Does being watched change how justice is done? A researcher’s reflections

By Gill Loomes-Quinn – 18th January 2021

Ahead of a seminar in which OJCOP is participating this Thursday 21st January (more info below – register here) I have been reflecting on the question at the centre of the seminar: “Does being watched change how justice is done?” and thinking about what I have learned from my experiences as a public observer in the physical Court of Protection (prior to the pandemic), and through the Open Justice Court of Protection project.

It was in February 2017 that I had my first experience as a public observer in the Court of Protection at First Avenue House, High Holborn, London. I was filled with excitement at the prospect of undertaking a core part of the empirical research for my PhD, but I was also full of trepidation. I knew that public observers were quite rare in the Court of Protection since the introduction of its Transparency Pilot in 2016, and I was aware that a degree of work was created for lawyers and court staff in ensuring that documents were anonymised and paperwork was available for members of the public to sign into public hearings and agree to be bound by the terms of the relevant Transparency Order. So, I was worried about how I would be received as a public observer in the court.

My concern was exacerbated by the fact that I was unsure about what would happen following my period of observation – I knew (or assumed or hoped) that at some point I was going to get a PhD following this work, and I knew that my intellectual curiosity was going to be stimulated and my legal knowledge improved. But these all seemed rather self-oriented objectives. It was also my hope that my presence as a (disabled) public observer in the Court of Protection and what I learned and wrote as a result would enable me to develop a political analysis of the role of the court in the lives of disabled people, and in disability rights politics. But that seemed a rather ‘grand’ aim, and I also worried that such aims and ambitions may seem “niche” – considering the world of oppressions facing disabled people and our communities; or that I may not be up to the task of communicating my observations to make the difference I sought.

I was fortunate to meet court staff and legal practitioners during my month in court who expressed genuine interest in my research and indicated that they saw its value. These included barristers who took the time to discuss with me how the court works, and a solicitor who asked me about my research during a break in a hearing I was observing and then told the applicant in the hearing that “this sort of research” was “very important for policy-making”: a welcome vote of confidence in the research.

Things have changed considerably between 2017 and now regarding the presence of observers in the Court of Protection. As we know, in response to the danger posed by the Coronavirus pandemic the majority of hearings before the court are now held remotely, which has transformed the scope of access to court proceedings for members of the public, addressing some of the challenges I experienced such as the risk of traveling considerable distance to hearings that turn out to have been vacated at short notice; but also creating some challenges such as that arising when emails requesting access to remote hearings are unanswered. During this period, as the Open Justice Court of Protection Project, we have been able to set up publicity and support around public observation in the Court of Protection and found that this has been met with considerable interest by members of the legal profession who see the value of having the work of the court observed and understood by members of the public, and by people keen to observe court hearings for professional or personal reasons.

The presence in court hearings of (sometimes) several observers at a time, and comments written in blogs for the project website have highlighted that members of the public involved in mental capacity law and practice gain much from seeing the court in action, and that these gains have a social justice impact beyond the walls of the courts. These insights have certainly addressed some of my earlier personal anxieties about the balancing of labour and benefit involved in transparency in the Court of Protection. I think I am seeing the growth of a ‘community of practice’ that didn’t exist and that therefore could not have an impact when I was a lone researcher at the back of a court room in 2017.

Now seems like an ideal time to reflect on what we have learned about the relationships between open justice and social justice and to discuss with those working across other courts and tribunals how our experiences intersect with theirs – what we might learn, and how we might maximise our impact.

The Open Justice Court of Protection Project is delighted to be participating in the seminar series, hosted by Bath Publishing, and coordinated by journalist, Louise Tickle – ‘Law, Justice, and the Spaces Between: An important series of free webinars investigating openness and press reporting in our courts and tribunals’.

The series consists of 4 seminars with participants including Sir James Munby (immediate past President of the Family Division of the High Court); Tor Butler-Cole QC (barrister specialising in inquests and Court of Protection cases, 39 Essex Chambers); Emma Norton (solicitor, and founder of the Centre for Military Justice) Lucy Reid and Julie Doughty (the Transparency Project); Dr George Julian (knowledge transfer consultant and live tweeter of inquests); Prof. Celia Kitzinger and Gill Loomes-Quinn (the Open Justice Court of Protection Project); and many more.

The 4 seminars are as follows:

  1. Does being watched change how justice is done? The role and function of observers in trials, inquests, family courts, and tribunals 21 January 2021*
  2. Silence in court: What is lost – and who gains – when the State bans family members from speaking out? 4 February 2021
  3. In pursuit of social justice – Is a hearing held in public enough to hold the State to account? 18th February 2021
  4. The observer’s dilemma: Does negotiating access with power and parties compromise independence? 4 March 2021*

This series engages issues close to the hearts and minds of anyone interested, and committed to, Open Justice in our legal system. It will bring together experts in legal practice, scholarship, and activism and promises to address intellectual, emotional, moral, and practical aspects of the pursuit of transparency across our courts and tribunals. It is a series not to be missed.

You can find out more about each event, and register here – we look forward to seeing you there!

*Seminars including The Open Justice Court of Protection Project

Gill Loomes-Quinn is co-director of the Open Justice Court of Protection Project. She tweets @GillLoomesQuinn

A hotel as an interim placement

By Celia Kitzinger, 15th January 2021

At a brisk 17-minute hearing on 30 December 2021 before Mr Justice Keehan (Case no. 12803319), the judge approved the applicant local authority’s order to place P in a hotel with a package of 24-hour care as a temporary measure, pending his move to a permanent placement.  

Use of a hotel to temporarily house P was apparently not in itself particularly remarkable.  Ian Brownhill said that the local authority had previously placed service users in this same hotel. 

The particular concern in this case arose from the fact that P (who has “mild learning disability”, “autistic spectrum disorder” and “attention deficit hyperactivity disorder”) was currently in prison – on this occasion for the offences of criminal damage and common assault and battery, and he has previously been convicted of sexual offences against children.  He was due to be released the next day.

At an earlier hearing on 23rd December 2020 before Mr Justice Keehan (I blogged about it here), the proposal to move P into a hotel was opposed by the Official Solicitor (represented by  Joseph O’Brien) who described it as “fundamentally flawed” and by the National Probation Service  (represented by Fiona Paterson).  The judge’s view was that the proposed plan of the hotel simply will not do.” (Mr Justice Keehan).  He urged the local authority to find another solution and to return to court if they could not. 

At this hearing the local authority asked the judge to approve a draft order authorising P’s care at a hotel.  There was simply no other option.

The Official Solicitor expressed “a real feeling of discomfort” about what the hotel would be told about P and about the sustainability of this arrangement beyond a very short period.  

The local authority did not intend to tell the hotel anything about P’s offending history – only that he is homeless and needs to receive social care intervention.  

“Beyond that, the local authority doesn’t believe it’s necessary to tell the hotel any more.  We would go further than that: we don’t believe it would be lawful for us to disclose to the hotel P’s legal history” (Ian Brownhill)

He referred to the Rehabilitation of Offenders Act 1974, the Data Protection Act 2018 and the overarching protection of Article 8.  It was, he said “unnecessary and possibly unlawful to disclose more to the hotel”. 

On behalf of P (via the Official Solicitor) Joseph O’Brien expressed concern that:

 “P may be able to place himself in a position where his carers are not around him, and he himself makes disclosures about his offending history [as he has done in the past].  The hotel might then become extremely concerned that they haven’t been given the full picture and terminate the arrangement at very short notice.” (Joseph O’Brien)

He added that “there is no contingency plan if, in fact, this placement fails on Day 1 or Day 2” but, “the local authority will no doubt one day have to answer for it if it all goes horribly wrong with the hotel.”

The judge intervened with a pragmatic suggestion that (as it turned out) was acceptable both the local authority and to the Official Solicitor.

“I can’t see why the hotel can’t be told that for the benefit of P and others he requires 24 hour supported care. The hotel can be told he’s not to leave the hotel or wander around the common areas of the hotel without his carers.  And if hotel staff found that he was wandering around the hotel, or attempt to leave it, then they should call the police, or contact the care providers.  They don’t need to know what the risks are, but they do need to know what’s permitted.” (Mr Justice Keehan)

All parties accepted this as an acceptable way forward.

My understanding is that, after less than a week at the hotel (without any incidents of concern), P was moved to his permanent placement.

I’m glad the hotel worked out and that P is now satisfactorily settled in a suitable placement, but this entire incident demonstrates vividly the pressures faced by adult social services. 

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

Photo by KEEM IBARRA on Unsplash

A mother abroad and a family dispute – Part 1

By Kristy Regan, 11th January 2021

At the third attempt, after a couple of false starts (a case made private at the last minute and an email request not replied to), I gained access to my first Court of Protection hearing: COP 13677853. This was a case at the Royal Courts of Justice before Mr Justice Peel and it took place on 31st December 2020. I emailed the RCJ the night before and had a response at 10.15am for a 10.30am start. My advice to anyone would be to sit by your email with everything ready to go!

It felt like an awkward start. I joined Teams and found a number of people there sitting in silence, and others without cameras on. Being mindful of the advice given on the Open Justice Court of Protection Project page here, I had my camera on initially and when the case started I turned it off. Being more used to Teams calls which have small talk, the silence while we waited for the judge was palpable and I found it quite uncomfortable. It was also difficult not knowing who everyone was. A bit like a ‘guess the barrister’ situation. 

When the judge joined, I found it surprising that there were no real introductions: people said their names but I found it difficult to catch their roles in the proceedings. The judge, having had the papers, would have known who everyone was, but as an observer it was difficult to tell. It soon became clear that two of the participants on Teams were the applicant and respondent in the case. The applicant was represented by Sarah Haren and the respondent was unrepresented (a litigant in person). Another barrister (Jeremy Abraham) was present: I googled him and found he is a member of the Office of the Public Guardian’s Deputy Panel, which would make him relevant to this case, but his role was unclear and he didn’t participate in the proceedings. I believe P was not represented.

Background

Sarah Haren helpfully provided a brief synopsis of the background to the application.

The case concerned P, an 80+ year old “widow” (exact age removed to ensure confidentiality), and her two daughters were applicant (“Louise”) and respondent (“Kim”) – both present via video-link. P has completed the Lasting Power of Attorney documentation to make Kim her attorney (finance and property I, assumed).

P is currently residing in a European country at an unknown address with Kim. She was “taken” abroad by Kim on 1stSeptember 2020. The application before the Court was for an order to return P home to England, to preserve P’s property until her capacity to make her own financial decisions is determined, and to suspend the powers under the LPA.   

Today’s proceedings were brought under s.48 of the MCA since there was no determination of P’s capacity before the court.   (The possibility of invoking the inherent jurisdiction was also mentioned.) S.48 concerns “Interim orders and directions” and reads as follows:

Interim orders and directions

The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if— 

(a) there is reason to believe that P lacks capacity in relation to the matter,

(b) the matter is one to which its powers under this Act extend, and

(c) it is in P’s best interests to make the order, or give the directions, without delay.

(s. 48 Mental Capacity Act 2005)

Today’s proceedings

Mr. Justice Peel was clear from the outset that it would not be possible to make all of the declarations requested today. Kim expressed her concern that she had received very short notice for the case today and was using Teams via her mobile phone. She was also unrepresented and advised she was unable to seek legal advice until the week beginning 4th January 2021 at the earliest. 

Mr. Justice Peel advised that he was concentrating on the issue immediately to hand, which was the sale of the property, as it was reported that an offer had been accepted by Kim. 

At this point the judge directly questioned Kim, asking her whether the property was on the market, to which she replied it was. Kim then started referencing a safeguarding investigation by a Local Authority in England, a video (of what it was not clear) and police investigations. The allegations under safeguarding were not clear, though appeared to relate to financial abuse. Kim went on to say that her mother’s Social Worker (who she repeatedly named to the Court) knew about the plans to move and was satisfied that P had mental capacity. Kim was keen to emphasise that she was the primary caregiver and that P is well looked after. 

The judge brought Kim back to his original question about the property. She confirmed the property was put on the market “around October 2020” and an offer had been accepted. The judge asked whether there was a completion date. At this point Kim became very non-committal and said she was unsure but felt it would take until at least Spring. 

The judge also asked whether Kim was exercising her role as attorney for the LPA in the house sale. Kim kept saying that it was P’s capacitous decision and she was not using the LPA. She did say, however, that she had dealt with all the calls and paperwork for the house sale. 

It was clear that neither Louise (P’s other daughter) nor Louise’s legal representative knew where P was living. The judge asked Kim for the address and contact details of P. Kim had to give these in Court. The judge asked how contact could be made with P. Kim advised she could only be contacted via her (Kim’s) email or her daughter’s mobile number. She then said that P is hard of hearing and struggles to use a phone. There was very little reference made to P’s medical conditions. Kim was adamant that she has mental capacity and said that all of the medical professionals supporting her currently agree with her on this. Later on, she did however, mention that P has a “mild cognitive impairment”. 

The judge was very clear that declarations on the issues around P’s capacity and the LPA could not be determined today. The judge agreed part of the order, namely to preserve the property until at least the next hearing. He kept emphasising that the aim was to preserve the “status quo” while further directions are considered. 

A directions hearing has been scheduled for 11th January 2021. The judge advised Kim to engage legal advice before this hearing. She said this was very short notice and it would distract from her caring role. The judge was firm that she needs to do nothing except get legal representation and that the evidence required will be outlined at the next hearing. He stated this would include Kim’s evidence and a capacity assessment of P.

My impressions

It was an unusual experience and felt quite voyeuristic in one sense, especially as it involved private individuals, who were present, rather than professional bodies, such as local authorities or clinical commissioning groups. Teams is also an unusual medium for such formal proceedings. Many of us are getting used to Teams for daily work, and it is a testament to the Courts that they are also enabling this way of working in order to keep everyone as safe as possible during Covid restrictions. It has also allowed greater access to individuals based all around the country, to view proceedings. As someone based in the North East, it would have been extremely unlikely for me to access the Royal Courts of Justice otherwise. 

Having worked in adult safeguarding for 8 years, I felt myself going back to that role, in the respect of the experiences I have had over the years of dealing with family disputes. Family disputes are always a difficult dynamic to work with and listening to Kim, I felt she was quite evasive. The way she starting bringing other issues into the Court, and not answering direct questions, was a technique I have witnessed over the years when people are trying to deflect from the matter in hand. I felt the judge was skilful at bringing her back on point, but feel this was due to his position. I can imagine that others who have worked with the family would not have been so successful. 

I found myself empathising with Louise, who sat through the case and said nothing, especially as she did not know where her mother was living. As an observer with a limited amount of information, I was also conscious that I was only seeing part of the situation and that there will be many viewpoints on what has happened. The situation and facts are likely to be discussed throughout the proceedings in Court, therefore it is important to keep an open mind. 

The situation with current family contact was one of the main areas, which stuck with me when the session had ended. At one point Kim said they had been doing video calls with family in England, but that P “entered the password wrongly too many times and locked the tablet”. From this, I surmised that contact between P and the rest of the family was no longer being facilitated – a family estrangement, which is sad all round and which no amount of Court action will likely remedy.

Kristy Regan is Senior Lecturer in Social Work at the University of Sunderland who previously worked in Adult Safeguarding for 8 years, as a Senior Social Worker then Team Manager.  She is also a COP Visitor. She tweets @kristyregan13

Photo by USGS on Unsplash

Excluding the public from Court of Protection hearings: A case before Mr Justice Keehan

By Celia Kitzinger, 7th Jan 2020

Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. …. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. (Lord Justice Toulson R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] QB 618 )

Since January 2016, the usual approach in the Court of Protection is that attended hearings are in public, with reporting restrictions to protect the identity of P and their family (Practice Direction 4(c)).  During the pandemic, with the rapid move to remote justice, the situation has been somewhat different from usual, but the court’s commitment to transparency remains firmly in place.[1]

Despite the fact that most hearings are listed as “in public” or “in open court”, it was until very recently extremely unusual for a member of the public (unconnected with the parties or their advocates) to attend a hearing.  Until we launched the Open Justice Court of Protection Project in June 2020, I was often the only ‘public observer’ in court.  It also was – and remains – rare to find journalists at hearings – especially in courts outside London, and at hearings before district judges.  This means the vast majority of Court of Protection hearings were held “in open court” in name only.

Perhaps because it is a relatively recent development for members of the public to attend hearings, it can still be challenging to gain access.  My own experience is that I am admitted to only about one in every three of the court hearings I ask to observe.  (This proportion applies equally to hearings listed as ‘public’ and hearings listed as ‘private’: those words in the listings are not reliable guides to whether or not you will gain access).  

This post explores how and why the public is so often excluded from Court of Protection hearings. I begin with the ‘inadvertent’ exclusions that (in my experience) constitute the vast majority of cases.  I’ll then highlight some ‘deliberate’ exclusions.  In particular, I’ll describe how and why members of the public were deliberately excluded from a hearing before Mr Justice Keehan (COP 12803319, 23 December 2020) that I was eventually – and as a special exception – permitted to attend. I will conclude by sharing what I learnt from that experience and considering the implications of my experience for open justice in the Court of Protection.

Inadvertent exclusion

Massively the most common way in which members of the public are excluded from Court of Protection hearings is that there’s simply no response to our requests for access.  That’s how my experience with Mr Justice Keehan’s hearing on 23 December 2020 began – as an inadvertent exclusion. 

On Tuesday 22nd December 2020 at 18:53, I sent an email to the Royal Courts of Justice (RCJ) asking to observe the hearing before Mr Justice Keehan the following morning.  It had been listed on the RCJ website (posted around 16.30 that day) as “For Hearing in Open Court”.  The RCJ never replied – not to that email, and not when I resent it the following morning.  I was disappointed, but not particularly surprised. 

My colleague Adam Tanner – who frequently blogs for the Open Justice Court of Protection Project (e.g. here and here) – was also trying to observe hearings during this same period.  He told me:

“In a single two-week period leading up to Christmas I emailed the RCJ about 13 separate hearings that I wished to attend. Eight of those emails went completely unanswered, and one was responded to three hours after the hearing had started.” (Email, 29th December 2020)

I’ve learnt over the course of more than 300 requests to observe hearings that I’m most likely to gain access if I email repeatedly (the night before, again in the morning, again within an hour of the scheduled start of the hearing) and – if a phone number is provided – I follow up with a phone call 40 mins or so before the scheduled time of the hearing.  It also seems effective to tweet the fact that I am seeking access to a given hearing, especially if I also tag in @HMCTSgovuk and direct message any barristers or solicitors I happen to know who might conceivably be involved in the case, or who might know someone who is.  Obviously, it shouldn’t be necessary to do this, and it’s an uncomfortable strategy to have to adopt.  I am undoubtedly inconveniencing busy people, and however politely I try to phrase the emails and tweets, it feels like insistently battering on a locked door to demand entrance. It also requires an investment of time and the determined cultivation of a sense of entitlement not possessed by most health and social care professionals (who constitute the majority of people interested in observing hearings).   

In the case of Mr Justice Keehan’s hearing on 23 December 2020, I had another route of access (also not available to most members of the public).  I’ve observed his hearings in the past and have his clerk’s contact details. So, at 9.22am, just 38 minutes before the hearing was due to start, having finally given up on getting any response from the RCJ, I emailed her apologetically, explaining the situation, and she replied with an MS Teams link at 9:29am.  Success!

By that time, several members of the public – alerted to the hearing by our “Featured Hearings” page – had contacted me to say that they had not received any response to their email to the RCJ and asking whether I could help.  Although I passed names and email addresses to the judge’s clerk, other members of the public were not admitted – for reasons I discuss below.

More broadly, I am not sure why members of the public are so often excluded from hearings that are listed as “Open Court” and hope that this is something that the HIVE group will investigate. My impression is that it’s usually because court staff are busy and don’t find time to deal with our requests.  As I indicated earlier, it seemed a particular problem in the two weeks before Xmas, but it’s been a more general problem throughout the year.   Occasionally I’ve been told, when I’ve phoned, that staff haven’t had time to open their emails.  Often the phone rings unanswered or I listen to recorded messages in an endless loop.  A few judges have written apologising that I didn’t get access to their hearing because they’d been forwarded my request (sent to the administrative regional hub) too late to action it, or because they were struggling already with joining multiple counsel to conference calls or with uncooperative video-platforms, and couldn’t find time to deal with my request on top of that.  

I suspect that some of the requests to which I get no response concern hearings that are adjourned or vacated (i.e. they don’t actually happen, so in reality there’s nothing to be excluded from) – but if so, it’s often the case that nobody tells me, so this is just guesswork.   Sometimes I do get responses explaining that a hearing isn’t now happening – and that really helps to dispel the notion that members of the public are being deliberately excluded.  

So, in my experience the fundamental principle of open justice often falters and fails without anyone willing it to do so.  The Court of Protection is not secretive by design – but it is not adequately designed for transparency.

Deliberate exclusion 

Sometimes I’ve been deliberately excluded from Court of Protection hearings.  

Occasionally I’ve been told that a case was wrongly listed and should have been ‘private’ all along, so my application to observe it has been refused without further explanation.  This includes some Dispute Resolution Hearings, all of which are held in private, but the lists don’t always specify that’s what they are.  

One case was redesignated as ‘private’ after my request to observe it – and after I had observed an earlier ‘public’ hearing in the same case.  There was no explanation as to why this had been done.

On several occasions recently, I’ve been admitted to video-platforms only to find counsel having a discussion about whether or not to exclude the public and then making representations to the judge: on one such occasion we were permitted to remain  (see this blog post about a case before Hayden J); on another occasion (also before Hayden J), we were excluded, with the explanation that P was exceptionally vulnerable. 

The Court of Protection Rules 2017 specify that the court can decide not to make a hearing public, or to make only part of a hearing open to the public, or to exclude any persons or class of persons from the hearing, if there is “good reason” for doing so. In making this decision the court will have regard in particular to:

(a) the need to protect P or another person involved in the proceedings; 

(b) the nature of the evidence in the proceedings;
(c) whether earlier hearings in the proceedings have taken place in private; 

(d) whether the court location where the hearing will be held has facilities appropriate to allowing general public access to the hearing, and whether it would be practicable or proportionate to move to another location or hearing room; 

(e) whether there is any risk of disruption to the hearing if there is general public access to it; 

(f) whether, if there is good reason for not allowing general public access, there also exists good reason to deny access to duly accredited representatives of news gathering and reporting organisations. (para. 2.5 Practice Direction 4(c))

This provides the basis on which the public can be deliberately excluded, and it turned out these criteria had been invoked to exclude the public from Mr Justice Keehan’s hearing on 23 December 2020.

Why Mr Justice Keehan decided to exclude the public 

When I joined the video-platform for the hearing, which had been listed as “for hearing in open court”, there were  three barristers online:  Ian Brownhill (acting for the applicant local authority), Joseph O’Brien (acting for the Official Solicitor), and Fiona Paterson (acting for the National Probation Service).  The issue of the public/private status of the hearing was immediately raised. In discussion before the judge arrived, they recalled that there had been what was described as “an oven ready judgment” made in 2019 excluding members of the public from attending the hearing, but that it had never been handed down. This was subsequently located and sent to me.

Ian Brownhill said that the case had been in front of different judges at different tiers (since 2015 I think) and that over the years different orders had been made.  Initially it was open to the public with a reporting restriction in place, but the local authority had subsequently applied for hearings to be in private to protect P’s identity and a previous judge had approved this application.

When the case was allocated to Mr Justice Keehan in 2019, he questioned why the case should not be heard in public, subject to a suitably worded transparency order.  The local authority and National Probation Service asserted that the risks to P of hearing the case in public were too great: there would be ‘sensationalist’ reporting and a risk of ‘reprisals against him’.  (The local authority also argued that there was a risk of disruption to the hearing from angry members of the public – who might include members of vigilante groups or family members of P’s victims).  The Official Solicitor submitted that the public should be admitted, subject to an appropriately worded transparency order that specified what could be reported and that “the court should have confidence that accredited media organisations will report the proceedings in a responsible way”. (She further noted that the argument about disruption was speculative and any disruptive members of the public could be removed from court.)

In his judgment in 2019, Mr Justice Keehan considered that “the need to protect P is a very powerful factor in favour of holding the proceedings in private”.  He continued:

16.  The importance of public justice, however, is a central tenet of the Court of Protection.  It should only be overridden when the circumstances of the case compellingly, and on the basis of cogent evidence, require the proceedings to be heard in private.

17.  I accept the submissions of the Official Solicitor that in her experience and that of her office is that [sic] those members of the accredited media who attend Court of Protection proceedings respect the orders of the court and report proceedings in a responsible manner. This mirrors this court’s experience.  

18.  Accordingly, I am satisfied that if:

 i) I exclude members of the public from attending future hearings of these proceedings; but

ii) Permit accredited members of the press and broadcast media to attend; and 

iii) I make a transparency order in the terms proposed by the National Probation Service and agreed by the other parties; 

the Article 8 rights of P will be protected and the Article 10 rights of the press and broadcast media will be respected.

19.  With the exclusion of the public and the making of [an] appropriately drafted transparency order the risks to P of identification, and the consequences of the same, are reduced very considerably.  These reduced risks do not justify overriding the central tenet of open justice in the Court of Protection.  Accordingly, I do not consider it necessary and proportionate for these proceedings to continue to be heard in private.

Re P (Court of Protection: Transparency) 2019 EWCOP 67 

In sum, then, given the particular facts of this case, Mr Justice Keehan had reversed the previous judge’s decision that the hearing should be held in private, permitting journalists to attend (subject to reporting restrictions), but excluding members of the public.  This was described by Ian Brownhill (counsel for the local authority) as a “half way house”. 

Gaining access to the hearing

Once it became apparent that I had been admitted to a hearing from which members of the public had been excluded by an earlier judgment, the parties were asked address the judge as to whether or not I should be permitted to stay.  As they did so, I learnt quite a bit about P.

P is in his twenties and has a “mild learning disability combined with significant deficits in adaptive functioning” including “autistic spectrum disorder” and “attention deficit hyperactivity disorder”.  This places him at risk of offending and he has been convicted of several sexual offences and was in prison at the time of the hearing.  He is due to be released shortly and the hearing concerned the need to find a suitable placement for him.

The local authority had been concerned because local newspapers had published details about P’s offences, including his name and photographs of him leaving the Crown Court where he was found guilty. They were concerned that he could be targeted by paedophile hunters and vigilantes as a result of this press coverage. They would not necessarily be “people with baseball bats hanging around outside his placement, but could be apparently respectable people seeking to entrap people like him”, said Fiona Paterson.

On the basis of information about P garnered in the first ten minutes (including his first name and the name of the local authority, plus other details not reproduced here), I easily located media reports about P’s sexual offenses.  It was also straightforward to find websites of vigilante groups across the UK, such as Dark Justice who impersonate children online to lure people into making inappropriate or sexualised communications with them over the internet, and then provide the material generated by such contact to the police. A large proportion of prosecutions for child sexual abuse result from these ‘sting operations’ and in Sutherland v Her Majesty’s Advocate [2020] UKSC 32 , the UK Supreme Court ruled that prosecutions based on this kind of evidence do not violate the person’s Article 8 right to private life and correspondence.   

On behalf of the Probation Service, Fiona Paterson was clearly concerned both (obviously) to ensure that P does not re-offend and also to protect him from becoming the target of online child abuse activist groups (who may themselves commit offences against vulnerable adults, as outlined by the Crown Prosecution Service here). 

Anxious that I might be excluded from the hearing, given what I was hearing about the sensitivity of the subject matter,  I emailed Brian Farmer, the only journalist who regularly attends Court of Protection hearings and a strong advocate for transparency (check out his blog here) asking if he could attend – and messaged the court to say I had done so.  He was on annual leave.  Without him, there would be no public report of the hearing if I were to be excluded. 

As it turned out, though, none of the parties objected to my presence – albeit without instructions from their clients one way or the other since this situation had not been anticipated[2]. It helped that I have previously observed hearings involving all three advocates (and the judge), have blogged about some of them, and that counsel were aware of my previous reports and considered them “responsible”.  

When the judge invited me to address him as to why I wanted to observe the hearing, I made two points. First, that excluding the public (and there has been a recent rash of such exclusions from RCJ cases) risks reinforcing the perception of the “secret court” and so undermining public confidence. Second, that – not yet fully apprised of the facts of this case, but not wanting to cause harm to a vulnerable adult – I was willing to send my proposed blog post to counsel prior to publication and to take advice from them about anything that might harm P and need to be changed[3].  On that basis, I was permitted to remain for the hearing (but there was no further consideration about whether or not to admit other members of the public who had also asked to attend).

The hearing itself: an unsuitable interim placement

On behalf of the applicant local authority, Ian Brownhill provided an exemplary introductory summary of the case.  There had been a long history of Court of Protection hearings concerned with P’s capacity and best interests in relation to residence, care, contact and internet use. Throughout this time, there have been repeated problems with placements breaking down (including the specialist provider directly prior to his current custodial sentence, at which he had assaulted staff):  he has “been through a vast number of providers”.  One feature of P’s behaviour is that, despite the negative consequences to himself (he’s been called “a paedo and a nonce”), he often discloses his offending history and talks about his sexual behaviour and his recent imprisonment was as a direct result of his own disclosures. 

The local authority now finds that P is “often rejected by specialist and non-specialist providers” because of this history.  He’s due to be released from prison very soon.  A long-term placement has been identified but is not yet available because a different local authority has not yet removed a service user (who has given notice) from what will become P’s room.  Until they do so, there is no approved placement for P on his release.

Acknowledging that “it’s not the ideal option”, counsel on behalf of the local authority proposed placing P, temporarily, in a room in a well-known (family-friendly) hotel chain, with carers in place during the day (but not at night).  P would be electronically tagged and “if it proved problematic this would be reviewed”.  

The Official Solicitor’s position was uncompromising: this proposal is “fundamentally flawed” and “exposes my client to the risk of serious harm”.  The notion that P would stay tucked up in bed during the night while his carers were absent (simply because he is subject to a curfew) was “based in the world of fantasy”.  Counsel pointed out that the court had no way of knowing who else would be staying at the hotel, where exactly in the hotel his room would be, what the staff would be told, or any number of relevant details related both to protecting P and to protecting the public.

The Mental Capacity Act 2005 cannot be used to impose restrictions on someone to stop them from offending.  As Ian Brownhill has said in a blog:

“The most that can be said, is that restrictions can be imposed if it is determined that they are in P’s best interests; that best interests analysis could include an aim to keep P out of the criminal justice system.” (Ian Brownhill, blogging here about “the myths and mistakes of capacity and criminality”)

As a consequence, the focus of the argument in court was very much on the harm caused to P by being left unsupervised in a hotel, rather than the harm that members of the public might suffer as a consequence (leaving me feeling somewhat uncomfortable).  However, as counsel for the Official Solicitor pointed out: 

“P’s welfare is linked with the welfare of the public – they are conjoined here. He remains at significant risk of harm if the proposal for a hotel placement is followed through.  If this plan is not reformulated with a more robust package of care by next Thursday, then it will be back on the list. … I hope the local authority heed our concerns.  I sincerely hope we don’t see you next week, but I fear that we will.” (Joseph O’Brien, Counsel for the Official Solicitor).

The judge responded immediately in no uncertain terms:

“I agree with absolutely everything you’ve said.  I do not doubt the local authority are doing absolutely everything that you can – and no doubt working in very unusual circumstances.  But I’m afraid that the proposed plan of the hotel simply will not do.” (Mr Justice Keehan)

On behalf of the National Probation Service, Fiona Paterson reported that she was content with the proposed permanent placement, and she understood that the local authority was “trying to pull out all the stops” to enable P to move there as soon as possible.  She had been informed that P’s tag will not sound an alarm if he leaves the hotel “its function is purely historic: so that the police would be able to work out where he’d gone [say at] 2am when they interrogated the system the next morning.” She hoped very much that P would not have to go to the hotel, but if he did end up going there, she had a number of pragmatic suggestions, including that he be brought to the probation service offices every day, the number of hours his carers are with him was increased, and that the local police were asked to spot check whether he was complying with his nightly curfew – although that would entail relying on the good will of officers.

For me as a public observer, this seemed a completely ghastly situation: both the safety of P and the safety of the public would self-evidently be compromised by placing P in a hotel with insufficient surveillance in place.  “It’s not unreasonable to assume that having just been released from custody, he is at the greatest possible risk”, said the judge.  Nonetheless, following Fiona Paterson’s submission, and her suggestions for addressing issues that might arise in a hotel placement, he did seem more open to entertaining the possibility that this stop-gap solution might need to be adopted.

Addressing counsel for the local authority, the judge said that he expected the situation to be addressed by “someone who is, shall we say, at the top of the food chain”. The focus of the local authority “has to be to deal with the other local authority to move that service user out so that P can be admitted.  If it has to be the hotel, then you need to be looking at more hours of care.”  

In what sounded to me like a thinly veiled warning, he added: 

“In due course I might find myself making another judgment, explaining why P was placed in a hotel and why something unfortunate happened to him or to a member of the public, and referring to the public body responsible for that state of affairs coming about.” (Mr Justice Keehan)

Reflections

Open justice is not incompatible with the occasional deliberate exclusion of members of the public – but these exclusions need to be clearly exceptional and well-justified if they are not to risk undermining the principle of transparency.  “The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases.” (Lord Woolf in R v Legal Aid Board, ex p Kaim Todner  [1999] QB 966).

I’ve attended several hearings where P has been involved in criminal behaviours (including ‘upskirting’, sexual harassment, sexual assault, substance abuse, and drug-dealing)  and we’ve blogged about two previous cases where P was in prison at the time of the hearing (here and here) –  both, like this one, applications for judicial decisions about where he should be placed on release.  I’ve also observed hearings where P has been the victim of crime – including rape, coercive control, and ‘cuckooing’ (in which drug dealers use the home of a vulnerable person as a base for drug trafficking).  In at least two of the latter cases, the judge warned that P needed protection from perpetrators who were either still at large, or who might seek P out for retaliation.  All these hearings were held in public with stringent reporting restrictions in place.  Reflecting on the threshold for making a hearing ‘private’ rather than ‘public’, it’s not immediately obvious to me why this case, in particular, should exclude members of the public (excepting me) and not these other hearings I’ve observed.   It is perhaps accounted for by the sheer visceral rage that child sexual abuse can occasion and by the existence of organised groups who’ve made (I discovered) threats of physical violence against P (by name) on public websites.  

Simply the fact that P is vulnerable and sensitive personal details are being discussed in court is clearly not sufficient reason to exclude the public, since that would pretty much prevent open justice altogether in the Court of Protection.  We often bear witness to intimate personal details about vulnerable Ps – because these intimate behaviours have become the object of judicial decision-making. That is of course the point of open justice in a democratic society.  If the long arm of the state is to reach down into our personal lives and determine, for example, whether or not we can have sex – ever, at all, with anyone (as here), or engage in the sexual practice of our choice (as here), or use a sex worker (as here) – then those decisions, and the processes by which they are made, need to be transparent. Any of us – or our friends and relatives – could lose capacity to make important decisions for ourselves in the future and many observers work with people in that situation. When we observe how lawyers argue and judges decide on such matters we learn about how the law works in practice.  This enables us to understand the laws by which we are governed, to use them to protect ourselves against future loss of capacity, to better employ them in the course of our work, and to develop informed critiques of them and campaign for change if we believe them to be wrong.  The idea that major decisions about people’s intimate lives – affecting fundamental human rights – should be made by the state in secret without public oversight is something I find abhorrent and quite terrifying.

Engagement with the concrete particularities of specific cases can also graphically display the fault-lines in health and social care services.  One of the values for me in being allowed to observe this case was that it was driven home to me the extent to which adult social care is on its knees. The fact that the local authority was contemplating placing P  (this P of all Ps) in a hotel illustrates how dire the situation is – and I know from observing other hearings the extent to which there is a wider problem with finding appropriate placements: Ps are regularly placed in accommodation described as “manifestly inappropriate” because there is nothing else available (see the blogs by Beverley Clough here;  Caroline Hanman here; and NB here).  Settled case law establishes that the court is limited to making a decision about what is in a person’s best interests by choosing between available options: it cannot compel a local authority to add new placements or care packages to those on offer  (N v ACCG [2017] UKSC 22). In practice, this often means a constrained choice between unsatisfactory options – or, as in this case (so far), no choice at all. The long-term solution can only be better funding and reforming adult social care.  

Does a hearing that excludes the public militate against open justice and harm the reputation of the court?

Over the past six months I’ve worked extensively with members of the public seeking to observe Court of Protection hearings.  The vast majority are either health and social care professionals, or aspiring lawyers. Their intention in observing a hearing is to gain valuable continuing professional development (CPD) and the blogs on our website bear testimony to the rich learning experiences so gained. 

What militates most against open justice and harms the reputation of the court is the routine, mundane, inadvertent exclusion of members of the public.  Not replying to emails, and leaving phones ringing unanswered sends the (no doubt unintentional) message that members of the public are not considered important, that open justice simply doesn’t matter to the court, and that those asking to observe hearings can casually be ignored.  These health and social care professionals (like court staff, lawyers and judges) are busy professionals who are often carving out CPD time in their days off, or during their annual leave. It takes time and research – and sometimes courage! – to identify a hearing in the time slot available and email the court.  It’s disappointing and disheartening not to receive a reply.  Some blame themselves for having somehow asked ‘incorrectly’. Others – especially after repeated failed attempts – wonder if there isn’t actually a conspiracy to exclude them. If nothing else, the court comes to feel a disorganised and unwelcoming place.

Having observed the hearing before Mr Justice Keehan, I understand better why parties might be reassured by hearings conducted in private – or at least without members of the public in attendance.  I learnt a lot from observing this hearing and ironically it has bolstered my faith in the court’s commitment to open justice. I think most members of the public could understand and accept being deliberately excluded from attending a small minority of hearings – especially if they were clearly flagged up as “definitely private” on the relevant lists (and somehow distinguished from all the ‘not really private’ ones currently appearing in the lists during the public health emergency – see Footnote 1). In my experience, observers are very aware of and sometimes chastened by the intimate details they learn about P: they sometimes describe feeling “intrusive” or “voyeuristic” (Caroline Barry’s words here) and would be sympathetic to decisions to exclude them so as not to expose P to their observations when the risk of harm is particularly acute.  In general, the public are not clamouring for access to particular specified hearings so much as simply trying to observe a hearing – any hearing! – in the particular time slot they’ve designated for CPD.  Often the hearings they most want to observe are those dealing with issues that are part of their everyday working lives (e.g. Deprivation of Liberty Orders, s. 21A applications) rather than the more ‘sensationalist’ issues they are less likely to encounter themselves.

What’s needed is a solution to inadvertent exclusion: this is what really damages the reputation of the court.  Fixing administrative problems associated with admitting the public to Court of Protection hearings (ensuring that emails are forwarded to judges and answered in a timely fashion) is less intellectually engaging than discussing the balance between competing Article 8 and Article 10 rights or reworking the standard transparency order to cover all possible identifying information in complex cases with distinctive fact patterns – but I think it’s the way forward for the court in pursuit of transparency and open justice.

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

Photo by Matt Seymour on Unsplash

[1] With the move from physical courtrooms to audio- and video-platforms, Practice Direction 4C and any transparency orders previously issued in accordance with were disapplied.  It can be re-applied (and the transparency order reissued) if any member of the public (or journalist) requests access – so ‘private’ doesn’t really signal an intention to exclude us.  I am rarely refused access to hearings listed as “private” and they constitute around 25% of the 123 hearings I have so far observed.  You can see the new template (which lists hearings as ‘private’ by default) as an appendix (p. 18 onwards) to the 31 March 2020 Guidance here.   Notice that it specifically allows for “ongoing consideration” being given to “the means by which any remote hearing can be accessible to the public”.  

[2] The transparency order (sent to me on 30 December 2020) now reads: “Subject to further order of the Court, that any attended hearings of this application are to be in private but that accredited members of the Press Association and Professor Celia Kitzinger of the Open Justice Court of Protection Project are permitted to attend for the purpose of reporting upon these proceedings, subject to the terms of this amended transparency order.”

[3] Thank you to counsel for taking the time to read and make suggested amendments to my blog.  I have incorporated all their suggestions. There was no suggestion that I had written anything that could lead to the identification of P.  The majority of suggested amendments were typos.  The others were clarifications of points that I had reported incorrectly: I can see (in retrospect) that the wording of certain points made in court was open to misinterpretation by an observer who did not have access to documents (such as the care plan) to which counsel were referring.  For example, in my original version I implied that Fiona Paterson’s suggestion was that probation officers would visit P in the hotel, but actually it was thought that P might be taken to the probation service offices.  And the reference to ‘pulling out all the stops’ was apparently to attempts to ensure that P could gain access to his permanent placement, where I had incorrectly written in my draft post that it referred to efforts to find an alternative interim placement.  It was useful to me as an observer to receive feedback about errors of reporting.  For the avoidance of doubt, as lawyers say, there was absolutely no question of ‘censorship’ whatsoever.  

“RPR”, “IMCA” and “Paralegal” – what are these roles?

By Tory Smith, 6th January 2021

I am a paralegal working at MJC Law. One of MJC Law’s specialties is health and welfare cases in the Court of Protection and in the vast majority of our cases we represent “P” (the protected person). 

By way of my own background, I have been involved within the realms of the Mental Capacity Act for a number of years.  My initial involvement was in the role of a Paid Relevant Person’s Representative (“RPR”) and Independent Mental Capacity Advocate (“IMCA”). I am aware that these roles are often mentioned within proceedings but for any observers, they may be foreign terms. As such, I thought it may be useful to provide an outline of each of the roles and how they might be involved with P. 

Paid RPR

An RPR is appointed as part of the deprivation of liberty process. Again, this may be jargon that is mentioned particularly in proceedings relating to a challenge to deprivation of liberty authorisation (section 21A proceedings) and an observer may wonder what on earth everyone is talking about. 

The Deprivation of Liberty Safeguards (“DoLS”) are designed to protect the person’s Article 5 and 8 ECHR rights. A number of assessments are completed as part of the DoLS process and if a person does not meet any one of the criteria then they cannot be be deprived of their liberty under standard authorisation.  The assessments that are most often talked about are (1) the capacity assessment – i.e. whether a person lacks capacity to consent to the arrangements; (2) the best interests assessment – which also involves consideration of whether the proposed arrangements are the least restrictive possible to meet their needs.    Once a standard authorisation has been granted, this essentially means that the arrangements have been approved by the supervisory body (the local authority).  

A standard authorisation is granted for a set period which can range from a matter of days or weeks or up to the maximum of 1 year. Conditions can be included as part of the authorisation and act essentially as action points that must be completed during the period of the authorisation. 

The process is of granting a standard authorisation is in practice much more in-depth than I have outlined here and there are many more factors that have to be considered but in an effort to not to overload readers with too much information, I have tried to keep it brief. A more detailed explanation can be found here.

In order to further protect the person’s rights, when a standard authorisation is granted somebody is appointed to act at the relevant person’s representative (“RPR”). This is usually a close friend or family member. The role of the RPR is to maintain regular contact with the person and to represent and support them in relation to the DoLS. This can include triggering a review, making a complaint or making an application to the Court of Protection on the person’s behalf. 

There are some circumstances where it is not possible or appropriate for a friend of family member to act as RPR.  For example, there may be safeguarding concerns relating to them or they may be unwilling to take on the role, or perhaps have conflicting views and would not be willing to support a review or the issuing of proceedings in the Court of Protection. Sadly, also, a common circumstance to arise is that the person does not have any family or friends to take on the role. 

In the event that there is nobody to take on the role of an RPR, a paid RPR will be appointed. This is a role that I have previously fulfilled. A paid RPR will have the same responsibilities as a friend or family member would have. They are required to make regular visits to the person, usually monthly, and support them with the DoLS process for the period of the standard authorisation. 

I found acting as a paid RPR to be extremely rewarding. Within the role I had the opportunity to form a relationship with the person and get to know all about them. A standard visit to see a client consisted of spending time with the person to discuss how they are doing, how they feel about their placement and care arrangements, if they had any concerns or worries, ensuring that overall their needs are being met and making sure they are happy and content. As well as speaking with the person, I would also speak with staff to discuss in their view how the person is doing, if they have any concerns or if there have been any events since the previous visit that I should be aware of. I would discuss any conditions on the standard authorisation in order to ensure that they are being progressed. 

As a RPR you always hope that the client is happy with their placement and care arrangements.  This is not always the case and if the person expresses an objection to the placement then as the person’s RPR, it would be my role to take steps to assist the person in challenging the standard authorisation. 

Taking steps to have proceedings issued in the Court of Protection is not usually the first resort and generally I would have taken steps to see if the issues could be resolved without the involvement of the court. This could be done by contacting the person’s social worker and alerting them to the wishes and feelings that have been expressed. On many occasions, if the person is unhappy with the arrangements, this would trigger the social worker to look into an accommodation move without the oversight of the court. If, however, this was not possible and the client remained clear and consistent in their objections, I would then make contact with a solicitor in order to issue proceedings in the Court of Protection to challenge the standard authorisation. These are section 21A proceedings. 

The role of a RPR in Court of Protection proceedings can vary significantly. Some RPRs act as the person’s litigation friend in the proceedings, whilst others support the person to access legal representation and continue their role as RPR, but do not become involved in the proceedings themselves. The extent of a paid RPRs involvement is often stipulated by funding restraints and an individual organisations’ policies. The organisation I worked for would not enable us to act as litigation friend so this was not a role I was able to fulfil. 

In my view there are pros and cons of an RPR acting as a litigation friend. On the plus side, it is beneficial for someone who is already familiar with the person and their circumstances to be supporting them within the proceedings. This also ensures that there is continuity and the RPR is aware of how proceedings are progressing in order to keep the person up to date and involved. But there are also challenges – a RPR should not usually take a view in respect of what is in a person’s best interests. A RPR is there to support the person and if the person says they do not want to remain at their current placement and would prefer to live somewhere that the RPR knows is not an option – say in a house independently with no support – it is not for the RPR to take a view on this and they should still support the person with their challenge. This differs from the role of litigation friend where a position does have to be formed as to the potential alternative options and what is in the person’s best interests. Difficulties here can arise when the position the litigation friend comes to is not in line with the wishes and feelings of the person and there is a danger it could lead to a significant breakdown in the relationship. 

IMCA

The role of an IMCA is quite different to that of an RPR, although there are times that there can be an overlap in the roles. Both roles come under the umbrella of advocacy and involve ensuring a person’s wishes and feelings form part of the decision-making process

An IMCA’s role is to support and represent a person in the decision-making process when important decisions are being made about them. These decisions most commonly concern long term accommodation moves and serious medical treatment cases.  

The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 sets out the IMCA’s role and functions. In summary the role is to gather information, evaluate the information, make representations and if required, challenge decisions. I will deal with this in a little more detail below:

Gathering information

An IMCA meets with the person and, similarly to an RPR, discusses their wishes and feelings with them. This should be done in private and without the influence or distractions of others. Where possible, an IMCA aims to meet with the person on a number of separate occasions, at various times, to ensure that the wishes and feelings expressed were consistent and also to give the person the opportunity to maximise their ability to express the same. 

As well as obtaining the person’s views directly, steps should be taken to obtain the views of anybody else who may be able to shed light on the wishes and feelings of the person. As an IMCA you have the right, and should exercise this right, to examine relevant health and social care records. This enables the IMCA to be armed with all of the information that is relevant to the decision being made. 

Evaluating information

Once an IMCA has gathered all of the information, they must then evaluate this. It is important to ensure that all of the different options have been considered and decide if any further opinions may require investigation. The IMCA must ensure that the person has been supported, so far as is possible, to be involved in the decision that is being made and evaluate the information gathered to determine what would be their wishes and feelings if they had capacity to make the decision for themselves. 

Making representations

IMCAs are required to provide a report to the decision maker and this should be done in advance of the decision being made. It is important for the IMCA to raise any issues or concerns they have with the decision maker. It is the role of the IMCA to ensure that all of the relevant factors have been considered as part of the decision-making process and to highlight any gaps that need addressing. When acting as an IMCA, I often attended best interests decision meetings, in addition to providing a report. This provided a good opportunity to ensure that any concerns were addressed and to raise any further queries that may arise as part of the process. It also often provided me with the chance to ensure that the client’s wishes and feelings were given full consideration. 

The IMCA should not express their own views as to what is in the client’s best interests and should only express the wishes and feelings of the client. At times this can be challenging as the client’s wishes may be entirely unrealistic but it is still your role to express this (even if your client has said they want to live on the moon!). 

Challenging decisions 

An IMCA cannot simply challenge a decision because they do not like the outcome, but in the event that the IMCA does not feels the correct process has been followed or that concerns raised have not been addressed then this can be challenged through the local complaint procedure. If issues cannot be resolved then it should then be referred to the Court of Protection. 

As with a paid RPR, an IMCA is not always required. If a person has family or friends who are appropriate to consult as part of the process then an IMCA will not be instructed. If, however, family and friends are not appropriate, or there are no family and friends available, then an IMCA should be instructed. 

In addition to the role of the IMCA set out above, an IMCA can also be instructed as part of the DoLS process in order to support a family or friend acting as RPR in their role or alternatively to fill a gap in a RPR being appointed. Further, there can be an overlap in acting as an IMCA and a paid RPR if a decision is required about, for example, whether a person should move into a care home in the long term. Each organisation is different and not all paid RP’s are also qualified IMCAs so cannot fulfil both roles. I personally feel it can be a particular advantage if an advocate is able to act as an IMCA and a paid RPR as it provides a more holistic approach and can provide consistency for the client. 

PARALEGAL

I am currently a paralegal at MJC Law. In this role I support the solicitors within the firm to progress cases within the Court of Protection. In the majority of cases we support the protected person (“P”) by their litigation friend which is often the Official Solicitor or a RPR. We also accept instruction from other parties, including family members. 

Observers may have seen paralegals in attendance at hearings and wondered what the difference is between them and the solicitors. Paralegals are usually not qualified solicitors and therefore must work under the supervision of the qualified solicitor who has conduct of the case. A paralegal does not have any rights of audience which means they are unable to speak in court and therefore require a qualified solicitor or barrister to be in attendance with them. 

The role of a paralegal can vary from firm to firm but in my role I become actively involved in cases under the supervision of a solicitor. My role includes the consideration of the papers and evidence, drafting applications and orders, corresponding with the parties to narrow the issues and also completing administration tasks as required. 

As part of my role I also attend on clients to discuss the proceedings and obtain their wishes and feelings. I must say that this is one of the best parts of my job. When I attend on clients I am able to utilise the skills and techniques that I developed as a paid RPR and IMCA to determine their wishes and feelings. I can then ensure that these are communicated to the other parties and the court in order to be considered as part of the decisions being made. 

The main difference between my previous roles and my current role relates to the position taken in relation to the person’s best interests. As mentioned above, in my previous roles I communicated the person’s wishes and feelings but did not have to consider what I thought to be in the person’s best interests. Legally representing the person concerned requires active consideration of this in advising the litigation friend.   

In order for a case to progress within the Court of Protection, providing the court is satisfied that the person lacks capacity, the parties must each decide what they consider is in the person’s best interests based on the evidence before them and communicate this position to the court to allow the court to make its determination. 

Whilst each of the roles have distinct differences in the ways in which they support P, they all share the ultimate aim of ensuring that P has a voice in the decisions that affect their lives. In my view, it is essential that any professional working with any person who could potentially lack capacity has an awareness of the roles discussed here and an understanding of when it may be appropriate to make a referral to an advocacy agent or to make an application to the Court of Protection. I hope that the Open Justice Court of Protection Project goes some way in boosting awareness and that blogs such as this will help others to gain insight into how the roles introduced by the Mental Capacity Act 2005 work in practice. 

Tory Smith joined MJC Law in January 2019 as a paralegal. She has just recently progressed on to be a trainee solicitor. MJC Law is a specialist law firm, offering advice and representation in cases involving the Court of Protection, mental health and social care and health law.

Photo by Chris Lawton on Unsplash

Unwanted amputation and its likely aftermath

By Monica Young, 23 December 2020

Editorial note: You can listen to Nageena Khalique QC, counsel for P talking about this case in a YouTube video: click here. Her account of this case lasts for about four minutes starting at 18:50 minutes into the recording.

The hearing that I attended on Thursday 17th December 2020 (Case: 13693467 before Mr Justice Mostyn) concerned a gentleman in his early 70s who had been admitted to hospital (against his stated wishes) as a result of painful gangrene in his foot. The vascular surgeon from the hospital had advised him that the foot would need to be amputated, to avoid the risk of developing life-threatening sepsis. The gentleman, Mr Smith (not his real name), refused the surgery and has been saying repeatedly that he would like to go home.

If Mr Smith has the mental capacity to make his own decision about amputation, then he is free to refuse surgery (whatever his reasons for doing so).  The first question then was whether or not he had capacity to make his own decision – and only if he does not can professionals then make a best interests decision as to whether surgery is in his best interests.  

A capacity assessment around ten days earlier, carried out by a vascular doctor and a community psychiatric nurse (CPN) who is also Mr Smith’s Care Coordinator, had concluded that Mr Smith lacked capacity to make a decision about amputation.  

It is a fundamental principle of the Mental Capacity Act 2005 that “A person must be assumed to have capacity unless it is established that he lacks capacity” (1(2), MCA) so the burden of proof is on those who claim (as his treating clinicians do) that Mr Smith lacks capacity to make his own decision.  It is also an underlying principle of the Mental Capacity Act that “A person is not to be treated as unable to make a decision merely because he makes an unwise decision” (1 (4) MCA).

At a Court of Protection hearing on 14th December 2020, it had been agreed to instruct an expert witness, a Consultant Forensic Psychiatrist, to provide an independent report relating to both capacity and best interests.  By the time of this hearing, she had submitted her written evidence (which public observers did not see) and was also in court to give evidence and be cross examined on it – as were Mr Smith’s Care Coordinator and his treating vascular surgeon.

Capacity

Mr Smith has severe paranoid schizophrenia which makes it impossible for him to understand what the cause of his blackened foot and toes is, or what the proposed treatment would entail.  His schizophrenia has caused him to believe that his painful and blackened foot/toes are not the result of a medical issue such as gangrene, but in fact the result of a malevolent individual who controls his body, movement, and pain. Mr Smith believes that his symptoms are caused by a gadget that is being controlled by his ex-neighbour. As a result, Mr Smith does not believe that amputation is necessary.  If the police were to arrest his ex-neighbour and prevent him from causing this harm, then his foot would return to normal.

It was agreed that there is sufficient evidence to rebut the presumption of capacity in this case and the parties had agreed before the hearing that Mr Smith lacked capacity to make decisions regarding his medical treatment.  This meant the court, specifically Mr Justice Mostyn, had to determine whether the amputation was in Mr Smith’s best interests. 

Best interests

At the beginning of the hearing, the applicant Trust (represented by Conrad Hallin of Serjeants’ Inn Chambers) took the position that below-knee amputation is in Mr Smith’s best interests.  This view was shared by the Trust that provides psychiatric care to Mr Smith, who were the second respondents also instructing Conrad Hallin.  

Acting on behalf of Mr Smith, Nageena Khalique QC (also of Serjeants’ Inn Chambers) stated that the Official Solicitor had not yet come to a settled view and wished to reserve her position until the evidence had been tested, There was, in particular, a concern about acting contrary to Mr Smith’s wishes.

The physical implications of amputation or no amputation were laid out quite clearly by the vascular surgeon. Amputation would mean no gangrene and likely recovery, albeit as an amputee. No amputation would mean a high risk of sepsis and death within 2-3 weeks. However, when considering best interests the court must take into account not only the clinical considerations but also the wishes and feelings of the protected individual, which extends to the psychiatric effect that the amputation would have. This is where I found the hearing to be the most interesting.

Two aspects of weighing up Mr Smith’s best interests: (a) how to balance sanctity of life and Mr Smith’s wishes not to have the amputation in arriving at a best interests decision; and (b) how to assess and take into account the likely effects of having amputation against his will on Mr Smith

(a) Sanctity of Life v. Mr Smith’s wishes. 

Counsel for P indicated that it was a finely balanced decision between amputation or no amputation, but I struggled to see how the balance between life or death could be finely balanced. To me it seemed quite simple:  the sanctity of life should prevail. Because why would it be better to die?  But that then opens up a big question about the end of life which is far more complex and philosophical. As counsel for the applicant very aptly said, ‘there are no very good outcomes in this case.’

The extent to which treatment should be given, contrary to Mr Smith’s explicitly stated wishes, is a difficult question to determine. The law requires the non-capacitous individual’s views to be fully taken into account by the judge when making a decision regarding treatment. Section 4 of the Mental Capacity Act 2005;

(6) He must consider, so far as is reasonably ascertainable—

(a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.

There is then a balance to be struck between affording the individual’s wishes adequate weight and ensuring that the individual’s right to life is fully respected. The question of how much weight should be afforded to an individual’s wishes was discussed at length in the case of Re N [2015] EWCOP 76, where Hayden J stated that: 

Where the wishes, views and feelings of P can be ascertained with reasonable confidence, they are always to be afforded great respect.  That said, they will rarely, if ever, be determinative of P’s ‘best interests.  Respecting individual autonomy does not always require P’s wishes to be afforded predominant weight.  Sometimes it will be right to do so, sometimes it will not.  The factors that fall to be considered in this intensely complex process are infinitely variable e.g. the nature of the contemplated treatment, how intrusive such treatment might be and crucially what the outcome of that treatment may be for the individual patient.  Into that complex matrix the appropriate weight to be given to P’s wishes will vary.  What must be stressed is the obligation imposed by statute to inquire into these matters and for the decision maker fully to consider them.  Finally, I would observe that an assessment of P’s wishes, views and attitudes are not to be confined within the narrow parameters of what P may have said.  Strong feelings are often expressed non-verbally, sometimes in contradistinction to what is actually said.  Evaluating the wider canvass may involve deriving an understanding of P’s views from what he may have done in the past in circumstances which may cast light on the strength of his views on the contemplated treatment. (Para. 28 Re N [2015] EWCOP 76)

I very much agree with the above passage, which identifies the need for balance but also highlights that the individual’s wishes should not always be determinative. There are two situations where I believe that the individual’s wishes should be less determinative. 1) Where the incapacitated individual is unaware of what would benefit their quality of life and 2) where the case involves crucial medical treatment, as I recognise the importance of following medical advice and assessing the medical impact on the individual. 

I believe that when an individual lacks capacity, it is difficult and potentially dangerous to afford them the autonomy which would be given to a capacitous individual. It is also incumbent in the Court of Protection’s role to protect vulnerable individuals, and this can mean it has to adopt a paternalistic role when deciding upon matters. Where a person lacks capacity and will die without crucial medical treatment, I believe that the wishes and feelings should be considered by the court (as required by law) but that they should not be determinative as it is necessary for the court to adopt a more paternalistic approach. 

This is the situation which we have here with Mr Smith: he lacks capacity and so it is the court’s role to determine what is in his best interests. It is also the court’s role to consider Mr Smith’s wishes and feelings. Although Mr Smith had indicated to health care staff that he did not want the amputation, his wishes and feelings were more complex than this. There was quite a lot of discussion of the fact that Mr Smith has in the past accepted treatment where people made the decision for him and then informed him that it has to happen. During the hearing Nageena Khalique asked Mr Smith’s community psychiatric nurse: “Might it be that Mr Smith finds the magnitude of the decision he is faced with so overwhelming that he would get some relief from others making the decision for him?” to which she said yes. Then the psychiatrist expert witness said there was no evidence that P wants to die, but that he doesn’t believe that he would die if he doesn’t have the treatment. Therefore, this is not a case of simple refusal of treatment versus an application for treatment, and it would have been wrong for the court to view it this way.

(b) How would Mr Smith react to amputation contrary to his wishes?

When the psychiatric doctor gave evidence, the judge questioned why her report did not reach a conclusion about what would be in Mr Smith’s best interests. It became apparent throughout the doctor’s evidence that this was due to the fact that Mr Smith’s schizophrenia made it difficult to say how he would feel about an amputation which he had expressly refused.

The doctor and community psychiatric nurse both gave evidence about the possible psychiatric effects but neither could say exactly how Mr Smith would react. It might be the case that if the foot and toes are amputated that Mr Smith feels as though the person who he believes is tormenting him has been eliminated too. Or, he could feel enraged by the amputation which he does not feel is medically necessary. 

As the judge said though, “Loss of a limb could be quite psychologically disturbing, but when you put that in the scales against DEATH!”.  

There could be practical as well as psychological consequences though.  The psychiatrist reported that Mr Smith had said, “If this is done against my will, I won’t have anything to do with anybody”, which she understood to mean that he would refuse to see the Mental Health Team.  If that were to happen, then, she said, “his mental health will deteriorate to the extent he’s detained under the Mental Health Act and he’ll then have further treatment imposed upon him against his will.”  She also pointed out that there would be additional complications in terms of meeting his care needs – since psychiatric nurses (were he to be detained) are not physical health nurses.

Under cross-examination by counsel for the Trust, the psychiatrist acknowledged that although Mr Smith had said he didn’t want to go into hospital, actually now he is there he’s quite settled, and accepting of basic care and treatment, including antibiotics and pain relief.  His life after amputation could potentially be quite similar to the life he had before he went into hospital – he was not an active person, and spent most of the time sitting in a chair and watching TV.   And although he had stated that he would “rather die than have an amputation”, that was in the context of his personal belief that he will not die.

Counsel for Mr Smith, who by the end of the hearing had come to the view that amputation was in Mr Smith’s best interests, stated that there “may be an underestimation of his ability to recover”.  She referred to the fact that he “wasn’t excessively knocked off balance when his wife died” a few years ago, and also took the view that although he might find a nursing home or care home setting difficult at first, he might be able to enjoy a wider range of activities than he was able to engage in before, in his own home.  She also said that he is currently “at sub-optimal levels of anti-psychotic medication” and that a trial of increasing his medication, or trying alternatives, might also improve his quality of life.

Both counsel for Mr Smith and counsel for the Trust referred to the strong presumption in favour of preserving life. Counsel for the Trust stated this:

“The decision itself is not a happy one. Mr Smith may well have significant problems in his life, but the reality is that he has already had significant problems and that is not a reason to come to the view that his life is not worth living.  Mr Smith deserves to be allowed to live.” (Conrad Hallin).

What I learnt from the hearing

I was left feeling that the judge had ultimately made the right decision by stating that it was in Mr Smith’s best interests for the procedure to go ahead. I agree with the approach adopted by Mr Justice Mostyn, where the sanctity of life was favoured due to the fact that Mr Smith’s refusal was not a solid refusal and that there was evidence to suggest that he might come to accept the decision if it was made for him. As a result, I do not believe that there was a ‘fine balance’ between sanctity of life and Mr Smith’s wishes as the evidence came to suggest that in fact Mr Smith did not wish to die, favouring the order for amputation.

What resonated with me most from this hearing was the need to make decisions in complex mental health cases like this one where there is such a lack of certainty of the effect the judgment will have. It highlighted to me the seriousness of the responsibility which judges in Court of Protection cases hold – especially in this case where the decision, as counsel for the applicant described it, was essentially one of choosing life or death for Mr Smith.

I have had limited opportunities to contemplate the more philosophical questions surrounding life and death decision-making, and I believe that this case enabled me to find where I stand on quite a difficult point of discussion. I will be able to take this with me into my work, especially in the more common midwifery cases concerning fetal death that I deal with. I think that it will allow me to approach these cases with a new-found sensitivity.

I very much enjoyed watching this hearing as it allowed me an opportunity to really question the arguments being put and to get deeply involved in the analytical aspects of the case. I found myself going back to my law school days of picking apart a case and getting stuck in to the legal questions at hand. It was an incredibly stimulating and engaging experience overall.

Monica Young is a regulatory paralegal, specialising in fitness to practise investigations against nurses, midwives and other healthcare professionals. She tweets as @MonicaYoung_

Photo by Sandy Millar on Unsplash

An inappropriate placement and Article 8 rights

By Beverley Clough, 21 December 2020

After following the Open Justice Court of Protection Project with interest since it was launched in June 2020, I was really pleased to be able (finally!) to attend a hearing on Friday 18th December 2020.

The hearing I observed  (COP 13462068 Re ‘LW’, before Mr Justice Hayden)  follows on from a judgment earlier this year (https://www.bailii.org/ew/cases/EWCOP/2020/50.html ) which featured in a blog post on this site. It is one that I had been interested in at the time given the issues that it raised around capacity in relation to contact, care and residence in the context of an abusive and coercive relationship. 

Back in July 2020, the focus of the hearing was on LW’s strong desire to leave her current placement (which all parties agreed was unsuitable) and to return to live at home in her flat with her partner, M. However, there was very real concern as to the relationship with M – the blog post and judgment go into detail on this, but the history of the relationship and actions of M suggested that should LW return home she would be likely to be coerced into disengaging with care and treatment, resulting in significant deterioration in her physical and mental health. Against this, however, LW had appeared in court, facilitated by Hayden J, and made clear her strong wishes to return to live with M. The previous blog post at the time raised some really important questions, however, as to whether LW’s voice was really heard in this hearing. There was purportedly very little by way of probing LW’s view of her relationship with M or discussion of how she felt about his actions. 

Cases such as this then undoubtedly raise questions as to respect for LW’s autonomy, particularly against a backdrop of a very strong and clear desire to return home with M. In the judgment, Hayden J stated that “were I to permit her to return to her flat with MG, I would be exposing her to a regime of insidious controlling and abusive behaviour which is both corrosive of her personal autonomy and entirely irreconcilable with her best interests”. He found that LW lacked capacity in relation to the decisions as to contact, care and residence, and that M’s behaviour was coercive and controlling in line with the definition and examples contained in the Statutory Guidance on the Serious Crime Act 2015. The way forward from the judgment was to remove M from LW’s flat and to cease contact. As Hayden J outlined at para 14- “The pace of progress will very much depend on LW’s reaction to this judgment… progress must be at LW’s own pace. It is LW’s needs that should drive the timetable not the exigencies of the litigation.”

The hearing today then arose from the pace of progress – or lack thereof. It was prompted by the Official Solicitor’s concerns about delays in removing M and progressing towards the end of goal of getting LW home. A number of really interesting issues arose during what was otherwise a fairly short hearing (just over an hour) which I’ll consider in turn: LW’s Art 8 rights and the powers of the Court in the face of sluggish Local Authority responses; LW’s progress after contact with M ceased; the unsuitability of other options: the interaction with housing law, and the Covid context.

What was really striking at the outset of the hearing was Hayden J’s unequivocal frustration at the lack of progress some 5 months after the initial hearing. He stated that he “could not have made it clearer that that he wanted this man out of the house.” Given that at the time of the initial judgment, there was broad agreement across the parties that LW’s current placement was wholly unsuitable for her and indeed this had been the view for at least the previous 12 months, it was deeply frustrating to hear that LW was still in the unsuitable placement. Nothing had changed. M was still in LW’s flat, and, it transpired, he had also destroyed the property to the extent that It is left in a state of total disrepair, with significant work to be done to make it habitable again. 

What surprised me, however, was the way in which Hayden J then invoked the Human Rights Act 1998, and Article 8 in particular, to suggest this situation breaches LW’s convention rights and that damages will necessarily flow to reflect this. Later, it was suggested by Hayden J and Fiona Paterson (representing LW on behalf of the Official Solicitor) that such damages could, serendipitously, be enough to repair LW’s flat. The reason that this very strong response by Hayden J to the situation surprised me was because it seems that it had not been argued by counsel: he stated that he can imagine counsel hadn’t expected the Human Rights Act to be invoked by him! But it does demonstrate the severity of the delay in getting LW back home and the gravity of the situation that she is now in, being in a wholly unsuitable placement. The seriousness of this and the impact on LW was later reiterated by Hayden J where he took issue with a statement in the position statement for the Official Solicitor that this delay had not caused any tangible harm to LW. As he suggested, any delay is inimical to LW’s welfare, such is her right to liberty and to choose where she lives.

Reference to the Human Rights Act seems to have been of real utility in aiming to jolt the relevant Local Authority into action- Hayden J reminded the parties that these costs and damages will linger over someone’s head and so movement is needed. Whilst he made no declaration as to breach of the Human Rights Act at this hearing – primarily because the Local Authority did not have counsel available to represent them and that this may cause unfairness – it seems to me that these strong statements and reliance on human rights arguments here will concentrate minds on ways forward.

I have often been cynical as to the power that the Court of Protection has/may have in these sorts of situations, where Local Authorities or Clinical Commissioning Groups fail to act quickly. Today, however, I was really heartened by the robust nature in which LW’s rights were firmly centralised right at the outset by Hayden J. I’ve written in a blog post here about the way that the Court of Protection’s hands can be tied by the options that Local Authorities or CCGs are willing to place on the table. The case of NYCC v MAG   [2015] EWCOP 64 is illustrative of this. It involved a man living in wholly unsuitable accommodation, which he had been in for around 10 years and which was too small for his wheelchair, resulting in him having to crawl around and causing painful bursitis as a result. NYCC sought declarations that there were no other suitable alternative places to live and so his deprivation of liberty at the current placement ought to be authorised. At first instance, Glentworth DJ refused to authorise MAG’s deprivation of liberty, necessitating that other more suitable accommodation be found quickly to avoid NYCC breaching MAG’s Art 5 rights. However, the case was quickly appealed, and Glentworth DJ’s approach overruled here. It was seen as (among other things) placing undue pressure upon NYCC to direct their resources in a particular way, and wrongly engaging Art 5 questions. It went against settled case law which establishes that the Court cannot force authorities to use their resources in a particular way – they have to choose from available options.

This rule – about choosing from available options – was plainly stated in the case of MN [2013] EWHC 3859 (COP) and was reiterated as the litigation travelled through the courts to the Supreme Court in 2015 (see SC judgment here). Again, this case raised questions as to whether care arrangements offered by local authorities or CCGs could be authorised as in somebody’s best interests despite them being viewed as unsuitable or deficient. Disappointingly, from my perspective, the Supreme Court judgment re-affirmed the principle that the Court can only choose between available options i.e. options that local authorities or CCGs were willing to offer. As Munby LJ had put it in the Court of Appeal (judgment here), the Court must choose between the lesser of two evils and sometimes endorse care or support as being in somebody’s best interests when other (unavailable) options might be preferable. 

However –  and importantly for the case today and the call to LW’s Art 8 rights by Hayden J – Munby LJ pointed to areas where there is scope for an exception to this general approach and for further pressure by the Court or Protection if P’s human rights are being interfered with by the Local Authority. He stated that:

“The court cannot be compelled to accept the local authority’s plan, any more than it is obliged to accept the plan propounded by a local authority bringing care proceedings under Part IV of the Children Act 1989. On the contrary, the court is required to act in the best interests of the vulnerable adult and must not – is forbidden by s 6 of the Human Rights Act 1998 to – endorse a plan which in its view involves a breach of Art 8.”  (Para 166 emphasis added)

https://www.bailii.org/ew/cases/EWCA/Civ/2015/411.html

This is interesting for the case today and the extent to which there is any scope for the local authority to push back against any concerns about the Court of Protection here over-stepping their authority. Hayden J made a clear argument here as to the engagement of LW’s Art 8 rights in her current placement, and it seems that this may take this case into the realms of the exception carved out in MN. Indeed, Fiona Paterson suggested that whilst she had not had time to prepare for the invocation of the Human Rights Act by Hayden J, she could see a case that it might fall within this exception. As there was no counsel for the Local Authority in the hearing today, no declaration was made by Hayden J but it remains to be seen how this aspect of the case plays out when the Local Authority do respond. 

What was also really interesting for me about the case today was the glimpse that we got into how LW was progressing following the ceasing of contact with M. Despite her strong feelings as presented in the initial hearing back in the Summer, it was reported that LW has been doing well: she has been happy and engaging with her medication, and has improved her road safety awareness. There were also positive updates on LW seeking to make contact with relatives who had unfortunately been cut off as a result of M’s coercive behaviour. As Hayden J said  “ with the malign influence of M gone, LW shows greater potential for rehabilitation than professionals dared previously hope for”. He  pointed out that hindsight is a wonderful thing, but he has seen other cases where such interventions in coercive relationships can have such positive outcomes once the source of control is removed.  This of course is very tricky ground to navigate, as other bloggers’ reflections after the first hearing here attest to. 

Another issue that arose in the hearing was the adequacy of a proposed step-down interim placement that the Local Authority had suggested for LW as a way to get her out of her current unsuitable placement, until she can return to her flat (which is badly damaged, and M is still there).   The concern was that this proposed placement had been the target of numerous allegations of abuse and bullying, had not been inspected by the CQC for over 2 years, and had over 40 residents. Hayden J roundly dismissed this option: “she is not going there” he repeated.  Hayden J took this opportunity to rightly remind us of the fact that whilst there are many good care homes and carers, sometimes that which the state has to offer “is not a panacea”. He quickly returned the focus of the hearing to LW’s flat, and her wish to return there.

One thing that I wondered throughout the hearing, and which wasn’t fully addressed (primarily because the Local Authority was unrepresented) was why M was still in LW’s flat. Mr Justice Hayde said he was “frankly appalled that this man is still living there and is destroying and devaluing the property”.  It seems there was some uncertainty early on as to his legal status there, but Hayden J strongly reiterated that M was a bare licensee with no legal status or right to be in the property. Moreover, his potentially criminal actions- damage to the property, and the coercive and controlling behaviour- should surely facilitate M’s removal.  “She’s in a profoundly inappropriate place”, said Hayden J, “and nothing at all – frankly, nothing at all – has been done for five months. Let’s call it what it is!”.  Why there has been stalling over this was not fully discussed in the hearing (although I understand some relevant information was  in the bundle) and I would have liked to have known more about what efforts (if any) had been made and why they failed. But Hayden J expressed his “enormous disappointment” that “so little has been done since I gave a judgment which might have stirred any local authority to activity, given what I have to say, rather than perpetuate inactivity and leave LW in an establishment which is manifestly not in her interests”.  He asked that the order should be constructed “on the basis that I am hovering hawk-like over it to see when that property will be vacated”.  This was a really important reminder however of the way that mental capacity law does not sit in a vacuum: it interplays not just with areas of criminal law, social care and public law, but also housing law. 

The discussion around M’s residence status though was also an important reminder of the context of the pandemic (indeed, the reason the hearing is virtual) as there was some uncertainty as to whether the stay on possession orders brought in in response to Covid was still in force and what bearing that may have on the ability to remove M. There was also a brief discussion as to whether LW was in the first tranche or second tranche of those due to be vaccinated against Covid. This brought home for me the very real, and the very current, circumstances of the case which can all too easily be forgotten when we just read legal judgments.

The next hearing will be listed for the first available date after 13th April 2021.

Beverley Clough is Associate Professor in Law and Social Justice at the University of Leeds and can be contacted @bev_clough

Photo by Tom Crew on Unsplash

Autoerotic asphyxiation: capacity and best interests

By Sarah Daniel,  18th December 2020

Editorial note: The judgment is published here: AA (Court of Protection: Capacity To Consent To Sexual Practices) [2020] EWCOP 66 (15 December 2020). There was a subsequent hearing in the same case There’s on 9th December 2021 (so a year later) and the judgment is published here: Re AA (Capacity: Social Media and Internet Use) [2021] EWCOP 70. There’s also an interesting and detailed article about this case by Martin Curtice (a consultant in old age psychiatry): Curtice, M. (2022). The Mental Capacity Act 2005 and autoerotic asphyxiation: Pleasure versus the risk of harm. BJPsych Advances, 28(4), 262-271. doi:10.1192/bja.2021.82

A one-day hearing before Mr Justice Keehan (COP 13408216, 27 November 2020) was the first virtual hearing I’ve attended. It was also the first hearing I’ve observed in the Court of Protection.

I emailed at 8pm the day before and received a reply with a link to join the hearing via MS Teams just after 10am on the day of the hearing: court was scheduled to begin at 11am.  Admittance was unproblematic.

This case centred around whether an individual, let’s call him ‘James’, had capacity to decide whether or not to engage in a sexual activity known as autoerotic asphyxiation (AEA), the practice of strangling or suffocating oneself during masturbation to heighten sexual arousal. The question of capacity also concerned James’ engagement with other individuals on the internet.

I am currently studying for a Graduate Diploma in Law (GDL) – however my background is predominantly based in other areas, having completed an undergraduate in History and a postgraduate in International Development. I approached this hearing in the hope of gaining invaluable experience in regard to the specific legal proceedings in the Court of Protection and to learn about the application of the Mental Capacity Act 2005. In turn, I thought my knowledge of the law (albeit still rather limited) and my experience of in-person court hearings would be my strongest asset to witness and comment on this case. However, it turns out that the analytical tools I acquired in my history degree, specifically the in-depth source and evidence comparison, proved most valuable given the nature of the hearing. Little did I know, my first virtual hearing was to be a very unusual one indeed. 

I will be honest and admit that there were a few moments in the earlier stages of the hearing where I wasn’t sure if I was going to be able to keep up. On top of the adjustment to a virtual courtroom, understanding the specifics of the Mental Capacity Act 2005, and taking accurate notes of important information, I did not also expect to have to engage with technical medical information from a variety of experts. 

But I am glad I persisted, because I think, given my background, I am able to offer a different, but distinctive, perception of the hearing. 

What made this case unusual was that the two medical experts who’d examined James, disagreed about his capacity. Both had met James. Both had produced reports for the court. In a similar way that one might probe the accounts of two contrasting historical sources, I was able to observe the hearing from this perspective, carefully listening and evaluating both testimonies. 

I was not alone in observing the hearing, quite the contrary. It was noted in the beginning that seventeen people were publicly observing. James did not speak at any point and there was no indication that he was present.  I am told by Celia Kitzinger, who observed a previous hearing (on 28 August 2020), that the judge had spoken with James that morning and he was “in very good spirits” but had declined the opportunity to observe – or participate in – that hearing. It seems likely he had similarly decided he’d rather not be present today. 

To begin with, the clerk ran through the expectations of the court in relation to observer conduct and confirmed counsel. Mr Neil Allen represented the Local Authority and Mr John McKendrick QC, instructed by the Official Solicitor, acted on behalf of James.  When Mr Justice Keehan joined the conference call, Mr Allen reminded us all about the Transparency Order (I requested this to be sent to me after the hearing). With permission, Mr Allen summarised the facts as they stood at that point.

James was an eighteen-year-old man who, until August 2020, had lived under a care order in a children’s home, following allegations of sexual abuse in his earlier years. Presently, he is living in a 24-hour supported living arrangement and was due to move next month. James has been diagnosed with autism spectrum disorder (ASD), Asperger syndrome (AS) and Attention Deficit Hyperactivity Disorder (ADHD).  Currently, he is engaging in autoerotic asphyxiation (AEA), a practice in which, as stated, sexual excitement is increased by restricting oxygen supply to the brain. He has also been using the internet to post on the dark web, advertising his wish to be a submissive sexual partner, and to be kidnapped and raped.

The task of the court was to determine whether James had the capacity to make relevant decisions, including his practice of AEA and use of the internet – and if not, whether restrictions on these activities would be in his best interest. Specific attention was placed on the danger of accidental death and brain damage as a result of AEA and James’ lack of capacity to use the internet safely to engage with others. 

The position of the local authority was that James lacked capacity to make decisions in relation to AEA and internet use. The position of James (via the Official Solicitor) was that James did have capacity to make decisions in relation to AEA and internet use. 

My Experience of the Hearing

The feeling which struck me when I was first admitted to court was one I did not originally expect: intrusiveness. There is something odd, almost disconcerting, about being privy to such an important decision in another person’s life, all from the comfort of home. Dressing for court, arriving at court and standing at the appropriate times prepares you for a hearing, and this is lacking when observing a virtual courtroom. Having said that, the gravitas of court was still there. Despite knowing I was on mute and that nobody could hear me, the respect you must show to the judge, counsel and the witnesses when they speak still remains and I found myself remaining silent as if I was sitting in court for the entirety of the hearing. 

First and foremost, the term ‘autoerotic asphyxiation’ was unfamiliar to me and so it required a bit of on-the-side Googling and a later discussion with my Dad who is a health professional.  This was the case with other technical terms. ‘Pup play’, for example, the practice of role-playing as a dog for sexual gratification, required research. Even medical terms I was familiar with like ‘autism’ demanded attention as the specific nature of the disorder was extremely relevant.

It was evident that the crux of this hearing would centre on the examination of the medical expert witnesses. Dr Chris Ince appeared as a witness for the local authority, Dr Ivan Burchess for James (via the Official Solicitor). Their reports provided the court with conflicting evidence.  

Dr Ince – evidence in chief

Dr Ince, a consultant psychiatrist specialising in autism, provided testimony first. The initial focus was on whether James’ practice of AEA was a manifestation of his autism and, if so, whether he lacked capacity to engage in this activity. Dr Ince stated, “the question is to what extent is this a discreet circumscribed paraphilic interest in AEA, and to what is this a manifestation of his underlying mental disorder i.e. his ASD”. In other words: “is this a primary sexual preference or is this a manifestation of his ASD?” Mr Allen probed Dr Ince, asking whether James’ AEA was a ‘manifestation’ of his autism. He replied by describing that James’ AEA was a “function” of him addressing his own sensory needs, that AEA was a self-confessed “addiction” for him. Dr Ince was clear that he would not view this as “solely a primary paraphilic disorder”. He went on to note James’ wearing of tight clothing and dog collars, and that this pressure James was creating immediately related to his sensory profile. Dr Ince argued James “need[ed] to understand the context of his presentation and his behaviour within his ASD” because this would have a significant impact in relation to his future life, not just in regard to the issues discussed at today’s hearing. Dr Ince’s testimony firmly established that he believed James lacked capacity to make decisions in relation to his practice of AEA.

On the whole, I found Mr Allen’s questioning of Dr Ince incredibly difficult to follow. Given that there had been a previous hearing which I had not been present at and a written report which I had not read, it was challenging to decipher the testimony and draw out key points. 

Cross-examining Dr Ince

Mr McKendrick conducted the cross-examination of Dr Ince. Notably, there was a significant contrast in the atmosphere, more so than I would normally expect from a cross-examination. The experience was uncomfortable at times as the tones of both Dr Ince and Mr McKendrick were slightly hostile. For example, on one occasion, Dr Ince made a point of saying that he would like to answer the question posed to him by Mr McKendrick, as he had been unable to do so.  

This examination struck me as one of the most important moments of the hearing. In response to Mr McKendrick’s questions, Dr Ince showcased that James is unable to ‘weigh up’ or ‘understand’ the practice of AEA, both which are crucial to establishing capacity. When asked about the causative link between James’ decision-making, from the ASD to the AEA, Dr Ince clearly asserted that, “in my assessment [James] was clear as to the risks relating to plastic bags but could not equate that to a greater or lesser risk with collars or ligatures”. With this in mind, without the ability to weigh up objects he was using to asphyxiate himself, James would lack capacity to make this decision. 

At this juncture, Mr McKendrick began reading aloud passages to Dr Ince, passages which had not been included in the doctor’s bundle. This only added fuel to the fire. Dr Ince, clearly skilled and experienced as a medical expert witness, probed and largely unravelled the passages read to him in a careful and methodical way. Surely James is aware of the risks of AEA, asked Mr McKendrick, if he has relayed to a medical professional that brain damage could result from this practice? Yet Dr Ince pressed for further information. He uncovered that James was not asked to define “brain damage” and, thus, it was arguable he was simply regurgitating the phrase which, coincidentally, Dr Ince had introduced to James five days prior.

In a similar way, Mr McKendrick outlined that James seemed to have considered different methods of asphyxiation as he knew collars were for “pup play” and not for “strangulation”. However, Dr Ince testified that “pup play” was a concept introduced to him during one of their consultations and, thus, in a similar way to the use of “brain damage”, could simply have been restated by James at a later date. Dr Ince was clear: although James had demonstrated that he could retain words, this did not mean he could understand them. This was crucial evidence, given that ‘understanding’ relevant information is key to capacity.  

Dr Ince was also very clear on James’ capacity in relation to his internet use. He said that James did lack capacity to engage with others online, and this was specifically related to his sexual interests. In his opinion, James does not recognise that some people may take advantage of him – for example, James had released his “school timetable” to men online and asked them to put him “in a cage”.

Throughout the examination, I considered Dr Ince’s pauses and moments of reflection to be indicative of his uncertainty.  Yet, on reflection, I realise this is not the case. I now wonder if Dr Ince slowed for the benefit of the court and those observing, like me, who were struggling at times to follow the technicalities of the testimony. As the court adjourned for lunch, I would have described Dr Ince’s report as a slam-dunk. The medical evidence formed a clear enough picture to counter the presumption of capacity. By lunchtime I was convinced that James lacked the capacity to practice AEA and to engage with others online. 

Dr Burchess – evidence in chief

Dr Burchess’ afternoon testimony blurred the clarity of this picture significantly. He was asked whether his opinion had changed about James having heard Dr Ince’s examination. “Not really” he responded, before moving on to describe James’ “vulnerable preoccupations” and his “atypical sexual behaviour”. But Mr McKendrick pressed again: had the “core conclusion” of his “first report” altered? Dr Burchess testified this had not changed. It turned out, however, that Dr Burchess had not assessed James’ capacity to engage in AEA (despite having been so instructed, see para. 27 of the judgment).

Cross-examining Dr Burchess

There were a number of moments in the cross-examination which struck me. 

First, not only did Dr Burchess disagree with a number of the points in Dr Ince’s reports, he also fundamentally disagreed with multiple diagnoses James had received. He offered three key examples. James had been diagnosed to have “moderate learning difficulty”, yet he had “an IQ of over 70 so he does not”; James had been informed he had ADHD, yet Dr Burchess had found little evidence of this; James was described as anxious and depressed, yet Dr Burchess did not conclude this from his consultation.

This was the only moment in the hearing at which I would describe myself as shocked. Surely this casts doubt over all of the medical evidence in this case as the foundational conditions ascribed to James were considered to be wrong by one of the experts? At one point, Dr Burchess described his position as “flabbergasted” and I think this is a pretty accurate summary..

Second, I believed one of the main cruxes of the hearing was James’ capacity to practice AEA. Yet, Dr Burchess had not covered this in his report and said he was “uncertain” in this regard. This seemed very strange to me as it was a crucial component of the hearing.

Third, I felt this was the first time the court really got a sense of Mr Justice Keehan’s opinion. Interjecting his own observation following a question directed at Dr Burgess by Mr Allen in relation to capacity, he stated “We don’t have a baseline from which we can confidently work” and without a clear understanding of his own needs, “how can [James] accept or refuse when he doesn’t know?”.  I believe Mr Justice Keehan was referring to James’ own lack of assessment in relation to what his needs were. On a number of occasions, James’ lack of sensory profile assessment was discussed in the hearing by both medical experts, so this may be what Mr Justice Keehan refers to when he notes the baseline that James is lacking. This issue is referred to multiple times in the judgment (e.g. para. 24 of the judgment).

On the matter of James’ capacity to use the internet, Dr Burchess clearly asserted his position. When asked by Mr Allen, “Do you agree with [Doctor Ince] that [James] finds it difficult to assess motives online?”, he said that James knew what the risks were, and that he could make “informed decisions”. Though Dr Burchess was concerned that James might make the “wrong decisions” as he had a “strong drive” which could result in harm to him, Dr Burchess said (crucially): “I think he knows that”. When Mr Allen asked, “and thus he should take responsibility for it?”, Dr Burchess replied “Yes”. I argue that this last question was one of the most significant questions of the hearing as the distinction between Dr Ince’s medical opinion and Dr Burchess’ medical opinion in this final point on James’ internet use was unequivocal; the contrast in their medical testimony was indisputable. 

The Judgment

I wouldn’t describe myself as particularly surprised by the judgment. I had expected that James would be judged to lack capacity given the strength of Dr Ince’s testimony, most specifically the weight Dr Ince placed on James’ AEA as a manifestation of his autism. 

To be honest, my initial reaction to reading the judgment was to appreciate the skill of Mr Justice Keehan, who had communicated a complex case in such a succinct and accessible way. Upon reading it, I was struck with a sudden understanding of many of the finer points in the hearing which I had been unable to appreciate during the trial. Moreover, being able to read about the details of James’ background and about what had taken place in previous hearings, informed my understanding further.  During the hearing, I had felt there were significant gaps in my knowledge of events which made commenting on the case extremely demanding. I was not unused to this though as my background in history has meant that I have been routinely provided with evidence that I must assess without all of the relevant facts. It is in the nature of historians to provide commentary where there are gaps and discrepancies. 

Furthermore, I found it particularly interesting in Mr Justice Keehan’s analysis that he stated, “I also prefer and accept the evidence of Dr Ince that [James] does not have capacity in relation to contact with those people he meets online”.  However, he did not provide an obvious basis for this preference. Both doctors had offered contrasting opinions on James’ use of the internet – thus it was not clear to me what factor had determined Mr Justice Keehan’s decision to agree with Dr Ince. I would be intrigued to understand the reasoning behind this decision, as from reading the judgment this was not clear to me.

The judgment provided me with more concrete evidence of the case and exposed me to information which had been discussed prior to the hearing I attended. On this basis, does this mean that attending a hearing lacks value given that I can simply read the judgement at a later date? One might argue ‘yes’, strengthening this point by adding that a court may save time and energy by not admitting public observers.

However, I disagree with this point. Though the judgment provided me with more information, it did not provide me with the full picture. In fact, the added value of a hearing is arguably something which cannot be captured in a judgment: the rawness of emotion during witness examinations. This rawness is crucial because, what may seem potentially black and white on the pages of a judgment, in fact might be considered less obvious and less certain in the actual hearing. Judgments do not cover the pauses as expert witnesses struggle to answer a particular question; they often do not cite a ‘maybe’ given by a doctor who seems unsure as to an answer and they do not include the repetitions of questions asked by barristers to probe a witness so that they may reach a desired outcome. It is only from watching and observing what happens in court, that one can fully appreciate the art of advocacy, the nature of the information provided to a judge in oral testimony and the difficulty in reaching a judgment.

Reflections

The learning curve in observing this virtual hearing was incredibly steep. As stated, the beginning was difficult and, frankly, the case was tiring to follow given the wealth of information. However, this feeling of being overwhelmed subsided during the course of the day. This is due, largely, to the provisions put in place by the court: yes, the pace was fast, but efforts were made by both Mr Justice Keehan and counsel to ensure it was possible to understand the proceedings. For example, without the introductory summary of the case, I would have struggled to understand the rest of the day.

Although my feeling of being overwhelmed decreased, my feelings of intrusiveness in virtual court did not. Even at the end of the hearing, I still felt as if I was peering into someone’s most intimate moment. There is an irony in this as the subject of intrusiveness was also a subject matter prevalent in court that day. I refer to Mr McKendrick’s argument in his final submission that the Local Authority and the court were potentially intruding on James’ privacy. It was the discretion of the court to determine whether James had the capacity to engage in AEA and with others online: however, this determination, though necessary, is a serious infringement on his life. It is easy to forget when watching from home that the decisions made in court could result in a serious intrusion into a person’s privacy. It is also so easy when writing pieces like this to become wrapped up in the technicalities of the medical testimony and forget that it is James’ liberty at stake. 

With this in mind, although it may feel intrusive to observe, in fact there is a profound importance to the public being able to watch hearings, such as James’.  What kind of justice would the Court of Protection provide if decisions could be made to restrict and impede a person’s liberty, in relation to their right to have sex in the way that they choose, without any public right to observe the process whereby that decision is made? 

It seems that intrusiveness on my part, and the part of the public, is essential to ensure that the intrusion of the state is justified. Decisions which have crucial public policy implications, in James’ case for his deprivation of liberty, must be witnessed by public observers, instead of reviewed at a later date upon reading a refined version of proceedings in the judgment. 

I found this experience incredibly eye-opening and extremely informative.  Most importantly, it has motivated me to pursue an area of law which is, above all, very human. 

Sarah Daniel is an aspiring barrister with an undergraduate degree in History and a postgraduate degree in International Development. Currently she is completing her Graduate Diploma in Law at City, University of London. Her email address is Sarah.Daniel@city.ac.uk 

Photo by engin akyurt on Unsplash

Unseemly turf wars and uncoordinated care

By Jenny Kitzinger, 16th December 2020

The hearing I attended on Wednesday 9th December 2020 (Case: 13382192 before District Judge Tindal), was about Mr G, an individual in his early 60s with frontal lobe disorder, diabetes and other medical issues. He wants to leave the acquired brain injury [ABI] care centre that he originally entered almost a year ago, to return to living in the community – but has previously been deemed to lack capacity to make a decision about this for himself. 

This December hearing is the third I’ve observed concerning Mr G. I blogged about a previous hearing in July 2020 and another in October 2020. This latest hearing was supposed to be the point at which a decision about where Mr G might live could finally be made. 

Sadly, this didn’t happen. It wasn’t possible to make a decision due to problems with progressing specific plans to put viable options on the table. This means that Mr G has to stay where he is – at least until the next hearing in February 2021. He expressed his disappointment and dissatisfaction with the process: 

“My case is being kicked around from one party to another. Recurrently people who are meant to do a certain action have failed to do so. I’ve been here almost a year and the core principle – which is my well-being – may have been lost.”

He referred back to a comment made by the judge in opening the hearing, and said: 

 “In the commentary you delivered you mention an “unseemly turf war”. That seems an apposite description of what’s going on here. The only people aside from my solicitor and barrister who’ve behaved with any dignity, any care – assets you might look for in a clinical setting – are the small but willing team in this place [ABI care centre] who’ve always treated me with dignity and respect. Everyone else has kicked me around like I’m an object. Which I am not. I am not going to give up. My life is ticking away in real time. I need action, by you, Your Honour, to return me to the life I’ve been deprived of”.

Mr G’s sense of frustration was echoed by the judge, Jim Tindal. The hearing concluded with another hearing being scheduled for February 2021, in the expectation that all the necessary information and options should be in place by then. The judge intimated that at the February hearing he would need to choose between available options come what may, and that would include the possibility of a return to living in the community (while not guaranteeing that outcome):

“Even though I don’t have entire comfort in statutory agents doing what they should, I might make a decision nonetheless, providing a fait accompli to the NHS. I will not be prevented from making that decision by excuses.”

Addressing Mr G, he said: “I can’t promise that I will make that decision [to allow a return to living in the community] but I will make my decision with your views at the centre of the decision-making process”. 

So, what had gone wrong? 

The problem

The reason why all the information necessary to consider alternative placements was not available at this hearing was clearly linked to a lack of coordinated care. 

There was a dispute between the Local Authority and the CCG about whether Mr G was eligible for Continuing Health Care (CHC) funding. The CCG’s position is that the person responsible for Mr G’s care is his GP. The Local Authority’s view is that Mr G’s needs are primarily health related. The Local Authority has completed a CHC check list and is awaiting the outcome of that process. The lack of CHC funding meant that Mr G had not been assigned a care coordinator who might ensure that all the relevant medical care and paperwork was in place, and various things had fallen through the gaps. In particular the pain clinic, which it had been hoped would set him up with a trial of pain patches which might facilitate his return to the community, had failed to do this. A parallel problem delaying consideration of the options for Mr G was that probate was still not complete in relation to  his mother’s flat where he hopes to live.

Alexis Hearnden, representing Mr G via the Official Solicitor, commented that it was: “very unsatisfactory that there is not someone at the reins of all this” and underlined the point that disputes about who is responsible for funding should not impact on the care of the person in question. There was, she said, a need for a collaborative, not piecemeal, approach.

Much of the hearing was taken up with trying to put in place various strategies to ensure that the multiple statutory bodies could be brought together to establish such a collaborative approach. There was also discussion of whether joined-up thinking might harness litigation to expedite probate and consideration about whether to use Section 49 to ensure the right information was available at the next hearing (see also PD14 – https://www.judiciary.uk/wp-content/uploads/2014/05/pd-14e-section-49-reports.pdf).

Reflections

The problems highlighted in this hearing are familiar to anyone trying to support an individual who lacks capacity to make their own decisions about where they live or the treatment they receive. There was a great deal of determination in the hearing (among the half dozen senior professionals present) to try to solve the problems, but it struck me how relatively powerless even they felt to resolve the situation in a timely way. This is in spite of the fact that, time and time again, judges have been critical of turf wars, and of the lack of coordination and unnecessary delays that are inimical to high quality best interests decision-making. 

In the cases that I’ve observed, the judges are usually clear about not overstepping their powers and not ‘brow-beating’ or blaming anyone, but I’m left wondering what is happening to the huge pool of information collated through such hearings about breakdowns in care or inherent system problems.   If such hearings cannot help deliver systemic changes, then hours of court time spent on individual cases on a case-by-case basis seem a problematic use of resources that might be better used directly addressing gaps for all – including the majority who cannot harness litigation to address their situation. 

This hearing underlined for me the urgent need to reform the way in which care is funded and to ensure that care coordinators are available to all who need them. 

Meanwhile, Mr G remains in a placement which he resents, without the possibility of alternatives being considered.  And thousands of others battle with similar situations which undermine best interests, waste financial resources, and cause frustration and distress for the individuals at the centre of each case – and for the families and healthcare professionals supporting them.

Jenny Kitzinger is a Professor in the School of Journalism, Media and Culture at Cardiff University, where she also co-directs (with Celia Kitzinger) the Coma and Disorders of Consciousness Research Centre. She tweets @JennyKitzinger

Photo by Martin Lostak on Unsplash

Is it lawful for C’s carers to support him in accessing a sex worker?

By Astral Heaven, 14th December 2020

Update on 22nd October 2021: This case was heard by the Court of Appeal. In The Secretary of State for Justice v A Local Authority & Ors [2021] EWCA Civ 1527 the Court of Appeal overturned Hayden J’s decision and found that care workers WOULD risk committing an offence by supporting C to access the services of sex workers/prostituted women.

Editorial Update: The judgment has now been published and is available here: A Local Authority v C & Ors [2021] EWCOP 25. Hayden J found that what C was seeking was not in principle going to lead a care worker to commit a criminal offence, though he went on to note (at paragraph 96): “In due course I will have to consider whether it is in his best interests to pursue the course that he has set his mind on. As part of that evaluative exercise, I will have in mind that it will never be in C’s interest to put himself or others at risk.“

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In August 2018, a man in his 20s (“C”) told his Care Act advocate that he would like to have contact with a sex worker. She raised this with his social worker and legal proceedings were started on 26 February 2019 by the local authority. The question of the lawfulness of that proposed contact has been an issue in the case from the outset, and was the key issue addressed at this hearing.  

I observed this hearing (Case No: 1252118) before Mr Justice Hayden, Vice President of the Court of Protection on 2nd and 3rd December 2020.  He did not make a judgment at the time but said he would do so before Christmas. 

Background

The person at the centre of this case has diagnoses of autism, mild learning disability, XXY syndrome and delusional disorder.  He is living in a supported living placement with a local authority and CCG funded care plan in place comprised of 24 hour 1:1 – and at times 2:1 – support. As the measures within his care plan amount to a deprivation of liberty, there is a community deprivation of liberty authorisation in place.

Since August 2018 when C first raised the issue, a significant amount of work has been completed to look into whether it would be possible to support him in contact with a sex worker. Initially a court application was made by the local authority for a declaration that C did not have capacity to make to make his own decisions about contact with a sex worker and that it was not in his best interests that he should do so, but their position has since changed.  

The current position is that C has capacity to engage in sexual relations, and capacity to make the decision to have contact with sex workers: this was established through assessment by an independent consultant psychiatrist (Dr Christopher Ince). However, C was judged to lack capacity to make decisions as to residence, care and support, financial affairs, use of the internet and social media and to conduct these legal proceedings.

C would not be able to make arrangements to visit a sex worker, or pay her, without the support of his team.  The Local Authority and CCG have agreed that implementation of a carefully thought through sexual contact care plan to help C access a sex worker would be in his best interests and they were prepared to commission a care plan. However, they would do this only if the Court would make a declaration that the care plan would be lawful and that no offense would be committed by the care workers in light of s. 39 Sexual Offences Act 2003, which criminalises actions that intentionally ‘cause or incite’ sexual activity involving a person who has a mental disorder, by a person involved in that person’s care.

It is not unlawful to pay for sex.  The question is whether supporting C (who has a ‘mental disorder’) to have sex with a sex worker would be unlawful, on the grounds that s39 makes it an offence for third parties who are carers to be involved in making such arrangements.

These arrangements could potentially involve:

(a) assisting C in selecting a particular sex worker from those available (by presenting him with a choice in a format suitable for him); 

(b) determining the payment requiring and accompanying him to the cashpoint to help him obtain the relevant sum in cash, which C would then keep in an envelope ready to make the payment himself when required; 

(c) making sure C’s co-tenant is out of the house while C spends time with the sex worker;

(d) remaining in C’s house in the upstairs bedroom; and 

(e) working with C to prepare a plan for how the activity should go in advance. 

Victoria Butler Cole QC and Ben McCormack were representing C.  Sam Karim QC acted for the CCG, Neil Allen for the Local Authority, and Fiona Paterson for the Secretary of State for Justice. 

Setting the scene

For me, the opportunity offered by remote hearings to observe cases brought before senior judges such as Mr Justice Hayden, has presented fantastic learning during this pandemic. It’s meant it’s been possible to observe cases involving serious medical treatment decisions and cases such as this, involving complex ethical dilemmas. In previous hearings I’ve observed, the focus has been purely on the Mental Capacity Act 2005, so it was interesting in this case to be able to observe the Mental Capacity Act’s complex interaction within the wider legal system – in this case the Sexual Offences Act 2003.

Right at the outset of the hearing there was an issue about the transparency order. At an earlier hearing regarding this case in November 2019, a journalist (Brian Farmer) had made a request for the transparency order to permit naming the Local Authority, and this had been granted.  When reports of the case were published there were unpleasant comments from members of the public. Victoria Butler Cole QC queried whether there should be a temporary ban on reporting until the judgement is published.  Mr Justice Hayden advised that the hearing is ‘fraught with problems about reporting and is no doubt going to excite ignorant and vituperative remarks as well as reflective intellectually curious ones”, but pointed out that the “genie is out of the box”. He said: “These issues are difficult and they benefit from being publicly openly debated in full disinfectant sunlight – or whatever the phrase is – of open court” (This is a reference to the US Supreme Court justice, Louis Brandeis’ observation that ‘sunlight is the best disinfectant’). 

Mr Justice Hayden said that he had met with C and had come away with the feeling that C might be contemplating only one episode of involvement with a sex worker.  It was an experience he would like to have, but he may just have a cup of tea and play cards with her, and may decide at the final moment that he did not want to have a sexual encounter at all.  He said it seemed that there was a lot of pressure on C and that “a first sexual encounter usually has some degree of spontaneity about it and is rarely subject to the scrutiny of a judge and leading counsel”. 

At the start of the hearing Mr Justice Hayden requested an outline of the case be provided for the benefit of public observers and also agreed that the skeleton arguments (with some of the detail removed), could be released to us ‘to help with general understanding and accurate reporting’. This significantly helped in my being able to properly understand and follow the case (within the confines of my ability!). At several points, Mr Justice Hayden asked the barristers to go back over some of their arguments so he could fully understand the important points being made and I also found this helpful in aiding me to follow the proceedings. 

As it’s unlikely to be a practical option for C to access a sex worker until Summer 2021 due to the pandemic, Mr Justice Hayden wished to draw back from scrutinising a best interest care plan that would not kick in for 6 months.  Instead, the central focus at this hearing was the issue of whether or not support could be provided to C to enable him to access a sex worker, without breach of s. 39 of the Sexual Offences Act 2003.

The argument that it would be lawful to support C to access a sex worker

On behalf of C, Victoria Butler Cole QC argued in court that the acts to be carried out as part of the proposed care plan do not involve any intentional ‘causing or inciting’ of C to have sex with a sex worker.  She said that it would be wrong to interpret the Act in that way because its purpose was to criminalise the exploitation and abuse of people with mental disorders by those with a relationship of trust.  It was not the purpose of the Act to prevent people with mental disorders from having sex.  

She also argued that the actions of the care workers would not “intentionally cause” C to have sex because C is making a voluntary and informed choice to engage in sexual relations, and simply requires the assistance of a third party to put this into practice.  The ‘narrow’ interpretation of s.39 that would criminalise care workers assisting C in this scenario would also, she argued, criminalise acts such as driving a person with a ‘mental disorder’ from their home to their partner’s home (knowing that the couple were likely to have sex) and actions such as providing a private area in a care home for someone with a ‘mental disorder’ to have private time with their partner. 

Victoria Butler Cole QC further argued that if the court were not to accept this reading of the Sexual Offences Act (two criminal lawyers, Nina Grahame QC  and Kirsty Brimelow QC had submitted contrary opinions), then the judge must use his interpretive powers under s.3 Human Rights Act 1998 to read and give effect to the legislation in a way which is compatible with the European Convention on Human Rights. 

If the hypothetical care plan cannot be implemented without breaching the Sexual Offences Act 2003, and cannot be read in a way that is compatible with the Human Rights Act, then, she said, the court should make a declaration of incompatibility.  Both Article 8 (Respect for private and family life) and Article 14 (Protection from discrimination in respect of these rights and freedoms) are engaged.

In C’s case, the plan was to use a charity called the TLC Trust.  The charity describes itself as

“a committed and passionate non-profit organisation who are striving to promote sexual services for disabled people in a safe, fun and responsible way. Having access to intimate experiences is a basic human right.”

The philosophical basis of TLC is that people with disabilities should be able to have the same access to sex as non-disabled people. Victoria Butler Cole QC explained that whilst other charities work to dispel stigma and discrimination, TLC takes this one step further and finds sex workers willing to work with those with disabilities. 

The existence of TLC shows that the need for transactional sex services for disabled people is not uncommon, particularly for younger men with brain injuries. An informal survey of members of the Professional Deputies Forum had been submitted as a witness statement in order to assist the court in understanding what happens on the ground. The anonymous feedback from members of this organisation (composed of solicitors who are professional deputies – the organisation represents about 50% of all professional deputies) shows that they have a wide range of experience involving clients seeking sexual services, and that professional deputies have paid for sex workers for their clients and put the accounts in to the Office of the Public Guardian under the ‘leisure’ or ‘entertainment’ budget.  

The court heard that such services have proved beneficial for people, especially those with brain injuries, with positive impact on previously difficult-to manage behaviours. Victoria Butler Cole explained that professional deputies need to know if this is not allowed under s39.  If it is not, then (as one professional deputy pointed out), this leaves disabled people trying to access these services for themselves, which in practice will place them more at risk (e.g. “of unwanted pregnancy and falling in love with unscrupulous characters”, to quote a deputy from the survey). At this point in the argument, Mr Justice Hayden seemed to accept that a narrow construction of s39 might render those it’s intended to protect more vulnerable.  He also noted that no one was asking him to intervene because C is believed to be at risk, and that “the risk is from the prohibition, rather than the facilitation of these arrangements”. 

Counsel for the Local Authority, Neil Allen, also took the position that it would be lawful to provide the kind of support for C envisaged in the hypothetical care plan.  He advised there is a fundamental distinction between providing someone with opportunity to exercise their own judgment and “causing” them to do something.  It would be C’s capacitous decision that provides authority for the sexual activity to take place. The care plan provides opportunity for C to be in the presence of a sex worker, but whether a sex act takes place will depend on C’s own decision. The care workers will be providing the support necessary for C to implement his own decisions.

Counsel for the CCG, Sam Karim QC, adopted a neutral position.  He said: “As the funding body and responsible commissioner, the CCG plainly doesn’t want to commission a package that falls foul of the Sexual Offences Act or puts individual carers at risk of prosecution.  It takes the view that it would commission the care plan as outlined, subject to Your Lordship making a declaration or a decision that it was lawful”.  

The argument that it would NOT be lawful to support C in accessing a sex worker

The Secretary of State for Justice, represented by Fiona Paterson, put the case that if carers were to provide the kind of support envisaged in the hypothetical care plan for C, they would be “causing” C to have sex according to a broad interpretation of s. 39 of the Sexual Offences Act, as advised by Ms Brimelow QC and Ms Graham QC.  

She argued if the law were to evolve to permit exceptions to s. 39 that rendered it lawful for a carer to facilitate access to a sex worker for someone with a ‘mental disability’, that would be a matter for Parliament, as opposed to the Courts.  

Attempting a Convention-compliant reading in the manner suggested by Victoria Butler Cole would represent a significant change in public policy – which again properly falls to Parliament rather than the Courts.

Finally, if the judge were to find that s39 of the Sexual Offences Act is incompatible with Article 8 of the European Convention on Human Rights, then (she submitted) any infringement of C’s Article 8 rights is in pursuance of an objective and legitimate aim on the part of the government – that aim being to protect disabled people from exploitation and abuse.  Given the wide margin of appreciation afforded by the European Court of Human Rights, the Secretary of State for Justice further submitted that a declaration would serve no purpose.  

Fiona Paterson concluded, on behalf of the Secretary of State for Justice, that the application that the proposed care plan was lawful (or of incompatibility) should be dismissed; the granting of the declaration would not afford immunity from prosecution and would be contrary to public policy.

My experience of this hearing

As Best Interest Assessors for the Deprivation of Liberty Safeguards (DoLS) we are often faced with complex ethical dilemmas when trying to balance someone’s right to liberty and autonomy with their right to safety and protection when they are unable to make decisions to protect themselves. We play a critical independent role, so being able to apply legal frameworks, having a confident understanding of the law and being aware of and able to incorporate legal judgements, is important to inform our decision-making. That’s why it’s so beneficial to be able to attend these Court of Protection hearings, both in terms of developing a better understanding of the law and for the opportunity to observe how the barristers and judges approach the complex legal and ethical dilemmas they are faced with.  

Critical reflection of professional experience is a central element of professional practice, so it was interesting to observe Mr Justice Hayden reflect upon his own learning from this case; about how this case provided a window on sex work he had never encountered before and one which caused him to revaluate his perceptions of sex work. He recalled a time where as a young barrister, street prostitutes, recognised as exploited women with no real life choices, were prosecuted and fined and how this might be the public’s perception of sex workers.  This type of organisation (TLC), however, offers “a different window on sex work and requires to be identified as such”. Mr Justice Hayden talked of sensibly having to acknowledge that these are women exercising their own autonomy working within this discrete sphere and asked “would it be wrong in 2020 to assume a sex worker in this sphere is a victim, automatically, because of the career she pursues? Thirty years ago, I might have made that assumption but I don’t think it’s right to do so now”.

There were so many elements of interest for me within this hearing, but since keeping up to date with relevant case law is an important part of my role, it was great to observe how a senior judge and such expert barristers drew upon previous judgments and in this hearing so many of these were considered. 

One of the many judgments referred to was A Local Authority v JB [2020] EWCA Civ 735, which has changed the way capacity is assessed; from assessing capacity to ‘consent to sexual relations’ we now assess capacity to ‘engage in sexual relations’ and include the fact the other person must have the capacity to consent to the sexual activity and must consent before and throughout, as part of the ‘relevant information’ the person needs to be able to understand, retain, use and weigh. As 39 Essex Chambers note in their case summary June 2020 https://www.39essex.com/cop_cases/a-local-authority-v-jb-2, this is a judgement that responds to the fact ‘individuals with impaired decision-making capacity are not always (as some of the previous cases could be read as suggesting) purely passive recipients of sexual activity initiated by others, but can also be sexual beings wishing to express themselves by initiating sexual activity’.

Mr Justice Hayden also talked about his judgement in LB Tower Hamlets v NB & AU [2019] EWCOP 27 reminding us there is not a one-size-fits-all test when assessing capacity to engage in a sexual relationship. It is ‘the bespoke situation in which we evaluate capacity rather than a more general one’. Reference was also made several times by Mr Justice Hayden to Mr Justice Mumby’s famous statement ‘What good is it making someone safer if it merely makes them miserable?’ (in Re MM (an adult) [2007] EWHC 2003 Fam)

I absolutely love watching Mr Justice Hayden. He has such wisdom, warmth and humility. Speaking on ‘Becoming a judge’ at Equality in Justice Day in October 2008, Lord Judge the former Lord Chief Justice stated: 

‘Many qualities are required of a judge… He or she must of course know the law, and know how to apply it, but the judge must also be wise to the ways of the world. The judge must be able to make a decision. […]  Judges must have moral courage – it is a very important judicial attribute – to make decisions that will be unpopular with the politicians or the media and the public, and indeed perhaps most importantly of all, to defend the right to equal treatment before the law of those who are unpopular at any given time.’

This seems to describe Mr Justice Hayden exactly!  One of the stand-out statements for me on the second day of this hearing was his reply to Fiona Paterson when she urged the court to proceed with caution: “You’ve urged caution on everything and sometimes one has to be bold”. 

It was also lovely to hear Mr Justice Hayden’s appreciation of all parties for what he noted as the care, depth and quality of the considerations that had been given to this case during “the course of such a challenging year”. He closed the hearing by saying he wanted to take the opportunity to say how on a number of occasions during the case he had ‘marvelled’ at the work they had been able to do and the circumstances under which they had done it. He remarked that he had heard advocacy from every party of the highest quality, and had received very high quality written submissions.  He said he wanted to pay a heartfelt tribute to all of them. 

You cannot underestimate the additional depth of learning you acquire through observing hearings in the Court of Protection. For me, it provides that extra element of insight and understanding.  Now, when I’m reading the 39 Essex Chambers monthly newsletter, and Court of Protection judgements on BAILLI, it feels different, I feel more connected to what I’m reading and I find it helps me when I’m relaying legal information to others, supporting my team to apply outcomes of the judgments to the people we are working with and learning how to improve our practice. 

I am really looking forward to reading this judgment when it is published. It’s a really important area fraught with undeniably difficult moral issues, which will only benefit from open discussion and will be of direct relevance to all who work in adult social care.

Astral Heaven is a Local Authority AMHP and DoLS Manager and she has contributed to a number of previous blog posts for the Open Justice Court of Protection Project (e.g. here). She tweets @AstiHeaven.

Photo by Toa Heftiba on Unsplash