Making Disabled Lives Visible – Reflections Two Years On

By Gill Loomes-Quinn, 13th June 2022

One of the many challenging aspects of being disabled in our society is the isolation that comes from those around you being ignorant of, and failing to comprehend, the ways in which living with impairment(s) in a disabling society impact the life of a disabled person.

My own experiences of this fall broadly into two categories:

  1.  Non-disabled people are often unaware of, and unprepared for, the complications, barriers, and manifold frustrations that disabled people face when trying to complete the most basic of tasks. This has included friends showing surprise that much of the London Underground is inaccessible to me (as a wheelchair-user) because they “thought the law said that everywhere has to be accessible now”, and that I need to call ahead before going practically anywhere to make extensive checks for accessibility and requests for assistance and being even more surprised when such assistance often fails to materialise. To them, this is remarkable. To me, it is “life”.
  • In perhaps paradoxical contrast to the ‘surprise’ reaction, non-disabled people demonstrate that they imagine my existence to be pitiable – including total strangers offering to pray for me, others telling me they would “lose the will to live” if they were “like [me]”, as well as taxi drivers bringing me home from work expressing surprised congratulations that I am employed. This latter category of ‘pity’ beliefs was analysed critically by disabled journalist, Lucy Webster, in a recent article in the Guardian, entitled “Some people think they would rather die than have help brushing their teeth, but care is not tragic”. I think she sums up well how out of touch many non-disabled people are with the everyday experiences of disabled people.

One of the key reasons for my research interest in the work of the Court of Protection, and why I am so proud of what we have achieved so far with the Open Justice Court of Protection Project, is that the court deals with the everyday lives of disabled people deemed (or who may be deemed) to lack capacity. In the past two years, we have covered, and hopefully drawn public attention to, the myriad of issues affecting disabled people – including serious medical treatment at end of life, the long, drawn out search for a suitable ‘placement’ (home) for a young disabled woman, pregnancy and birth, and how global events, such as the Covid Pandemic have impacted disabled people – including receiving vaccinations, and the right to visits with family and friends in care homes.

Some of the cases we have written about have been ‘sensational’ in nature – covering the most shocking of circumstances in which anyone may find themselves – such as the asylum seeker engaged in a hunger strike to have his understanding of his date of birth recognised by the authorities (here, here, and here). And cases challenging inequalities and discrimination in health access faced by disabled people – such as failure to provide treatment for cataracts in a timely fashion that would be available to a non-disabled person; and whether a kidney transplant was in the best interests of a disabled young man.

But many cases engage the most taken-for-granted of everyday human experiences, such as access to medication, and to pets and hobbies, and the right to engage in the intimate relationships of one’s choosing. For me, this speaks to my cultural heritage as a disabled activist, as themes that have concerned disabled activists for decades are played out daily in the Court of Protection.

To give an example, it is now 30 years since Anne Finger wrote her heartfelt critique of social attitudes to disabled sexuality (and the responses of the disabled people’s movement thereto). And these same themes have played out in some of the most prominent cases before the Court of Protection in the past two years, as the court has adjudicated on matters such as the rights of disabled people to access prostituted women/sex workers, and revising the definition of capacity to engage in sex to include understanding that the other person must be able to give/withhold consent (and actually do so) before and during sex (covered here and here). Back in 1992, Finger wrote that “Sexuality is often the source of our deepest oppression: it is also often the source of our deepest pain”. And she argued that it was “crucial that the disability-rights movement starts to deal with it”. The prominence of themes of sex and reproductive rights in today’s Court of Protection suggests strongly that three decades on, society as a whole still has a long way to go until disabled people can be considered fully equal sexual citizens. It is my hope that the work of the Open Justice Court of Protection Project in supporting people to observe these themes played out in court will contribute to an awakening of social conscience and drive us towards such equality.

In more general terms, Disabled feminist activist, Jenny Morris, describes the injustice of the political invisibility of disabled people’s experiences in her foundational text ‘Pride Against Prejudice’, where she writes:

Disabled people – men and women – have little opportunity to portray our own experiences within the general culture, or within radical political movements. Our experience is isolated, individualised; the definitions which society places on us centre on judgements of individual capacities and personalities

(Morris, 1991: 10)

I see the work of the Open Justice Court of Protection Project as contributing to and continuing the political work of making the experiences of disabled people – the good, the bad, and the ugly – visible within more mainstream cultures, especially those with power in our lives. It is very often the case that the court is one place where ‘P’ (the disabled person lacking capacity at the heart of a case) is able to “portray [their] own experience” on a public platform (as we covered here). Indeed, this is one function of the court that is not available when best interests decisions are made about disabled people’s lives ‘behind closed doors’ – in Local Authority offices or care home meeting rooms. And when ‘P’ is not afforded a ‘voice’ in court, the public nature of the proceedings means we can observe and comment on this (as here). It is for this reason that I am so pleased with the number of people with professional backgrounds in health and social care, law, and the family members and other advocates of vulnerable people we have supported to observe and write about their observations of the Court of Protection in action.           

There is so much more to be seen and understood in observing the court in action than one can access by reading a published judgment – the relationality, the emotion, the humanity of a case. And this matters for multiple reasons. First, and most fundamentally, disabled people have a right to be visible within society – to be seen and recognised as part of society. But further, I believe that social change to improve the circumstances of disabled people – especially those of us who depend on social care and the support of our non-disabled advocates and allies – depends on those outside ‘the movement’ grasping the nature of the issues we face. I don’t pretend this is all that is required. But I see it as an essential component of such change. This is especially the case where the disabled person at the centre of a case is unable to communicate their own experiences in any way due to the impact of their impairment(s) – as is the case where ‘P’ has, for example, a profound brain injury leading to Prolonged Disorder of Consciousness (PDoC), or is otherwise unable to communicate either verbally, or using Assistive/Augmentative Communication (AAC) technology, sign-language, gesture, or other reliable non-verbal communication. And it is my view that we, as a disability rights movement, let these people down when we fail to engage with, and support the non-disabled loved ones and other allies of such people. I see the Open Justice Court of Protection Project as key to such partnerships, and to ensuring that we, as a movement, take all our members forward with us and lift up everyone’s ‘voice’ and experience in our advocacy.

Several observers have explained in their blogs how observing the Court of Protection in action has impacted their understanding of mental capacity law, and its impact on disabled people’s lives. In one of our earliest blogs Mereil Scott, an aspiring barrister,  explained that “This hearing demonstrated to me the way in which the Court of Protection can work very efficiently to enable people’s voices to be heard”. The difference between the ‘letter of the law’ and its implementation has also been a key theme – Samantha Williamson told how she

…had been struck by how different it is reading judgments and legal commentary on cases (all neatly summarised and structured) compared with observing cases in the Court of Protection.

And the “reality of applying the ideals of the MCA 2005” was also made clear to law student Lucy Williams by observing the Court of Protection in action. She explained the distinctions between legal theory and its practical impact like this:

In theory, it’s easy to say that decisions should be made in P’s best interests, but even when…everyone agrees what that is, judges have to deal with real world issues…I’ve learnt that the Court of Protection’s role is also about managing the concrete particular details of a particular P in the specific conditions of her life, and in the context of over-stretched health and social care services.

I am delighted to think that over the last two years our project, run on passion and zero funding, has supported people engaging with disabled people deemed to lack capacity.  This is key to providing them with a better ‘real world’ grasp of the issues affecting their service users, clients, family members, and friends. And I look forward to seeing the fruits of cultural change that will be harvested from the seeds our project is sowing.

Gill Loomes-Quinn is a disabled scholar-activist whose ongoing PhD research on disabled ‘voice’ in mental capacity law received an award from the Caroline Gooding Memorial Fund. She is co-director (with Celia Kitzinger) of the Open Justice Court of Protection Project and is also proud to be a convenor of the Participatory Autism Research Collective (PARC). Gill tweets @GillLoomesQuinn


Photo by Michael Dziedzic on Unsplash

A short hearing and a failure to agree

By Mollie Heywood, 12th June 2022

I am a full-time children’s social worker and part time law student and aspiring barrister, passionate about social justice and human rights.  

I wanted to observe a Court of Protection case because I find this area of law particularly interesting – and I learnt from Celia Kitzinger (who blogged about an earlier hearing in this case) that there was a Litigant in Person involved in this hearing.  This was of particular interest to me as I have observed many such cases as a social worker and in different courts. In my view, learning from the experiences of Litigants in Person and the difficulties they have navigating the legal system, in personal and emotive circumstances, is vital to supporting future Litigants in Person, particularly in light of reduced legal aid funding.

I observed the hearing (COP 13861341) over Microsoft teams before HHJ Francis, on Wednesday 8th June 2022.

The Local Authority and P, with legal representatives, a social worker and a relative of P, attended virtually, with cameras on, and with the ability to see the other parties on screen.  The protected party’s wife ( W ) also attended virtually, but (as before) via telephone. In my experience, there are always further complications when one attendee is over the phone: the audio is of reduced quality, for both sides, and the person attending via phone can’t be seen, and can’t see the other participants.  This was particularly evident when, at one point, W asked who was there. 

As at the previous hearing, an interpreter was employed, but for some reason I was not privy to, there was a delay in getting her access to the hearing arranged, and so there was a delay of over an hour and a half. The hearing had been listed for 10:30am but didn’t start until after noon.  

The hearing was very short, around 25 minutes. No significant submissions were heard.  The judge just asked if there had been any progress since the previous hearing and whether any agreements had been reached. 

There had not been any progress. P’s wife opposes the position taken by the Local Authority and by the Official Solicitor (on behalf of P): she is not willing to move out of Number 15 without a court decision, and wants to have unrestricted contact with P.  This is not, in the view of the other parties, in P’s best interests (see previous blog about this case for more details).

The arrangements for the next hearing were discussed: P was to attend virtually, but everyone else involved would be present in person at the RCJ. Having since checked the RCJ list, which says it will be listed on MS Teams, either the list is in error or there has been some change since the hearing on the 8th June 2022, that I’m not aware of. The contested hearing is listed before Sir Jonathan Cohen, although there was no explanation for the change in judge in the hearing I attended. 

As with the first hearing, the interpreter and P’s wife had no separate platform of communication and so the court heard the ongoing interpretation throughout the hearing. 

Again, W did not appear to have read any paperwork due, I think, to not having had anything available in her own language, and so arrangements were made for the interpreter to read this to her after the hearing. 

This struck me as a significant disadvantage for a Litigant in Person.  Having a solicitor or legal advisor to read this for her would have helped her to understand her position more clearly. Anyone who has read court bundles will know that they are often lengthy and written with legal terms and phrases alien to the layperson. I do feel for the Wife in having to rely on the interpreter to quickly read out the papers. This isn’t the first time I’ve seen information not being translated, just a cover letter, and the information left in English, and the impact on equality never fails to astound me. 

As described in relation to the first hearing, I found that the Judge was acutely aware of the disadvantages faced by W as a Litigant in Person and as someone using an interpreter. He encouraged her (as he had done previously at the last hearing) to get legal representation. He reassured her she wouldn’t have to pay for this.  She stated, through the interpreter, that she is opting not to be represented at Monday’s contested hearing. She didn’t say why. It wasn’t clear, to me at least, if she had sought legal advice since the previous hearing.

The Judge asked that some discussions should take place between the parties following the short hearing, in the hopes that some agreement and conclusion could be reached. However, this must not have been possible, as the contested hearing is listed for Monday 13th June 2022. 

Although this was a short hearing and in effect nothing much happened, I am glad I observed this hearing because it has given me greater insight into the role of Litigants in Person, particularly those that have the additional complication of using interpreters.

As an aspiring barrister, I noted the ways in which the barristers interacted with W, through the interpreter. I’ve not seen these barristers before, but they spoke slowly and clearly and used plain English. They tried to support W’s understanding of and inclusion in proceedings. 

I hope that W is able to attend in person on Monday 13th June 2022 and is able to experience the contested hearing on more equal footings with the other parties. 

Mollie Heywood is a full time children’s social worker and part time law student at the University of Law and aspiring barrister, passionate about social justice and human rights.  She tweets @mollieaheywood

Photo by Jr Korpa on Unsplash

Fairness in court for a Litigant in Person

By Celia Kitzinger, 12th June 2022

At the hearing I observed (COP 13861341) before Mr Justice Francis on 18th May 2022, the applicant local authority was asking the court to make orders that P’s wife must move out of the home where the couple had lived together for many years, and that her contact with him should be restricted.

The Official Solicitor supported the draft orders.

It was clear that P’s wife does not want to move out of the house, nor does she want her contact with her husband restricted.

Unlike the other parties, P’s wife did not have legal representation.  She was a Litigant in Person (LiP)[1].   

I often see family members in Court of Protection proceedings without legal representation.

The Equal Treatment Bench Book covers a wide range of issues relating to fairness in court and provides specific guidance for judges on how best to ensure that Litigants in Person are treated fairly[2]. The guidance recognises, of course, that some Litigants in Person choose to represent themselves (e.g. because they don’t trust lawyers, or believe that they will do a better job themselves of putting their case across §2), but also, crucially, that most Litigants in Person in fact have no choice in the matter: they cannot afford to instruct a lawyer and do not qualify for legal aid.

Here are some extracts from the Equal Treatment Bench Book which highlight the importance of fairness in court for Litigants in Person.

Fair treatment is a fundamental principle embedded in the judicial oath and is, therefore, a vital judicial responsibility. […] Treating people fairly requires awareness and understanding of their different circumstances, so that there can be effective communication, and so that steps can be taken, where appropriate, to redress any inequality arising from difference or disadvantage. This Bench Book covers some of the important aspects of fair treatment of which all judges should be aware, making some suggestions as to steps that judges may wish to take, in different situations, to ensure that there is fairness for all those who are engaged in legal proceedings in our courts and tribunals.

§ 1 and §4, Equal Treatment Bench Book

Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.

§10 Equal Treatment Bench Book

For a discussion of the potential difficulties in communicating with people from different cultures and/or who speak English as a second language, see the sections on ‘Communicating interculturally’ and ‘Language interpreters’ in chapter 8. Those sections consider communication with witnesses, but difficulties are likely to become more acute when a person is also presenting his or her own case, without any representative to mediate cultural and linguistic understanding. 

§21 Equal Treatment Bench Book

Judges must be aware of the feelings and difficulties experienced by litigants in person and be ready and able to help them with the court process…. […] LIPs commonly feel at a profound disadvantage. The aim of the judge should be to ensure that the parties leave with the sense that they have been listened to and had a fair hearing – whatever the outcome. 

§17 Equal Treatment Bench Book

Sources of outside help and information for LIPs : Some litigants in person are unaware of the explanatory leaflets available at the court, or of the lists of advice agencies. Citizens Advice has an informative online information system, and local Citizens Advice offices may be able to offer assistance with case preparation. Advicenow also has a useful collation of resources on its ‘Going to court or tribunal’ website page. While these possibilities may be flagged up to LIPs, it is important not to overestimate the availability and extent of voluntary sector assistance. Advice agencies have been subject to severe funding cuts, both to grants and to legal aid income, in recent years. LIPs are likely to have difficulty in getting prompt appointments or finding the level of specialist expertise needed. The experience of trying to find help without success can itself be very demoralising. 

§18, Equal Treatment Bench Book

In this post, I’ll look at how this hearing unfolded with particular reference to how the judge embodied through his actions some of the relevant principles of the Equal Treatment Bench Book quoted from above, and the challenges in doing so.

What was the hearing about?

The  local authority was making two applications to the court: one under the inherent jurisdiction of the High Court (more on this later), the other under the Court of Protection.

The first was an application for an injunction against P’s wife ( W ) ordering her to move out of his house in two weeks’ time.  This is because P would like to move back home (he’s currently in residential care) but she is alleged to have abused him.  The injunction also requires her to permit access to professionals between now and then, so that they can make the accommodation suitable for P to move in.

The second was an application to make declarations – on the basis of an expert capacity assessment that wasn’t disputed – that P has capacity in relation to residence and care, but lacks capacity to make decisions about his property and financial affairs, and about contact with his wife. (He also lacks capacity to conduct these proceedings and the Official Solicitor is acting on his behalf).  

On the basis that P lacks capacity to manage his finances, the applicant local authority also asks for appointment of a Deputy to deal with his property and affairs – and also an ‘interim’ Deputy to be appointed urgently so that matters can progress until a panel Deputy is approved by the court.

On the basis that he lacks capacity in relation to contact with his wife, the applicant local authority asks that P’s contact with his wife should be restricted in his best interests.

The Official Solicitor (acting on behalf of P) supports these applications. 

As became clear during the hearing, although P’s wife, W, was content for a Deputy to be appointed for her husband, she opposes the injunction requiring her to move out of the home she shared with her husband for many years (although by the end of this hearing there was some indication that might change), and she opposes restrictions on her contact with her husband.  She does not accept evidence that she abused him.

P’s wife was multiply disadvantaged in this hearing.  

  • Unlike the local authority and P, she did not have legal representation, i.e., there was no barrister in court to speak for her.
  • She is not a first language English speaker, so she was reliant on interpretation during the hearing and translation of documents into her own language (which had not been done, although some translated summaries had been sent)
  • She had not been sent copies of the up-to-date draft orders 
  • She had not been included in the pre-hearing discussion at which these orders had been discussed and agreed by the other parties
  • She was attending the hearing via phone when the other parties were using the video-platform, so had no access to visual cues accessible to others. 
  • She was angry and upset, and displayed some fundamental misunderstandings about the basic legal principles of the Court of Protection.

Background

The protected party (P) is in his seventies and has Parkinson’s disease and dementia.  He’s been living in a care home since December 2021 and would like to return home to a property of which he is the sole owner and the local authority is considering whether a return home with a package of care in place would be feasible.  The presence of W in the property is “a significant barrier” (says the Official Solicitor) because it poses issues “in relation to P living without abuse, and with successful delivery of care”. 

Counsel routinely referred to P’s home by its street address (I’ve pseudonymised it as “Number 15”), presumably as a more neutral designation than alternatives such as “the matrimonial home” (used by the judge at one point) and “my house” (used by the wife, via the interpreter).

The local authority is of the view that, despite having capacity to make his own decision about where to live,  “his free will is being overborne” by his wife who has been accused of abusing him – physically, emotionally and financially.  This means that he is a “vulnerable adult”  as described in case law (e.g. Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867 and Re SK [2005] 2 FLR 230).  

The Court of Protection cannot make best interests decisions in situations where a person is deemed to have capacity to make that decision for themselves (even if the decision is an unwise one).  But the High Court can do so, under its “inherent jurisdiction” if the person is a “vulnerable adult”.  This includes cases where a person is at risk from other people (e.g. from domestic abuse, undue influence, coercion or control) but “chooses” to remain in that situation while being apparently able to understand, retain and weigh (s.3(1) Mental Capacity Act 2005) the information relevant to their decision – or at least their inability to do so cannot be said to be caused by “an impairment of, or a disturbance in the functioning of, the mind or brain” (s. 2(1) Mental Capacity Act 2005): in other words, they have capacity to make the decision that puts them at risk of harm. The inherent jurisdiction has been described as “the great safety net”, (Re DL [2012] EWCA Civ 253) used by High Court judges to fill the gap left by the fact the Mental Capacity Act only applies to those lacking mental capacity applying the test in ss.2-3 of that Act. (See the excellent ‘shedinar’ by Alex Ruck Keene on the inherent jurisdiction here and a downloadable pdf from 39 Essex Chambers here).  

So, although P would like to return home and has capacity to make that decision, the local authority is of the view “this cannot happen” while his wife is living at the house, or continues to have access to it.  “If he were to [return to Number 15] with W in occupation, it would compromise his well-being. That is because of his will being overborne by W as part of their relationship.  Even though he’s been living away from her for a couple of months, it isn’t a situation where his will has become entirely independent.”[3] (Counsel for the LA)

They have applied for an injunction under the inherent jurisdiction of the High Court to exclude W from P’s property and to restrict her contact with him. 

The proposed property and affairs Deputy appointed to manage P’s finances will be able to offer short-term financial assistance to W if she can’t arrange alternative accommodation. In the long term, one option is for P’s house to be sold and separate accommodation to be purchased for husband and wife: that’s an option that P himself has sometimes said he wants to happen, but has at other times been less keen on.  His consistently expressed wish is to return home to Number 15 (sometimes to live with her, sometimes with her living elsewhere).  

Up until today’s hearing, W has (say the local authority) been “obstructive” and “refused to take part in proceedings or comply with court orders”. 

By way of a little additional background, W is P’s second wife, whom he met while travelling in Asia. They have two daughters of secondary school age who have been removed from their care because W “poses a serious risk of harm to the children”.  P also has an adult daughter (with whom his ex-wife lives), and he’d lived with her for some months after he moved out from his own house due to W’s behaviour.

The hearing

The applicant local authority was represented by Michael Paget of Cornerstone Barristers, and a social worker was also present.

The first respondent, P, was represented (via his litigation friend, the Official Solicitor) by Sian Davies of 39 Essex Chambers.  P was also present at the hearing – with his camera on, seated on a red High Back chair in his care home, apparently alert but impassive throughout.

The second respondent, P’s wife, W, was a litigant in person, attending with her interpreter.  

When the judge joined, there were (brief)  introductions as to who was in court, and their roles.  Although the judge greeted P (“Before we go on, I can see P sitting there too – hello can you hear me?”) he did not greet W, who was attending via phone and so was not visible on the screen.  

And there was no opening summary at the beginning of this hearing.  I initially struggled to work out what it was about. I imagine that W was completely at sea (despite the translation) when listening to Michael Paget’s opening remarks. 

The challenges of interpretation 

At the beginning of the hearing, Michael Paget (for the applicant local authority) checked that the judge had received the Position Statements from the represented parties.  He then said that there was “a further iteration of the draft orders following a pre-hearing meeting and I can send these through shortly”.  I gathered that an order for W to leave Number 15 had been amended from a week from today to two weeks from today, and it had been agreed that the local authority should be appointed as an interim Deputy (pending appointment of a Deputy by the court) in order to manage immediate financial matters such as ensuring utility suppliers at Number 15 are paid, that the house has access to the internet and so on.

After each paragraph of speech from counsel, the interpreter translated everything into W’s language, and the court waited while this was done.  At previous (remote) hearings I’ve watched, the interpreter and the person for whom they’re interpreting have both appeared on the video-platform with their mikes off, and have had a separate  channel of communication open to them (e.g. telephone or WhatsApp).  (For a description of how this can work, see British Sign Language Interpretation in the Court of Protection). This means that the court doesn’t experience the interpreter’s version, which is going on behind the scenes. In this hearing, because only the one channel of communication was open for W, we all listened to the interpreter throughout the hearing.

What struck me was how long the interpreter’s version was compared with the original English.  The judge also commented on this (“it seems to take twice as long in your language”)  and the interpreter explained that sometimes there is no direct translation so she had to explain the meaning of words in roundabout ways. (“Thank you for explaining”, said the judge). This also meant the interpreter occasionally used English words, which for English-speaking listeners, jumped out of the flow of an otherwise unintelligible translation.

The judge smiled during the course of one (fairly lengthy) translation and hastily accounted for this by saying “it always amuses me when we get an English phrase in the middle of a [foreign language] sentence – so ‘Court of Protection’. That’s all I was smiling about, nothing else”. I recalled this comment when I read this paragraph in the Equal Treatment Bench Book:

A thoughtless comment, throw away remark, unwise joke or even a facial expression may confirm or create an impression of prejudice. It is how others interpret the judge’s words or actions that matters, particularly in a situation where they will be acutely sensitive to both. 

§21 Equal Treatment Bench Book (my emphasis)

A contested injunction to vacate Number 15

The first task the judge addressed was to determine whether he was having to make a decision that everyone basically agreed about (certainly the applicant local authority and the Official Solicitor were in agreement) or whether one party – P’s wife – disagreed and so the hearing was “contested”.

Was W objecting to moving out of Number 15 or was she willing to leave the property as the draft injunction required her to do?

Counsel for the local authority said: “until today ,W has taken no active steps in proceedings, and the Official Solicitor and Applicant have had no comfort that she would be willing voluntarily to vacate the property or voluntarily amend or restrict her contact with P.”[5]

The judge asked, “Does that mean I’m hearing a contested injunction this afternoon?” and counsel for the local authority said “I think so – subject to what W says. It might be she’s willing to give undertakings, but the Official Solicitor and the Applicant would not be comforted by undertakings at this stage in the proceedings, given the history of the case.”

The judge did not then immediately ask W whether or not she was willing to vacate Number 15.  Instead, he asked counsel a series of questions which seemed directed to ensuring that W was not disadvantaged by her role as a litigant in person.  

He pointed out that there were written witness statements providing evidence for the position of the local authority,  but the local authority said that it did not propose to ask for oral evidence in court. The judge pointed out that W may wish to cross-examine on the statements. 

It then emerged that W had not seen a copy of the Order the local authority was asking the judge to make.  

Judge:  How can I deal with a contested injunction if the respondent doesn’t know what you’re asking for?

Counsel for LA: She does know what we’re asking for, but she doesn’t know the precise wording. She doesn’t have internet, so we’ve been hand-delivering papers to her.

At this point, Mr Justice Francis addressed W directly, and the following exchange took place (Bear in mind that the judge’s questions had to be translated into W’s first language, and W’s responses were then translated into English.)

Judge: Mrs W, can I ask you this question. Do you agree that from 1st June you should not be allowed to occupy or visit Number 15?

Wife: No.

Judge: Do you want to live there with P or on your own?

Wife: (crying) Of course I want to live there with my husband and children. This is my family.  I don’t have a solicitor.  I have not had enough money to buy food. My phone has been stopped. I don’t have money to pay for it.  We have legal marriage, so why? Tell me why!

Judge: (to counsel) Legal aid – is it merit-tested or means tested? Would W be entitled to legal aid or not?  I am troubled that she doesn’t have legal representation today.  Translate please.

Wife: (crying) I am a human being. I am not an animal. I have child with my husband. After each day this matter seems to get more serious. I am not a bear. Why do I have to be away from my husband? Why keep saying untrue things about me? If my husband cannot remember, I can look after him.  I am not some stranger walked into his life. He asked to marry me and he is my husband.

Judge: (to applicant counsel) Balancing fairness for both parties, how am I to meet the requirement for fairness towards W if she’s not represented this afternoon?

Counsel for LA: These proceedings have been afoot for some time and she’s been aware of these proceedings. It’s very good news for the court that she’s now engaging. She’s had the whole of 2022 to engage with the issues in this case, her relationship with P, and her occupation of Number 15.  W has decided to engage at this late stage with the proceedings, but it’s clear from what she’s said thus far that she’s not engaging with this issue.  She’s engaging with historic issues relating to her children that are not germane.

Judge: If I don’t make the order this afternoon, where does P live?

Counsel for LA: He’ll continue to live at the care home. (Confirmed that he was not being asked to leave.) The court has a choice whether to make orders today, or a short-order return date if W wants to challenge the applicant’s evidence that P is at risk in her company.  W has failed to engage at all with those assertions and is in denial that they have happened or are likely to happen. She does not recognise the wishes and feelings of P, or the court decision that it is not in his best interests to have unrestricted contact with her.  We’re not confident that if the court does indulge her to give her additional time with an in-person hearing that that will assist in putting forward any case whatsoever against the manifest evidence that has been provided by the local authority and is supported by the Official Solicitor.  P has been living in a care home where he shouldn’t be for months now.  It won’t make a dramatic difference if you don’t make the order today, but it’s completely sub-optimal and unsuitable for him.

Judge: What do you say are the prospects of- Is there any benefit to P if he and W live in the same house together, or do you regard that as untenable and unsafe for him?

Counsel for LA: The latter.

Judge: (to W) If I put this case off for a few weeks, are you going to be able to get a lawyer?

Wife: It will be impossible.  Because I don’t have money for taxi, I don’t have money to eat. Everything in this house has broken – microwave, oven, fridge, washing machine, even the bathroom, the internet.  My phone is not working because I have not been paying the bills.  I need people to help me find a solicitor because it’s not going to work for me if I have to do it myself.

Judge:  Has anyone done a survey of the property to find if it’s suitable?

Social Worker: I visited the property yesterday. Everything appears in good order. The fridge and the cooker were working.

Judge: If I make the order you’re seeking, you’re satisfied that with P’s money she could rent somewhere in the notice time that she’d have?

Counsel for LA: Yes.

Judge:  Mrs W, do you want to ask questions of any witnesses if I proceed to hear the case this afternoon.

Wife:  This is a small trivial matter. A trivial family matter.  This is not a corporation that requires witnesses.  We don’t need witnesses for this kind of case because it’s a family matter.  The ladies who come to the house, sometimes they are happy-happy, sometimes they shout at me. I am a human being and I retaliate. I raise my voice.  At first it was my children not being well, then my husband not being well.  All fabricated.  When husband is not well, he needs wife to look after him.  When not quite clear in the head, everyone would need to have a spouse by their side – to look after you so when you’re unwell, under the weather, you have someone there to rely on.  Why did the ladies who came to my property not allow me to give explanation?  As soon as I left my property, they took my husband to the nursing home.  In [country of origin] I own a company, okay?  I am a company director, so I haven’t brought my money over. I am not a maid.  The whole thing has been exaggerated by people who are not listening to me. They’re not on my side, so they have invented things and expected me to follow.

For me as an observer, this answer (and the exchange leading to it) revealed significant problems in W’s understanding of the case, and its legal framework, and indeed of the procedures and processes of the Court of Protection.  She doesn’t understand the role of witnesses in this court, or recognise that it has jurisdiction to make judgments about “family matters”.  People are often surprised and shocked to learn that once a family member loses capacity, “next of kin” cannot make decisions about them, and that the state – in the form of professionals and sometimes the court – takes over that role.  For people from cultural backgrounds which place great emphasis on “family”, this must be particularly challenging. 

The judge asked counsel for the local authority how he should proceed. 

Judge: Mr Paget, where do we go from here? I’m sympathetic to P’s position, but I also have to consider Mrs W’s position.

Counsel for LA: Her indirect answer, if we take it that [the Social Worker] was one of the women who visited her, is that the evidence is ‘fabricated’, ‘invented’ and ‘exaggerated’.  So, she’s clearly contesting that evidence. Balancing fairness, she should have the opportunity to give her evidence.

The judge then turned to the Official Solicitor.

Judge:  Ms Davies, I’m very troubled about this – because if moving P back into his own home is the right thing to do, then the sooner the better.  Having said that, W presumably has matrimonial rights to live in the property.  Ms Davies, what do you suggest I do?  Make the order today or put it off for the possibility of W being represented?

Counsel for P: The first point I’d make is one that Mr Paget has already made the court aware of. Proceedings began in December last year. This is the first hearing W has attended.  Not only has she not attended, but she’s not engaged with proceedings.  My client doesn’t want to be in a care home.  It’s not being suggested on anyone’s behalf that W should be made homeless.  Alternative accommodation arrangements will be made for her. There are clearly serious issues to be resolved and it is a matter of concern that W regards these issues as “trivial”, because the Official Solicitor considers them to be very serious.

Judge:  The parties are married.  It’s a matrimonial home where they lived as a couple.  I can’t ride roughshod over her rights and say, “oh well, she’s got somewhere else she can go”.

Counsel for P: It’s a difficult balance.  There is a disadvantage for W in being a Litigant in Person. I’m not able to say with certainty that she’d qualify for legal aid, but it would seem on the face of it she’d qualify for representation.  She doesn’t say she’s attempted to secure legal advice and been unable to – which is consistent with her until very recently not engaging with these proceedings.

I was perturbed that the Official Solicitor seized on W’s use of the word “trivial” – by which I heard her as meaning “family-not-corporate” – to undermine her position. This didn’t seem fair – especially since “trivial” was in translation anyway.  She also used W’s lack of legal representation to emphasise (again) that W had not been “engaging with these proceedings”.  I heard this as casting aspersions on W in an unnecessarily adversarial manner.  The judge did not comment.

What was clear was a shared concern that W should have access to legal representation if at all possible – and a potential solution was arrived at later in the hearing. 

Court of Protection Order to limit contact

So far, the discussion had been about the draft injunction (under the inherent jurisdiction) requiring W to move out of Number 15.  Counsel for the local authority now raised the matter of the orders they were seeking under the jurisdiction of the Court of Protection.

In response to the judge’s questions, Counsel for the LA said that  – just as with the previous Order – W had not seen the Order the applicant was seeking from the judge.  This really is troubling, and the judge again raised issues of fairness.

Counsel for LA: Mrs W hasn’t had an opportunity to comment on the Court of Protection draft order, with the invitation to appoint a panel deputy and to restrict her contact (as a best interests decision) with P.

Judge: When did W first see the Court of Protection Order?

Counsel for LA: She hasn’t seen a copy of it.  She was aware of what we were seeking in Court of Protection proceedings – although she was not aware of the additional interim Deputy issues.

Judge:  Has she been sent a copy of either draft order – either in English or in her own language?

Counsel for LA: No.

Judge:  If you were representing W in these proceedings and you were being asked to comment on an order you hadn’t seen at 3.30pm, you’d be saying it wasn’t fair, wouldn’t you.

Counsel for LA: I would if it was a long and complicated order, but it’s short and can be explained to her.

This exchange was followed by (what I experienced as) a long and complicated explanation of the contents of the Court of Protection order from Counsel for the local authority.  I was not sure of what some of it meant myself, particularly in relation to the financial deputy.

Judge: When did W get notice that the local authority was seeking these other orders – not about the house, but all the other orders.

Counsel for the LA:  25th March or shortly thereafter

Judge:  (to W) Do you agree you had notice on 25th March or shortly thereafter

Wife:  I have received quite a lot of paperwork but all in English.  Please say to the court they have to be in [Asian language] otherwise I can’t read them.

Counsel for the LA:  We sent a cover letter explaining the substance of the order and that has been translated – but not the order itself.  (Refers to pages in the bundle which show they’ve done this).

At this point I was struck by how exhausted the judge looked.  He took his glasses off and rubbed his eyes.

It does seem to me pretty basic on any understanding of fairness that all parties to a case, including a Litigant in Person, should have received the relevant Position Statements and draft Orders, before the hearing – in a form they can understand and with enough time to read them.  I’ve watched several hearings where Litigants in Person have not received draft Orders and have had to rely on explanations of them in court, or speed-reading during a brief adjournment.  I understand, I think, how this can happen, but it is surely a self-evident problem when considering equality and fairness in court.

The judge then took it upon himself to explain the draft Order – apparently recognising that counsel’s explanation of it would have been unintelligible to W.

Judge: So, the first thing is the appointment of a Deputy.  I don’t expect W knows what that means.  What we’re talking about now is whether I should make an order appointing the London Borough of Hillingdon to take control of your husband’s financial affairs.  Is that something you can agree to or not?

Wife:  I agree, because I know my husband is living in there, not being able to look after his cards.  However, I want to ask the court what will happen to me.  How about my spending?

Counsel for the LA:  There is authority under the Deputy order to pay reasonable living expenses and, if required, rent for W.

Wife:  To me, all I care about is for my husband and my kids to be safe. Those things are the most important. Everything else is temporary only.

Counsel for P:  P’s  view is that he would want his wife to be looked after financially. That is in accordance with his wishes and feelings.

At this point, with the clock obviously ticking and a busy schedule, the judge said:

Judge: We can’t do this piecemeal or we won’t get through it.  I will make declarations that P lacks capacity regarding litigation, financial affairs and contact with the second respondent.  Secondly, I’m going to make an order for a panel Deputy.  Mrs W herself has indicated that she agrees that I should do that, and it’s plain from everything I’ve heard and read that I need to make that order.

I didn’t hear him say that he was going to make the order that it was in P’s best interests not to have contact with W, or that he wasn’t going to make that order. I don’t know what the judge decided on that.

There was then a discussion of dates for next hearings, with consideration of whether it should be in-person, remote or – as was decided in the end – hybrid (so that P could attend remotely).  The judge fully consulted W about this – she said she didn’t have a preference.

Foreshadowing the issue to be addressed at the next hearing, the judge then asked W the key question about whether she would move out of the property, so that P could return there.

Judge:  Mrs W, let me ask you this.  If P is able to fund you to live in a rented property, are you willing to live in the rented property and for him to live in Number 15.

Wife:  I am quite easy on this.  It’s not important.  I can survive without eating for one day, maybe two days.  So long that my husband and kids are well.

Judge:  I’m not talking about food. I’m talking about accommodation.

Wife:  I told you. I mean I am not fussy on this.  Whatever.  Staying somewhere, eating something, these things are not important.

Judge: (to counsel) Once you have the Deputy appointed, you may be able to come to some arrangement and she might move out.  If the Deputy and W come to an arrangement, because she says she’ll be fine with that, then you will get what you want without a further hearing.

Legal representation for W

The judge then mooted the idea that he should list the hearing for “one morning next week, in the hope that you might have been able to crack this by the route I’ve suggested”.  

Counsel for the local authority agreed – and the judge reminded him that “there is a huge problem with language and understanding. If you are to do a deal with W, you have to produce documents and use language and concepts she can understand”. 

He then checked that W had understood that no decision had been made today about her occupation of P’s property (she said she understood) and encouraged her “in very strong terms to get some legal advice”.  He mentioned Citizen’s Advice (see §18, Equal Treatment Bench Book), and commented on how “unavailable” legal aid is “in situations like this” and that as a consequence, “the system works much more slowly and much more cumbersomely and to the disadvantage of people like P”.  

He then raised a possible solution to the problem of representation for W, asking counsel for the LA: “What are the prospects of the Deputy being prepared to make money available to get legal advice from a solicitor qualified in Court of Protection work to advise W?”.

Counsel agreed to explore this as a way forward: “the Deputy is governed by best interests at every stage. It would be in P’s best interests for W to have legal advice.”

One final issue was raised by Counsel for P – the matter of professionals having access to Number 15, so that they can ensure it’s suitable for P to move back in.  On checking with W, she said she “agreed” and was “content” for this to happen and the judge asked for a recital to be added to the order that she’s agreed to permit access (“not a formal undertaking, because that creates legal difficulties”).  

The judge ended the hearing by addressing Mrs W.

“Mrs W, what I’ve tried to do, I’ve tried to walk the difficult line between protecting P and protecting you.  And I’m very grateful to you for making the agreements that you have.  And what you’re being asked to do now is consider moving out of Number 15 once you’ve got enough money to live somewhere else.  And I’m going to list this matter in another remote hearing, like this, so we can all meet and agree that this matter has been resolved.” (Judge) 

He checked that an interpreter would be provided for in the draft order for the next hearing, thanked the interpreter, and concluded: “With understanding and patience, I think we’re going to get there”.

Fairness?

In my view, the judge did virtually everything he could, within the parameters of the time constraints, to treat P’s wife fairly as a Litigant in Person.

Most importantly, he did not issue the injunction ordering her to move out of “the matrimonial home” – hoping instead that she would agree to do so once he’d authorised the local authority to act as interim Deputy, so that the local authority could “make a proper offer to W to enable her to live elsewhere” (i.e. living expenses and accommodation). 

If that doesn’t happen, or W doesn’t accept this offer, the case will be back in court but hopefully, next time, with legal representation for W, paid for by P if necessary.

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 with cut backs in legal aid (which disproportionately affect members of BAME groups and women, i.e. people like W) this can be impossible.

That’s why the Equal Treatment Bench Book is so important, as increasing numbers of Litigants in Person come to the courts, in offering guidance and support to judges about how to deliver “fairness” when the parties before them are starting from such unequal positions.

Observing this hearing showed me how difficult it is to do that, even with a judge very clearly oriented to matters of fairness and to the inequal resources of the parties before him.  

It isn’t unusual for me to see the guidance on “fair treatment” from the Equal Treatment Bench Book being put into practice.  Whenever there’s a Litigant in Person in court (which is often), I see judges doing their very best to ensure that person feels comfortable, understands the procedure, and feels able to participate.

In many hearings I’ve observed, the Litigant in Person takes a position which is supported by either the local authority or by the Official Solicitor (or by both).  In such cases, the inequality they face is less starkly apparent. But here, the Litigant in Person was on her own, opposing Orders agreed by the other parties.

This case stands out for me as particularly challenging not only because of the multiple ways in which W is disadvantaged and the absence of support from other parties, but also because her interests, as a Litigant in Person, are diametrically opposed to (what the other parties agree) are P’s best interests. 

She wants to remain in Number 15 and to have unrestricted contact with P. They say it’s in P’s best interests for her to leave Number 15 and for her contact to be restricted.  

So, the judge is forced to juggle two key principles.

On the one hand there’s the primary commitment to acting in P’s best interests that is central to the work of a Court of Protection judge – which means (according to the represented parties) that he should issue an injunction against W so that P can go home.  There was no effective position to counter that application.

On the other hand, W has not been able effectively to present her case to the court. She doesn’t have legal representation, hasn’t seen the Orders in advance and doesn’t understand the legal principles at stake.  There hasn’t been a fair trial.  And so, to issue the injunction would seem to violate the “fundamental principle” of “fair treatment” that is a “vital judicial responsibility”. 

Postscript: The subsequent hearing (on 8th June 2022) was observed by social worker (and aspiring barrister) Mollie Heywood whose blog post you can read here (A short hearing and a failure to agree). In essence, there was no agreement reached and so a contested hearing is listed for 10.30am Monday 13th June 2022 before Sir Jonathan Cohen (via MS Teams).

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

Photo by Elena Mozhvilo on Unsplash

[1] It became clear that she had not previously played any part in these proceedings and counsel had not initially expected her to be present in court today: she had told them that she might return to her country of origin (in Asia) while the proceedings were ongoing, but had not in fact done so.

[2] There are also resources for Litigants in Person here: https://www.judiciary.uk/you-and-the-judiciary/going-to-court/advice-for-litigants-in-person

[3] Direct quotations from the hearing are as accurate as I can make them, but we are not allowed to audio-record hearings and so they’re based on touch-typed contemporaneous notes and are unlikely to be verbatim.  At this hearing, however, advocates were asked to speak slowly to help the interpreter, and there were many gaps in the proceedings while the interpreter translated what had been said, and occasionally asked for repeats or clarifications.  This means it was also easier for me to get down what was said with greater accuracy (I believe) than I might otherwise have achieved.  

 

Conditions on contact between mother and son: Missing P’s voice

By Celia Kitzinger, 9th June 2022

This was an urgent hearing to consider the issue of contact between Mrs M and her son.

Until the end of last year, Mrs M, who is in her eighties and has dementia, lived with her son at his home. Her son was her main carer.

She’s now living in a care home, and the local authority has made an application to place conditions on her contact with her son.  They want an order that he cannot remove her from the care home for any reason, and that his visits to the care home should be supervised by staff.

Clearly, something has gone very badly wrong.

The hearing

I watched this hearing (COP 1393210T before District Judge Charnock-Neal in Newcastle) on 27th May 2022 via MS Teams.

I had no idea what it would be about: it was listed (unusually for Newcastle) without any mention of the issues before the court[1].

from CourtServe

I learnt from the very helpful opening summary by Adrian Francis of Deans Court Chambers, representing the respondent local authority, that the case had begun as a s.21A appeal, with Mrs M as the applicant, represented by Jonathan Barker of The Richmond Partnership, via her paid Relevant Person’s Representative (RPR).   Mrs M objects to being detained in the care home and deprived of her liberty. This was supposed to be the first directions hearing to address that matter.

But instead, just a few days before this hearing, Durham County Council, the local authority that is depriving Mrs M of her liberty, made an urgent application seeking an order that “Mrs M is not removed from the care home for contact or any other reason by her son, and that their visits within the care home are supervised”.  

Mrs M was not in court, nor was there any mention during the hearing of whether she could or should have been.  

The son whose visits were the subject of the order (I’ll call him “Ali”)  was present, but not as a party to the case.  His two brothers were there too and all three were invited to address the court.

Some professionals involved in Mrs M’s care, including her social worker, were also visible on screen, but did not speak.

Although the respondent local authority lawyer (Adrian Francis) played a full role in the hearing, Jonathan Barker (for Mrs M) did not.  

If the hearing had been proceeding as a s.21A case, Jonathan Barker would have been representing Mrs M via her paid Relevant Person’s Representative (RPR).  But in the context of the new application concerning contact, he said he could not do this.  He made it clear from the outset that “the limits on the steps that the paid RPR might properly take on behalf of [Mrs M] are such that the paid RPR cannot act as Litigation Friend for the case as a whole or even in relation to potentially contested applications such as this”.  He said he could “do little more than adopt a neutral stance in relation to this application, pending the appointment of a Litigation Friend for Mrs M” (i.e. the Official Solicitor). However, he did point out (both in the written position statement and orally) that Mrs M’s wishes and feelings on the subject of contact are largely unknown and should rapidly be elicited and that her sons had not had any opportunity to respond formally to the evidence from the local authority. He also asked the court to issue the appropriate directions for the further conduct of the s.21A application, which was the only area in which he could act for Mrs M.

So,  Mrs M was effectively unrepresented in this hearing about the contact she could have with her son.

I was concerned that the local authority’s application was one that would interfere with Mrs M’s Article 8 right to respect for her private and family life (and of course the right of her son), but Article 8 was not raised in the hearing, nor was it mentioned in either of the position statements I was sent. 

Nor were Mrs M’s wishes and feelings about contact with her son much mentioned by the local authority – except for the claim that she was (or might be) upset by his behaviour – for which no evidence was supplied during the course of the hearing.

Overall, this was one of the very few hearings I’ve observed where I felt that the protected person at the centre of the case lacked a voice.  I got very little sense of Mrs M as a person, or what her views are about visits with her son.  

What I did learn about Mrs M came largely from Ali and his brothers.  Despite apparent rifts in the family that meant the brothers did not have much to do with each other (and one lives overseas), they came across as united in their love and concern for their mother, and their unanimous focus was on releasing her from the “prison” (as Ali called it) of the care home. 

Counsel for the local authority (Adrian Francis)

According to counsel for the local authority, the problem with continued contact between Mrs M and her son Ali, is that Ali has “exhibited challenging behaviour with professionals”, which is said to have “upset his Mum”[2].

Ali strongly objects to his mother being deprived of her liberty and he objects to her receiving the prescribed medication, the antipsychotic risperidone.  He thinks this may be causing her harm, and has repeatedly suggested a “medication holiday” to test that out.

He first raised these objections at the end of 2021, when Mrs M was hospitalised under s.2 Mental Health Act 1983: she was said to be self-neglecting and to have delusional and persecutory beliefs. According to the local authority, “it is reported that [Mrs M’s] home conditions posed a significant risk to her and that she had taken to keeping a knife by her side, was hoarding and barricading herself into her home”.  Since she was “non-compliant at the point of admission”, she was subsequently admitted to hospital following the execution of a warrant for a Mental Health Act 1983 assessment.

Risperidone alleviated her symptoms, says Adrian Francis, and she returned home.  But once she got home, she stopped taking her medication and “failed … to co-operate with the package of care”.  She was recalled to hospital after only 4 days and on 16th March 2022, a Mental Health Tribunal upheld Mrs M’s detention under s.3 Mental Health Act 1983.  At some point (I’m not sure when) she was discharged from hospital to the care home where she now lives.

The local authority has a raft of complaints about Ali’s “inappropriate” behaviour.  In particular, he “has a history of persuading her not to take her prescribed medications”.  

The local authority filed evidence from Mrs M’s social worker explaining why it’s necessary to restrict her contact with her son to supervised contact only within the care home or its  garden. 

On 19th May 2022 (says the social worker, quoted by the local authority), Ali did not return Mrs M to the care home until 8.45pm, meaning she was not able to take her medication at the correct time. 

Ali took this mother to the local GP surgery and refused to leave until she’d been seen by a GP (says the local authority). There was also evidence about his behaviour in a statement from the GP surgery. He had “barricaded the doors open” and was “shouting in the reception area, in front of P and other patients, threatening to sue the surgery and saying that P has been ‘left to rot’ in the care home”. 

The local authority alleges that that Ali is telling his mother not to take risperidone and that her medication makes her breathless. After speaking with Ali, Mrs M has sometimes “secreted her medication” instead of swallowing it, “which could lead to her becoming acutely unwell”.

The local authority believes that “witnessing her son’s inappropriate behaviour” is or could be upsetting for Mrs M. They say that if Ali were to be permitted to continue to take his mother “into the community for contact visits”, it would lead to further disruption to her medication schedule.  Overall, his behaviour is putting his mother’s placement – where (says counsel for the local authority) she is “generally settled” – at risk.  

The local authority is not asking for a restriction on the number of visits (though they would need to be within normal visiting hours) but they want those visits to be supervised by a member of staff and to take place only within the care home or its garden.

Mrs M’s son, Ali

According to Ali, before the intervention of the state into their lives, and his mother’s compulsory treatment under the Mental Health Act, first in hospital and now in the care home, she had been “a fit, healthy, independent 85-year-old woman”.  But now “she’s in an absolutely horrific state”.  

He described, in a torrent of words and with obvious distress, how she had contracted COVID-19 in the hospital and was “battling for her life”. Now, in the care home, “the care home manager alludes to her being happy and taking part in things – she is not!  She’s clinically depressed.  She wants to be at home, in the garden. She’s fed up of being in prison.”  

Ali pleaded with the judge to consider Extra Care housing which had been “promised at the tribunal”.  

A previous decision that Mrs M should live in Extra Care housing was confirmed in the position statement from the local authority which says that:

 “whilst a best interest decision has in the past been made that she can reside in Extra Care housing […] the local authority’s up to date position is that given recent challenging behaviours by [Ali] and his undue influence upon [Mrs M] that [Mrs M] would not be safe in a less restrictive placement.  Hence at the present time the local authority considers that it is in her best interests to remain in her current placement and would oppose any move to a less restrictive setting.” (Local Authority Position Statement)

Ali denies persuading his mother not to take risperidone.  “At no stage did I tell her not to take medication – she did this of her own volition, because she’s an intelligent woman.  She has lots of capacity”.

He disputes the local authority’s version of what happened at the GP surgery, which he says is “based on false and misleading information”.  “There were no raised voices and no threats”, he says – and he wasn’t there because he wanted a GP’s appointment for his mother but “to chase up my concern that my mother was having breathing issues and nothing was being done.  She was diagnosed with heart failure less than two weeks ago – she didn’t have that prior to being sectioned.  She has kidney damage now, and she was fine prior to being sectioned. Dr A said she couldn’t rule out it being the drugs”.  Ali says he has health problems of his own and has not been vaccinated against COVID-19: “so I told the receptionist I was keeping the door open  with two small chairs in front of the door to keep an airflow in the reception area. It’s been put down I ‘barricaded the door open’. How do you ‘barricade’ a door OPEN, by the way?”.  He referred to “this nonsense about my behaviour” being “trumped up” and said to the judge, “if it was your mother, you’d be absolutely furious. My mother is dying in that care home and nobody cares”. 

The judge stemmed the flood of Ali’s speech, and focused him on the specific issue of contact, by asking Ali a series of questions. She established that he normally sees his mother every day, arriving at the care home between 1pm and 2pm and taking his mother out for the afternoon, often until the early evening (about 7pm).  He described what they do together – going to the garden centre, buying plants and then going back to Ali’s house and spending some time in the garden. She sits with the cat on her knee, which she loves.  They watch films “upstairs, on a projector with a massive screen” and then buy fish and chips for supper on the way back to the care home.  Mrs M loves going out with him, says Ali, and is “in a great mood” by the time he takes her back to the care home: “and then next day she is depressed again”. 

Ali says that on the one evening he brought his mother back late – this is the occasion the social worker refers to in her statement as having interfered with Mrs M’s medication– he did so with permission.  “Me and my mother always told nursing staff what time we’d be coming back and that day we said, ‘we’ll be late back tonight – is 9pm alright?’ and they said ‘yes’ and now that is thrown back in our faces.  That’s what we were told and we stuck to it.  There’s lots of different staff and they don’t communicate.  You tell one staff member something at 2pm and when you come back there’s a different staff member and they don’t know what you’ve been told.  The first we heard about this time of return being a problem was yesterday. We never realised before.  This is massively unfair and a typical example of the tactics the family has experienced.  We’ve got solid proof they’ve lied at the tribunals – they’re making my mother suffer.”

The judge intervened a couple of times into this flow of words to try to focus Ali on the matter of contact: “this is useful information about the background to your mother’s care and I will need it in the future but I don’t have time this morning”; “What I’m dealing with today is just the application by the local authority about contact”; and “you will have the opportunity to put all this in a statement later”.   

“One last point”, said Ali.  “I have never told my mother not to take her medication, but she shouldn’t be on anti-psychotics – they’re dangerous.  Please let her come back to her family.  Just give her her freedom back. She’s dying. She’s giving up on life.  Seven weeks without my mum getting out will kill her – it will knock her over the edge”.  

The judge then asked court staff to mute Ali.  This is only the second time I’ve seen a judge find it necessary to mute a family member in court.  I understand the time pressures and the need to focus on the matter in hand and I could see Ali’s desperation to get his point across, while the judge struggled to assert her authority, but it is (obviously) unfortunate to arrive at a position where someone’s contribution is closed down in this way. 

The judge then asked each of Ali’s brothers, in turn, for their input.

Second son

Mrs M’s second son (who lives overseas and whose contact with his mother is via frequent telephone calls)  said he agreed 100% with what Ali had said. “He put the case across perfectly and raised lots of valid points.  We’re talking about our mother.  We’ve seen her deterioration since they applied the Mental Health Act – the bottom line is that if you saw how she was before and how she’s deteriorated since going under the Mental Health Act you would cry your eyes out.”  There is, he said, “a massive difference between when she was first sectioned and now”.

He said he’d looked on the Alzheimer’s Society and Mind websites and read that “this is a massive issue today for care homes in the UK, with old people being prescribed anti-psychotics that they don’t need”.

He referred to what has obviously been a breakdown in communication between the professionals and the family – saying that the social worker was “fabricating evidence” and that the information she had provided to the court was “mistruth” or “speculation”.  “We’re not being obstructive or awkward. We’re concerned for our mother.  When we speak out,they classify us as obstructive and awkward”.

The judge asked specifically for his view on the specific issue of Ali’s visits (the focus of today’s hearing).  

“If you take those visits away, you will basically destroy her.  Why is nobody concentrating on the positive side of those visits?”

Third son

Like Mrs M’s other two sons, the third son commented on the huge deterioration since Mrs M was removed from Ali’s care.  

He lives in the UK but at some distance from his mother, so his contact with her is mostly via telephone. Before she went into hospital, he says,  she was “solid as a rock” – he described how, in the year before admission, she had got a ladder, gone up into the loft and brought boxes down.  Now, he says, “she slurs her words” and is clearly unwell.  He too reports that she contracted COVID-19 in hospital (“she was on oxygen and everything and nearly died”) and although he’s not sure whether the risperidone is a problem or not (“I don’t know about that”) he’s certain that “there’s something not right somewhere about her medication”.

He refers to some kind of rift between the brothers – “there’s no relationship between me and my brothers – end of story – but I care about my Mum, and Ali should see his mother. He’s local to our Mum. Ali, really, no matter what, should see his Mum.  Ali 100% loves his Mum, no two ways about that“.

Clarifications and ‘interruptions’

The judge clarified what the local authority was asking her to do: “Nobody’s saying ‘no contact between Ali and your mother’.  The local authority is asking the court to put conditions on it, to make arrangements for that contact”. 

When one of the brothers (I think it was the second son) said at this point, “Judge, may I speak?”, I was surprised to hear the judge say: “Again I’ve been interrupted. This is unacceptable and you must allow me to speak or I will mute all of you.  This is not about stopping contact, it’s about whether it should be restricted or conditions put on it”.  

I was surprised because I don’t think the son had intended to ‘interrupt’ or that he intended any disrespect to the judge – rather the reverse, he was asking for permission to speak. This really wasn’t an ‘interruption’ (nor was the previous event the judge had so labelled) unless – as of course judges do! – you have a good grasp of the rules of the courtroom and the way in which speaking turns are organised in this specific context[3]. What I have seen in other courtrooms from other judges is an awareness that family members are not deliberately flouting the rules – they just don’t understand them. I’ve seen judges explain the rules to family members (along the lines of “This is a courtroom and there are rules for who can speak and in what order. So now I’m going to hear from X and then Y and then I will come back to you for anything you want to say”). I’ve also watched judges tolerate these sorts of infringements of court protocol with good grace, while still clearly remaining in control of the proceedings – and I appreciate the skill and expertise involved in being able to do that.  What I saw today is how difficult it is to establish your own authority as a judge in a gracious and confident manner when you have a full list, are obviously under time pressure and you are engaging with voluble family members determined to get across points that are not germane to the issue you need to decide, right now, at this hearing.

“I understand that”, said the second son, referring to the judge’s clarification about the issue today being about arrangements for contact – not stopping contact.

“Our concern is not just with restriction of contact – it’s type and quality of contact. She doesn’t want to be stuck in the care home.  She lives for going outside.  Taking her to the garden centre, or taking her to the park – that’s what my mother needs.  She needs that kind of stimulation.  Having to stay in the grounds of the care home with a member of staff sitting there supervising is not a natural situation.  She hasn’t got friends there. She’s depressed.  She wants to get outside and experience life with her son. If you close that off completely, that’s a horrendous thing for my mother – and I believe that will have a negative effect on her.”  (Second son)

Ali (who had been unmuted by this point) leapt in to support his brother’s observation.  “She’s on anti-depressants and could not take being confined, imprisoned, taken away from her natural life”.  He then launched into a series of other allegations and concerns.  He said the care home manager had “threatened” his mother, saying “’if you don’t take your medications, I’ll send you back to the mental health ward’; ‘if you don’t take your medications I won’t let you out.’ She can’t do that!”.  He said he’d asked for CCTV footage from the GP surgery which “will vindicate me completely”.  He said that the family was “not getting believed and professionals are believed. But professionals do lie – look at that policeman who’s been accused of raping women”.  

The judge intervened: “You will do me the respect, please, of allowing me to give my decision”. 

The judge’s decision

The judge outlined what the case was about and the submissions she had heard, the fact that three of Mrs M’s sons had addressed the court, and what they had said.

She said that she’d read a capacity assessment which makes it clear that Ms M has “health difficulties, both mental and physical” and that she found there was reason to believe, on an interim basis, that Mrs M lacks capacity to make decisions about contact with her son.  This means that the court can make a best interests decision about contact.

The judge said: “I make no order concerning contact between [Ali] and his mother to restrict him spending time with her, but I do put conditions on where that takes place.  That condition is that contact will take place in the care home, or in the care home garden, or in the community, provided that it is at all times supervised by a member of staff from the care home, a social worker, or another member of the local authority. This is to ensure, in [Mrs M’s] best interests, that she takes her medication on time, that her son or anyone else, does not exert influence over her to not take her medication, and that she’s not exposed to behaviour that may upset her.”

The judge said she had independent evidence from the GP’s staff that Ali’s behaviour was experienced by them as “disruptive”.  

“I understand that emotions run high in families. I understand the motivation is [Mrs M’s] best interests. But I cannot allow her to be emotionally upset or cause harm to her mental health by any repeat of that type of behaviour. So, I am putting that restriction on contact.  This is a temporary restriction until the next hearing.”

She then addressed the sons to give some brief information to the sons about what they should do if they wanted to become parties to the proceedings, and explained that (parties or not) they could send written statements to the court (e.g., concerning “background about your mother, what you think would be good for her in the future, what your concerns are for her welfare”). 

She also explained to them the other arrangements she was making in the order: a s.49 order to assess Mrs M’s capacity, inviting the Official Solicitor to take on the role of litigation friend for Mrs M, provision for the social worker to provide a further report about options for Mrs M’s residence and care in future, disclosure of care records, and a schedule of dates by which each is needed with provision for the three sons to respond to the information.

The next hearing (to be listed for two hours, by MS Teams) is on Friday 29th July 2022 at 2.00 pm.

Comment

This was a painful hearing to watch, and must have been painful for some of the people involved, including of course Mrs M’s sons, and also the social worker who was the subject of some of their allegations, who sat silently listening.  (At one point, one of the sons asked why she was not responding to the claims they were making about her “mistruths“, and the judge explained that she would give witness evidence at a future hearing.)

The chasm between the three sons and the people caring for their mother felt unbridgeable – with effectively two different versions of reality. 

For Ali, his mother (despite her physical deterioration) has capacity to make her own decisions. The evidence presented by the local authority is that she does not.

For Ali and his brothers, their mother is deteriorating because of the risperidone; for the professionals, this is the very medication that will keep her well.

For Ali and his brothers, the restrictions on her liberty in the care home are harming her; for the professionals these restrictions are necessary to keep her safe.

Representing the local authority, Adrian Francis said that Ali “lacks insight into his mum’s degenerative condition and will inadvertently put her at risk”.   Ali says the professionals are lying. His mother is being ill-treated.  His brothers agree.

The very actions that, for Ali, are acts of love and care – questioning the value of risperidone and asking for a “medication holiday”, seeking medical attention for his mother’s alleged breathlessness – are (for the local authority) acts that risk causing her harm.  

When the local authority seeks to ensure that Mrs M gets her prescribed medication on time and backs off from the agreement to move Mrs M to an Extra Care placement (“on the basis of risk and repeated contact from son”), Ali sees them as keeping his mother in prison and depriving her of her liberty.

It’s clear that everyone wants the best for Mrs M, but that they have diametrically opposed views as to what that would be.  

There’s so much I don’t know about this case. I don’t know what precipitated Mrs M’s hospitalisation, or what her living conditions were like with her son.  I don’t know what treatments were tried prior to or instead of risperidone.  I don’t know how able Mrs M is to express her views, or to participate in decisions about her residence, care and contact. I don’t know what attempts have already been made to improve communication between Ali and the professionals.

Like the judge, I accept that Ali is motivated by what he believes is in his mother’s best interests. I think the professionals are too.

I kept thinking (perhaps naively) that better communication, perhaps with an independent expert in old age psychiatry at a round table meeting, or perhaps formal mediation, would be a better way of tackling this impasse. 

I also wondered whether, in addition to the issues of residence, care, and (now) contact, before the court, the question of Mrs M’s medication should be explicitly addressed, since this lies at the heart of Ali’s concerns about his mother’s care. Since watching this hearing I – like Mrs M’s three sons – have searched the internet for information about the use of risperidone for dementia and psychosis.  From what I read, it’s controversial.  I too would be concerned if it had been prescribed for my mother, and would be asking questions about non-drug methods as an alternative, about reducing the dose, about the side-effects and the cost/benefit analysis.  Probably I, too, would be seen as a “difficult” family member. Can Mrs M’s litigation friend, the Official Solicitor, when appointed, ask the judge for a declaration that risperidone is, or is not, in her best interests? Can Ali become a party and get legal representation so that this matter is properly addressed?

The judge’s decision departed from the order requested by the local authority in authorising visits between Ali and his mother outside the care home and its garden – so long as these visits are supervised. This was helpful, I thought, in recognising the value the sons say Mrs M puts on getting out and about and spending time at Ali’s home. But I don’t know if this will work in practice. I can’t quite envisage staff having the time to spend hours in the garden centre with mother and son, or watching films with them at Ali’s house. The practical issues involved in supervising visits in the community were not addressed at any point during the hearing. And, as one of the sons said, having someone supervising them at all times will inevitably affect the quality of the interaction.

I remain troubled, too, that Mrs M’s voice was absent and that she was (in effect) unrepresented in a hearing that interferes with her fundamental Article 8 rights to private and family life.  I have no idea what she makes of any of this, or what she wants for herself.  

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

[1] The Transparency Order I was sent for this hearing includes an Order from the judge as to how the case was to be listed. “The attended hearing is to be listed as follows: (i) Where P should live (ii) Healthcare; (iii) Varying or terminating an urgent or standard authorisation under the Deprivation of Liberty Safeguards”. (§3 Transparency Order, 25th May 2022).  It was not in fact so listed – due (I am told) to “human error”. 

[2] All quotations from what was said in court are as accurate as I can make them.  However, we are not allowed to audio-record hearings so my quotations are based on touch-typed notes made during the hearing and are unlikely to be verbatim.

[3] For academic research on the peculiar speech-exchange system of the courtroom and the turn-taking organisation constitutive of the formal hearing, see J Maxwell Atkinson and Paul Drew (1979) Order in Court. Macmillan Press.  Lawyers may not appreciate how impenetrable this speech exchange system can feel to lay people  and how easy it is when you don’t know the rules to be heard as “speaking out of turn” or “interrupting” – an experience which adds to the alienating experience of the courtroom when there is no intention to offend.

Photo by Pawel Czerwinski on Unsplash

Bringing a very long saga to an end: A final hearing, transparency issues, and delays with a charging decision

By Paige Taylor, 8th June 2022

On 23rd May 2022 I watched a remote hearing (COP 13585739) before Mrs Justice Lieven. 

I am currently a Bar course student at the Inns of Court College of Advocacy, and I wanted to observe a Court of Protection hearing because I have an interest in mental capacity and disability law, particularly best interest decisions and the role of Lasting Power of Attorneys (LPAs). This stems from my experience as a young carer and LPA for my late mother, who experienced mental capacity issues following several strokes and a diagnosis of early-onset Alzheimer’s. 

This was my first attendance at a remote Court of Protection hearing as a public observer, so (although I’d observed remote hearings in other courts) I did not know what to expect. There were three other observers – including two mini-pupils.  

The hearing was listed to start at 10.30am but the clerk informed everyone that the judge’s previous hearing had over-run and it wasn’t actually called on until 10.56am.

While we were waiting online, before the hearing began, I was asked by the court clerk to identify myself as a court observer, as she established the identity of everyone on the video-platform.  

Once I had done this, Katharine Elliot, counsel for the applicant local authority was asked by the court clerk whether a Transparency Order (TO) had been put in place for the hearing, and she said that it had. But it was discovered shortly before the hearing began, that in fact there was no TO.

Pending the production of a formal written TO, Lieven J orally outlined the reporting restrictions, requesting that counsel for the applicant distribute copies to the observers as soon as possible. It has been 2 weeks, and I have still not received one!

The hearing was very short (17 minutes) and resulted in final directions and orders, bringing to an end a series of previous hearings in this case.  As such it probably wasn’t the best (or easiest) hearing for me to observe,  because there was a lot of background information from the previous hearings that I was not aware of at the time I was observing.

What was the hearing about?

It concerned the approval of final orders for P (the protected party, the person at the centre of the case) in relation to her residence, care and support. 

This was the final hearing in a case which was first brought by the applicant local authority, Kent County Council, in March 2020. The case has been overseen by Mrs Justice Lieven for just over 2 years. 

Hearings in this particular case were previously held in private. This was until a judgment was made in November 2021, allowing the public to attend the hearing, and for public and the press to report on it, subject to a Transparency Order maintaining the protected party’s anonymity. You can read the previous judgment here.

Shortly after the discussion of a Transparency Order, counsel for the applicant introduced the other parties and then provided a brief background to the facts of the case, which are summarised below.

Parties

The parties were:  the applicant local authority (represented by Katharine Elliot); P, represented via the Official Solicitor by Keri Tayler);  and the NHS Clinical Commissioning Group (CCG), who co-fund the placement and care package with the local authority  – but it had been previously agreed that they didn’t need to attend this hearing unless they disagreed with the local authority (which they didn’t). 

There was also a legal representative from the police force present (Isabella Crowdy), although the police force was not formally a party. She was there because there are possible criminal proceedings against P’s parents.

Facts of the case

The protected party, P, is a woman in her early twenties currently in the care of the local authority, and living in 24/7 supported living. She was removed by the police from her parents having suffered severe neglect and malnutrition.  As a result of her traumatic experiences, she has suffered both physically and mentally, and the multi-disciplinary team treating her is approaching her care based on working theories around attachment disorder, developmental delay, dissociation, anxiety, autism spectrum disorder and complex post-traumatic stress.

According to the previous published judgment, Kent County Council brought the substantive application back in March 2020, seeking declarations that it is in P’s best interests to continue to live and receive care and support at her current placement and for the necessary deprivation of liberty (DOLs) authorisation. 

In the course of proceedings, P has been found by the court to lack capacity in relation to care and residence, property and affairs and decisions about contact with her parents. P currently does not have contact with her parents (but this is subject to ongoing review). 

After Katharine Elliot’s summary, the judge said that it seemed that the parties had reached the point where final orders could be made concerning P’s residence, care and support (including a DOLs order) and contact with others, “because effectively P’s care has stabilized and nothing is going to significantly change in future”. 

Submissions

1. Counsel for the applicant

Counsel for the applicant agreed that final orders could now be made, noting that P’s presentation has improved and she has made “sustained improvements” in some areas, but “some difficulties” remain in others. 

Lieven J asked the applicant about the ongoing criminal investigation concerning P’s parents: ‘if [the] police did want to re-interview P or call her as a witness, who makes the decision on her behalf under the Mental Capacity Act?’.  Counsel for the applicant replied that there would need to be a mental capacity assessment of P, but that P would unlikely have capacity to give evidence or act as a witness in a criminal case. The judge accepted that, saying she simply wished to “guard against all eventualities”.

2. Counsel for P

Keri Tayler, counsel for P (via the Official Solicitor) also agreed that final orders could be made.  

Also, she asked whether the judge would be willing to write a letter for P (who wasn’t in court) “addressing her about these proceedings”.  This was so “there’s recognition for her that her case has been considered by the Court of Protection and that care has been taken over her circumstances”. The judge was “more than happy to do that”.

3. The legal representative from the police

Turning to the legal representative for the police force, the judge said (rather pointedly) “I feel almost exhausted by the issue of the charging decision  When we first met, you were saying February this year, then May, and you’re now saying perhaps June”.  Ms Crowdy corrected the judge: it would now likely be August.

This exchange relates to the judge’s remarks in her judgment of November 2021 about how long it was taking the police to decide whether or not to bring criminal charges against P’s parents.  Kent Police have been investigating this matter since August 2019 and the judge raised concerns about how long the process was taking at a hearing in October 2021, and again in her judgment on 4th February 2022.  She said:

[at 4] At that hearing I expressed my considerable concern about the length of time that it was taking the police and the Crown Prosecution Service (‘CPS’) to carry out an investigation of the matter and reach a charging decision. It was over 2 years since P had been found and yet there was no charging decision, and the police at that hearing informed me that they were hoping to make a charging decision in early 2022.

Having established that the police were not seeking anything more from the court, and that the parties were in agreement about the order, Lieven J ended the hearing, saying that it “brings this part of a very long saga to an end” and extending her thanks to P’s social worker (who was also in the hearing) “for her exceptionally hard work and commitment to P”.

The hearing ended at 11.13am.

Comment

There are four points I want to make about this hearing.  They concern: (1) my experience of gaining access to join the remote hearing; (2) P’s participation in proceedings; (3) my learning about the role of an Accredited Legal Representative (ALR); and finally (4) reflections on open justice and transparency in relation to this case.

1. Joining a remote hearing

The process of requesting to join this hearing as a court observer was incredibly straightforward. I emailed the court staff with my request to observe and provided them with my email and phone number. I received a reply from the listings officer 2 minutes later that my request had been forwarded to the relevant court staff, and I soon received a link to join the hearing on Microsoft Teams. What was particularly positive was that a second member of the court staff emailed me again to ensure that I had received the link for the hearing.  

Having sat in on remote hearings previously during the peak of the coronavirus pandemic, I see the benefits of remote hearings to open justice, such as providing accessibility to those who are unable to travel to court to participate in or to observe hearings. Despite this hearing not being held in person, the formality of it was upheld through the implementation of the transparency order, and the warning of committing a contempt of court if such an order was not adhered to. However, I do believe that the real solemnity of court proceedings can only properly be felt in person. 

2. P’s participation

I’m interested in the extent to which protected parties are able to participate in hearings about them, and there has been recent guidance about judicial visits from the Vice President of the Court of Protection (here).

Building upon the guidance provided by Charles J, Hayden J in his guidance stated that a judge meeting with P can achieve a number of important (but not exhaustive) objectives,  such as their participation in ‘best interests’ decisions as required by s.4(4) Mental Capacity Act 2005. Hayden J supplements the previous guidance by his predecessor by outlining the benefits to P of remote visits and remote hearings in incorporating P into the court process. He notes:

[at 3] “Judges have made remote visits to Care Homes, Intensive Care Units, private homes, and a variety of other venues where it has been possible to meet with P. Additionally, P has frequently been able to attend remote hearings where attendance in a court room would not have been possible.”

In this case, P’s direct involvement in this hearing was limited, as she was not in court.  Also, the judge reported that she had not met with P: it had been considered (by P’s legal representative) “inappropriate” for her to do so.  However, a concerted effort was made in order to inform P about her case by P’s counsel requesting Lieven J to write a letter directly to P. 

Although the judge visiting P would have been more personal, any method of communication with P is instrumental in upholding the right of P to know what is happening in her case, despite her not having litigation capacity. 

3. What is an ALR?

Something I learnt from the hearing was the purpose and function of an Accredited Legal Representative (ALR) which was made known to me when Lieven J asked Keri Tayler, (counsel for P) about whether,  following this case, the Official Solicitor would step down and P’s solicitor act as “deputy” for P. Counsel for P responded that P’s solicitor will step in not as deputy but as an ALR. 

From my research and understanding, an ALR is provided under the CoP rules to assist a person who lacks mental capacity to respond to applications before the CoP. The role of an ALR is defined by Rule 1.2(2)(b) of the CoP Rules 2017 as being “to represent P in the proceedings and to discharge such other functions as the court may direct”. 

Such ALRs, as the name suggests, have been accredited via the Law Society’s Mental Capacity (Welfare) accreditation scheme. An ALR can be appointed by the court of its own initiative or can be applied for by any person. The role of an ALR is similar that of a litigation friend/Official Solicitor and they are used to assist the court to narrow the issues of a case for the court’s determination. (There is more information about ALRs  here.)

4. Transparency and open justice

Lieven J in her 2021 judgment made the decision to open this case to public scrutiny (in line with normal COP practice), despite the objections of the three legal representatives involved in the case.

The local authority argued that if hearings in this case were to be made public it would ‘”risk that P would be able to be identified relatively easily because of the almost unique nature of the case and the initial press coverage relating to it’ (§15 of the judgment).

The Official Solicitor, on behalf of P took the same position, referring to “the deeply personal nature of the information before the Court of Protection and the likelihood that the case might attract media attention because it is at the ‘more prurient end of the scale’” (§17 of the judgment).

The representative for Kent police also argued that the hearing should be kept private and the press should not be allowed to make any public report upon it. Public reporting, said Kent police, “would interfere with the ‘integrity’ of any future trial” (§18 of the judgment), e.g. by prejudicing potential future jurors.

Lieven J in her analysis, outlined the important public interest in holding court hearings in public and allowing the press to report on them.  “The presumption”, she said, “should always be for open hearings unless there is a strong countervailing factor”.  In this case, there was a balancing act between protecting P’s privacy and Article 8 rights on the one hand, and “a potential impact on any future criminal trial” on the other. Lieven J concluded in this case that the balance came down in favour of allowing attendance, subject to an appropriate reporting restriction order.

This was to ensure Article 10 rights and the public’s legitimate interest in knowing what has happened in this case – in particular, how ‘it had been over 2 years since P was found and yet there was no charging decision’. 

One of the reasons why Lieven J decided to make these hearings public (after initially acceding to counsels’ requests that they should be held in private) was because of the delay in the criminal justice system relating to P’s parents.

[at 29] ‘There is a strong public interest in knowing how the criminal justice system, including the police and the CPS are operating. That is even more the case at the present time when it is known that there are very long delays in getting cases to trial, or even to reach charging decisions’.

[at 30] ‘I do think that the public has the right to know that in a case such as this it will have taken over 2 and a half years to even get to a charging decision. If there are charges brought, it is unknown how much longer it will take to get to trial. Delays in the system of justice, whether the police or the CPS, are a matter of legitimate public interest’.

To have hearings such as these made public is instrumental to open justice and to ensuring that the public is educated on the current state of the civil and criminal justice system. It also enables an accountability mechanism as to how the courts, CPS and the police are operating and how they ought to operate. 

I believe that Lieven J was prudent in her 2021 judgment, as when weighing up the risk to P if hearings were made public, she re-assessed P’s circumstances and concluded that although previously she had believed that:

P was likely to become much more engaged with the outside world and was at real risk of hearing and understanding any public comment which might have a negative impact upon her’, what had in fact happened was that ‘as time has gone by, the evidence suggests that that risk is not so great. In practice, P has engaged very little if at all with the outside world, never goes outside her accommodation and does not listen to the news or read any commentary’.

Lieven J’s analysis gave thorough consideration to P’s current circumstances and the public interest in this case. She justified her decision that with the lower risk of P being exposed to potential press reports, ‘There is a legitimate public interest in the fact that deeply distressing cases, such as that of P, happen in the UK and how they are dealt with by the relevant authorities”.

 I completely agree with Lieven J’s reasoning, as authorities (including local authorities in particular), should be subject to scrutiny in their response to child neglect. 

The judgment itself was reported by the media (without the “prurience” anticipated by the Official Solicitor) here: “Judge concerned over how long it has taken police to investigate ‘extreme neglect’ of teenager”.  From the media account, it’s also apparent that a Press Association reporter had been present at an earlier hearing and argued that the public had a right to know about the judge’s concerns and that  a report would not compromise any future trial. That seems to have been an important intervention for open justice.  

Overall, this was a thought-provoking first introduction to Court of Protection hearings, and I look forward to observing some more in the future – hopefully at an earlier stage in the proceedings.

Paige Taylor is a Bar course student at the Inns of Court College of Advocacy.  She tweets @paigepctaylor and you can also follow her on LinkedIn: Paige Taylor

Photo by Steve Johnson on Unsplash

“What good is it making someone safer if it merely makes them miserable?” A contested hearing and delayed trial of living at home

By Celia Kitzinger, 3 June 2022

The quotation in the title of this blog is (as many readers will recognise) from a judgment by  Munby J.  In full, the relevant passage reads as follows:

A great judge once said, “all life is an experiment,” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?   

(§ 120 Local Authority X v MM & Anor (No. 1) (2007))

I don’t think anyone cited this judgment, or the oft-quoted rhetorical question for which it is frequently remembered, in the course of the Court of Protection hearing I observed (COP 13744224, before DJ Beckley sitting at First Avenue House on 30th May 2022) – but it points to an important principle that lies at the heart of this case.

Risk cannot be avoided completely.  There are risks in detaining someone against their wishes to keep them safe, including risks to their self-esteem, sense of agency and dignity.  And equally, there are risks to making a decision to facilitate a return home – particularly, in many cases, risks to their physical safety (Westminster City Council v Sykes (2014).

It is not uncommon for judges in the Court of Protection to decide that an outcome which presents significant risks to a person’s physical safety is still in their best interests, because it more closely accords with what the person wants.

This turned out to be one of those cases. 

A contested hearing 

I’d watched an earlier hearing in this case (also before DJ Beckley) on 3rd May 2022 – so just just under a month earlier – and blogged about it (with Anna) here.

T is in her nineties, a national of another European country, who moved to the UK as a young adult, married here but divorced over 20 years ago.  Her only child, a son died, and she is not in contact with her daughter-in-law or grandchildren. She has no other family, but does have a core of supportive friends who speak her first language, including M – who she also appointed with Lasting Power of Attorney (both for health and welfare, and for property and affairs).

There is no disagreement that T lacks capacity to make her own decision about where to live.  She cannot understand, retain and weigh the relevant information (s.31, Mental Capacity Act 2005) due to Alzheimer’s (“an impairment of, or a disturbance in the functioning of, the mind or brain”, s.2(1) Mental Capacity Act 2005).   She also has type 2 diabetes as well as hypertension, osteoarthritis and spinal fractures.  

Until August 2020, T lived in her own flat.  After hospital treatment, she agreed to be discharged from hospital to a care home to see if she would like it.  

It turns out she did not, and she started asking to go home within a few weeks.

Her attorney (M) approached the local authority (London Borough of Hillingdon) on 8th December 2020 to explain that T would like to return home. 

Counsel for P

Christine Cooper of Field Court Chambers (instructed by Amy Butler of Atkins & Palmer as T’s  Accredited Legal Representative) reported that T has been “clear and consistent in her desire to return to her home” for many months, and is now “extremely unhappy and distressed” about being compelled to live in the care home. There are also “serious concerns about the quality of her care” there, both from T’s legal representatives and from M as her attorney.  

Despite it being confirmed more than six months ago that T’s flat is suitable for her to return to, and M having identified a suitable live-in carer, very little has been done to progress a trial return home or to consider any other options for T (said counsel for the applicant).  Christine Cooper was very critical of the delays from the local authority, which has a “history of non-compliance” with orders, and had not prepared either the care plan or the transition plan it had been directed to produce for the court by the required deadline.  Consequently, “the situation today is that the court does not have all of the evidence that it would normally have when making a decision about a trial return home”.  Counsel for the applicant argued that, nonetheless, the court should make a decision today on the evidence it does have.  T’s diabetes is stable, her medication regime is not complex and she’s compliant with it, district nurses will visit her home twice a day to administer insulin and can be alerted to any issues by M or by the live-in carer.

Counsel was mindful of the risks but submitted that “the court should not adopt an overly risk-averse attitude” and should say, today, that the trial of living at home should go ahead.

The Clinical Commissioning group

The Clinical Commissioning Group (represented by David Muana) also took the view that T “can be managed safely in the community… This is not a complex or unpredictable presentation that can’t be managed in the community”. 

The Local Authority

The local authority considered the proposal for an imminent trial at home to be premature. 

In the words of counsel for the local authority, Thomas Boden, it is “reckless for a move to take place” because“it may leave some of T’s basic needs unmet”.  

The local authority raised a series of (what Christine Cooper called) “new hurdles” to T’s return home – including a request for a second carer to be identified in case of the illness of the nominated live-in carer, and “assurance of the competence and reliability of both M and the wider network of friends that it’s envisaged would step in to help T”.  They also raised an “artificially obstructive requirement” (Christine Cooper’s words) relating to the administration of direct payment.  With evident frustration, Christine Cooper said “it’s time for these obstructions – which have been a feature of the last six months – to stop getting in the way of T going home”.

For counsel for the local authority, a trial at home was, he said, “too great a risk to be borne”.  The local authority 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.

The judge reflected: “I’ve got a close friend – we went on holiday last week, a group of us – he’s diabetic and he tested his blood sugar four times a day and it seemed quite simple.  Have I got that wrong?”

Thomas Boden reiterated that the issue was not just how to take readings, but also knowing when action was needed on the basis of those readings – which might include offering T juice with sugar, or tea with sugar (“it’s those things the carer needs to be mindful of”).  

T’s close friend and attorney, M, was asked about her experience of testing T’s blood sugar levels and said: “T has suffered from diabetes for a long time.  I’ve been helping her, and the district nurse trained me to do the testing and it is not very difficult.  You prick the finger and put the blood in a small machine and measure it to see it if  is down or up.  When she was unstable with the sugar, we would call the district nurses or call 111. We approached it that way. It’s not difficult really”.  

“Can’t they [M and the nominated paid carer] just tell the district nurse, who is going to be there twice a day?”, the judge asked Thomas Boden, 

The local authority was also concerned about T’s ability to move around her home – not just steps in and out of her flat,  but also “transfer” between seating and standing positions and using the toilet.  But Christine Cooper drew attention to the fact that a test with stairs at the care home had shown that T could walk up a flight of 8 steps, without support, rest for five minutes on a chair at the top, and then walk back down again. 

Counsel for the local authority said that he noted what had been said about “the need for this to keep moving” but that the local authority “cannot give firm timescales” – and they remained concerned that the direct payments had not been set up (so carers would not be paid), that “an ad hoc approach” was being take to T’s care being provided (in part) by her friends, that there was insufficient evidence that T’s blood sugar monitoring would be done correctly and remaining concerns about her mobility (citing an occasion when T needed support to get up from a chair, he said “a plan of care at home needs to be able to deal with T at her worst, not her best”).  The local authority remained of the view that more time was needed to prepare for a trial return home safely.

In her submission to the judge, Christine Cooper said: “I strongly urge you to resist the temptation from the local authority to kick the can further down the road”.  As she put it in her position statement, for someone in their nineties, time is of the essence.

The judgment

DJ Beckley said he was “very disappointed that rather than providing a care plan and transition plan for me to consider and hopefully endorse, instead we’ve had this hearing this afternoon”.

Referring to s.4 of the Mental Capacity Act 2005, he said that any decision he made must be in T’s best interests.  In so doing,  “the magnetic fact in this case is T’s past and present wishes and feelings”.  Her wishes, said the judge “are very clear, and have been clear for a considerable period of time, that she wants to return home”.  

The judge recognised that a return home “will carry with it some risks” but considered these manageable and acceptable when weighed against T’s consistent wish to return home.  

This reasoning has strong resonances with Munby’s judgment, quoted at the beginning of this blog:

The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness.

(§ 120 Local Authority X v MM & Anor (No. 1) (2007))

Finally, DJ Beckley recognised the huge contribution made by T’s friend and attorney, saying he was  “convinced that M is deserving of very great praise for the support she has provided for her friend” and is “confident that she and her friends will be able to provide cover” for any periods when the paid live-in carer is unavailable. 

He made the order in terms of the draft order filed by Christine Cooper, ruling that T will return to her property on 17th June 2022, and at the next hearing the next hearing, just short of three weeks later, he will “consider everyone’s views on how successful that’s been”.

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

Photo by Andreas Haslinger on Unsplash

Treatment delay: “My son has got disabilities but that doesn’t mean he’s a nobody”

By Celia Kitzinger, 27th May 2022

A man in his 20s is losing his sight.  

The Trust thinks it’s likely that he’s developed cataracts and that this could be easily treated.  

His mother worries that it’s something more serious and has told the lawyers that her son’s birth father had a tumour behind his eye when he was in his 20s.

Proper investigation and treatment is needed – but although “in the usual course of events this would be straightforward”, it’s more complicated for this patient – and there seems to have been a delay of more than a year. 

I was watching a remote hearing before Mr Justice MacDonald (COP 13930317) sitting as a Court of Protection judge in the Royal Courts of Justice on 25th May 2022.  This case was in the “Urgent Hearings” list[1]. 

The applicant Hospital Trust was represented by Conrad Hallin of Serjeants’ Inn Chambers. Asked by the judge to introduce the case[2], he said that P has “severe learning disabilities, autism and ADHD”.  He said P “was born prematurely, was on oxygen for 18 months and had a stroke affecting the left side of his brain”.

Although, for most people, cataract surgery (if that’s what’s needed) is a straight-forward procedure, “given P’s presentation, it needs careful planning”.  He gave a brief description of some of the issues involved (e.g., giving a long-term steroid injection rather than reliance on eye drops post-operatively), although these are “still to be planned in detail”.  He envisaged “lots of other evidence” about the procedure being provided “after questions from the Official Solicitor and the CCG”. The draft order – part of which was read out in court – mentions physical restraint and sedation.

The judge intervened at this point to ask whether it was correct, as appeared from the papers, that there was “quite a long gap” between a best interests meeting for P at which this was discussed back in April 2021 and the follow-up best interests meeting “almost a year later” at the end of March 2022.  Perhaps, he enquired, this was a typo?  If not, “is there any particular reason why now, over a year later, this is a topic of discussion rather than action?”

Counsel for the Hospital Trust confirmed that it was “not a typo”.  The patient had been referred to his GP about his sight loss in March 2021.  “We haven’t arrived at this position for a long time”. 

“This speaks to the need, now, to keep a tight rein on the timescale”, said the judge.

The Trust representative agreed and said that 24th June 2022 had been fixed for an investigation (which was why the case was in the urgent hearings list, so that the relevant orders and declarations from the judge would be in place before then to allow the procedures to take place lawfully).

That will be 14 months since the best interests meeting at which it was decided that it would be in P’s best interests to carry out investigation and treatment for his sight loss. 

P’s mother was in court (unrepresented) and had some concerns about the proposed investigation and treatment.  

She asked about the use of restraint (to prevent P from rubbing his eyes post-operatively and to prevent ‘self-injurious behaviour’, which meant head banging).  

She was worried about a proposal (which apparently is not in the draft order) for giving P a COVID vaccination (he’s unvaccinated) at the same time as the surgery (“If he has the injection at the same time as his eyes, and he has side effects and is not feeling well, he gets frustrated and starts hitting his head – I’m very concerned about that”).  

On behalf of P, Rhys Hadden of Serjeants’ Inn Chambers, (instructed by the Official Solicitor) said: 

“In terms of COVID, it is somewhat unusual for the Official Solicitor to say, when asked about one aspect of health care, ‘what about this other aspect of health?’.  But the conditions of surgery are having to be laid out with respect to his non-vaccinated status.  And it is having an impact on his day-to-day living: there are some concerns about restrictions on access to the community.  The two things [COVID-vaccination and cataract surgery] may not happen together, but we invite the CCG to set out when they should happen.”

It was also clear that P’s mother wanted the court to know how frustrated she was by the delay in addressing her son’s deteriorating sight.  She said that it had first become apparent in November 2020 and that she’d expected something to be done after the best interests meeting in April 2021.  She ran through a chronology of repeated delays: 

“Then he said he wouldn’t be doing the operation, so then we had to wait again, and I was ringing, constantly ringing, PALS, the eye clinic, the doctor’s secretary, the appointments people, everyone.  We’re coming up to two years down the line and it’s only just come to you. It’s caused me a lot of distress.  He doesn’t understand what’s happening to him. All the time we’ve spent to get P to where he is now has gone down the drain. Something could have been done a long time ago.  My son has got disabilities but that doesn’t mean he’s a nobody.”

She asked the judge to “shadow this case” until P had received treatment.

The judge reassured her that the court would keep oversight of the case, with a next hearing fixed for 17th June 2022 in the Royal Courts of Justice. The hearing will be open to the public. If anyone would like to observe (I think you’d need to go in person – it’s planned as an attended hearing) and blog for us about the hearing, please let us know. (We’re happy to provide support.)

Comment

I listened to P’s mother (and to the judge) talking about the delay in investigating and treating P’s sight loss in the context of what research shows about health care for people with learning disabilities.  

The Convention on the Rights of Persons with Disabilities says people with learning disabilities have the right to the “highest attainable standard of health”, but there is widespread evidence that they experience inequities in access to healthcare (and worse outcomes).

The Confidential Inquiry into premature deaths of people with learning disabilities shows the lack of reasonable adjustments provided to people with a learning disability (especially in accessing clinic appointments and investigations) as a contributory factor in a number of avoidable deaths. This can also, clearly, contributes to a deterioration in people’s quality of life.  

In particular, research has painted a troubling picture of the quality of healthcare people with a learning disability have received (or not received) over the course of the pandemic, exacerbating already high levels of health inequalities. (For a downloadable pdf from Mencap here)

I hope P is able to have the investigation he needs following the hearing on 17th June 2022.

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

[1] The judge was dealing with several other urgent hearings on the same day. As a result, the hearing started late: it was listed for 10.30am but didn’t begin until 12.46 (and we all waited online for the judge).  The judge then called a lunch break shortly after 1pm, telling us to return at 2pm.  When I logged in again at 2pm, I received the standard message telling me that the administrator was aware I was in the waiting room and would admit me when the meeting began. I’m not sure when ithe hearing actually did begin again because I was automatically removed from the waiting room at some point and didn’t notice this at the time  – I think, as a result,  I missed about 15 minutes of the hearing, and I think that means I missed most of the advocacy from Rhys Hadden (counsel for P).  (This is my own fault, not the court’s.  I should have been paying better attention to what was happening on my minimised MS Teams link while getting on with another job!).  Events around today’s hearing illustrate how busy the judges are and how stretched the court system is.

[2] The parties – the Hospital Trust, P, P’s Mother and the Clinical Commissioning Group – had not prepared Position Statements. They had a substantially agreed draft Order (which I have not seen) for the judge to approve, and had apparently expected a short case management hearing. Contrary to expectation, the hearing became protracted by the need to fit this hearing around the judge’s busy schedule.  Not having position statements means I was dependent on what was said in court for my understanding of the case – I don’t have anything in writing.  Note too that I did not receive a Transparency Order (although the need for one was mentioned in court).  Again, all evidence of a severely over-stretched system.

Photo by Matt Artz on Unsplash

When family members apply to become parties: A hidden and “private” (but not sinister and secret) hearing

By Celia Kitzinger, 25th May 2022

This was an exceptionally opportune hearing to observe because (although I must have seen it many times before) I’ve never really paid detailed attention to what happens in court when the judge considers an application from family members to become parties to a case.

I wanted to be clear about the process of judicial deliberation on this issue because “Anna”, the daughter of a protected party in a forthcoming Court of Protection hearing[1], has made an application to become a party. She asked me what it would be like when the judge considered her application in court.

I wracked my brains.  I knew I had seen these applications discussed frequently in court, and mostly approved, but I couldn’t remember any of the details. I guess that’s because they simply hadn’t registered with me as ever having been controversial or difficult in any way.

So, I was very happy to discover, after I joined this hearing (COP 1388671T), before District Judge Dewinder Birk in Leicester), that it concerned an application for party status from family members – and as soon as I could, I cleaned up my notes and sent them over to Anna.

I’ll spell out what happened in relation to the family application in this blog, in case it’s of use to other family members who would like to be parties to a case.

But before I do that, I want to say something about why I asked to observe this hearing – and my frustration with the way it was listed, which was, sadly, typical of many listings.

So, Part A of this blog post is about the way this hearing was listed and how it exemplifies the way court lists undermine the judicial commitment to transparency.

If you just want to read about the hearing itself, go straight to Part B, “Family applications to be joined as parties”.

Part A. Listing this hearing: Problems for transparency and open justice

It’s extraordinary to me that the Court of Protection – a court with “transparency” as a central philosophical principle[2] – produces court listings entirely unsuited to delivering on its stated objectives.  

Here’s how this hearing appeared in CourtServe, the live court listings service that members of the public have access to (for free) to check on hearings.  

This court hearing did not appear in the Court of Protection lists.  Nor is it labelled as a Court of Protection hearing in the county court list in which it did appear (as a ‘hidden’ hearing).  That’s not remotely transparent.  If it’s not in the Court of Protection list (or at an absolute minimum, labelled as COP in some way) how will most people even know of its existence? It’s also designated “PRIVATE”, and omits any mention of the issues before the court, And (if all that were not deterrent enough) it provides incorrect contact information. (These failings are spelled out in detail below – where I also explain how common it is to find failings like this in the Court of Protection lists.)

If there were, as some commentators have claimed, a conspiracy afoot, from a “secret and sinister” court, to obstruct public attendance at hearings, this is a good candidate exemplar.

I don’t think there is any such conspiracy – and I did get to watch this hearing and am now blogging about it publicly.  

I accept that the judiciary is truly committed to transparency.  But it’s staggering to find – repeatedly, consistently, on such a wide scale and over the course of nearly two years – such a big gap between the judicial commitment to transparency and actual practice on the ground.

I’ve been writing publicly about problems with the court listings since August 2020 – and tweeting about particular instances, expressing my concern in talks before lawyers and judges, and sending written complaints to relevant persons and organisations.  Nothing much has changed.

The way this particular hearing was listed exemplifies a lot of the problems, and I tweeted about it the day before, after completing a systematic search of the listings to test and to document my (repeated) claim that there are serious problems for open justice with the way hearings are listed.  

Here’s the tweet I posted.  (It’s part of a long tweet thread  – no. 13 of what turned out to be 22 tweets-with-slides.)

In relation to transparency and open justice, there are four really serious problems with this listing, alluded to on the tweet above, and spelled out below. 

1. It’s a hidden hearing

First, and most serious of all, it was not in the Court of Protection list for 23rd May 2022. 

Members of the public who want to observe a Court of Protection hearing should be able to go to a single site where all the hearings are listed.  Then they can look down the list and decide which one they want to observe.

But over the time I’ve been systematically checking the listings, I’ve found that anything from a quarter to a half of the hearings don’t actually appear in the Court of Protection list.  Instead, they are scattered throughout CourtServe under the names of towns and cities or judges.  It’s extremely time-consuming to find them – there are literally hundreds of hearings! – and most days when I want to observe a Court of Protection hearing I don’t bother.  I simply go straight to the Court of Protection list – even though I know full well that only half the hearings may be recorded there.

This particular hearing was listed under a subheading under the top-level heading “Leicester” in the general county court lists.  These lists feature hearings very different from Court of Protection cases. Some of those I scrolled through were cases involving children, or divorce.  Others were small claims hearings and financial disputes. Asda supermarket was listed as a party in one.  Anglian Water Services was a party in another.  Clearly, I was well outside Court of Protection territory!  

There were 3 subheadings under “Leicester”, one of which was “Daily District Judges” (there was also “Daily Circuit Judges” and I can’t now remember what the third one was).  I clicked on all three subheadings in turn and scrolled down through dozens of listed hearings, looking for “Court of Protection” or “COP”. 

There was nothing listed as “Court of Protection” or “COP” under any of the three subheadings.  

But my eye was caught by this hearing (listed under “Daily District Judges”) because – even though it doesn’t say it’s a Court of Protection hearing – it “looks like” a COP case number. 

Not many members of the public know what a Court of Protection case number “looks like” but over the course of the last couple of years I’ve come to recognise the pattern.  Most COP case numbers consist of 8 digits – all numeric, none alphabetic (though P’s initials are often appended to the 8-digit number) – and during the time I’ve been watching remote hearings they’ve mostly started with 135, 136, 137 or 138.  (The most recently issued cases start with 139, and I expect to see case numbers starting with 140 before the end of the year.)

This one didn’t quite fit the pattern. It’s only 7 digits and there’s a T at the end.  But I also know that those numbers ending in T do crop up occasionally – I’d noticed and asked why back in May 2020.

Link to tweet

Nobody knew!

As I illustrated in a subsequent tweet, even eggs come with helpful keys to understanding the codes stamped on them. But for Court of Protection hearings, it’s just one of those mysteries.

Link to tweet

It was unusual for me to be looking for Court of Protection hearings outside of the COP list – I only do it once a month or so, so as to be able to document the ongoing problems in the (possibly quixotic) hope that this might result in change.

So, because of the way this hearing was listed, I normally wouldn’t have had the opportunity to observe it. I simply wouldn’t have known it was happening.  Nor would anyone else, except the people directly involved.

If another member of the public had been looking outside the COP list for a COP hearing (an unlikely scenario), I doubt they’d have recognised it as a COP hearing: my obsessive scouring of listings over the last two years has given me unusual powers!

So, I decided to ask to observe it precisely because it had been so well hidden in the lists – I was determined not to allow listing failures to consign it to obscurity.

Also, by asking to observe it, I’d find out for sure if it was a COP hearing or not

2. It’s a “PRIVATE” hearing

Way back in 2016, shortly after the  beginning of the Transparency Pilot Scheme, Mr Justice Mostyn said

 “I want to dispel the idea, which continues to be peddled by certain sections of the press, that the Court of Protection is a secret, sinister court which dispenses justice behind closed doors.”

“Judge defends Court of Protection as not a “sinister secret court“, Today’s Wills and probate

It beggars belief that a court so determined to counter the impression of secrecy should label so many hearings “PRIVATE” – creating an entirely illusory impression of secrecy where in fact none exists.

I’ve been told that the word “PRIVATE” is a “legal term” and doesn’t mean that members of the public will be excluded. Members of the public can be (and in my experience are) admitted to almost all the hearings labelled “PRIVATE”.

I’ve spent a lot of time explaining to this to would-be observers – to their disbelief and bewilderment. Here’s a tweet from two years ago, again part of a thread about the day’s CourtServe listings.

Link to tweet

I think the small print at the bottom (check out the photo of the listing) about “Open justice” is designed to counter the impression created by the words “IN PRIVATE” – but it simply doesn’t work!

Why would anyone be surprised that the word “PRIVATE” has a chilling effect on open justice?

3. There’s no information about the issues before the court

As I said earlier, I didn’t know what this hearing was going to be about when I asked to observe it.  

That’s because no information was provided in the list about the issues before the court in this hearing: they are unhelpfully referred to as “MATTERS”.

Anyone who’s been following my Twitter feed – or @OpenJusticeCOP – will already know that the absence of information about what hearings are about is very common in Court of Protection listings – the norm, rather than the exception.  

There was a clear official statement, when the Transparency Pilot was launched more than six years ago now (on 29th January 2016) that descriptions of the issues before the court would be made publicly available in listings.  

Policy officials will also work with Her Majesty’s Courts and Tribunals Service to amend the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media to make an informed decision on whether to attend the hearing.

Available at https://www.judiciary.uk/wp-content/uploads/2015/11/cop_transparency_pilot_background_note_19.11.15.pdf, downloaded 24th May 2022

Nearly eighteen months later, this still hadn’t been achieved, and the judiciary seemed unsure about how to go about implementing it.  The (then) Vice President of the Court of Protection, Mr Justice Charles, said: 

It is recognised that it is important that cases are appropriately described when they are listed to provide information to the public at large of what they are about and when and where they will be heard. Comment on how this should be and is being done is welcomed.  As is more general comment on how the public and the media can make themselves aware, or should be made aware, that certain types of case are due to be heard…

(Mr Justice Charles, The Transparency Pilot, 20th June 2017)

It’s still the case that many (sometimes most) lists don’t have any indication of what hearings are about. None of those posted on the Royal Courts of Justice website ever does – and it’s proved enormously frustrating for health and social care practitioners, activists and educators who have special interests in observing hearings on particular issues.

For example, court-ordered Caesarean sections (and other court orders related to mode and place of birth) have been of particular concern for some midwifery groups and for the charity BirthRights, dedicated to “protecting human rights in childbirth“. These hearings raise key issues related to autonomy over our bodies and reproductive rights. But without advance information (sometimes sent to journalists but not to us!) about when these hearings are being heard, it’s unlikely that we’ll get to observe them and impossible to plan to do so. That’s a real problem for open justice, and creates exactly the impression the court wants to avoid – of a secret court ordering restraint and surgical interventions on resisting pregnant women. Check out my blog about one such hearing, where I make the point that: “it’s not sufficient for open justice to have to rely on reports from journalists. Media accounts are necessarily abbreviated versions of complex decision-making processes.  Journalists cannot be expected to engage with these issues in the same way as a consultant obstetrician, a specialist perinatal community mental health midwife, a feminist psychologist, or an expert by experience.  There are limits to the extent to which a journalist can act as the ‘eyes and ears of the public‘” (Agoraphobia, pregnancy and forced hospital admission).

Finally, simply in terms of encouraging the public to support the principle of open justice and perform the civic duty of observing hearings, I have to say that I find it hard to persuade or entice members of the public to give up their time to observe a hearing when I can’t supply them with any information about what they’ll see.  It’s like trying to sell theatre tickets without telling us which play is being performed.

4. The contact information is incorrect

Suppose a member of the public actually found this hidden hearing and recognised it as a COP hearing, understood that “PRIVATE” wasn’t intended to deter the public from attending, and was interested despite no information about the “MATTERS” to be addressed in court. Now they would need to send an email asking for the link. The obstacle course continues! 

The correct email address from which to request access to Court of Protection hearings is the email address for the Regional Hub with which any given court is associated.  The Regional Hubs are listed on a gov.uk webpage (here). 

For this court (Leicester), would-be observers should contact the Midlands Regional Hub, which has a Birmingham email address (courtofprotection.birmingham.countycourt@justice.gov.uk).  

But the list gives two email addresses in Leicester.  

Incorrect contact information is common when Court of Protection hearings haven’t been included in the Court of Protection list. 

On this occasion, in a spirit of enquiry, I emailed the two Leicester addresses, just to see what would happen.  

Usually, when I’ve (inadvertently) sent emails to the wrong addresses (as given on the listings), the outcome has been no response, or a very delayed response, after my email has been forwarded to the correct address – sufficiently delayed, in fact, that I miss the hearing.

I sent this enquiry to the wrong addresses more than 3 hours before the time the hearing was due to start.  I figured if I didn’t hear back (or got an inappropriate response), there was still time to contact the correct address.  I was pretty surprised to actually receive the link to observe the hearing a couple of hours later – just before 2pm (which was when I’d planned to resend the email to the correct address).  A clerk at Leicester had forwarded my request (marking it “URGENT”) to someone designated as a “CVP Court Clerk” (CVP = Cloud Video Platform) for DJ Birk that day, and that person had sent me the link. (Many thanks for the prompt actions of the people involved.)

These are not the actions of people determined to exclude the public!

When Anna read the draft version of this blog, she commented: “With regards to the wrong email address you noticed , one thing that occurred to me is that you are now well known in legal circles re COP cases ( I could tell this from attending the hearing with you!). Would an ordinary member of the public be given the hearing link so quickly, I wonder.”  I share that concern.  I think sometimes I get special treatment[3].  

I’m baffled as to why the lists so frequently get the contact information wrong – or omit it altogether.

Let me show you some other examples I’ve tweeted about over the years.

For a while, the court seems to have been using a template requiring people submitting to the listings to complete their own Regional Hub email address. They weren’t doing it – and the email address kept appearing as COPhubemail (which was intended, presumably, to signal “fill in your own COP Hub email address here“)!

Then there was a week or more when First Avenue House in London was displaying the wrong email address (there’s an errant ‘s’ that’s crept into the middle of it) – so would-be observers kept contacting me to say their emails were bouncing back.

Recently, I discovered from a systematic search that 20% of CourtServe entries omitted contact information altogether (again this tweet is part of a thread which covers listing problems on 14th March 2022).

I’ll return to these listing problems in my “Final Reflections”.

Part B: Family applications to be joined as parties

This was the first attended hearing in the case and the first at which P was represented.   

The two existing parties were the applicant local authority (represented by Mark Kamlow) and the protected party (P), represented by Lauren Crow of MJC Law, her Accredited Legal Representative (ALR).

P’s mother and grandparents were there (attending together from a single location) and they all wanted to be joined as parties. 

I later learnt from the Position Statement on behalf of P that these family members oppose the local authority’s application for a declaration that it’s in P’s best interests to move from her grandparents’ home to supported living accommodation.  P herself also consistently says that she would like to remain living at home with her grandparents.  But the local authority is concerned about the quality of the care she receives there.

There were issues to discuss and orders to make in addition to the question of family representation, and these were dealt with first.  

The most significant was appointment of an independent consultant psychiatrist to complete a capacity assessment of P (a teenager with spina bifida, hydrocephalus and “learning difficulties”) to see to what extent she is able to make her own decisions.  Obviously, the court has no jurisdiction to tell P where she must live unless it’s determined that she lacks capacity to make this decision for herself.

The only existing evidence on capacity is over 18 months old and relates solely to P’s capacity to conduct legal proceedings.  There is no evidence of P’s capacity to make decisions about where she lives, the support she receives, who she has contact with – or about her capacity in relation to financial matters and whether (should it become relevant) she can sign her own tenancy agreement. 

In addition, there were some third-party disclosure orders and timetabling matters to  sort out (and the need, since I was observing the hearing, for a Transparency Order).

The two legal representatives were agreed as to the “general direction of travel” in relation to these substantive issues.

The judge also asked each of the legal representatives for their view on party status for the family members.

For the local authority, Mark Kamlow said: 

“We are content for them to have party status. This will enable them to participate as actively as possible and allow them to see the expert reports and comment on them. Hopefully it might assist in terms of seeing solicitors and getting them their own legal representation.”

For P, Lauren Crow said: 

 “We have no objection to them being joined as parties, but there will need to be some slight redrafting of the expert instruction to ensure they are not responsible for the cost of that.”

(Expert instruction is usually shared equally between parties but it’s common for family members who are parties NOT to have to pay their ‘share’ of this.)

Having established all this, the judge turned to the three family members.  She had previously greeted them at the beginning of the hearing, checked they could hear everything, and said that she knew they had applied to be joined as parties and she would deal with that shortly.

Now she checked that they understood what was involved.  “If you were parties, you’d need to attend all future hearings, and will get the papers. Is that what you would want?”.  All three said yes.  

The judge then said, “Well, I have no objection, because you are obviously very much a part of P’s life and need to know what’s happening.  So, what the court will do today is make you parties, alright?“.  They all said “yes“.

Then she checked their position on the other declarations and orders the court was going to make today.

Judge: We are going to gather some information. One piece of information is the expert report. Have you got anything to say about that?

Family: No.

Judge: We are also going to get further information about P from her medical records – anything you want to say about that?

Family: No. 

Judge: Then we’ll come back after all that information’s been gathered, and you’ll be able to read all the information that’s been gathered, and the court will hear from you about what you think of it. Are you happy with that?

Family: Yes.

There was then some discussion about the time and date of the next hearing, and whether it should be remote or in person.  The family had requested an in-person hearing and this was agreed.  The next hearing (a ‘case management hearing’) is planned  for 19th October 2022 at 2.00pm before DJ Mason in person in Leicester County Court.

Lauren Crow said she would “explore with P as well whether she would like to attend” (she wasn’t at this hearing).

Finally, the judge addressed the family, asking “Anything further?  Is there anything you’d like me to explain about the orders I’ve made today, or anything else you want to raise?“. They said no, and the judge ended by saying that the local authority legal representative would be in touch with them to provide them with the documents for the upcoming hearing, and would also try to help them to find legal representation.

So that was straightforward!  And typical of the sort of thing I now realise I’ve seen many times before.

Often, family members are named as respondents from the outset of a case (and confirm a wish to be formally involved), so there is no judicial determination as such. When they are not so named, but wish to be joined as parties, there are some “rules” and case law to assist the judge’s decision[4].

Rule 9.13(2) Court of Protection Rules 2017 is the test for joinder of any party.  It says simply: “The court may order a person to be joined as a party if it considers that it is desirable to do so for the purpose of dealing with the application.” 

Case law helps with understanding what might count as evidence that joining a party would be “desirable”.   Simply being a family member doesn’t give rise to  an “entitlement” or “right” to be joined as party but if joining that person would to help to ensure that P’s interests and position are properly considered,  then it would be “desirable” to join them (Re KK,  [2020] EWCOP 64).

A judge making a decision about joining someone as a party is supposed to balance the pros and cons in the particular circumstances of any given case – and joining a family member who knew P well before P lost capacity could be beneficial in enabling the judge to better take into account the protected party’s wishes, feelings and preferences.  

(Bodey J in Re SK (by his litigation friend the Official Solicitor) [2012] EWHC 1990 (COP) (‘Re SK’)

I shared all of this information, along with my notes from the hearing itself, with “Anna”, the daughter of a protected party in another case, so that she would understand the basis on which a decision would be made about joining her as a party in her mother’s s.21 case.  Anna’s response was heartfelt:

 “Gosh, thank you so much for this information. I feel quite daunted by this process of joining as a party, on top of everything else to do with the case, and knowing more about it is really useful and reassuring for me.” (Anna)

For Anna, the situation is a little more complicated because (as she said in her original blog post), her sister holds lasting power of attorney for their mother (both for Health and Welfare and for Property and Finance).  Anna tells me the local authority’s solicitor has put pressure on her sister (however unintentionally) to become a party – instead of (or as well as) Anna – and her sister is now worried that the judge will insist on this, despite the fact that all four of P’s adult children, including P’s LPA, believe that Anna is the right person to be a party in the case and is best able to represent the views of the family.  The issue of the relationship of LPAs and party status in hearings is (as Anna says) something solicitors (and health and social care professionals) need to be sensitive to in dealing with families.  She asked me to feed this back through my blog.

All in all, this was a really valuable hearing for me to observe – both for my own legal education, and (indirectly, through me) for Anna as a court-user for whom this information is of immediate practical relevance. I just wish I had known what the hearing was about in advance, and I could have invited Anna to join me and witness it at first hand.

Final Reflections

Many people who contact the Open Justice Court of Protection Project believe that the court is deliberately obstructive of open justice.  I understand why it can feel like that.

It takes an effort of imagination to realise that problems of transparency are caused not by deliberate intent, but because of systemic failings in the necessary infrastructure needed to support open justice. Open justice fails despite the judicial commitment to it.

It really isn’t the case that the lists are deliberately designed to discourage us from observing hearings.  It’s just that – very often – they have that effect.

Having attended this hidden and “private” hearing, I can’t detect any reason why anyone would have sought to exclude me: there was nothing ‘secret’ or ‘sinister’ about it at all.

There’s a maxim called Hanlon’s Razor[5] which appears in different versions, including: “Never ascribe to malice what can adequately be explained by incompetence”.  Without wishing to be heard as accusing the Court of Protection of incompetence, I have found this a useful maxim to bear in mind in my dealings with the court.  The most likely (parsimonious) explanation for failings in open justice is because – in large part due to chronic under-resourcing of the court service –  the daily court listing service hasn’t been updated, as had been proposed, with the advent of the Transparency Pilot. And staff haven’t been trained in what’s needed, are overwhelmed by their workload and don’t get to read emails in time.  It’s perhaps surprising  – and testimony to the good intentions of court staff, lawyers and the judiciary – that we get to observe as many hearings as we do!

But good intentions are not enough.  

The inadvertent exclusion of the public is as damaging for open justice as if it were done deliberately.

The reality is that sincerely-held and lofty ideals of open justice depend upon mundane and tedious everyday details like adequate listings and responding to emails in a timely fashion.  

It’s glaringly apparent that the listing system wasn’t set up in an outward-facing user-friendly way for members of the public.  It needs a thorough overhaul.

What if there were an official public-facing Court of Protection page on a gov.uk website explicitly welcoming observers to attend hearings and explaining how to understand the lists and what to do to get to court?

What if the lists included information about what hearings were about – including user-friendly descriptors like “Family application to become parties” or “Caesarean-section” – to attract court-users with particular (personal or professional) concerns?

What if there were an official gov.uk page for the Court of Protection with some Q&As answering questions like Anna’s “How will the judge decide whether or not someone can be a party to a case”?  (This is especially important of course given the large number of litigants in person.)

Then we might have a truly transparent Court of Protection – both improving access and knowledge of the way the court works for members of the public in general, and more particularly for those involved in Court of Protection proceedings.

What we need to figure out is how we can all work together to get there from here!

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has observed more than 300 (remote) Court of Protection hearings since 1st May 2020. She tweets @KitzingerCelia

[1] You can learn more about Anna (not her real name) and her mother’s case in the blog she and I co-authored after watching a s.21A hearing together.  Check out “A section 21A hearing: Impressions from a veteran observer and the daughter of (a different) P in a s.21A case”.  One of the points I make in that blog is that it’s fairly easy to find a s.21A hearing for members of the public who wish to observe them, because (a) they are common cases; and (b) they are often heard at First Avenue House London, which operates the only court listing service which routinely and systematically lays out the issues before the court (see “Court of Protection Daily Hearing List”). Bear in mind, however, that, despite its name, this list covers a small percent of the total number of Court of Protection hearings across England and Wales.  For a comprehensive listing, you must use CourtServe. And that many members of the public do not know what on earth a “s.21A” hearing would be about – my first response to contact from Anna was to ask whether (based on her description of the case) she had heard the words “section 21A” and then to describe to her what that means!

[2] “Transparency is central to the philosophy of the Court of Protection”, Hayden J (Vice President of the Court of Protection), 4th May 2020.

[3] Like everyone else, I often receive no response to emails asking to observe hearings and recently had occasion to complain to the staff at the Royal Courts of Justice after a failure to respond to an email (originally sent at 05:35am and resent at 10.20am) asking for a link to observe a hearing before MacDonald J listed for 10.30am on the same day (18th May 2022).  I received an apology but missed the hearing.  On the next occasion I asked for a link from the RCJ I was sent the same link three times over the course of an hour by three different people (one of whom subsequently followed up with an email checking I’d received it). (Thank you!)

[4] Many thanks to the lawyers who responded to my tweet asking “Court of Protection lawyers – are there rules about when/whether family members of P can formally become ‘parties’ to a case? Or case law? Is it a judicial decision? What needs to be considered + why might it be opposed? Relevant links welcome! Thank you.”  Many thanks to lawyers Emma Sutton and Ben McCormack, from whom I received helpful and informative answers within the hour citing Rule 9(13)(2) and the case law, respectively. Thank you also to Eleanor Bulmer, who subsequently drew my attention to Practice Direction 9B, Rhi Jones (who drew attention to the matter of costs) and Molly Fensome-Lush who contributed her experience: “The only case I’ve had where a family member wanted to be joined and wasn’t was where P herself vehemently opposed it and spoke to the judge directly to ask him to refuse the application”.  Legal Twitter at its best!

[5] The maxim is attributed to many different people (including David Hume, Ayn Rand, Napoleon Bonaparte and Goethe).  The Wikipedia entry says that Hanlon’s razor became widely known as such in 1990 after its use in the Jargon File, a glossary of computer programmer slang, though the phrase itself had been in general usage years before.  Its name is inspired by “Occam’s razor”  and (probably) by the computer programmer Robert J Hanlon, who publicised the principle. Both Occam’s razor and Hanlon’s razor refer to heuristics designed to prune sets of hypotheses by favouring parsimony. 

Photo by Ricardo Gomez Angel on Unsplash

A section 21A hearing: Impressions from a veteran observer and the daughter of (a different) P in a s.21A case

By Celia Kitzinger and Anna (Daughter of P), 9th May 2022

Anna (not her real name) contacted the Open Justice Court of Protection Project towards the end of April 2022, saying that she’d been asked to attend a s. 21A directions hearing about her mother (in a care home, with Alzheimer’s) and was finding the Court of Protection process “opaque”.   She didn’t know how it was possible for her mother to have made an application to court given that her mother knows nothing about it, or what her own role as a daughter was supposed to be (as “interested person” or “party” – what’s the difference?). When asking for information from the lawyers representing her mother, she’d been told to seek independent legal advice.  Could she watch a Court of Protection hearing, she asked, and see for herself what was involved.

Fortunately, there are lots of s.21A hearings to choose from in the Court of Protection, although only First Avenue House London and the Newcastle hub routinely include this descriptor in the listings.  

I offered to observe with Anna, so that we could discuss it afterwards.  

On the day we’d chosen to observe a hearing, there was one before District Judge Beckley (at First Avenue House), listed like this:

3rd May 2022. 10:30am District Judge Beckley
COP13744224 T v London Borough of Hillingdon 

Section 21A Deprivation of Liberty, Decisions relating to P’s care and residence

TO BE HEARD REMOTELY

PRIVATE HEARING NOT OPEN TO THE PUBLIC
Time estimate 2 hours

I’ll give a summary of the case, and describe what happened in court and my views of the hearing  and then Anna will describe her impressions of the Court of Protection, based on her observation, relating it to her own experience..

The hearing – Celia 

The hearing began with the judge restating that the hearing was “private” (as listed) but that the rules permit him to admit observers and to specify that there is no contempt of court if we report the proceedings so long as nothing is published that discloses the identity of the person at the centre of the case, where they live, or those caring for them.  (This is an approach to remote hearings that seems to be adopted uniquely by judges at First Avenue House: judges at every other Regional Hub simply disapply Practice Direction 4C, make the hearing ‘public’, and issue a Transparency Order.)

Christine Cooper, acting for the applicant (T) via her Accredited Legal Representative provided a helpful summary of the case.

It concerns a woman in her early nineties who has dementia and diabetes.  She has no contact with remaining family members, but is supported by a long-term friend (M) who – like T– is not a first-language English speaker. 

Importantly, M holds Lasting Power of Attorney for both Health and Welfare and for Property and Finance. (There’s a very helpful blog post by Alex Ruck Keene on “Powers of attorney, care homes, best interests and deprivation of liberty”, which covers the legal issues concerning deprivation of liberty when the protected party has a attorney.)

Until August 2020, T lived in her own flat.  After hospital treatment, she agreed to be discharged from hospital to a care home to see if she would like it.  

It turns out she did not, and she started asking to go home within a few weeks.

Her attorney (M) approached the local authority on 8th December 2020 to explain that T would like to return home.

Court of Protection proceedings were issued a few months later, on 22nd April 2021. (I don’t know why it took nearly five months to issue proceedings) 

It’s now more than a year since proceedings were issued.

According to counsel for T, it’s been confirmed that T’s flat is suitable for her to return to and M has identified a suitable live-in carer, but “very little has happened to progress a trial return home or to consider any other options for T”.  

Counsel for T said that, “the return home was considered feasible quite some time ago.  The difficulty turns largely on funding issues”.  Later she said, “It’s a terrible tragedy that one of those rare cases where a return home is a feasible action is being hampered by funding issues”.

As I understand it, the issue is that since T was found ineligible for Continuing Healthcare Funding, she’s been considered a “self-funding” resident at the care home, with M having commissioned her placement.  She now owes tens of thousands of pounds for the care she’s received at the care home she doesn’t want to be in, and has “exhausted her liquid assets”.  Her flat (since she’s not living in it and it is mortgage-free) is considered by the local authority to be a capital asset from which she is expected to fund her own care (e.g. by selling it or via equity release). 

Counsel for T challenged this characterization, saying that T is a temporary resident of the care home, who intends to return home, and as such her home must be disregarded in any assessment of her assets.

“She was placed there 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”.

The position taken by counsel for T is that, given the circumstances, T should not have to fund her care, but that in any case “at this stage the most important thing it to get the trial at home done, and if it doesn’t work out, then it will be straightforward as the flat will have to be sold”.    

If the trial of living at home is successful, however, there will be an issue of how her care at home will be funded – at least after the first month, which the local authority has now agreed to fund, on a trial basis.  

The right to a “speedy” decision

Schedule A1 of the Mental Capacity Act 2005 was drafted so as to meet the requirements of Article 5(4) of the European Convention on Human Rights.  

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” (European Convention on Human Rights)

Section 21A is supposed to provide the detained person with the means of obtaining that speedy review – but in practice (at least in my experience of watching s.21A hearings) it could rarely be called “speedy” (see: Inspired by Bournewood: A s.21A challenge and delay in the court and Delay in a s.21A challenge to the capacity requirement).

In this case, says counsel for T, “despite no less than 5 sets of directions having been given by the court, T has not had a speedy review of her detention in circumstances where it is entirely possible that she could have returned home some time ago”.

Concerns about quality of care

Not only is there a concern about delay, but also the quality of care she’s received at the care home has caused serious concern to her friend and attorney (M) and to her legal representatives.  

Nobody at the care home speaks T’s native language. There have been problems relating to hearing aids, dentures, spectacles, and T has sustained serious injuries in two falls at the care home.  M reports that T’s swollen legs are not elevated as they should be and that T has sometimes been left in dirty clothes, without having had her hair done. She says T is very sad.

Counsel for the local authority (Thomas Boden) made clear that the local authority does not accept these concerns and there is no evidence of safeguarding issues.

“It is disingenuous,” said counsel for T, “for the local authority to say there were no safeguarding issues, when it decided not to undertake an investigation”.

How the judge engaged with the problems: time and money

The judge maintained a firm focus on ensuring that T gets a trial of living at home as soon as possible.  He addressed the practical steps required in pursuit of that aim.  He made no findings of fact regarding the quality of care at the home, nor did he pursue the matter of alternative care homes.

He set up quite a tight timetable by which the local authority and clinical commissioning group need to provide specified information, including a care plan and transition plan, detail about how T’s diabetes will be managed at home, and issues relating to a problem with entering and leaving the flat now that T’s mobility has declined (there are steps).  The local authority asked for 21 days (“due to work load capacity and time available to staff”) but were granted only 14 days to provide information – with a requirement that “a senior officer within social services” must provide an explanation to the court if this direction is not complied with.  

The judge decided against an order (proposed by counsel for T) that an social worker should be appointed to urgently seek another care home for T because “I don’t want to derail our planning for a return home by talking about alternative care homes”.  I got the impression that he very much ‘cut to the chase’ of the issue, which was to get T home as swiftly as possible.

This was so even though the local authority will not keep her place at the care home open to cover the eventuality of the trial of living at home failing.  

Acknowledging that nobody can order the local authority to reserve T’s place, counsel for T arrived at the view that “if that results in her going to a different care home, maybe that’s a good thing”.

It is not within the power of the judge to order the local authority to keep the placement open, but counsel for the local authority indicated that it would be within the judge’s powers to direct the attorney to do so (i.e. M). Presumably this would mean that M would have to pay the care home charges (out of T’s assets) for the month-long trial while T is living at home.

Counsel for T reacted to this suggestion with exasperation: “M has exhausted all T’s liquid assets.  You can’t direct the attorney to do something that can’t be done.”

“If there were sufficient funds”, said the judge, “that would be a practical option, but if there’s no funding available for M to do that, it’s not a realistic option for me.  If the money’s not available, I can’t order her to do that”.

Counsel for the local authority then asked the judge to order M to set out the funding position under different scenarios.

Counsel for T responded with incredulity.  “We’ve been around this loop at the RTM [Round Table Meeting] on Friday…. M is a longstanding friend, doing a sterling job of supporting T in the face of circumstances where I think a lot of people would have given up.  She’s not an expert, she’s got no financial training, she’s not legally represented.  It simply isn’t right to try to ask M to go and obtain financial advice and legal advice and then second guess the outcome of the local authority’s decisions….  At this stage the most important thing is to get the trial at home done”.

The judge declined to make any such order.

The judge said he would need to “squeeze in a hearing outside of normal times” to ensure this case was heard in a timely fashion.  It’s listed for a next hearing at 9.30am on 7th July 2022 (as a remote hearing).  There was also a deadline set for filing a COP 9 form, setting out when the trial at home is going to take place- and if that target deadline isn’t met then there will (also) be an earlier hearing on 30th May at 3pm. 

The view of T’s friend and attorney, M

T’s friend and attorney, M, was not a party to proceedings, but the judge treated her as having “an  important role” and asked whether she would like to address him.  She spoke with some passion (bear in mind her first language is not English):

“I am appalling the long time it’s taking [the local authority] to decide T can go home, since she decided in her second week at [the care home]. It’s her will to be at home.  She understands that, in later days, she probably won’t be there, but at the moment she’s distressed to be in that place where she’s not happy at all.  I can’t describe how she’s feeling. Please allow her to trial home for her own peace of mind in the latest years of life.”

Later, M acknowledged with a sigh that she wasn’t an “expert”.  “It’s the first time in this situation. I want to help my friend. I’m not familiar with the court. I’m thinking of T’s dignity and peace of mind.  I just want her to be happy and have peace of mind”.

I was pleased to hear the judge check M’s understanding of how things were going forward and thank M for the role she has undertaken so far as T’s attorney.  “The role that people who agree to be attorney for people who lose capacity is a very significant one”, he said. “My thanks to you for undertaking that.  There is recognition from the judges of the Court of Protection for the work undertaken by attorneys.  And I hope you’re reassured that T will be having a trial of living at home as she wants in the very near future”. 

Comment

I was pretty horrified by this case, and dismayed that T has been deprived of her liberty against her wishes for such a long time, despite the fact that the Court of Protection has had oversight of this case for more than a year. I wondered if Anna would be as concerned as I was with the delays in addressing T’s wish to return home.  I was pleased that the judge behaved impeccably in terms of his focus on T’s wishes and feelings, and attempted (albeit late in the day) to facilitate her return home as soon as possible.

It was also lovely to hear the judge thank M, and express his appreciation of the work carried out by people acting as Lasting Power of Attorney for people who’ve lost capacity. That must surely have felt supportive to Anna, whose sister has Power of Attorney for their mother.  I was alarmed by the challenges being put in the way of T’s friend and attorney and empathized with her position.  I think few people would expect to take on a task of this magnitude when agreeing to act as an attorney for someone, and there seems to be little support available for attorneys in this sort of situation. This is of some personal concern to me since I am a nominated attorney for four different people in the event that they lose capacity in the future, and have also appointed close family members as attorneys in the event that I lose capacity.  For any attorney it would be hard work to have to deal with the position taken by this local authority – and it’s a reminder that we should appoint as attorneys people who not only know and love us, and know our wishes well, but people who also have the stamina, strength and skills to stand up to challenging behaviour from public authorities (and/or – as I’ve seen in other cases – from professionals).

I would add that the interactions between the two lawyers in this hearing was (for obvious reasons) rather less “collaborative” than at most Court of Protection hearings I’ve observed – and I worried that Anna might feel I had misrepresented the “inquisitorial” nature of the proceedings, given what I experienced as the occasionally clearly critical (or even acerbic) nature of the exchanges.

Finally, I tend to put myself in the role of the protected party and think “what if that were me?” and then figure out whether there is anything I can do now, while I still have capacity, that could protect me against ever finding myself in P’s situation.  My personal response to many hearings I observe is to tweak my Advance Decision to Refuse Treatment, or write an email to my attorneys that they can use as evidence of my wishes and feelings, values and beliefs.  But there are some circumstances it seems very difficult to avoid.  In this case, T seems to have done all the right things – not least by appointing someone (her friend M) to make decisions on her behalf, both in relation to money matters and in relation to her health and welfare.  But the law doesn’t permit M to just remove T from the care home and bring her home (which is what I would want M to do for T in this situation, and what I would want my attorney to do for me).  I would wish my own attorneys to make all decisions for me in the event that I lose capacity.   But that’s not possible.  The state both withholds from attorneys the right to make decisions relating to deprivation of liberty, and also dictates the basis on which attorney’s decisions must be made (which is not coterminous with the person’s past or present wishes).

My experience as a first-time observer – Anna

When I first received an e-mail inviting me to attend a Section 21A COP hearing relating to my mother, my first reaction was anger (how have we got this far without the family being directly consulted?) and panic. What was the process? How would the family be involved and our voices heard? What was this secretive Court of Protection (COP) that was going to be involved in making fundamental decisions about my mother’s life? 

As a brief background, my elderly mother, who has Alzheimer’s, has been placed in a residential care home by social services, with the complete agreement of her children. This includes my sister who is her LPA* for both Health and Welfare and Finance and Property, and is a decision that we still support, as we fundamentally believe it is in her best interests.  

My mother has, however, not accepted the decision and when asked officially, says that she wants to leave the care home. In order to protect her human rights, an RPR* was appointed for her after a DOLS* assessment. Following which the Official Solicitor appointed a solicitor to represent my mother, who has now filed court papers. This happened in a period of around six months, with no involvement from the family.

The case is officially “my mother vs the Council”. “Vs”. What images did that conjure up for me? Crime, guilt and innocence, barristers arguing in front of a stern judge, in an imposing court room. “I rest my case, mi’lord”. Waiting for a verdict that would have huge implications, with her family on the sidelines or even maybe not able to participate at all, silent spectators to a life-changing decision. 

Neither of the solicitors in the case could explain much about the process, and advised us to seek our own legal advice. Of course, we knew this meant incurring costs, which we wanted to avoid. I frantically started to try to find out more, going down internet rabbit holes looking for information about this type of hearing. 

And that’s how I came across the Open Justice Court of Protection Project website. I sent them an email. Celia Kitzinger, co-founder of the Project, got in touch which set off a train of events leading to me observing a hearing, within a very short space of time. Celia gave me a lot of invaluable advice, including about the nature of the COP. Very importantly, she explained that it was not an adversarial court but an inquisitorial one, with parties providing evidence that would enable the court to make the best decision for the individual. It is largely a collaborative process, with parties working together. 

I asked Celia if she could help me apply to be an observer of a hearing in order to learn directly about how it worked. I would not have had the first clue how to do this but she guided me through it, figuratively holding my hand, even to the extent of observing the hearing with me.

 The process started with Celia finding a Section 21A hearing. She sent the court an email the evening before asking to be an observer, and forwarded the email to me so that I could send an identical request. 

On the day of the hearing, I received a link to the hearing, which was being held on Microsoft Teams. It was a bit off-putting to read in the header: “TO BE HEARD REMOTELY, PRIVATE HEARING NOT OPEN TO PUBLIC”, the capital letters seemingly shouting that I wasn’t allowed to attend. However, Celia had reassured me in advance that that this message referred to the fact that only people who had been sent an official link could attend. 

Nobody asked me who I was or why I wanted to attend before sending me the link. That said, maybe the fact that my request e mail was identical to Celia’s indicated that I was known to her and therefore an acceptable person! The email included a link to a document, a Directions Order, with a previous date, which I quickly skimmed through to give me more information. This included information relating to the confidentiality of the hearing for all people attending, therefore including me as an observer. 

I logged on nervously ten minutes before the hearing was due to start. Celia had warned me to keep my camera and microphone off. When I was admitted, I saw a couple of people already waiting, some with cameras on and some not, and gradually more people joined. At the allotted time, the court clerk welcomed the attendees and waited for a late joiner. 

This hearing was not the first in the case and therefore the lawyers were familiar with each other. When the late joiner arrived, the court clerk notified and admitted the judge. 

There were seven people in attendance in total, three representing P*, including her LPA, one each representing the local authority and NHS (other respondents named), the judge, the administrator and two observers, myself and Celia. The LPA was not an official party to the case and she choose to keep her camera off. 

After initial greetings, the judge started by saying that there were two observers to the hearing, naming us. He addressed us directly, stating the private and confidential nature of the case, and asking us to indicate by silence that we had understood the law we had to comply with. I was slightly relieved not to have to speak, but would have done so if necessary.  

The judge then suggested that it would be useful to have a quick précis of the case to date to help us. I was really surprised by this, as I was aware that this would take up valuable time, but P’s counsel did this and it was indeed useful. Especially for me with a view that I would be involved in a Section 21A case in a few weeks’ time. The hearing proper then began. 

It lasted for an hour and a half. Each party was asked to speak in turn and various issues were addressed and returned to. The judge also invited P’s LPA (and friend) to speak at certain appropriate points. She was not a lawyer and I felt that a great deal of care was given to making sure that she understood where necessary and could make her feelings known. This was in spite of her not being an official “party” to the case. 

I found the judge very sympathetic and humane, and it was clear that he only had P’s best interests at heart. He was also sympathetic to the huge strains that the local authority was under, especially because of the pandemic, and also the NHS. 

P’s counsel was very good at bringing the court’s attention back to the fact that P is an individual person, trapped in what she called a “ Kafkaesque nightmare”. Everybody treated each other with respect despite their disagreements.

 Some time was spent trying to program future hearings, and dates by which further evidence had to be submitted in order to achieve those. The judge was consulting his diary during the hearing and working backwards. It made me appreciate both the demands on the time of legal professionals and the slow wheels of the legal system, even in this case for which it had been established that time was of the essence. 

The space for the hearing, being a virtual one, created an environment which I thought was probably better than being in a physical courtroom.  I liked being able to observe with the camera off and I felt that it created a certain informality, which made it less of a stressful experience. When at one point one of the attendee’s connection dropped, the hearing was paused to allow them to rejoin and it wasn’t a big issue. I could also see the participants’ faces during the hearing – if it was a physical courtroom, I would have been at some distance, looking at their backs and probably struggling to hear. I am pleased that the hearing about my mother will be a virtual hearing – it also makes it easier for me to attend.

At the end of the hearing, the judge authorized the two observers to have access to the position statements of P’s counsel and the local authority, provided the parties agreed. P’s counsel immediately said yes, and asked Celia (who then appeared briefly on camera) to send it to me, as she didn’t have my contact details. The Local Authority counsel said they would seek instructions (and have not sent their position statement). On reading the position statement of P’s counsel subsequently, it helped me understand further what had been discussed during the hearing and was therefore very useful. In an ideal world, it would have been helpful to have read this before the hearing, but I don’t know if this can always be accomplished. 

So, what have I learned? 

First, I have learned that having an LPA in place does not mean that the LPA can make all the decisions for a person no longer deemed to have capacity – and that those decisions they do make must take account of the person’s wishes and feelings.  The judge made that very clear. In law, an individual with dementia still has views that need to be listened to and taken account of, even if a family, who knows a person and cares for them, thinks they know best. The Court of Protection is the last shield of protection for an individual. Whilst now understanding more about why this legal protection is in place, it does make me question the ultimate value of an LPA for Health and Welfare, as I had assumed it meant that the LPA could make all the decisions in the best interests of P when they were deemed to no longer have mental capacity to make their own decisions. And I wonder how many LPAs fully understand the limitations.  

Second, this experience has really helped me to understand how the Court of Protection works and helped to demystify the process. I was particularly impressed by the care and attention given by the judge to helping make the experience accessible to a lay person, whether it be the LPA or P or myself as an observer. And I was pleased to hear him pay tribute to T’s LPA. I know from the experience of my family that my sister has had to spend a lot of time and energy supporting our mother as her LPA, in addition to her time spent supporting our mother through the care she provided before our mother was admitted into residential care. The COP process is a step that we hadn’t anticipated having to go through, and it shows what a commitment being an LPA is. 

Finally, I won’t comment on my thoughts as to the exact circumstances of T, as I don’t think it would be appropriate. I was more interested in observing the process. That said, it was difficult to hear the details, especially how long it was taking for a satisfactory outcome to be achieved.  I would add that in our case, the whole family is happy with the care being provided to our mother and she does seem happy at the home, even if she doesn’t want to accept it will be the place where she spends the rest of her life. Like many elderly people with dementia, she is fighting her infirmity, and wants to keep the flames of hope alive. 

Observing this case has given me more confidence about my involvement in my mother’s case, when I will probably be a party, at my request, and thus an active participant. The Open Justice Court of Protection Project has certainly helped shed a light on what had seemed an opaque aspect of the justice system. I am much more reassured about the process and certainly my anger has been assuaged. I would thoroughly recommend a family member involved in a similar case to observe a hearing if possible.  It is truly enlightening. 

As for me and my family, we still have a long road ahead but at least we can see it more clearly. 

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has observed more than 300 hearings in the Court of Protection and hopes to observe future hearings relating to Anna’s mother when they reach court.  She tweets @KitzingerCelia

Anna is the daughter of a woman who is currently a P in a Court of Protection s.21A application.  She’s not using her real name because she wishes to protect her mother’s privacy, while also hoping that other families can benefit from reading about her family’s experience.  She hopes to blog in future about the hearings as the case progresses through the court.

*There are lots of initials to learn when involved in a case like this. LPA = Lasting Power of Attorney; RPR = Relevant Person’s Representatives;  DOLS = Deprivation of Liberty Safeguards; P = Protected Person

Photo by Jeremy Wong on Unsplash

Challenges in observing a (remote) hearing at Swansea Civil Justice Centre: Capacity for contact and sexual relations

By Celia Kitzinger, 6th May 2022

I had no idea what this hearing would be about.  I picked it at random because I had an hour free at 10am on the morning of Friday 22nd April, and thought I could profitably use it to perform my civic duty of supporting open justice in the Court of Protection.  

Here’s how the hearing was listed on CourtServe.

IN THE COURT OF PROTECTION WALES

YN Y LLYS GWARCHOD CYMRU

REGIONAL LEAD JUDGE HHJ CROWLEY

Y BARNWR ARWEINIOL RHANBARTHOL HHJ CROWLEY

Sitting at Swansea Civil Justice Centre

Yn eistedd yn Canolfan Llysoedd Sifil Abertawe

Friday, 22 April 2022

Dydd Gwener 22 Ebrill 2022

Before District Judge Taylor

Gerbron Barnwr Rhanbarth Taylor

Amser Cychwyn/ Start TimeManylion yr Achos / Case Details
10:00AMCase number 13738017 Re P to be heard via CVP – T/E 1  hour Rhif yr achos 13738017 Ynghylch -CR gwrandawiad trwy CVP – Hyd 1 awr 
from CourtServe

Access issues

When there was no response (by 9.40am) to my emailed application to observe the hearing (sent as requested in CourtServe to CardiffCOP@Justice.gov.uk, which is the email address of the Wales Court of Protection Regional Hub), I phoned to ask for the link to be expedited, and was told “you’ve come through to Cardiff”.  I explained I knew that, and that I was following the normal procedure for requesting access to a Court of Protection hearing in Wales.  The man who’d answered the phone said he’d transfer me to someone – it rang and rang, nobody picked up, and eventually it clicked back through to him again.  He tried a different number, and this time a woman answered who said she’d phone Swansea and let them know, and that she had already forwarded my  email to Swansea (as had I, while waiting on the phone).  I finally received the Cloud Video Platform link at 10.03am.

When I joined the hearing, I found it had not yet started.  The judge appeared a few minutes later and apologised to counsel for the late start, saying that she’d received a request to observe the hearing that had come via Cardiff and had to be referred on, and that this had caused a delay.

I was very pleased that the judge took open justice seriously enough to wait a few minutes to enable a member of the public to observe – but troubled that there didn’t seem to be a shared understanding about how members of the public are supposed to access hearings.  

Descriptors of issues before the court

As is commonly the case for hearings in Wales, the CourtServe entry for this hearing doesn’t include any description of the issues that will be before the court.  Compare it (for example) with this entry from the Midlands Region, which lists the issues as “P’s capacity regarding her ability to make decisions relation to care, residence and contact” and “Best interests regarding residence and contact, and consideration of whether expert evidence is required”.

from Courtserve

My understanding is that listings are supposed to convey this sort of information in the interests of transparency,  so that members of the public have a fair idea of the sort of issues that will be before the judge, and can make an informed choice about which of the twenty-plus Court of Protection hearings that take place every day they wish to attend. 

Some Regional Hubs (in particular the North-East-North Regional Hub, based in Newcastle) are very good at doing this – to the extent that I’ve created a hashtag #BeMoreLikeNewcastle.

I understand from having attended a number of Court of Protection User Group meetings around the country that other Regional Hubs are working on hard on this: I’ve noticed improvements in listings for the North-East-East Regional Hub (based in Leeds) – though I’ve yet to see any descriptors of issues before the court for Hull County Court (which is part of this Regional Hub).  And (as the listing above shows), the Midlands Regional Hub (based in Birmingham) is also making good progress towards transparency with listings.

I look forward to improvements in Wales.

Opening Summary

There was no opening summary to this case.

Counsel for the applicant, Rebecca Harrington (representing P via her litigation friend) simply launched into the case by saying: “A further s.49 report[1] on capacity is required for contact with others and for engaging in sex.  It’s increasingly important because P has formed a relationship and is also accessing the community independently at times….”.

It was disappointing not to have an opening summary.  I did not know at the time – and I do not know now – anything about P’s age, her wishes and feelings in relation to any of the issues before the court, or the history of the case.  I know only that she has a learning disability (apparently newly diagnosed). 

I assumed, at the time, that there might be a problem with getting through the hearing in a timely manner and that t the delay in sending me the link (and the judge’s willingness to wait until I had joined) meant there was now some time pressure on the proceedings.  In fact, however, the whole hearing (for which an hour had been allocated) was over in 11 minutes – so there would have been plenty of time to provide a case summary.

And, of course, the issues before the court could (and should) properly have been listed in CourtServe (e.g. modelled on the Midlands entry, something like “P’s capacity regarding her ability to make decisions in relation to contact and to engage in sexual relations”), and the opening summary should expand on that entry, with enough information about P and the history of the case to enable an observer to follow the proceedings.

Capacity to engage in sexual relations

Case law on capacity to engage in sexual relations has developed significantly over the last year, in particular via the judgment of the Supreme Court in A Local Authority v JB [2021] UKSC 52.

There’s been a lot of public interest in this case, and we’ve blogged about it several times as part of the Open Justice Court of Protection Project (e.g. “Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB”; Capacity (and sexual relations) in the Supreme Court: Reflections on A Local Authority v JB; Capacity to Engage in Sexual Relations: A forthcoming Supreme Court hearing).  

The Supreme Court affirmed that capacity for sex includes the requirement that P must understand not only that s/he can consent to or refuse sex, but also that a potential sexual partner must likewise be able to consent, and must actually consent, before and during the course of sexual activity.

Members of the public – especially those working with people who may lack capacity to make their own decisions –  are often interested to observe hearings related to their professional concerns.  There is no doubt that the application of case law in relation to capacity to engage in sexual relations is one such concern.  Listing the fact that this issue was before the court would have provided an incentive for observers to attend the court, and thus support the judicial commitment to open justice.  As it was, I was the only observer, and I had attended serendipitously.

I learnt later, from the position statement on behalf of the local authority (represented by Dafydd Paxton) something of the detail of this case.  It seems that P had “developed a significant attachment to a male resident, D, who also has additional needs” and that she “has expressed a desire to have sexual intercourse with him”.  Staff had assisted the couple to spend time with each other, including supporting them to go out on a date to a bar: P was helped to prepare her hair and makeup and pick a dress.  This was an event that seems to have meant a lot to P and she’s been keen to show professionals photographs of the evening.  

The local authority, in consultation with placement staff, has formed the view that P has the capacity to engage in sexual activity with D and an action plan to support them to have a romantic relationship, whilst also providing suitable safeguards, has been formulated.

Up until shortly before the hearing, the local authority had taken the position that there was sufficient evidence before the court to make a final decision on P’s capacity for contact and sexual relations with no need for further assessments or reports.  There were already reports from the allocated social worker, a consultant psychiatrist and a clinical psychologist.

However, counsel for P via her litigation friend took the position that an updating assessment of P’s capacity to engage in sexual activity was necessary, given the Supreme Court judgment.  (I assume that the original capacity assessment for P must have preceded it.)

As it turned out, by the beginning of the hearing the local authority was now content for further capacity evidence to be obtained.

“Apologies that our position changed after submitting the Position Statement. We recognise that’s not ideal, but our client department reflected on the helpful Position Statement from the applicant[2] and has taken further legal advice, which is the reason for the change of position.  We agree that it’s necessary to have another s.49 report.  Our principal concern was the delay, but we accept that without it there might be a gap in the evidence at the final hearing”. (Dafydd Paxton, counsel for the local authority)

The judge asked, “Does the case need reallocation to a Tier 3 judge, given the capacity for sex issue?”. 

Neither counsel thought this necessary.  “The issues are not especially complex,” said counsel for the local authority, adding: “We also understand that P’s relationship with D has cooled, so it’s not such a pressing matter – although of course, given her access to the community, there is the possibility of other relationships”.  He also emphasised that “judicial continuity is worth its weight in gold”.

District Judge Taylor ended the hearing by saying she was pleased that P has “settled with the change in accommodation” (I believe this case started as a s.21A application because P had been expressing a desire to leave the placement.). She agreed with counsel that there was a need for a s.49 report (re capacity for contact with others and engaging in sex).  

The next hearing is listed for 10am for 2nd September 2022.

UPDATE (31 August 2022) This has been vacated

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

POSTSCRIPT (16th May 2022)

On 11th May 2022 (5 days after posting this blog), I received the Transparency Order and a Position Statement from Counsel for P.

The Transparency Order is in the usual terms and nothing in my blog post had breached it.

The Position Statement provides a little more information which sheds light on why the matter of P’s capacity for sexual relations is before the court. There had been a report from Dr L (dated 13th August 2021, with an addendum of 7th October 2021) which concluded that P “does not have capacity to engage in sexual relations“. More recently, the social worker (in a statement dated 21st March 2022) had set out her view that P does have capacity for sexual relations (but she makes this claim without having carried out a formal assessment of P’s capacity). There is, therefore, conflicting evidence before the court in relation to P’s capacity to engage in sexual relations.

Dr L had also reported that P has capacity in relation to contact with others, but the local authority has imposed restrictions on contact between P and D, and restrictions on the timing and location of sex between them. It wasn’t clear what the lawful basis for such restrictions could possibly be if, in fact, P has capacity for contact and capacity to engage in sexual relations.

On behalf of P, the applicant was seeking an order for a further s.49 report specifically to consider P’s capacity in relation to contact and engaging in sexual relations.

[1] See “What is a section 49 report?”

[2] I requested the applicant’s position statement but have not received it. I have also not received a Transparency Order in relation to this hearing and am working on the assumption that the ‘standard’ wording applies.

Photo by Anton Darius on Unsplash