 leave and mid-August is only one possible date. 

Judge: Thank you.

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

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

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

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

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

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

“Two things. The CCG. ED was described as a ‘dangerous young man’. We don’t agree and don’t think that’s helpful. The aim is to get him out of hospital. We don’t think characterising him as such is helpful – of course he needs some care, needs looking after, but that’s the plan and what’s proposed. The Local Authority have their obligations. The second point – is this micromanagement or is it case management that the court needs to decide about? In most cases before the COP, the court has to clear the ground and understand everything before it. In the Local Authority’s view, there are many routes to agreeing a dispute. It’s not certain, he may be on s17 leave for some time, but if not, he’ll be deprived of his liberty by August or September. What’s the point in discharging these hearings only to step them up again? … Contact with family. How can the court decide without some evidence about this? We see it as a proper … we don’t think the other parties are asking too much of us, that’s why we agree it.” [Ben McCormack, counsel for Local Authority, Counsel’s emphasis]

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

HHJ Matthews QC gave a brief ex tempore judgement: 

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

I couldn’t have agreed more with this judgment.

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

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

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

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

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

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

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

By Celia Kitzinger, 25th June 2022

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

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

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

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

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

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

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

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

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

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

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

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

What went wrong?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Deciding that a hearing today would be ineffective

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

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

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

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

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

Wife:  Half past ten today, do you mean?

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

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

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

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

Judge: Can we have an effective hearing?

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

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

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

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

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

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

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

Judge: Madam Translator, can you interpret that.

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

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

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

Legal representation for W

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

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

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

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

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

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

Wife: No, I prefer everything simple. 

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

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

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

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

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

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

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

Wife: My answer is no.

Judge: Okay.

Arranging the next hearing

“My clerk comes bearing news”, said the judge.  

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

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

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

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

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

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

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

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

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

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

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

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

Comment

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

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

The cost is not only financial.

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

The judge at this hearing was clearly frustrated.

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

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

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

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

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

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

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

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

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

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

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

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

Assuming, of course, that she attends.

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

Photo by Dan Cristian Pădureț on Unsplash

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

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

Editorial Note: The judgment has now been published: Imperial Healthcare NHS Trust v C & Ors [2022] EWCOP 28

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My first time observing a case

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

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

The time to be heard

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

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

            “Who was LC closest to?”

            “What was her favourite food?”

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

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

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

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

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

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

The role of religion 

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

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

Reflections

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

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

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

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

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

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

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

I am very much looking forward to observing another hearing.

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

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

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

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

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

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

Honesty and respect

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

He was brutally honest about the clinical options available; 

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

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

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

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

The decision

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

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

What I took away

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

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

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

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

Compassion in Dying tweets @AGoodDeath