When Expert Evidence Fails

Editorial Note 3: The hearing reported here was adjourned for 3 months so that a new expert witness could be instructed. We attended the subsequent final hearing on 20 January 2021. You can read our blog about it, and what the new expert reported, and the decision the court came to here.

Editorial Note 2: The interim judgment addressing the concerns with expert evidence on capacity that arose in this hearing has now been published (18th November 2020) and is available here.

Editorial Note 1: The Final Report from the Working Group on Medical Experts in the Family Courts was published three days after this blog post and makes some helpful suggestions for managing (and averting) some of the problems we identify. It is available here.

By Celia Kitzinger with Claire Martin, Beth Williams and Katy Dobia[1], 2 November 2020

A hearing before Mr Justice Poole (COP 13551368) listed for three days (26-28 October 2020) was adjourned, only part-heard, because of inadequate reports from the expert witness.  

The expert witness, Dr Q, a consultant psychiatrist, gave evidence that the person at the centre of the case (let’s call her Barbara) lacked mental capacity to make any of the decisions before the court.  His evidence simply collapsed under cross-examination.  

The Local Authority (represented by Brett Davies) had relied on this expert evidence to support their position that Barbara lacked mental capacity in many significant areas of her life.  After cross-examination from the other parties revealed gaps and weaknesses in Dr Q’s report, Brett Davies requested a half-hour adjournment to “anxiously reflect” with his clients on what had happened.  He returned to court to report: “It is now the Local Authority’s position that Dr Q’s evidence isn’t sufficient to rebut the presumption of capacity in respect of the issues under discussion.”

There were, he said, “lessons to be learned”.  The judge thanked him for his “realism”. Plans were then set in train to adjourn the hearing, to appoint a different expert, and to continue the hearing in mid-January 2021.  

In the meantime, there is likely to be an interim judgment by Mr Justice Poole that takes the opportunity to “teach lessons for others” about the kind of evidence a capacity assessor (whether expert witness or practitioner) should properly display by way of evidence.  The judge asked for written submissions from the parties as to the deficiencies in the evidence before this court and how they might be avoided in future.  (A similar judgment concerning the deficits of a different expert witness report, which – as in this case –  wasted three days of court time, has been published here.)

Background

Barbara is 68 years old and has dementia.  She’s lived in a care home since early July 2019 though she still has a tenancy on the flat she was living in, alone, before then.   

After moving into the care home, Barbara struck up a relationship with another resident, “John” (not his real name).  Back in December 2019, the couple were seen kissing and holding hands in communal areas and were several times discovered lying down together in bed – and Barbara has been found naked in John’s bedroom.   Barbara would like to marry John, and to leave the care home and live with him in extra care housing.

Staff at the care home became concerned that Barbara may not have capacity to consent to – or to engage in – sexual relations, or to make other important decisions such as where she lives and the care she receives.  The care home manager made a referral to Barbara’s social worker, who visited her towards the end of December 2019 and again in January 2020 and assessed her as lacking capacity to consent to sexual relations.  Barbara did not agree with this capacity assessment and was clear that she wanted to be free to have an intimate relationship with John. 

This led to a series of court hearings in January, March, and July 2020.  Barbara acquired an Accredited Legal Representative (ALR); her son was briefly joined as a party and later removed with his consent; and at some point (I’m not sure when) Barbara’s partner, John, also got legal representation.  John asserts that Barbara does have capacity to decide where she wants to live and to make her own decisions about what kind of relationship she wants to have with him.

The expert witness, Dr Q, was appointed shortly after Barbara was deprived of her liberty under an urgent authorisation in mid-January 2020. He was asked to report to the court on Barbara’s capacity to conduct the proceedings, and to make decisions about where to live, what care she receives, her contact with others, and her sexual relations – and also her capacity to make decisions about her property and finances including terminating her tenancy agreement.   Interim declarations were made that she lacked capacity in all those areas.  These interim declarations (or “orders” and “directions”) under s. 48 of the Mental Capacity Act (MCA) 2005 are made where “there is reason to believe that P lacks capacity in relation to the matter” and “it is in P’s best interests to make the order, or give the directions, without delay”.  They are made pending subsequent determination as to whether or not, in fact, the person does or does not have the capacity to make their own decisions – and that subsequent determination was the goal of the hearing I observed. 

Relevant law

It is a fundamental principle of the Mental Capacity Act 2005 that each person is presumed to have capacity unless it is established that they lack capacity ( s.1(2)). According to Mr Justice Hayden: “The presumption of capacity is the paramount principle in the MCA. It can only be displaced by cogent and well-reasoned analysis” London Borough of Tower Hamlets v PB [2020] EWCOP 34)

A lack of capacity to make a decision cannot be established simply by reference to some ‘condition’ that a person has (e.g. dementia) (s.2(3)(b)): it must be shown that the “impairment of, or a disturbance in the functioning of, the mind or brain” (s.2(1)) causes the person to be unable:

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means). (s. 3(1) MCA 2005)

The courts have warned about setting the bar too high since this could operate as an unfair, unnecessary and discriminatory bar against mentally disabled. It’s also been stated that the person must understand the salient information but it is not necessary for them to understand all the peripheral detail (LBC v RYJ [2010] EWHC 2665). 

What counts as ‘relevant information’ depends on the decision being made and the circumstances of the case.  In relation to sexual contact, a recent decision by Lord Justice Baker in the Court of Appeal (A Local Authority v JB (Rev 2) [2020] EWCA 735) found that the relevant information includes the mechanics of sexual intercourse, the fact that both people must have capacity to consent (and must in fact consent), that pregnancy is a reasonably foreseeable consequence of (heterosexual) intercourse, and that there are health risks involved such as sexually transmitted diseases, the risks of which can be reduced by use of precautions such as a condom.  In relation to residence, the relevant information that a person must be able to understand, retain, and weigh includes: what the options are, including what sort of properties they are and what sort of facilities they have; the sort of areas the properties are in and any risks attached to that; the difference between living somewhere and visiting it; what activities the person would be able to do if they lived in each place; whether they would be able to see family and friends if they lived in each place; who they would be living with, and so on. (Re B (By her Litigation Friend the Official Solicitor) v A Local Authority [2019] EWCA Civ 913). 

If Barbara is deemed to lack the mental capacity to engage in sexual relations, then she must be ‘protected’ from sexual relations altogether. This would mean supervising her contact with John and monitoring the couple to ensure that they did not engage in sexual relations. It is not possible for anyone to make a ‘best interests’ decision on her behalf that she should be able to have sexual relationships, because this is an ‘excluded decision’ in the Mental Capacity Act:

 “Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person— (a) consenting to marriage or a civil partnership; (b) consenting to have sexual relations…” (s. 27(1) MCA 2005).

The criminal law, in the form of the Sexual Offences Act 2003, is also relevant in this case since a sexual act with someone who cannot consent to it (no matter how willingly they assent) is an offence.  Offences can be committed by others who facilitate or enable such sexual activities (e.g. by carers who deliberately avoid entering a resident’s room when they know – or ought to know – that they may be involved in sexual activity and that the resident lacks capacity to consent to sex).  There is increasing concern about what this means for the fundamental human rights of disabled people, both in relation to the right to private and family life (Article 8 of the Human Rights Act) and in relation to the UN Convention on the Rights of Persons with Disabilities. 

Our experience of the hearing

For two observers (Beth, a social work student, and Katy, a law student) joining a remote hearing was a new experience:

“It was easy to gain access – via MS Teams – but it did feel a little surreal, joining court from my living room” (Beth Williams)

“Despite requesting access only one hour prior to the beginning of the hearing, I received a link and Transparency Order very quickly. It was definitely a strange experience watching a court hearing happen on a video call platform.” (Katy Dobie)

The hearing opened, as usual, with the judge ensuring that observers had received and understood the Transparency Order (information he repeated at intervals during the hearing as successive people joined).  He also let everyone know that, at Barbara’s request, he’d spoken with her earlier that morning and had just sent a note about the meeting to all the representatives.  We weren’t told what had been said in that meeting 

The applicant Local Authority was represented by Brett Davies.  Barbara was represented by Joseph O’Brien (via her Accredited Legal Representative).  John was represented by Ben McCormack.  Others in court included Barbara’s son, her social worker, some solicitors and (at times) Barbara and John themselves. Although Barbara did not formally attend court, it became clear later in the hearing that she and (it seemed more often) John were observing much of the hearing on a tablet in a room at the care home.  Neither of them spoke in court.

It was evident from the outset that most of the hearing would be devoted to questioning Dr Q about his reports – but it turned out he was not available until midday.  This gave some time for Brett Davies to explain the background to the case (summarised above).   The task of the court over the next three days, he said, was to consider the evidence of Dr Q, provided over four separate reports, and to determine whether Barbara has capacity to make her own decisions in key areas of her life.   He added that it was a “troubling feature” of the hearing that it was starting some ten months after the initial application to the court.  During that time Barbara and John have been subject to supervision and monitoring and denied opportunities for intimacy on the grounds that “there is reason to believe” (s.49 MCA) that Barbara lacks capacity to engage in sexual relations. 

The parties were in agreement that Barbara has dementia and that this constitutes an impairment in the functioning of her mind or brain for the purposes of s. 2(1) MCA 2005.  The final report from Dr Q (which public observers have not seen) claims that this impairment – he diagnoses, specifically, frontal lobe dementia – causes Barbara to be unable to understand, retain, and weigh information relevant to all the decisions he was asked to consider.  But there was a question mark over his report from the outset:

“It isn’t clear from Dr Q’s reports what relevant information was shared with Barbara and what it is that he says she hasn’t been able to understand, or retain, or use and weigh in relation to that information.” (Counsel for the Local Authority)

Dr Q’s evidence in chief, in response to questioning from counsel for the Local Authority, was that Barbara (now) lacks capacity “in all areas”.  (This contrasts with earlier reports, especially the report he made in June 2020.)  He said “her deficits are markedly obvious” and described her responses to him as “dismissive,” “glib”, “fatuous” and “superficial”, saying that these responses were “typical of frontal lobe dementia”.  

Dr Q seemed anxious to convey that these descriptions were not intended to be harsh judgments about Barbara’s behaviour.  He kept emphasising that “she’s not deliberately trying to thwart me – it’s her underlying impairment”.  He repeatedly asserted that Barbara wasn’t being deliberately “rude” or “difficult”: he explained that she “can’t help it” – all of which served only to underscore how challenging he had found his attempts to engage with her.  

He’d found it hard to pursue lines of questioning because he “met with a wall on her part”.  At one point he said that in trying to extract evidence of her ability to understand, retain or weigh information he “ran the real risk of her saying: ‘this interview is over. Please leave now’”.  

When the judge tried to “drill down” into what efforts he had made to assess her understanding of specific relevant information, for example about how to protect against sexually transmitted diseases, Dr Q sounded exasperated:

Dr Q attributed Barbara’s sexual interest in John as due to “disinhibition”.  Ben McCormack, as counsel for John, addressed this head on:

I did not hear any answer from Dr Q – only a suggestion that her capacity would need to be reassessed anew every time she wanted to knock on John’s bedroom door.

All of us, as public observers, were baffled and dismayed by Dr Q’s evidence.  

“I found it very difficult to follow the process that Dr Q had conducted and I didn’t see any evidence that each decision was systematically interrogated and reported on for the court, nor any clear account of how the process had been attempted and why it had stalled. I found myself thinking ‘He might well be right about P’s capacity – but he can’t account for why he might be right’. He couldn’t show his workings out, in other words. I felt a bit discombobulated by this – a consultant psychiatrist, expert witness, must surely have followed the fairly systematic MCA process of trying to establish whether P has capacity for each individual decision?  I kept coming back to a sense that the presumption of capacity was not his starting point; rather, that the starting point was that P had dementia and, therefore, was unlikely to have capacity.”  (Claire Martin)

Both Claire and I (Celia) – who have observed a range of other Court of Protection hearings – were also surprised and disheartened by how little information was taken into account about Barbara as a unique individual person with her own values, wishes, feelings – both before her dementia diagnosis and subsequently:

“At hearings I have attended previously, I’ve always left feeling that I have some sense of who P is: the way they liked to live their life (prior to any question of mental capacity), their values and wishes. I did not hear about P as a person during this hearing or in the evidence presented.  I later became aware that P was observing some of the proceedings from the care home where she resided and wondered what she made of hearing that she had been ‘glib’, ‘superficial’, ‘fatuous’ and other such words. Of course, these descriptors are common psychiatric parlance when assessing someone’s mental state and not intended pejoratively – and they are especially common when talking about fronto-temporal dementia (which was P’s diagnosis). I simply felt for P if she were hearing these words about her, in the absence of balancing descriptions of her as a whole person with a history and a life now.” (Claire Martin)

Under deft cross-examination by Joseph O’Brien (on the second day of the hearing), the deficiencies in Dr Q’s evidence were fully exposed, as he was taken through each of the four reports in turn.  The following exchange between Joseph O’Brien and Dr Q (as close to verbatim as I can make it given that we’re not allowed to record the hearings) concerns the first of Dr Q’s reports, in February 2020.

The second report by Dr Q (based on seeing Barbara in May) was apparently much more detailed – and it also differed from the first report about three months earlier, by finding that Barbara did have capacity for some decisions, at least some of the time.  In particular, Dr Q said in this second report that it was only when Barbara displayed disinhibited behaviour that she was unlikely to have capacity and on balance she had capacity the rest of the time.  This was odd as Dr Q had earlier said that he would not expect a person with frontal lobe dementia (FLD) to regain capacity over time (i.e. between assessments conducted in February and then in May, with the assessment in May formally submitted to the court in a report in June).

The doctor replied with something to the effect that the two reports differed because Barbara behaved differently on the first and second occasions.

The third report (in August) was not based on having actually seen or assessed Barbara but drew on reports from her carers.  Dr Q’s fourth report (at the end of September) was based on a meeting with her in person at the care home – relatively unusual given that capacity assessments during the pandemic are often done remotely.  He found “a more global deterioration”:

Later, Joseph O’Brien emphasised the draconian effects of a finding that P lacks capacity to engage in sexual relations – in that she will then be prohibited from having sex altogether.

Dr Q comes perilously close, here, to disowning his own reports, in which case, as Coulson J has  noted in a very different case (here) the “court cannot sensibly have any regard to them”.

After Dr Q left the (virtual) court – i.e. logged out– counsel for the Local Authority accepted that (contrary to the position he had taken initially and the claims made in his Position Statement): 

“Dr Q’s evidence isn’t sufficient to make a final declaration of P’s capacity under  s.15 MCA 2005 because of the failure of Dr Q to explore the relevant information for each of the decisions to be made, and to record that in his report, and to say whether it was specifically a problem with understanding, retaining or weighing.  His oral statements have not been able adequately to supplement his written report. There are lessons to be learnt here.  We are of the view that we need a further expert opinion”.

Nobody disagreed.  In considering expert evidence on capacity, as Alex Ruck Keene has highlighted, “what carries weight is the reasoning, not the conclusion” (Lord Prosser in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604, cited by Alex Ruck Keene here)

The judge and three barristers were fairly circumspect in the public context of the courtroom in their reflections on Dr Q’s evidence, saying simply that he “hadn’t quite lived up to expectation” and that his evidence was “not up to the mark”.   One commented: “We anticipated a more comprehensive report, more compliant with the MCA 2005”.  

The observers, direct messaging between ourselves during the hearing, were more forthright in our views of Dr Q’s evidence as he was being questioned.  “It’s my first time hearing expert evidence, but it feels like he’s done a poor job in his reporting”, commented Katy Dobia.  “Yes, it’s really scary that someone in his position cannot provide clear coherent evidence” (Beth Williams).  Both students expanded on this when I invited them to contribute to this blog.  

“When the cross-questioning started, it quickly became quite apparent that the expert who’d assessed Barbara wasn’t able to answer the questions coherently.  This made me feel quite uncomfortable, as I believe – like many people – I would put my trust in someone who had the authority and power that this doctor had to determine someone’s life.  This really opened my eyes to the complexities of the Mental Capacity Act (2005) and how on paper it can appear easy to understand, yet in reality it can be extremely complex to ensure the decisions are being made to enhance the individual’s life rather than limit it.”  (Beth Williams)

“Listening to my first CoP hearing was such an insightful experience, but not exactly in the way I expected it to be. Having researched expert evidence and discussed it in a classroom context, I was shocked to see at first-hand how it can be more detrimental to a case than it may be helpful, if not diligently conducted.  One of the main things that I found took me by surprise was the contradictory statements which the expert had made.  He initially mentioned how Barbara’s condition would deteriorate and that there may be a stage of ‘plateauing’ or a ‘halt’ in deterioration but there would never be improvement. But under cross examination, it was pointed out that he’d reported that Barbara had not had capacity in February but that she had got capacity (for some things) in May – which suggested she’d actually improved by the time of their second interaction.  It was extremely significant to point out this gap as it was largely contradictory to his original statement regarding Barbara’s deteriorating condition.  I was reassured to see that the court did not accept that this expert’s evidence was sufficient to rebut the presumption of capacity.  Counsel for John made a very important point in the hearing: ‘The presumption that Barbara has capacity to make her own decisions is as important a presumption as the presumption of innocence in criminal trials’. While listening in on what the expert had to say about Barbara’s  capacity to consent to sexual relations in particular, my fear was that she would be deprived of the  right to make her own decisions about her personal life on the basis of poor quality evidence. I was so relieved that didn’t happen. It does give me some faith in the Court of Protection!” (Katy Dobia)

As an NHS Consultant Clinical Psychologist working with older people, Claire Martin reflects movingly on what this means for the person at the centre of the case. 

“I felt very sad at the end of the proceedings. Since the end of 2019 Barbara has been (consistently) expressing, verbally and through her actions, wishes to live and have sexual relations with the companion she has met in the care home.   She has been waiting almost a year now for these issues about her life to be determined. At the same time, I am mindful of the law in relation to lack of capacity and sexual relations. If sexual acts were allowed to take place in the home, without a determination of capacity, this could constitute assault or rape. Care home staff are often in invidious positions – trying to offer person-centred care whilst also having to police people’s actions. So, over all I felt very sad for Barbara, and for those caring for her who will need to walk the tightrope of her care before the case is heard again in January 2021. We must not forget that this is a woman in her 60s, whose dementia is becoming worse and time is of the essence for her to potentially be allowed to live a life she wants to live.” (Claire Martin)

Understanding the Problems and Moving forward

The deficiencies of this expert report, and Dr Q’s inability to ‘plug the gaps’ in his oral evidence, clearly have negative consequences for Barbara, for her carers and for John – who has already had a visit from the police warning him about the criminal sanctions attached to sexual relations with someone who is unable to consent to them.  

Although the judge commented that “Barbara clearly enjoys kisses and cuddles and it would be a shame if the regime in place were to prevent her from any form of affectionate contact with him”, Ben McCormack (as counsel for John) was clear that the Sexual Offences Act 2003 

 “sets a low threshold for an offence to be committed, so once the court makes an interim decision that P may lack capacity to engage in sexual relations, one needs to be very careful about permitting anything that could be seen as constituting sexual touch.”  

This raises, as Joseph O’Brien said, “a question of interference with my client’s [Barbara’s] Article 8 rights, and with Mr McCormack’s client’s [John’s] Article 8 rights, but there’s no answer to the Sexual Offences Act.”   

Barbara and John now have their relationship “on hold” until mid-January 2021, when a new (carefully selected) expert will give their assessment of  Barbara’s capacity to consent to sex (and marriage) and to make her own decision about residence, care and other important aspects of her life.  Only after this new expert evidence has been submitted and evaluated will the court finally be able to make some decisions on these matters.

The deficiencies of the expert evidence in this case meant that a court sat for three days – involving a Tier 3 judge, solicitors, barristers, care staff, a social worker, and others – without being able to make a declaration on the issue upon which the court’s judgment was needed.  Admittedly some of the work done in preparation for this hearing can be recycled for the next hearing (the Position Statements for example are unlikely to need rewriting from scratch), but nonetheless this was effectively three wasted days in court. In addition to the harm caused to Barbara and John, this is a waste of public money to the tune of at least a five-figure sum:  some lawyers (not associated with this hearing) from whom I asked for ball-park figures estimated in excess of £25,000.  

All three legal representatives in court hoped that the judge would be minded to make a short interim judgment about what had gone wrong and how expert witnesses should properly use the information relevant to decision-making and include, in their evidence,  a discussion of how they determined that P has, or lacks, capacity through the prism of P’s ability to understand, use and weigh that information.  “It’s a problem that we see not infrequently” said Brett Davies, “and it’s a point that could be made to inform practice on a wider scale”.  “The opportunity to teach lessons for others can be taken where appropriate,” said Ben McCormack, suggesting that the judge might like help with crafting an interim judgment in the form of further submissions from counsel setting out the expectations the court has of expert witnesses.  

I (Celia) have watched dozens of expert witnesses give evidence in the Court of Protection and I have never seen anything remotely like what happened in this hearing.  Some have been very impressive, and many are very good. I assumed, until Joseph O’Brien said otherwise, that Dr Q was simply bad at his job, but apparently not: “he’s an expert that lots of solicitors use, and the courts use, and he’s one of those experts who’s willingly gone into care homes to produce the best possible evidence for the courts”.  This, said Joseph O’Brien, was “my first experience of Dr Q not living up to the mark, as it were”.  The problem seems to be that, as he said himself, he ran into a “brick wall” of cooperation in trying to get this particular P to engage with him.  Dr Q was clear that this wasn’t her fault (her behaviour towards him “is a manifestation of the disorder itself”), but also that it wasn’t his fault either.  Recognising that he was struggling with his evidence, and as he was progressively brought to acknowledge its failings, he came several times close to apologising to the court: 

The interim judgment will perhaps address the issue of what’s expected of experts when they run into this kind of “brick wall of cooperation”.  How should they proceed? What evidence should they provide of their efforts to support P’s engagement?  We await the interim judgment with interest. 

The barristers in court also displayed some concern about the way in which public criticism might alienate people who might otherwise be willing to act as expert witnesses: “we need to hold close our experts in the Court of Protection – there aren’t that many of them” (Ben McCormack). It is also my experience as a public observer that there is a limited pool of expert witnesses in the court: I keep seeing the same ones over and over again (see my tweet about this here and the very interesting thread that resulted in which lawyers engaged with this issue).  

Joseph O’Brien suggested that “the crippling factors” limiting the pool of expert witnesses are “the nature of the work, the remuneration that’s paid, and the intensity of what’s expected in court.”   These concerns were also identified by the President’s Expert Witness Working Group Symposium (see the report by Malvika Jaganmohan here), at which participants identified shortages of expert witnesses as due to poor remuneration (also identified as a problem by an anonymous expert witness here), pension tax implications, lack of peer support, lack of feedback from the court, anxiety about media coverage, fear of rough treatment from cross-examining lawyers, and reputational damage.   

We end this blog post by recording a moment in court which felt very appropriate and fitted to the person-centred ethos and fundamental principles of the Court of Protection.  After accepting that “the court cannot be asked to make a final declaration on the basis of the expert evidence provided”, Mr Justice Poole displayed his awareness of the effects of this upon Barbara – who may or may not have been listening in to the hearing at the time (the tablet had been left connected during the whole hearing, but with microphone and video turned off).  I remembered as he spoke that he’d had a conversation with her that morning, before the hearing began.

Editorial Note: We attended the subsequent final hearing on 20 January 2021. You can read our blog about it, and what the new expert reported, and the decision the court came to here.

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

Claire Martin is Consultant Clinical Psychologist. Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. 

Beth Williams has a first degree in Psychology and is currently studying for an MA in social work at University of Chester. She tweets @Bethwilliams_96

Katy Dobia is a student in the Law School at University of York.  

[1] Celia observed the entire hearing from beginning to end. Claire observed almost everything (minus an hour on Monday and Tuesday mornings). Beth only observed Tuesday morning and Katy only Tuesday afternoon.   We are grateful to Brett Davies for a clear and comprehensive introduction to a rather complex case which made it as easy as possible for observers to follow what was going on (and Celia sent her notes from this introduction to the other observers). Such introductions add a great deal of practical support for the principle of transparency in the Court of Protection. We are also grateful to the court for releasing the Position Statements for all parties which are again hugely helpful in understanding the legal arguments involved – most especially the very detailed 60-paragraph submission from Joseph O’Brien, which was a legal education in itself.

Photo by Ricardo Moura on Unsplash

From black letter law to real-life decision making

Editor’s note: This is a report of a later hearing in the same case as the one covered in a previous blog here.

By Lucy Williams, 29 October 2020

I am studying a module on Health Care Law at the University of York.  We explore how decision-making capacity is determined on the basis of the Mental Capacity Act 2005, how best interests decisions are made, and the Court of Protection’s role within this process. 

This module sparked my interest in observing a Court of Protection hearing as I was intrigued to see how black letter law and the details of legislation are translated into court decisions.  In particular, I wanted to see for myself how much weight is given to the individual’s wishes in best interests decision making once it is determined that they lack capacity to decide for themselves.  

According to the Mental Capacity Act 2005, a person making a decision in someone’s best interests must, “so far as is reasonably ascertainable” consider “the person’s past and present wishes and feelings” (s. 4(6)(a) MCA 2005).  I wanted to see what that looks like in practice.

The case I observed was before the most senior (Tier 3) level of judge.  Here’s how the hearing was listed on the Royal Courts of Justice site (here). 

Before MRS JUSTICE LIEVEN, Also sitting as a Judge of the Court of Protection, Monday, 12 October, 2020, At 10:30 AM, FOR HEARING IN OPEN COURT, COP 13520726 Re ‘RT’ MS Teams Hearing

There was no information as to what the hearing was about in advance – the RCJ website provides no details (unlike the list by First Avenue House here).  

It turned out that this was not the first court hearing regarding the treatment of the young lady at the centre of the case. A previous hearing had been observed by several public observers who had blogged about their experience here.  This was especially useful because no summary was given at the start of the hearing.  According to the blog post about the previous hearing, no summary was provided then either despite summaries having been recommended by Mr Justice Hayden (Vice President of the Court of Protection) here.

From the blog post about the earlier hearing I learnt that P is a young woman who sustained a brain injury in a road traffic accident last year (although I remain uncertain about what specifically this injury entails).  Two main issues were discussed at the previous hearing: a request for an injunction to limit contact with P against a man who was deemed ‘dangerous’ and had recently been released from prison; and P’s care plan and how it would be paid for. The second of these was also the main issue discussed in the hearing which I observed. 

I found it extremely easy to gain access to the hearing.  I sent an email directly to the court clerk past at about 9.40am (for a 10.30 hearing) and got a response with the Microsoft Teams meeting link within 10 minutes. The hearing was short, only about 45 minutes in total, and the technology worked smoothly, although there were a few times I couldn’t make out what the counsel for the local authority was saying due to issues with his microphone. 

For me personally, the fact that the hearing was virtual rather than in person increased the accessibility to Court of Protection cases: to observe in person I would have needed to travel to London but instead I was able to view the proceedings more than 200 miles away in York. 

There were quite a few people in court during this hearing, including a few other observers, Key participants were the Judge, Mrs Justice Lieven, and counsel for P’s mother (Parishil Patel QC) , who was the applicant, counsel for P herself (John McKendrick QC)  and counsel for the local authority (Jon Holbrook).  

The hearing was focused around creating an appropriate care plan for P, who needs neurorehabilitation to help her achieve her goal of returning to university to continue her studies in 2021.  There was discussion about a residential placement for her rehabilitation, but P did not want to this because she wanted to stay close to her father who is very ill (and is likely to die within a year).  “We would be incredibly reluctant to force P to leave home and leave her father in such circumstances” said Patel.  Counsel for P herself agreed with this position and said: “It would be quite wrong to act against her wishes and feelings by sending her to an establishment when she wants to be at home.”  The hope was that there would be a residential placement nearby so that she can both receive therapy and be near her father at the same time.   Counsel for the LA also broadly agreed with this position and discussed what was being done in the meantime to provide (and fund) P’s therapy.

The wishes of P to remain near her father were respected by the judge who accepted that it was not in P’s her best interests to be sent far away.  She supported the view that a search should be conducted for appropriate residential care facilities nearby P’s home with experience in her specific type of injury, referring to the possibility of a “quasi-residential placement – like a day boarding school where you can get release” so that P could return home and be with her father when she wanted to. This showed me how well the court respected P’s wishes after she had been deemed to lack decision making capacity and how her wishes influenced the court’s decisions. 

The judge focussed on what was needed to make this a reality in practice. It seemed not to be very clear to anyone in the hearing exactly what would constitute appropriate therapy for P: there were references to three different models – intensive neurorehabilitation, a stepdown approach in a residential placement and community rehab – but no clear impression of what they looked like in practice or which would be most appropriate for P.  

The  judge said that “rather than the LA reinvent a wheel they’re not familiar with” they should talk to ‘Barts’ (I assume this is referring to Barts Health NHS Trust which is a children’s hospital in London) about what places there are in P’s geographical locality for people with the kind of neurological damage P has sustained,  and then provide a statement of this in the next hearing.  In response to the suggestion that there should be an order requiring Barts to provide a statement, she said “Don’t sit and wait for 28 days for Barts to produce a witness statement.  Give them a call and between the two of you work it out.  Have a conversation”.

The judge also raised a concern about what should happen if P’s behaviour and mental health deteriorates and there is a crisis. There have been such crises in the past during which she’s been sectioned.  “I want that interim scenario covered in the plan,” said the judge, “so that next time I see you we’re not all in disaster mode”. 

What I found particularly interesting in my observations of the hearing was the attitude of the judge, which I had expected to be more distant and formal.  Instead she came across as very engaged and human.  For example, when questioning counsel for the local authority about their plan for managing a crisis response, she responded to his attempt to answer by saying: “I think you’re ducking the issue to be frank.”  From her tone, it was easy to infer that Mrs Justice Lieven was exasperated by the legal representation for the local authority and their inaction in helping P. A similar forthrightness was witnessed in the previous hearing before this same judge:  one public observer suggested the judge was ‘somewhat acerbic’. The judge’s frustration was also evident when she described the hearing as “not a fantastic use of court time and public money”, referring to the number of times the case was coming in front of the judge without seeming to move forward significantly to benefit P.   When arranging the date for the next hearing she said: “there are some cases where I feel if I don’t have a hearing, nothing happens!”  While this attitude could be seen as sharp and critical, it seemed to me to be necessary in ensuring her stance was made clear and understood by all parties while pursuing the best outcome for P. 

For me as a student of health care law, this experience of observing the Court of Protection in action illustrated the reality of applying the ideals of the Mental Capacity Act 2005 to real life.  In theory, it’s easy to say that decisions should be made in P’s best interests, but even when – as in this case – everyone agrees what that is, judges have to deal with real-world issues like which rehabilitation unit would be suitable, how to find one with a vacancy in a particular area, how to manage a situation that could change unpredictably before the right rehabilitation unit is available, and how to ensure that the local authority and others responsible for P’s care keep up the momentum in finding the right treatment for her.  Understanding the Mental Capacity Act 2005 is not just about analysing black letter law and statutes and discussing it in the abstract. I’ve learnt that the Court of Protection’s role is also about managing the concrete particular details of a particular P in the specific conditions of her life and in the context of over-stretched health and social care services.  

Lucy Williams is an aspiring solicitor, who is currently in her second year of studying law at the University of York. Her email address is lw1972@york.ac.uk and she tweets @lucyfeywilliams

Photo by Ilyuza Mingazova on Unsplash

A COVID-Secure Attended Hearing

By Adam Tanner, 28th October 2020

Over the past seven years I have worked within the justice system and have been an observer as a law student and PhD researcher in several hundred in-person court hearings.  

Since the lockdown restrictions commencing in March 2020, there has been a new feel to the justice system in the United Kingdom. The vast majority of hearings have taken place not in a physical courtroom but via telephone or on Microsoft Teams, Zoom, and other kinds of remote platforms. 

With the recent easing of restrictions, some cases are now once again being heard ‘in-person’ as ‘attended’ hearings, where parties travel to the Court. I went to one of these ‘attended’ hearings on October 12th 2020 at  First Avenue House, the administrative headquarters of the Court of Protection in Holborn, London.

It was not like any hearing I have ever attended before.

Due to limitations on the numbers of people who are allowed to attend a hearing at one time – for this court hearing it was just nine – I was placed on a wait list to see if I could be granted access to the hearing.

On the day of the hearing I arrived at First Avenue House and was stopped at the door by security, who asked if I had shown any symptoms of COVID-19 within the last 72 hours. I was then asked which case I was a party to. This caused a slight issue as I was not ‘party’ to any case, but merely an observer. I was, therefore, sent up to reception (after having a socially distanced security search from a metal detector at arm’s length, while facing away) to check myself in with the Court of Protection team. The entire Court building has a huge, maze-like, one-way system of hallways with reminders on the floor every six feet to stay apart. I was asked to sign in and was presented with a copy of the transparency order for the hearing and was then asked to sit in a waiting area, to see if I would be granted access to the hearing. The waiting area had most of its chairs removed, so as to allow for social distancing. 

After a short wait I was approached by one of the Counsels in the case who said that due to unforeseen absences of some parties there would definitely be room in the Court for me. While I waited for the hearing to be called on there was not a single, non-HMCT employee to be seen. The Court was a ghost-town, unlike any Court I have ever worked in or visited. Anybody who has ever visited a Court will know that they are usually full of clients, defendants, lawyers and other interested parties. In most Courts people are fighting to find a seat, or somewhere quiet to have a conversation. This was certainly not the case on this day.

The hearing was called on and I took my seat at the back of the court, next to other taped off seats. Counsel for the parties sat two metres apart and signage on each desk advised parties where they could and could not sit, so as to allow for distancing. Upon the arrival of the Judge the first discussion was that of mask wearing. Masks are, of course, mandatory within all HMCTS buildings. District Judge Ellington told parties to do whatever they felt most comfortable with but said that masks should be worn by parties who are not speaking. Similarly, the issue of witnesses was discussed and how the flow of persons coming into and out of the courtroom would be managed with distancing. 

I was then addressed by the District Judge and asked if I had read and understood the transparency order given to me.  I was also read the standard warning about contempt of court should I not comply with the rules of the order. 

The hearing itself was rather stop-start as parties were running late to the Court, meaning we had to leave the courtroom and await their arrival. However, once the hearing was underway it was much like any other in-person hearing. At the end of the 3-hour long hearing Judge Ellington addressed me again to see if I wanted sight of any Court papers and what my reasons for wanting them were. She ordered that counsel provide me with any relevant papers before the hearing came to an end. 

If people have never attended a court hearing in person, I believe they should try it when they feel it’s safe for them to do so. See justice in action before your own eyes! I have worked for judges and magistrates in hundreds of cases and it never ceases to be an interesting experience. Although we can gain greater access to the Courts via remote hearings, they are in no way the same.  Attended hearings do not succumb to the same technological difficulties which so often befall MS Teams or Zoom hearings. 

COVID-19 has, of course, changed the way in which the Court system works and the current COVID-Secure hearings are definitely more intimidating, daunting and less pleasant experiences. Sitting in cold courtrooms in a mask for hours on end is not an enjoyable thing to do.  But compared with sitting behind a computer screen, an attended hearing really gives you a different feel of the court, and it’s worth it for the sake of open justice!

Adam Tanner is a PhD researcher in mental capacity law and has contributed previous blogs to this Project (e.g. here). He tweets @AdamrTanner

Photo by Adam Nieścioruk on Unsplash

Where P should live

By Bridget Penhale, 22nd October 2020

In recent days I have attended three Court of Protection hearings – all of which dealt, in part, with the question of where P (the person at the centre of the case) should live.

The first of these (COP 1361430T, before DJ Mathura) was about an older woman with dementia who lives in a care home.  She wants to return to live with her husband but cannot do so because of the unsuitability of their house to meet her needs due to her physical health and mobility difficulties, which mean that she cannot use the stairs any longer. The LA has been tasked with finding Extra Care accommodation for both her and her husband and then sourcing associated support to enable them to live there.

The second case (COP 13629309, before HHJ Rowland)  relates to a young adult, subject to a protection order and currently living with parents, about whether he had capacity to consent to marriage – and ultimately to determine where he should live in future and who he should have contact with and what his care arrangements would be. There was a secondary concern about whether he might be subject to a Deprivation of Liberty in his home within the community and part of the hearing revolved around how an assessment relating to this might take place within the context of the pandemic.

In the third hearing (COP 13600925, before DJ England) there was again a question about where someone should live and about steps to be taken in relation to his accommodation, including the location of that accommodation, and  also what might need to happen to improve his well-being and quality of life in his current setting, in advance of any planned move.

These were all interim hearings and in all of them there was a very clear sense that there was some way to go before resolution would, or could, be reached via a final hearing. They were heard in different parts of England in different regional courts and concerned very different individuals and sets of circumstances. It was evident from the hearings that significant amounts of work (meetings and roundtable discussions) had taken place between hearings in order to reach some sort of agreement about the next stages and for these to be endorsed by the relevant Judge at the point of the (interim) hearings with clearly laid out plans for further steps that needed to be taken prior to any eventual determination via a final hearing.

As a former social worker, social work manager and academic with interests in older people, mental health and mental capacity, being able to attend these open court hearings virtually has been of great interest – both professionally and academically. 

One of the most relevant and pleasing aspects of the hearings has been the evident attention paid to the involvement of P in proceedings. Although P did not attend any of these hearings, what did come across and was clearly conveyed was a real sense of P as an individual and what their views, wishes and feelings were/are in relation to the life-matters affecting them.

 In the first case, P’s husband, himself a party in the proceedings, was present and the Judge made great efforts to include him throughout the course of the hearing and to check that he understood what was being said and what was happening – and also to seek his views about the situation. 

This was less apparent in the second hearing – although P’s parents were in attendance: an interpreter was needed in order to ensure that the parents were supported to participate in the hearing – but even here the Judge made sure that the interpreter understood what had been said so that the parents could remain involved as far as possible. 

In the third and final hearing, a very real sense of P as an individual with clear wishes and opinions about what he wanted to happen as outcomes of the hearing(s) came across throughout the course of this hearing and the Judge was quite central in making sure that this happened. It was clear for example that P was concerned about his spiritual wellbeing and would like to attend Mass. This is challenging at the time of the global pandemic, but a social worker was attempting to make contact with a local priest. P had also expressed a wish to go fishing, but apparently this wasn’t possible given the care home rules at the moment.  The judge was, as he put it “baffled” by this:

Of course, the Mental Capacity Act 2005 and in particular the Code of Practice that was developed to accompany it, is very clear about the central position of P within issues relating to decision-making and capacity.  Witnessing this in action within the judicial process, albeit some 13 years after implementation of the Act, was very useful to me. This is particularly relevant since some of my work (relating to undertaking Serious Case and Safeguarding Adult Reviews) has concerned situations in which professionals have either not understood  requirements or failed to act in accordance with the terms of the Act (sometimes both!). 

And although all of the hearings contained areas of tension – notably concerning disagreements about what ‘lack of capacity’ meant in the context of individuals and views contesting the determination of lack of the individuals’ capacities to make their own decisions about certain matters – for example where and who to live with – there was a sense that the issues were being dealt with in the context of individuals’ lives and that there was sensitivity towards both individuals and the contextual situations that had led to the matters being brought before the Court. 

At the end of these three hearings I find myself looking forward to following the hearings relating to these individuals further, if possible, and to attending other COP hearings about different types of matters in future.

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

Photo by Bundo Kim on Unsplash

Ethical issues in restraining patients for dialysis

By Jordan A. Parsons, 21st October 2020

It needed four people to restrain him.  I explained to him that he didn’t have capacity to make the decision to refuse dialysis so we were going to give it in his best interests and we would sedate him to do that.  He curled up in a ball in the top corner of the bed and pulled the sheet over his head.  Two psychiatric nurses and two security guards held a limb each so that he couldn’t kick out.  I got an injection into his upper arm and a cannular into his hand.  He was shouting through most of it, ‘Leave me alone – I want to die’.

This is a doctor’s description of using restraint to provide dialysis to a patient with kidney failure (whom we call “Paul”), provided in an earlier blog on this website here.

I read this blog post with particular interest as I am currently researching best interests decisions in relation to dialysis. In carrying out a scoping review as part of this research, it struck me how frequently the question of dialysing uncooperative patients arose. Indeed, there have been many cases like Paul’s. One in the United States is discussed by O’Dowd and colleagues, with the situation described as follows:

‘We ended up deciding that he would be treated against his will which at times involved dragging a kicking, screaming, hitting person, who may have been HIV+, down to dialysis, strapping him down for 4 hours, putting needles in his arms, and dialyzing him. The dialysis staff was not happy about this and it wasn’t clear that it was the best thing or the right thing to do’.

Perhaps, then, the avoidance of restraint is more highly valued in some cases than the life extension that dialysis would provide (be that from the perspective of the patient, the patient’s loved ones, or the clinical team). Dialyzing a severely uncooperative patient would therefore not always be in that patient’s best interests.

Among patients without capacity to consent, both verbal and physical resistance to dialysis are not uncommon among those with kidney failure. Neither is lack of capacity. The average age of a patient with kidney failure in the UK is over 60, so there is a high prevalence of dementia, along with other neurodegenerative diseases and various vascular comorbidities. However, there are other causes of cognitive impairment that might lead a patient to not have the necessary mental capacity to make their own decision about dialysis, e.g. learning difficulties and psychiatric conditions. In the case quoted above, the patient (“Paul”) has been diagnosed as having a borderline personality disorder. Another blog on this website discusses a case in the Court of Protection concerning a patient with ‘a complex psychotic illness’.

Two aspects of Paul’s treatment particularly interest me. First, that the restraint required is rather extreme. Second, that the patient had expressed a clear desire to be restrained as he wants to be dialyzed.

Restraint ‘at the boundaries of acceptable practice’

To dialyze Paul requires, on occasion, both physical and chemical restraint. In doing this, Paul’s clinical team felt ‘at the boundaries of what they consider to be acceptable practice’. The use of general anaesthetic to enable dialysis carries with it a risk of brain injury and death. For these reasons the clinical team sought a declaration that it was not in Paul’s interests to have dialysis forced upon him.

However, even though the restraint in this situation is extreme and the risks high, the alternative is certain death. It is very much a matter of determining the best of two options both that would ordinarily be avoided where possible.  So how best to respond to such cases?

For now, I will consider this question in the abstract, thereby setting aside the fact that Paul has, when capacitous, expressed a desire for dialysis even if restraint is necessary. Cases like Paul’s are not a simple matter of a patient with dementia getting restless and causing a minor disruption. Further, the impact of resistance on this scale extends beyond the patient in question. One might argue that in such a scenario it would be appropriate to consider the wider impact of a patient’s noncompliance. In particular, (1) dangers posed to others and (2) moral distress among the clinical team.

Danger to others

What has been made clear in Paul’s case is the danger of restraint to himself – brain injury and/or death. A best interests decision is about what is best for the patient in question – but from a broader ethical viewpoint it’s important also to consider that a particularly resistant patient might prove a danger not only to themselves, but those around them.

For example, if a patient attempts to disconnect themselves from a dialysis machine, there is the potential for a needlestick injury to staff members. This, in turn, might present a risk of HIV transmission if that patient is HIV+ (the patient’s HIV status may be unknown). Anyone present at the time of such a patient’s dialysis sessions could be put at risk of this, including not just staff, but also other patients, and any family or friends accompanying the patient.

At present, and potentially for an extended period, there is an added risk of staff becoming infected with COVID-19 if they are required to be more physically closely involved in a patient’s care. I have explored the dialysis-specific ethical issues in an article published elsewhere with colleagues, so will not dwell on them here.

The occurrence of behaviour such as Paul’s may also cause significant distress to other patients present at the time, potentially causing them to become agitated and so impacting on their own care (i.e. abruptly disconnecting themselves from a dialysis machine).

Given these risks to persons beyond the patient in question, the clinical team may face a difficult decision. Even if dialysis is considered best for the patient, there surely must be a point at which danger to others supersedes this.

Sedation is a route to enabling dialysis without significant physical struggle, but this option carries its own risks which must surely be accounted for. It has on several occasions been argued that cooperation ought to be a prerequisite for dialysis, and that the need for restraint is evidence that dialysis is no longer appropriate (e.g. Spike 2007; MacPhail et al, 2015).  I am not sure that I agree to quite that extent, but certainly a line must be drawn when a patient is hugely disruptive and poses a danger to those around them.

An argument might also be made from a resource allocation perspective, as a patient requiring restraint will necessitate the involvement of several members of the clinical team. However, equally, it is argued that a nephrologist should, when making decisions for individual patients, not consider wider issues of cost and resource allocation (McDougall, 2005).  I agree that such a decision would be most appropriately made at a policy level, and that the use of resources is not pertinent to the best interests of an individual patient.

Moral distress

Moral distress arises when the course of action a clinician is being asked/instructed to take does not align with what they consider to be the ethically appropriate course of action (Ducharlet et al, 2020).  There is an important distinction between distress and moral distress: a clinician may well find it distressing to provide care that they agree is in the best interests of the patient, but that is not moral distress.

In a case such as Paul’s, moral distress might be experienced by the clinical team if they are of the opinion that restraint for dialysis to such an extent is not in the patient’s best interests. This would be a very reasonable opinion to have when physical and chemical restraint are required for a patient who is hugely resistant to care, and it seems to have been the opinion of Paul’s treating clinician.

A nurse who is providing care that has been authorised by the patient’s doctor may experience moral distress if she does not believe it is the right thing for the patient. A doctor who authorises care that she does not consider best for the patient as a result of pressure from the patient’s family may also feel moral distress. In the case of Paul, the Court of Protection authorised both physical and chemical restraint of Paul, so any member of the clinical team who disagrees with the Court’s decision may experience moral distress in carrying out the authorised care. Of course, an individual member of the clinical team could express an objection to being involved in the restraint of Paul and hope that she may not have to participate if there are enough other members of the team. However, there is no absolute legal right to conscientious objection when it comes to restraint for treatment.

This potential for moral distress raises the question of how (or if) it ought to factor into decision-making. After all, the nature of moral distress is such that the individual experiencing it may have a useful perspective on what care is and is not appropriate for a particular patient. At the very least, moral distress ought to be acknowledged, and an environment should be fostered in which all members of a clinical team feel comfortable voicing their perspectives in the knowledge that they will be listened to. Whilst moral distress is an occasional inevitability, clear and open communication might at least partly mitigate it.

Restraint at the patient’s request

Matters become more complex when restraint is at the patient’s request. Paul presents his clinical team with two conflicting choices – one when he is ill (ill-Paul) and another when he is well (well-Paul). Which Paul should prevail if the aim is to respect Paul’s autonomy?

In this case, the Court sided with well-Paul’s choice, permitting the conflicting choice of ill-Paul at the time of treatment to be overruled. In doing so, an apparent distinction was made between what can be considered Paul’s first- and second-order preferences. Paul’s first-order preference (meaning that which is somewhat base and instinctive) was to not be dialysed, whereas his second-order preference (meaning that which is rather more reasoned and, to use a contentious term, authentic) was to be dialysed so that he could spend more time with his son. Given the account of well-Paul as ‘articulate, thoughtful and intelligent’ during the hearing, the Court’s decision is understandable. Few would deny that his deeper preference is for treatment and that his occasional objections are an unfortunate result of his mental state. Sometimes, however, it may not be as clear.

When the line between the (cognitively) “well” and “ill” patient is more blurred, it may not be as apparent which choice is truly (most?) autonomous. The clinical team – and the Court – may be less comfortable authorising restraint based on one of two conflicting choices expressed by the patient if there is less conviction and demonstrable reasoning behind it. Well-Paul was quite clear as to why he wanted dialysis, but a rather more diffident expression of the want for dialysis may not be perceived as sufficient to outweigh the conflicting choice against dialysis expressed at the time of care. Whilst a best interests decision is not a simple matter of substituted judgement, conflicting choices by a patient will inevitably complicate the decision where one is not clearly more representative of the patient’s true preferences.

Further, there is a question of whether well-Paul is actually entitled to demand that ill-Paul suffers. When ill-Paul clearly demonstrates distress at receiving dialysis, is he to be afforded no autonomy? It has previously been argued that where dialysis is considered to cause unnecessary suffering by clinical staff and the patient’s family it would be appropriate to cease dialysis even if the patient had previously made it clear that she wanted to continue (Kaye and Lelia 1986).  Therefore, even if the more authentic preference of a patient is clearly for dialysis, there may still be a point at which providing dialysis to that patient in their later extremely distressed state is inappropriate. This is an interesting point to consider as it brings into question the relative importance of the patient’s own preferences.

Can Paul’s “authentic” choice change?

A further challenge might arise if the patient’s authentic preferences change. Now that restraint has been authorised to dialyse Paul against his objections, what would happen if well-Paul decided that he no longer wanted dialysis?

Given how things have played out thus far, the clinical team may not recognise any future objections to dialysis as authentic. This may especially be the case if Paul’s mental state deteriorates so that there is no longer a clear distinction between well-Paul and ill-Paul.

Moreover, as time goes on it may be that Paul genuinely does change his mind and wish to discontinue dialysis. It is one thing to say that you want to be restrained for dialysis, but another to experience it repeatedly. A reasonable person might well change their mind. In essence, it is verging on torture.  Interestingly, a study in the US and Germany found the prevalence of post-traumatic stress disorder as a result of haemodialysis to be 10.4%. (Tagay et al,  2007).  An important component of patient autonomy is the right to change one’s mind. In situations such as Paul’s, it is very possible that this right could be (unintentionally) overlooked.

Deciding whether to dialyze a cognitively impaired patient when restraint is necessary is not straightforward. There are myriad factors at play, and decisions need to be made on an individual basis. It is also important that the harm of restraint itself is a key consideration in such decisions due to the potential for lasting trauma. Further, whilst I am as yet unsure of where exactly I think the line should be drawn, I am convinced that there must be a point at which harm to others is reason enough to discontinue dialysis for physically resistant patients.

Jordan A. Parsons is a PhD student based at the University of Bristol’s Centre for Ethics in Medicine. His doctoral research is an empirical bioethics project questioning if and when it is in the best interests of a patient with end-stage kidney disease who lacks decision-making capacity to forego dialysis in favour of conservative management.  He tweets @Jordan_Parsons

Influencing ‘best interests’ decisions: An eloquent incapacitious P

By Jenny Kitzinger, 14 October 2020

If it had already been declared that you lacked capacity to make a decision for yourself, what would you do in court to try to get the judge to make the decision you want? How would you seek to persuade the judge of the logic, reasonableness and ‘rightness’ of the decision you want made? 

I watched someone (I’ll call him “Mr G”) wrestle with exactly this issue in court. I’ve observed two recent court hearings (Case: 13382192, heard by Judge Jim Tindal: one hearing in July, the other in October 2020).  The court has been trying to make a decision about where Mr G should live – and Mr G has been there in (virtual) court trying to influence that decision to go the way he wants it to.

What it means to lack capacity to make a decision

A typical public image of a person who ‘lacks mental capacity’ to make their own decisions – and who might therefore become subject to Court of Protection proceedings – is a severely learning disabled individual or someone with catastrophic brain injuries or advanced dementia. 

In legal terms, such people have “an impairment of, or a disturbance in the functioning of, the mind or brain” (s. 2(1) Mental Capacity Act 2005) which leaves them unable to understand information relevant to a decision that needs to be made, unable to retain that information long enough to make a decision, unable to weigh it up or unable communicate their decision to others. 

Some subjects of Court of Protection decisions “fail” to have capacity on all of these criteria. A person in a vegetative state, for example cannot understand, retain, or weigh information nor can they communicate a decision.

But a person is deemed to lack capacity to make a decision if they ‘fail’ on just one of these criteria. 

For example, someone might be able to understand and retain relevant information about a particular decision, and articulate their wishes clearly, but could nonetheless be deemed unable “to use or weigh” the relevant information as part of the process of making the decision” (s3(1) MCA 2005). 

This means that some people subject to best interests decision-making in the Court of Protection are a long way from the popular imaginings of the typical “incapacitous person” (itself a legal myth) and some can present very clear and compelling statements about the choices they wish to make for themselves.

Eloquent Ps in court

In the Open Justice blog posts about Court of Protection hearings so far, we’ve already met a wide range of people like this including:

  • The “well-mannered, urbane”, “humorous” and “intelligent” Mr A (so described in the judgment, here).  
  • the “thoughtful, articulate and insightful” AB (as described by the judge, quoted in the blog post here)  
  • and the “eloquent and passionate” P who “displayed an impressive understanding of various pieces of legislation” (from another blog post, here) 

Each of these individuals wanted to make their own choices and clearly resented the imposition of ‘best interests’ decisions upon them. However, regardless of their ‘understanding’, ‘intelligence’ or ‘insight’, the judgment was made that each of them lacked capacity about serious matters including management of their own property and decisions about their health (P) and what medical interventions to receive (AB and Mr A). 

In response to such cases, some commentators have tried to explain how someone may be eloquent but lack capacity, and others have looked at how finely balanced assessments of capacity may be, or questioned how lack of capacity was determined (see the discussion in this blog post here).  Others have challenged how the decision itself was framed in the hearing (e.g. here).   In this post, however, I want to take the capacity assessment at face value, and focus instead on how someone conducts themselves in court in such a situation. 

Mr G: presenting a ‘reasonable’ and ‘capacitous’ self

Mr G is a man in his early 60s, with frontal lobe disorder and other medical complications. He wants to leave his care home placement and return to living in the community. I wrote about the July hearing here). 

The court is considering various options (including a return to living in the community) and a further hearing is scheduled for December once all the relevant plans and options are in place.

Mr G objects to other people making the decision about where he should live because he does not agree that his decision-making capacity is compromised in any way. The manner in which he comported himself in the hearings was striking, his arguments eloquent.

He asserts that he has capacity to make his own decisions

He is concerned about “the profound, serious, and in my opinion inauspicious interjections of certain parties in this action…” (October hearing). There have been, he says, “mis-judgments’ about his capacity due to misinformation, and ‘countless errors’ in a particular report. (July hearing)

He acknowledges that there have been appropriate concerns about his capacity in the past, but these don’t apply any more. His alcohol problem, for example, is he says now under control and he was at pains to demonstrate insight into, and rejection of, his previous, “anomalous”, behaviour:

I recognise my part in the circumstances that presented last year. I’ve never been in these circumstances before. I recognise I have not conducted myself in a way that I would have wished to. I recognise my culpability. (October hearing).

Mr G emphasised the things had changed since that “chaotic” period in his life. He was he said now “perfectly capable of making decisions” (July hearing)

He shows that he understands and is accommodating of the court process

In court, Mr G conveys an image of himself as well able to manage himself and his own affairs. He emphasises his understanding of proceedings (e.g. responding to the judge’s question about his grasp of a particular issue: “I understand entirely, it is not at all complicated”). He underlines that he is not only rational, but also reasonable and accommodating. When conceding, for example, that he was willing to accept a delay in the date for next hearing, he commented: “If it is a question of waiting a month or two, that isn’t going to be an impediment to my acquiesence….I want to make clear that I am a reasonable man”.

He takes responsibility for his actions 

Mr G was also explicit that he was someone who acted responsibly: “I’ve put my affairs in order and done all the things you’d expect a responsible individual to have done.” (October hearing); “I’m used to taking responsibility and welcome it. I’ve always tried to conduct myself according to the right way to behave. I’m sorry if that sounds arrogant’. (July hearing)

He is respectful of others

Although at times appearing upset by what’s said about him in court, Mr G maintains a calm approach to proceedings. He is measured in challenging what he sees as errors of fact in the doctor’s report about him. He is unfailingly respectful of others, being careful to state that the staff in his care home were “courteous and hardworking” and that his eagerness to leave is “no reflection on them”. A rare moment of agitation came in response to the suggestion that he might have begun to integrate into care home life, perhaps going for a stroll with another resident.  This, he says, is “absolute nonsense…it is a factual lie that I have a connection with any individual” (July hearing). He distinguishes himself from the other residents with whom, he explains, he has nothing in common, as they have “mental problems”.

He is restrained and courteous

There was only one moment when Mr G challenged the sense of egalitarian cooperation and drew attention to the power imbalances at play declaring: “It is all very well us sitting here talking about my life but it is being talked about in an atmosphere which does not reflect that I am incarcerated against my will” (July hearing). On the whole, however, Mr G is noticeably restrained, and never rails against what he sees as his unjust incarceration. He seems very conscious of the need to consider how he comes across, commenting at one point: “You’ll draw your own conclusions from how I present myself”. 

When he shakes his head in disagreement, he seems to do so more in sorrow than in anger. Only on a few occasions does he talk ‘out of turn’ carefully alerting the judge to his wish to interject with comments such as “excuse my interruption; when there is an appropriate moment may I make a few comments” 

Overall Mr G comports himself rather like a well-respected retired colleague at a reunion in a barristers’ chambers. The relationship cultivated between him and Judge Jim Tindal also seems mutually respectful, almost collegial. Indeed, the judge expressed the hope that he had a “reasonable relationship with Mr G despite differences of opinion” (July hearing). For his part, Mr G was complimentary to the judge: “You are a deeply fair participant in the hearing, indeed adjudicant” he commented, adding “I am very grateful for your humane as well as your professional judgment” (October hearing).

Reflections 

As I’ve already said on the basis of the previous hearing back in July (here), and as was also true at the October hearing, the court made obvious efforts to treat Mr G with respect and to ensure his views were fully heard.  Nevertheless, it was deeply uncomfortable watching Mr G navigate, in his own words, “sitting in court, at the wrong end of the law”. 

His sense of the indignity at being judged incapable of making his own decisions about important areas of his life was painfully obvious. This is also evident in some of the other blog posts for the Open Justice Court of Protection Project. Even when the court is kind, respectful and has the person’s best interests at heart, the affront to a person’s sense of their own right to make their own decisions remains.

Perhaps the right to make our own decisions is something many of us take for granted and we only realise how central it is to our sense of self once it is under threat? Or perhaps, in some cases, it is precisely because autonomy is a core part of a person’s value system that a case ends up in court?

I was acutely aware of the tensions and contradictions Mr G was navigating in the courtroom setting. On the one hand, he spoke as if he were among colleagues and everyone in the court was an equal participant in the process; on the other hand, he identified and challenged the intervention of outsiders into his life and the power hierarchy at play.

I can’t begin to imagine what it must feel like to believe that you are perfectly capable of making your own decisions and have that denied. I doubt that I’d behave with such circumspection as Mr G in these circumstances. In his situation I’d be more likely to rage against the affront to my sense of self – behaviour that might damage my attempts to persuade them to make the ‘right’ decision about me! 

Watching Mr G navigate the hearings reinforced for me why I have (at a time when my capacity is not being challenged) written a legally binding Advance Decision to refuse certain treatments and have also written (and video-ed) an advance statement recording a general account of my values and approach to life. This highlights some of the values and beliefs so core to who I am as a person that I want them respected in any future best interests decisions made about me. 

In this case Mr G’s own previous capacitous views on the balance to be struck between safety (living in a care home) versus self-determination (living in a flat of his own) are clearly relevant to decisions about his next placement. These views can, of course, often be gleaned from family and friends, alongside looking at past habits and behaviours, but an advance statement (written before he lost capacity) would, I suspect, have been a much more accessible, convincing and engaging way of ensuring that his past wishes are fully considered.

Mr G could be any of us who currently have – and may in future lose – the capacity to decide for ourselves. For some people that loss of capacity is associated with obvious failures in their ability to understand, remember, and weigh information, as with advanced dementia or for people with catastrophic brain injuries. But many of us may be deemed by the courts to lack capacity to make key decisions about our own lives at a point where we believe ourselves entitled to make decisions for ourselves – indeed the very loss of insight that can come with brain injury may render us completely unable to recognise our own limitations. Like Mr G, we may fight (and lose) an argument that we are capacitous. Like Mr G, we may then find ourselves subject to other people’s ‘best interests’ decisions about us – even though, like Mr G, we may have a strong sense that this is an injustice.

Trying to protect ourselves (at least in part) against that kind of future is difficult. It means reflecting, now, on what we want for our future (“incapacited”) self, and the extent to which we want to make decisions in advance for the incapacitated person we might become. It means considering what guidance we want to provide – in the form of an advance statement – for the health and social care professionals (and possibly judges) who will need to make decisions in our best interests.

My observations of hearings like Mr G’s in the Court of Protection reinforce my belief that everyone should consider advance decisions, advance statements and lasting power of attorneys as ways of supporting and protecting their future incapacitous selves – and, indeed, helping those around them who are charged with supporting their decisions, or making decisions for them. The charity Compassion in Dying provides information – for free – about all these options.

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 has blogged for the Open Justice Court of Protection Project about this same case at an earlier hearing here.  She tweets @JennyKitzinger

Photo by Vincent Branciforti on Unsplash

Costs and benefits of acting as expert witness in the Court of Protection

By a Serious Brain Injury Case Manager, 13 October 2020

This tweet gave me reason to pause and reflect because it came on the back of a request by a lawyer to commission me, as a professional working in acquired brain injury, as an expert witness for the Court of Protection. 

The vast majority of my work as an expert witness is for the High Court as a Care Expert. It is my role to identify what services and support a person with a brain injury will need across their lifetime and provide costs for this. I have however also been commissioned to give expert opinions for the Court of Protection. Usually this relates to a question of what is in the best interests of a person with a brain injury who lacks capacity to take a specific decision, often related to where someone lives and how they are supported. The person’s lack of capacity has been decided before I am commissioned and is not contested. What is up for discussion is how the individual’s needs are best met, i.e. what is in their best interests? 

I am not part of an organisation that promotes my availability for expert work, it has simply developed over the last 20 years and is sustained by word of mouth. Whilst I am often commissioned by the same people (or their colleagues), I am also commissioned by legal firms and lawyers I have had no contact with too. So, not a closed loop but this is not a question of what economists would call “perfect competition”. 

Responses to Celia Kitzinger’s tweet revealed that this is a familiar problem in many areas of the Court of Protection’s work.  The barrister Katie Gollop (@katiegollop) responded that all 5 anorexia cases in the COP prior to a recent hearing in which she represented P had used the same person as an expert witness.  Maybe, she reflected, having a different expert would make no difference to the evidence or to the outcome of the case “but with no mix, we don’t know”. 

Several experienced COP lawyers raised the issue of payment:  “the limitations of legal aid rates don’t help, I suspect” (@WGAbroad); “It can be tricky to find someone who will work for legal aid rates and produces reports which don’t need clarifying and addendums on so many points that it ends up wasting a lot of time and money… always looking for new ones but actually not many about” (@MrsArcticride); “often the pool is restricted by legal aid rates, proximity to P, and the need for someone who understands the statutory framework of capacity assessment”.  

I have found from my own experience in High Court cases that fellow experts from different disciplines can become familiar faces, particularly in fields where there are very few appropriately qualified and experienced people. This is a real issue when considering the needs of people affected by acquired brain injury, most especially if the outcomes are less obvious and require greater experience to identify and assess. 

The most complex cases that I encounter concern people with “higher level” difficulties with executive skills, i.e. with social behaviour and social communication and with cognition, particularly if the affected person has reduced or no awareness of their difficulties and how this affects their functioning. Most complex of all are those with an intellectual awareness of their difficulties: such people can describe the difficulties they face, but only in the abstract and externally generated and sustained scenario of an assessment. When this intellectual awareness does not affect functioning or behaviour in the real world, this makes assessment a real challenge. There is an increasing body of research evidence regarding how poorly mainstream and generalist services pick up on the needs of the unfortunately named “walking wounded”, i.e. those who have generally made a good physical recovery from their brain injury but who have been left with life changing issues that can affect decision making, planning, problem solving and initiating activity (e.g. Flynn, 2016; George and Gilbert 2018, Moore et al, 2019).

It is hardly a surprise therefore that some individuals affected by brain injury come to the attention of the Family and Criminal Courts and the Court of Protection. Their Lordships review of the Mental Capacity Act noted the specific issues with assessment of Mental Capacity for people with an ABI and the evidence provided to the review was very critical, not of the perceived paternalism experienced by some other groups, but of the reverse (House of Lords, 2014). Evidence from across England and Wales, specifically naming acquired brain injury, reported a failure to conceptualise and adequately respond to invisible, complex and interrelated difficulties and a failure by non-specialists to know how to assess such matters (Norman, 2016; Holloway, 2014;  Holloway et al, 2019)

In recent years I have been approached to undertake assessments and give expert opinion in the Coroner’s Court, the Family Court and the Court of Protection. Sometimes this work is jointly commissioned by multiple parties and sometimes it relies upon Legal Aid funding for that commission. From a financial perspective, it would make sense not to accept such referrals.  The State clearly does not pay the same rate as the commercial world of personal injury litigation. I am part of a small business that needs funding to survive, to support the pro-bono work we do and to fund time for research and writing. 

My personal decision to take on such referrals (occasionally) is informed in part by a sense of duty (if I know something and can help, then I ought to) and, perhaps in a less lofty and self-regarding/virtuous way, because such matters can be really interesting and can tax one’s mind and thinking. I have therefore agreed to work at 78% of the usual medico-legal hourly fee, at 57% and, once, at 42%. On each occasion I have been informed that this is the maximum fee structure permitted for the task. The hours allotted and agreed are never sufficient, so this creates another pro-bono element too. The fact that the fee seems to vary is not something I claim to understand. 

Recently I was approached to undertake an assessment and give expert opinion in a matter which sits firmly in my field of experience and expertise, it was a similar request to others that I have carried out. However, on this occasion, I was informed that the maximum hourly rate was 17.35% of the medico-legal rate (for clarity, not 17.35% less than the medico-legal rate, just 17.35% of it). A quick search of the internet informs me that the hourly rate insisted upon was the same as what was being offered for a “Customer Services Advisor”, where educational expectations of candidates was “GCSE’s preferred”. I turned down this referral. 

So, whilst not doubting at all the skills, integrity and ability of the experts whose names had become quickly familiar to an observer (and to other experts) at the Court, I suspect that funding may be one of the reasons why that familiarity has developed. When it is not “the market” that decides the appropriate rate, an element of self-selection/self-de-selection of who is commissioned becomes normal. Putting it more directly perhaps, who can afford to work for significantly reduced fees? Is “P” able to benefit from the very best of expertise when hourly rate is a driving force for choice of expert? If you have a choice, do you work for less than 20% of your usual hourly rate?

As it should be, giving expert opinion is an onerous task. Never more so than when the outcome could affect where someone lives, who they live with or even if they live at all. It would be a very foolish person to take these responsibilities lightly. Such cases invade my sleep and cause me self-doubt. The reputation of an expert can be lost in an instant. We are all only as good as our last case, as the careless, hubristic, unlucky or over-worked can find to their cost. Within my field there is a dearth of suitably qualified and experienced professionals in practice, let alone able to give expert opinion. I fear that financial considerations with publicly funded cases is exacerbating this situation and doing a potential disservice to both the Court and, more importantly, to “P”, the person who at the centre of the case. Bearing in mind that brain injury is somewhat of a Cinderella with statutory provision, it would be helpful if funding agreements recognised it as a speciality that is nuanced and complex and where achieving expertise is not straightforward. 

The author is an experienced Serious Brain Injury Case Manager who has often provided expert evidence in court.

Editors’ note: We also recommend  this report by Malvika Jaganmohan about the findings of the President’s Expert Witness Group Symposium (dealing with expert witnesses in the family courts). 

Photo by Francesco Ungaro on Unsplash

A Decision about Capacity

By Celia Kitzinger, 12 October 2020

Ruth (not her real name) lives in a care home.  She wants to move out, but not to the Extra Care Housing proposed by the local authority – in part because she has bad memories about the area, and in part because it is a long way from her husband and son.  She has strong views about where she wants to live, and she believes she has the right to make her own decision about this.

At this hearing (Case no 13391039, before District Judge Lusty), the key issue to be decided was whether in fact Ruth does have the right to make her own decisions about where she lives and the care she receives,  or whether others will make these decisions on her behalf because she lacks the requisite mental capacity.

Evidence on capacity

The starting point, by law, is that Ruth does have the mental capacity to make her own decisions.  There is a presumption of capacity built into the basic principles of the Mental Capacity Act: “A person must be assumed to have capacity unless it is established that he lacks capacity.” s. 1(2) Mental Capacity Act

There is no disagreement that Ruth has dementia – and, indeed, that she is deteriorating.  A diagnosis of dementia does not, however, in and of itself, mean that Ruth doesn’t have capacity to make her own decisions.  The Mental Capacity Act s.3 (1) states: “A lack of capacity cannot be established merely by reference to— (a) a person’s age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.” So the “condition” of dementia is not sufficient to establish lack of capacity.

The Act is clear that the presumption of capacity (s.1(2)) can be rebutted only if – after all practicable steps to help a person to make a decision for themselves have been taken (s. 1(3)) – the person is “unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain” (s. 2(1)).

“… a person is unable to make a decision for himself if he is unable— (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh that information as part of the process of making the decision, or (d)  to communicate his decision (whether by talking, using sign language or any other means).” s. 3(1) Mental Capacity Act 2005

There have been numerous assessments over time by different professionals, all of which find that Ruth lacks capacity to make decisions about residence and care. Reports of these assessments were in the bundle before the court.  

I did not see the assessments of Ruth’s capacity, but I have seen similar reports for other people.  They typically describe professionals’ efforts to explain the different options – often using simple language, visual aids, raising the options with them at the time of day when they are most alert and able to engage, giving people time to process information and checking their understanding.  Assessors typically support the person’s ability to remember information about different options with written or visual information (easy-read leaflets for example) and try to help the person weigh up the pros and cons of different options.  Assessing capacity is a routine part of health and social care: it’s important to ensure that the person is giving valid consent to whatever treatment or course of action is being proposed for them.

The General Medical Council has an interactive tool on “Decision-Making when Patients may Lack Capacity” here.  It’s aimed at doctors but it’s a very useful and straightforward read for everyone.  I particularly recommend the “Case Studies”:  Sally Jackson and Tracey Sarle who have Downs Syndrome are supported to make their own decisions about chemotherapy for breast cancer (Sally) and whether or not to have a smear test (Tracey), and Mr Lang who has dementia is supported to make his own decisions about antibotics for a lung infection and hospital investigation for a problem with his eye.

For Ruth, though, capacitous decision-making did not seem to be possible, however well supported she was.  Although she has strong feelings and wishes about where she lives (and is clearly able to communicate them), assessors have found her unable to understand, or to retain, or to weigh up the information relevant to the decision that needs to be made. 

An independent report from an expert doctor was recently authorised by the judge and this expert – like all the assessors before him – found that Ruth lacks capacity to make these decisions. 

Based on the findings of the numerous capacity assessments, counsel for the local authority accepts the finding that Ruth lacks capacity to make decisions about residence and care.  So do her husband and son, who were both in court and accepted the evidence of the independent report.

The only person who believes Ruth does have capacity to make her own decisions is Ruth herself.  

Ruth’s representative in court

Ruth was not in court.  She was represented in court by a barrister appointed and instructed via the Official Solicitor.  Her barrister reported that “Ruth is very clear in her own mind that she does not lack capacity to make these decisions”.  But he did not argue on her behalf that the court should accept that she has capacity.  

He said that as her litigation friend he was in a “delicate role”.  He could not, he said, agree with the Order before the court in respect of Ruth’s lack of capacity.  Repeating Ruth’s claim to have capacity to make her own decisions, he said, “I simply invite the court to consider that”.  He added that he does “not invite any more evidence on capacity”.  This means, as counsel for the local authority put it, that there is “no active objection to the court finding that Ruth lacks capacity in the relevant domains”.

That’s pretty much what anyone in this barrister’s position would have done – subject of course to the concrete particulars of the case.  Another experienced Court of Protection barrister I contacted, asking what she would do in this situation, said: “Tell the court P says she has capacity and set out any evidence you can find to support that or undermine the other evidence. Then leave it to the court to decide. Potentially let P speak to the judge if she wants to. And then go for P’s wishes being determinative in the inevitable best interests decision.”

The outcome of this hearing was that the judge made a final declaration (pursuant to s. 15 of the Mental Capacity Act) that Ruth lacks the mental capacity to make decisions for herself about where she should live and the care she should receive (and also lacks capacity to conduct legal proceedings).  This means that decisions about residence and care will now be made by the court on the basis of Ruth’s best interests: as the judge put it, “it’s now about looking at the various options for Ruth and deciding what’s best for her”.  

Best interests

In making a best interests decision about where she should live, Ruth’s views will be taken into account.  There was evidence of this already having been done. The local authority reported that the Extra Care Housing option she had objected to was now “off the table – and we’ve removed reference to it in the order”. He said: “We are now exploring Extra Care options in close proximity to Ruth’s family – and exploring both short term and longer-term options, because Ruth has said she doesn’t want to be ‘shifted around’ but to settle in one place”.

Ruth’s husband seemed relieved that the placements considered for Ruth would now be closer to home: he said he “much appreciated” it.  Ruth’s son agreed, but expressed some concern about any Extra Care possibilities as against continued residence in a care home.  He said his mother would “wander out the front door and get lost once she was a hundred meters away from the front door she doesn’t recognise anyway”.  The question of where Ruth will move next (if she does move) will be a key issue for the next hearing at the end of November. I hope to be able to be there.

Reflections

I was left wondering who will tell Ruth about what happened in court today, and what she’ll be told (and what she’ll understand) about the judge’s declaration that she lacks capacity to make crucial decisions about her life.

What must it feel like to believe that you are perfectly able to make your own decisions, and to have a judge rule that you are not?  And for your own legal representative (appointed by the Official Solicitor) to make an argument contrary to your own view? What effect might this have on Ruth’s relationships with the people around her if she realises that they all (her family too) accept the view that she lacks capacity to make her own decisions?  

The views and voices of those subject to decisions such as the one imposed on Ruth are rarely heard.  Some of these issues are explored by people involved in The Voices Project in which people with disabilities talk about how it feels to be told that they lack the capacity to make decisions about key aspects of their lives: sex, relationships, and medical treatment. 

Of course, I am reassured by the fact that everyone in court seems genuinely concerned to take Ruth’s wishes and feelings into account, and to ensure that she is happy – and safe – in whatever accommodation she lives in.  Ruth is cared for.  People want the best for her.

But she has been stripped, by law, of her right to decide for herself – and even if the decision that’s eventually made is the decision she would have made for herself, even if (in the words of the barrister quoted earlier)  her wishes turn out to be “determinative” of the decision made about her she may still feel angry and compromised by a ruling that she lacks capacity to make her own decisions.    

Any of us could become a future “Ruth”.  It might be dementia, or a stroke, or traumatic brain injury from a fall or a road traffic accident.  It could be a brain tumour or a disease in the brain like encephalitis.  We could lose some of the cognitive abilities we currently take for granted – and with that, the right to make our own decisions.

Some people are content that others will take over decisions about where they live, what care they receive, who they have contact with, and how their money is spent. They may trust professionals to make those decisions on their behalf. Or they may decide to appoint someone who knows them well – a spouse, an adult child, a friend – with Lasting Power of Attorney for Health and Welfare (and/or for Property and Finance) to make the relevant decisions for them when they are deemed no longer to have the capacity to do so. (Note: “Next of kin” have no right to make decisions on behalf of an incapacitated adult – if you want a family member of friend to be your decision-maker you need to formally appoint them as such on the government website here.)

It is helpful to those who find themselves with the responsibility of making decisions for others – or simply contributing to those decisions (as Ruth’s husband and son are doing) – to have some steer from the person themselves before they lost capacity. The court, and Ruth’s family, could have been helped in decision-making if Ruth had written an “advance statement” (in advance of losing capacity) about her wishes, her hopes, her values. Any “relevant written statement made by [a person] when [they] had capacity must be given particular consideration when arriving at best interests decisions about them (s.4(6)(a)). And if Ruth had wanted to refuse any particular medical treatments she could have done that too, via an Advance Decision (ss. 24-26 Mental Capacity Act).

Many of us will live for months, or years, or even decades with reduced and declining capacity to make our own decisions. Advance decisions, advance statements and Lasting Powers of Attorney are not really ‘end of life’ tools, but ‘end of capacity’ tools that give voice to our decisions and preferences about how we live with impairments of the mind or brain.  They are mechanisms for all of us who have capacity to make serious decisions at the moment to influence what happens to us if, in future, we are no longer able to decide for ourselves.  There are various practical (and philosophical) problems with all of these tools – but they are probably the best options available right now for those of us concerned about losing capacity.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has supported many people with making advance decisions and advance statements and has (of course!) made her own. She recommends the charity Compassion in Dying for more information on these options. She tweets @kitzingercelia

Photo by SHTTEFAN on Unsplash

  

Dementia, Cats and Football

By Joe Lord, Thursday 8 October 2020

Orders from the Court of Protection can be momentous for ‘P’, the person at the centre of the case. Orders may (among other things) deprive P of their liberty, interfere with their bodily integrity or assume control of their property – all steps that could attract criminal sanction were they not implemented in P’s best interests. The underlying themes here – the impact of law on the individual, and the story of the individual themselves – have always interested me, and have no doubt fostered my desire to practise at the criminal bar. 

Touching heavily on these themes, the hearing I observed on 23rd September 2020 (Case number COP: 13573266) struck a chord. Before getting into the detail, I should note that only after chasing First Avenue House was my email request forwarded to the presiding judge, DJ Beckley. I then heard nothing until 2pm, when the judge phoned to admit me to the hearing. The moral here is: if you want to observe, always keep your phone ready for the scheduled hearing time. 

Gerald’s Tale

The Individual

I observed the second of what will be three hearings concerning Gerald (not his real name), an elderly man who had lived in a flat with his now-deceased parents since the 1970s. Gerald’s primary medical condition is vascular dementia, which is largely responsible for the accidents at home that have seen him in and out of hospital over a number of years. This saga culminated in April 2020 when Gerald was discharged to a local care home, with proceedings issued by the Local Authority (‘LA’) in June 2020 to determine next steps, namely where Gerald should live and receive care, and whether Gerald’s tenancy over the flat should be terminated if he remains in care. Gerald was represented by Ms Keri Tayler, with Mr Jon Holbrook acting on behalf of the applicant LA.; Gerald’s place at the centre of proceedings was constantly reiterated by counsel and DJ Beckley throughout the hearing.

The Law

As is routine, the LA applied for an order under s.21A Mental Capacity Act 2005 (‘MCA’) to determine whether Gerald meets one or more of the requirements for the deprivation of his liberty, and to challenge the purpose and conditions surrounding such a step. At first blush, the broad scope of this order seems to provide a worrying degree of power to a judge. Nonetheless, a ‘presumption of capacity’ is fundamental to the MCA (see s.1), a welcome safeguard that requires the state to work uphill when seeking such powerful orders.  

Another protective layer comes from s.21A MCA, which is focussed directly on whether it is necessary, proportionate and in the best interests of P to be detained, rather than on the circumstances which led up to the deprivation of liberty: Director of Legal Aid Casework & Ors v Briggs [2017] EWCA Civ 1169. This seems to ensure P’s current condition is adequately considered, preventing a decision being coloured wholly by past events. It also reflects P’s position as the protagonist of proceedings conducted in his best interest in that the enquiry is focussed on exploring the most up-to-date account of P’s wishes and feelings. 

Comment

I was reassured by the detailed exploration conducted by the court into Gerald’s position. At the previous hearing, Gerald had made clear (via Microsoft Teams) that he knew where he was and what he wanted – particularly access to newspapers and a return to his flat, the address and significance of which Gerald was well able to recall. 

Gerald is clearly a pragmatic and proud man. In this hearing, DJ Beckley ran through Gerald’s statements that he strongly believed he could manage at home with care visits, but preferred to stay in the current ‘so-so’ home if around-the-clock care was needed. If a care home was truly necessary, Gerald asked only that one capable of accommodating his cat could be found; although this could not be done, readers will take comfort from Mr Holbrook (for the applicant), who confirmed that the LA is looking after the cat. Gerald also wanted to see his local football team in action, accepting that COVID-19 – rather than the LA – might be the stumbling block to this. 

These details were significant to me for several reasons. Firstly, they reinforced the position of P as the person at the centre of the case and, secondly, illustrate the genuine care taken by the Court, the LA and social workers – despite the pandemic and wider budget constraints. Most importantly, such details brought to life the charming quirks of an individual: these are details which make legal cases both fascinating and heart-breaking. I could not help but feel compassion towards Gerald, something which no doubt coloured my ‘take-away’ from the hearing that he was strong enough – at least mentally – to have his liberty and dignity back. 

Of course, I could not truly comprehend Gerald’s position, a position which was patently vulnerable given his medical history. Indeed, there were further hints at vulnerability as legal arguments began: although the terms of the Order were largely agreed, Mr Holbrook stated that round-table meetings between the parties were at an impasse without a position statement from the Official Solicitor. Ms Taylor (acting on behalf of Gerald) disputed this, persuading DJ Beckley that, as the applicant, the LA bears responsibility for leading the case direction, and that it made perfect sense for the Official Solicitor to submit her stance last with the benefit of all the evidence. 

However challenging the predicaments of Gerald and those like him, we can take comfort in the knowledge that dedicated and diligent professionals, from social workers to court staff, are striving to ensure that the best decisions possible are made for those like Gerald in our society. 

Joe Lord is an aspiring barrister who recently graduated with a First-Class degree in Law from UCL. Currently a volunteer for Advocate, he is aiming to study the BPC in September 2021. He tweets @Joe_Lord7; his Linkedin is Joseph Lord. 

Photo by Alexander London on Unsplash

A law graduate’s first experience of a COP (telephone) hearing

By Emily Williscroft, 7 October 2020

My experience of observing a Court of Protection hearing was exciting and bewildering and a brilliant educational opportunity.  I feel inspired to observe more hearings because it’s such a fantastic way of learning more about the law in practice.

I finished my undergraduate degree (with first class honours from Edge Hill University) this summer and I don’t yet have a training contract – though I was proud of myself that I made it through to the Assessment Centre by the brilliant firm, Irwin Mitchell, that does a lot of Court of Protection work.  

I’ve kept in touch with people who work at Irwin Mitchell and on August 18th 2020 I saw this tweet from Kirsty Stuart of Irwin Mitchell. 

With a recommendation like that, of course I wanted to attend some hearings. 

It took me a while to make time to do this (I work full time), but on Friday 18th September I emailed the regional hub court in Newcastle asking to observe a hearing before DJ Charnock-Neal at 11am that day.  I received a response confirming that I could attend, and explaining the process for Judge Charnock-Neal to dial me into the telephone hearing.  I’d been reading tweets about people not getting responses to requests to observe, and about hearings being vacated or postponed, so I was prepared for difficulties –  but everything went really smoothly.

Upon receiving the phone call from the Judge, I was asked a number of formal questions. I had to confirm I was alone and that nobody else could hear the call, that I was not recording the hearing and that I understood I had to keep details that would risk anyone being able to identify P confidential. Once this was complete, everyone in attendance was introduced.  Other people on the call, in addition to the judge, were representatives for the Local Authority and for P (the person at the centre of the case).

As recommended (here) by the Vice President of the Court of Protection, Mr Justice Hayden, the applicant, the barrister for P, Ms Nicola Kohn,  provided a useful background summary of  the case for my benefit so that I could make better sense of the proceedings. I understood that 

P is a grandmother with both dementia and mental health issues. Family ability to provide care and support changed recently so she’s moved into a care home and one of the issues at the hearing was the need for a section 49 report.  I had to look up what that was: Section 49 of the Mental Capacity Act (here) gives the court power to require a Local Authority or NHS body to provide a report about P.  |There was also some discussion about the effect of the new Health Protection (Coronavirus, Restrictions) (North East of England) Regulations 2020. This would have a significant impact on P’s life and therefore needed to be brought to the attention for the hearing as the changes implemented related to care homes. Information about the new restrictions were posted on social media on the same day as the hearing – and in fact I saw a tweet from P’s barrister about this.  She’d learnt about the new restrictions from Twitter which is, she says, “not quite how they told us to research the law at lawschool”!

As it was my first hearing it was all rather overwhelming, I was exposed to a lot of information very rapidly and I didn’t manage to get everything that was said written down or fully understand what I was listening to.  The hearing only lasted for half an hour, so it felt like a bit of a whirlwind.  But I’m glad I did it.

I knew nothing about the Mental Capacity Act 2005, or about the Court of Protection from my undergraduate degree.  I have observed criminal court hearings as part of a module called “Lawyer Skills” but obviously the Court of Protection was very different. It was also completely opposite to the way I had learnt about the law as a student – for example, first learning about criminal offences and then going into court to observe criminal prosecutions.  Here I was having to figure out the Mental Capacity Act (and google it quickly) in order to understand what was going on in court. It threw me a bit! I’m going to research the Mental Capacity Act before observing my next hearing – and I’ll definitely use the new “Hearing Feedback Form” from Open Justice Court of Protection, which is designed to offer a framework for people new to this area of law to understand and record what is happening (and to help shape future blogs). 

I went into this experience with an absolute minimum of knowledge both about the Court of Protection and about the Mental Capacity Act, and am determined to learn more.  I’ve become alert to the importance of ‘capacity’ assessment in determining whether a person makes their own decision or whether it is made for them by others.  I also want to learn more about how ‘best interests’ decision-making works in practice. 

So, I will be back with another blog as soon as I feel confident enough and can make the time to try again!  And I’d recommend these observations to all aspiring solicitors and barristers.  It’s a way of engaging with legal issues when it’s not possible to go into court physically and it’s a great way of learning what actually happens in court. 

Emily Williscroft is an aspiring solicitor who recently graduated from Edge Hill University.  She tweets @emwilliscroft

Photo by Nick Morrison on Unsplash