Making Transparency a Reality in the Court of Protection: A Rallying Call for Autistic Pride Day 2020

By Gill Loomes-Quinn – 18th June, 2020

Today is Autistic Pride Day. It is the fifteenth time June 18th has marked the celebration since it was inaugurated by the campaign and solidarity group Aspies for Freedom in 2005, and subsequently taken up and developed both on- and offline by the autistic rights movement globally. As an autistic person, and a socio-legal researcher whose work focuses on the practical implications of the Mental Capacity Act 2005 – particularly the work of the Court of Protection, I reflect in this blog on why I see transparency in the Court of Protection as an issue of concern for the autistic rights movement, and why I think those who care about the values of Neurodiversity and justice for autistic people should engage with the work of a court that is a significant location of social and legal power in the lives of many autistic people.

Mental Capacity and Autism

While by no means all autistic people are deemed to lack the capacity to make key decisions for themselves  throughout the course of their lives, and while it is of course not exclusively autistic people who find themselves subject to the legal framework of the Mental Capacity Act 2005; there is certainly a considerable overlap between the autistic community and people deemed to lack mental capacity in relation to at least some decisions. It has been my experience since I began my career as a specialist autism advocate in 2007 (coincidentally, just one month after the Mental Capacity Act 2005 came into force fully, on 1st April 2007) that the “worlds” of autism and mental capacity law and practice operate in rather distinct “bubbles”, with each appearing at times to be rather hazy about the dispositions, needs, and requirements of the other. A welcome exception to this general picture is found in the work of Dr Yo Dunn who can be heard here, talking about the impact of mental capacity law on autistic people (though note that parts of Yo’s interview are now outdated, and should be read in conjunction with the Government Response to the Law Commission’s Review of Deprivation of Liberty Safeguards and Mental Capacity).

My own experience resonates clearly with Yo’s description of engaging with social care, and mental capacity law, and realising the frequency with which the mental capacity law I encounter (the published judgment I read, or the commentary I see) centres on the life of an autistic adult. We know that autistic people have been at the heart of many of the cases that have driven forward the development of mental capacity law – not least in the landmark Bournewood Case (HL v UK 45508/99 [2004] ECHR 71) that triggered the development of the Deprivation of Liberty Safeguards.  It is my view that given the number of autistic people whose lives are impacted (often profoundly) by practices shaped by the Mental Capacity Act 2005, including the work of the Court of Protection, autistic culture should form a significant part of socio-legal discourse surrounding the MCA 2005 in practice, and the Act should be a focus of concern and scrutiny for members of the autistic community and our allies.

Witnessing Law in Action for Autistic People – An Opportunity for Activism

As an autistic community, we are used to seeing devastating wrongs perpetrated against members of our community – the most outrageous scandals where we are left shouting for something to be done, for laws to be changed, for more scrutiny (e.g. the Winterbourne View scandal; Justice for LB; the abuse at Mendip House). So often it seems we are powerless against the risks posed to those of us who are most vulnerable in a society not designed by us, or for us, and in which we are so used to being devalued that our very humanity often appears to be in question. “Behind Closed Doors” is a frightening place if your human rights are a subject for debate.

But the Court of Protection is not “Behind Closed Doors”. Since the introduction of the “Transparency Pilot” in 2016 the majority of hearings that take place in the court (up to 30 in a day, across the country) are open to the public. This means that they are available for us to observe – to see how decisions are made that affect the lives of members of our community; to understand how the law works in practice; and to inform our political discourse with knowledge of what actually happens to those of us whose lives are impacted by the Court of Protection. This is not something we need to fight for. It is something we can do – right now.

At the Open Justice Court of Protection Project, we are supporting people every day to access hearings, and we are publishing their observations on our blog. I would very much like it if some of those were autistic people and our allies.

Gill Loomes-Quinn is an a socio-legal scholar and disability rights activist, with a background in specialist autism advocacy, and academic Autism Studies. She is passionate about promoting the role of social research in the pursuit of social change for autistic people. She held a teaching fellowship at ACER – the Autism Centre for Education and Research – University of Birmingham for several years, and has experience as a research consultant: Including the the Autism Education Trust, the International Disability Rights Monitor, and Inclusion London. Alongside her current PhD research, Gill works for Leeds Autism AIM – as a peer support and development worker, and is a convener of PARC (the Participatory Autism Research Collective).

Gill is co-founder of the Open Justice Court of Protection Project – she tweets as @GillLoomesQuinn

Seeing, Hearing and Understanding Justice Being Done

By Olwen Cockell – 18th June, 2020

As a speech and language therapist I am well aware of the disproportionate number of people with ‘hidden disabilities’ who come before the courts charged with an offence.  Despite the right to a fair trial enshrined in law too often those navigating the justice system find the language and processes complex and inaccessible precluding ‘effective participation’.  Courts have the capacity to make the necessary adjustments and enact special measures to facilitate effective communication for all parties but this is not yet commonplace.

One of a number of special measures that courts can deploy is the provision of an intermediary.  Intermediaries use their skills as communication specialists to assist vulnerable people to make informed choices, give their best evidence and understand the language and processes of the justice system – watch this video to learn more about the intermediary role.

Having worked as a paediatric speech therapist for many years I side-stepped into registered intermediary work in 2015.  I assist preschool and primary aged children who have witnessed crimes to give their most ‘complete, coherent and accurate’ evidence to the police and then later at court should the case come to trial.

Whether it’s because of working with children for such a long time…….or more likely because I’m not quite as smart as I’d like to think I am……my initial response was that of cold-blooded fear when Celia suggested that I might like to make gainful use of my lockdown free time to observe a hearing within the Court of Protection. 

Members of the public can observe public hearings in the Court of Protection but the system doesn’t make this terribly easy.  The daily court lists get published late in the afternoon the day before the hearings and even with that short notice those lists can still change.  For instance, Celia identified a potential hearing that might interest me and texted me about it but by the time I received the text and sat down to email the court to request permission that hearing had disappeared!  Finding Court of Protection hearings can also be tricky – they pop up in the dedicated Court of Protection list which covers hearings at First Avenue House in London,  but some are listed under the Family Division list and most appear in a very user-unfriendly form (for users who are members of the public) at CourtServe.  You need to be pretty obdurate.

But I persevered.  I had set aside a Tuesday morning to observe a hearing so that was what I was determined to do.  On Tuesday morning there were two potential hearings listed but with precious little information available about the nature of the hearings and the potential issues to be resolved I wasn’t really sure which hearing to select.  In the end the decision was made for me.  Having consulted Celia’s detailed advice about how to request access to the Court of Protection hearing I emailed the court clerk about my first-choice hearing but was promptly informed that this hearing had been rescheduled to mid-afternoon (when I was not available) and in any event was more than likely going to be vacated. So, with only 15 minutes to spare, I emailed again about my second choice hearing. 

Success!  Permission was granted for me to attend this other hearing and after a quick scramble to download Microsoft Teams, I holed up in my dining room to try and view the remote hearing undisturbed……and I achieved this for 35 minutes but my viewing of the hearing was then interrupted by my 13 year old son.  Being disturbed by a request from a hungry son for morning toast may sound trivial but it’s a breach of confidentiality.  Even though you’re in a virtual courtroom you are still in your own home – and I know that the issues of family life spilling over into professional lives are being experienced by many remote court participants – judges, barristers and witnesses alike – up and down the country. 

The Court of Protection has measures in place for guarding the privacy of the applicants.  Celia advised me that I should expect to be requested to complete a transparency order prior to my admission to the remote hearing – in my case this didn’t happen but the judge did give a verbal direction pertaining to privacy before the hearing commenced.  On the screen I could see the various parties, their names and the clerk did give a run-through of the ‘who’s who’ but this was brisk.

I’d heard terrible stories of remote hearings – tech drop outs and parties having to rely on phones being held up to screens so I was pleasantly surprised by how smooth this experience was from the technological perspective.  At all times I could hear everyone.  At all times I could see everyone.  Participants were very accommodating to one another, the judge inviting each participant to contribute in turn and there weren’t any interruptions or people talking over one another.

However, even though I could hear and see the hearing perfectly I still found the hearing hard to comprehend.  I think the best way of me explaining my experience of the hearing is by way of analogy.  When I was a teenager I fell ill with some sort of wretched bug and I missed 10 days of school.  Upon return to chemistry class I found that I’d missed the whole week covering the basics of titrations and I sat in the class trying to apply context and my existing knowledge to quickly get to grips with this new topic. 

It was clear to me from what participants were saying that the young man being discussed had a fairly unique set of issues: references were made to damage in childhood, trauma even indoctrination and that he required a ‘tailor-made solution’.  However, had the advocates been invited to give a short summary of the case and issues to be resolved, as recommended by Mr Justice Hayden, Vice-President of the Court of Protection, this would have considerably helped my understanding.

I think I was left with more questions after the hearing had concluded than before it had begun.  I could see justice being done.  I could hear justice being done.  But, hand on heart, I can’t say I fully understood the justice being done.  The steps being made towards transparency in justice are very positive but there’s still some way to go.    

Olwen Cockell is a dual-qualified speech and language therapist and primary school teacher.  Olwen is based in Kent and has supported children with language and learning for over 20 years.  Since 2015 Olwen has worked as a Registered Intermediary and assists children with speech, language and communication needs when communicating evidence to police and to the courts.

Olwen tweets @olwenc

One and a Half Remote Hearings in the Court of Protection

By Upeka de Silva, 17th June, 2020

The opportunity to observe Court of Protection hearings from the comfort of my own home and learn how the courts are adapting to this new normal is truly exciting.

On 12th June 2020 I requested access to a Court of Protection hearing scheduled for 15th June 2002 which was very efficiently granted together with a Microsoft Teams link. The Clerk to The Honourable Mr Justice Hayden was fabulously organised by welcoming guests and explaining the importance of muting and switching off our devices. Unfortunately, the issues to be addressed in the hearing were not known to me until the hearing had started and as it turned out to be about financial deputyships which I found hard to follow I chose to leave the hearing when they briefly adjourned. In order not to waste the Clerk’s time, I would strongly recommend that a very brief indication of the issues be included against each listing for COP hearings in the Family Division (as they are on the First Avenue House listings).

I persevered and on 16th of June 2020 was pleased to be given access to a different hearing, this time before Mr Justice Williams, also listed without any indication of the issues.  The case was heard again via Microsoft Teams. There wasn’t a welcome or introductory summary of the case to be discussed, but I knew what I had to do as a Public Observer, and the parties introduced themselves and their roles which was helpful. There was an issue with papers not having been appropriately circulated (the judge had not received the bundle) and I was impressed with the Clerk being able to share her screen so that an order from a previous hearing before a different judge was made visible to all.

The case (listed as Case 13155577 Re: M), created a rollercoaster of emotions.  It related to a contact order between a mother (the applicant), a brother (litigation friend) and a local authority care home in which P was currently residing. While there were Covid-19 related concerns in relation to visiting, the primary tension seemed to be about a breakdown in trust and cooperation between the mother who wanted to bring and share lunch with her autistic son and the care home who had refused her admittance for a period. It was heart-breaking to think this had to come to court. On the other hand, Mr Justice Williams maintained unwavering focus on what is right for P and preventing him being exposed to a toxic atmosphere. The hearing lasted an hour, an order requiring both flexibility and stability was granted, and I left feeling reassured that person-centred decision-making, an issue I feel strongly about, prevailed.

I look forward to observing at least a couple more hearings and am grateful for all the tips provided by the Open Justice Court of Protection Project – http://www.openjusticecourtofprotection.org

Upeka de Silva studied law with a focus on human rights and medical ethics. She spent thirteen years working on promoting international sexual and reproductive rights and now works to support people to plan ahead in line with the Mental Capacity Act 2005 at Compassion in Dying. Upeka is passionate about supporting people to make their own decisions about their bodies and their lives and about ensuring that their stories are heard. Observing CoP hearings helps her to see these principles in practice. She tweets @de_upeka

Welcome to our Blog!

We are delighted to welcome you to the blog for the Open Justice Court of Protection Project.

A key aim of the project is to raise awareness of the work of the Court, and its social impact. Blog posts covering observations by Public Observers, analyses of published judgments, and other social and legal commentary will be at the heart of how we go about achieving this aim.

We look forward to sharing blogs with you as the project develops – go ahead and follow us to keep up to date with everything we share!

Celia Kitzinger

Gill Loomes-Quinn