Older People and Decision-Making in the Court of Protection – View from a Psychologist

By Claire Martin – 9th July 2020

[Editor’s Note: In her reflection on the hearings she observed, Claire mentions a number of questions with which she was left – one of these, relating to what is meant by terms such as “applicant” and “respondent”, is addressed in a post we have published since we received Claire’s submission: Who’s Who in the Court of Protection? – by Tor Butler-Cole, published 7th July, 2020.

The Open Justice Court of Protection Project would love to hear from any professionals who would be interested in helping us to clarify some of the other points Claire raises – see below, and get in touch!].

My interest in attending a Court of Protection hearing is because I am a psychologist working with older people in the NHS. My job includes assessments of people’s cognitive functioning, capacity and so on but I have never observed a CoP hearing before. I am also aware that, had I not been a psychologist, in a sliding doors scenario, law would be the draw for me! So, when I saw Celia’s tweet about the public being able to observe CoP hearings remotely, due to COVID, I wanted to join in.

The Hearings

It was fortunate for me that both of the hearings I attended turned out to be about making a best interests decision for an older person. That was pot luck though – as the issues weren’t stated in the CoP listings.

Where should P live?

The first hearing, before District Judge Ellington, was about where P should live – home or a care home. P was currently at home, has a diagnosis of dementia and has been deemed to lack capacity to make the decision about where she should live herself.  The Local Authority (LA) had made an application to the court to revoke the Lasting Power of Attorneys (LPAs) for Health and Welfare, and Property and Finance, which were held by one of P’s children, who had made a decision that she should remain at home. This seemed a very tricky issue to judge – and indeed the case is coming back at a later date following further evidence from the Office of the Public Guardian. Meantime, the judgment was that the care home was in P’s best interests.  It felt very difficult to assess what had actually happened in the LPA’s navigation of care for P. The LA’s statements were vociferously rebutted by the LPA and indeed he stated that the yearly LA checks of the LPA had been satisfactory.

Where P lived (at home) was considered by the LPA to be in his mother’s best interests because he reported she was ‘unhappy, depressed and self-harming’ in the care home and happier at home. P’s own current or previous wishes were not reported at the hearing – however, this could have been because she was unable to express them verbally now and that she simply had not done so in the past. This must make CoP decisions harder, especially when there are fiercely contested views about a person’s best interests, as in this case – including within the family.  One would hope that people would discuss their future care wishes (if they have a view on them) with the person they appoint to be their Attorney at the time when they appoint them, but unfortunately it’s common for this not to happen. It would be interesting to understand this a bit more – why don’t people discuss these things, even though they are appointing a LPA?

I was very interested in the rationale and evidence provided from the Local Authority regarding the risks to P in remaining at home. There was disagreement about whether she ‘wandered’ riskily when at her own home versus in the care home. There were no objective records of ‘wandering’ provided for either setting, however, nor any analysis of the possible triggers and potential ways to help keep her safe. There was a district nurse report saying she could not be kept safe at home due to ‘wandering’, but no actual evidence from this report was offered to support this assertion, such as occasions when P had left the house and been at risk. There was an allegation that the LPA had, at times, locked P in her home – which would obviously create further risk – but the LPA denied this. I was unclear whether P was under the care of the local Community Mental Health Team (CMHT) for older people, and if so, whether they had engaged the specialist Behaviour Support Service (which are teams – sometimes called Challenging Behaviour Teams – across the country for older people with dementia and their carers to assess, formulate and help with “Behaviour that Challenges”, such as ‘wandering’ – or ‘walking with purpose’  or ‘walking about’ as it is less pejoratively called). This could have been part of a previous hearing, though no reference was made to such evidence. I found myself wanting to know when, where and how the ‘wandering’ occurred, and what had been tried to help keep her safe at home, for a fuller picture of the level of risk the situation posed. It felt like a big gap not to have this information to consider as part of making this decision.

It was academic in any event, as the Local Authority argued that there was not enough money to fund staying at home, even with P’s own money to top-up what she was entitled to. It was decided that P would move to the care home in 3 days as a ‘transition plan’, with a clearer analysis of ‘challenging behaviours’ in the care home setting to be considered at a further best interests hearing in August  – the LA was given this task. In my job I would usually be able to follow-up how someone is doing, and I have found myself thinking of P over this past week and wondering how she is getting on in her new surroundings. The CoP sees snippets of people’s lives and makes enormous decisions for them – and I was heartened to hear the judge address all the family members present, one by one, to ensure that they understood her judgment and had a chance to ask questions.

What should happen with P’s possessions?

The second hearing (before District Judge Beckley) was about an older person also currently in a care home.  His daughter was also present at the hearing (and contributed clearly and articulately).  At a previous hearing it had been decided that P did not have the capacity to make his own decision about where to live, and despite his wish to return home (where he had lived alone), this was not in his best interests.  Among other issues, he has limited mobility and his home was a flat on the fourth floor of an old converted building, without the potential for a lift.  He had been offered an alternative possibility – a ground floor flat – which he had declined.  The main issue for this hearing was surrendering P’s tenancy of his flat (which everyone agreed was in his best interests ) and (therefore) removing P’s possessions from the flat  (about which there was some disagreement).

P had not visited his flat since April 2018, when he had been admitted to hospital and then discharged into a care home.  It was unclear whether or not P knew that he would not be returning to his home, or that clearing his possessions was being planned. I wondered about this – he had a functional mental health problem and I had the sense (from what his daughter and Official Solicitor said) that he might have been able to take part in and express a view about at least some of what was happening in his life. We were told that, prior to COVID, the plan had been to take him back to his flat to support him in making decisions about which of his possessions he wanted to keep, which to recycle, and which should be discarded.  I was a bit confused, then, about why no conversations with him concerning the current plan were reported during this hearing (from either his daughter or his legal representative).  At the hearing, the plan around clearing his flat seemed contingent upon his having a role in making decisions about his possessions. The Official Solicitor, acting for P, argued strongly that P needed to be given the chance to say what he wanted to happen with his possessions: ‘don’t pull up the drawbridge because of a lack of effort and understanding of his mental health condition’.

The judge decided that the decision to terminate the tenancy could not be delayed until further investigation had been conducted into P’s wishes concerning all of his possessions. The tenancy would be surrendered by 27 July.  Family were invited to list items that they believed should be retained because it has material or sentimental value, and the local authority would save items like books and wall-hangings but everything else (toiletries, magazines and newspapers, food, electrical appliances, household stuff etc) would be disposed of.  The remaining property would be put into a storage facility paid for by the local authority until 27 October after which it, too, would be disposed of.  The plan was that P would have support – either from his family or from care workers – to go through his personal property while it is in storage and give him the opportunity to retrieve items of value to him.  The judge said it was ‘important to put into place steps for P to express his wishes and feelings about his property and say what he would like to keep.  It felt like case management, which I didn’t expect at a CoP hearing!

Reflections

What really struck me in both hearings was the very careful and courteous manner with which the judges included family members, and the time that they gave to all parties. In both hearings, the judges put a lot of effort into enabling the family members to express their views, concerns and disagreements, in a very ‘non-judgmental’ manner. In neither hearing, however, were P’s views referred to in any detail, which really surprised me.

I would have found it really helpful to have been able to read position papers and draft orders prior to the hearings.  At times I found it hard to follow what was going on – some conversations were based upon previous decisions in previous hearings of which I was unaware, and (although a brief summary of attendees was given at the start) I wasn’t always sure who was who at the hearing until I’d worked it out as I went along. 

It was very steep learning curve for me – not having any legal knowledge or experience. I left both hearings with many questions about terminology! Who is the ‘applicant’? Who is the ‘second respondent’? What is the difference between Public Law and where the Court of Protection sits? What is a Section 16 Determination? Some of these feel like naïve questions now that I am typing them, but I hope that Open Justice Court of Protection can commission some blogs that will introduce this area of law to people like me who are interested in learning from watching hearings and who, like me, have no legal training.

In older people’s multidisciplinary mental health teams, decisions are regularly made about a person’s capacity, best interests, treatment and care. We work with people with mental health distress that can temporarily (and longer term) affect their capacity to make specific decisions for themselves, as well as people who have a diagnosis of dementia who are living with a degenerative condition that progressively removes their cognitive skills (amongst other things). Best practice is to ensure that the person, and others important to them, are supported to have a voice and be central to decisions about their care – whether that is small, day-to-day decisions or far-reaching decisions such as where people live, what medication or other interventions are decided upon. Being able to observe CoP hearings, where there are disputes and deliberations about the ethics (‘best interests’) and legalities of such decisions, teaches us all about how we care for each other when we lose capacity to advocate for ourselves. Understanding the judgments is instructive for those of us at the coalface contributing to such decisions. I intend to observe more hearings when I have time, to deepen my knowledge and understanding of the legal nuances of such issues, and to help me to learn about and change my own blind spots in my practice as a psychologist. The more I can learn the better my practice will be, and I can cascade and pass on this knowledge to my colleagues too. Even though we are only present as observers at the actual hearings, we can be part of a reciprocal dialogue and collaboration between ‘law’ and ‘care’ with blogs such as these and the work of Open Justice Court of Protection – and that must be ‘good thing’!

Finally, I want to pay tribute to the family members in both cases – they spoke up for themselves in what is most likely an intimidating setting. There were solicitors present for various parties, often in disagreement with family members and having the benefit of a legal training on their side. Both judges were very helpful to family members and (I thought) conveyed the importance they placed on their presence as equal parties in the deliberations. That was uplifting to witness and the remote open court process is likely to boost this further – there’s nothing like being watched to promote good practice. What a great opportunity, brought about by the dreadful situation we are in.

Claire Martin is Head of Clinical Psychology for Older People at Bensham Hospital in Gateshead. 

She tweets @DocCMartin

Observing Court Hearings – Valuable Training for Solicitors

By Natalie Matthews – 8th July 2020

Editor’s Note: You can find another account of this hearing in our blog of 24th June, 2020 by NB – here

On 22 June 2020, I attended a hearing in the Court of Protection before Mr Justice Hayden. The case concerned a young lady, who had learning difficulties, who had recently been diagnosed with stage 3 cervical cancer. The judgment has since been published here.

By way of background, I am a solicitor working for NWSSP Legal & Risk Services. I started working for Legal & Risk Services on 9th March 2020 (so just before lockdown was imposed). I represent Health Boards across Wales. I primarily deal with applications concerning Deprivation of Liberty Safeguards (DoLS) but I also deal with serious medical disputes and other welfare applications i.e. to decide where a person should live if they are deemed to not have capacity to make their own decisions about that. DoLS is a safeguard created by legislation which allows patients speedy access to the Court of Protection if a review of their placement is deemed necessary i.e. because the patient or their family are unhappy about it or if the patient is requesting to go home. My role involves drafting witness statements for Court and then attending the hearings on behalf of the Health Board.

As I am new to my role, I thought it would be helpful to attend this hearing as part of my training. As part of my professional obligations as a solicitor, I am expected to carry out training throughout the year. The Solicitors Regulation Authority does not specify what types of training this needs to be. I thought that perhaps observing a hearing would be a good form of training.

I knew nothing about the hearing prior to it taking place but I am very pleased that I chose to observe it. As I said, this case concerned a young lady who had recently been diagnosed with stage 3 cervical cancer. The application had been brought by the NHS Trust responsible for her care as there were some concerns that she did not properly understand her diagnosis and what this meant for her future. She understood that it was something bad but the doctors were not convinced that she understood the real seriousness of it. Essentially, without the treatment, she had a high likelihood of dying within 12 months. That time was also likely to be uncomfortable and painful. With the treatment (which was highly intrusive), she had a 30-40% chance of surviving for 5 years. If she survived that 5-year term, she would then be considered as cured. However, the downside to the treatment would be that K would be rendered infertile and she would enter the early menopause. This was explained to K as being unable to have babies.

In addition to the concerns about her capacity, there were also concerns that she would withdraw from treatment. As I said, the treatment was highly intrusive and it was stated in the Court that even the most robust person would struggle with it. Therefore, the Trust rightly wished to have the Court’s guidance in advance. Mr Justice Hayden stated as follows:

“If K consistently refuses to attend the hospital for treatment, they consider that it will not be in her best interests to take coercive measures to compel her to travel to hospital, using restraint. I agree. To do so would compromise her dignity and would be inimical to her best interests. The clinicians have made the utilitarian and thoughtful calculation that this type of restraint is more likely to exacerbate K’s withdrawal than encourage her cooperation”.

Mr Justice Hayden

Therefore, the Court endorsed the approach of the Trust that K would not be forced to attend hospital if she did not wish to do so. To force her would probably result in K further refusing the treatment later down the line.

Mr Justice Hayden concluded that the Trust had appropriately brought the application. This was on the basis that: (1) the treatment was highly intrusive; (2) it would bring on the early menopause and (3) the treatment plan was so onerous that there was a distinct possibility that K would withdraw from it when it became more challenging. K’s mother (who was sitting by her daughter’s side throughout the hearing) was in full support of her daughter but she was concerned that when the initial novelty wore off, K may not wish to continue with the treatment, as K did not understand that she was at risk of death. One comment made by Mum really highlighted this to me – when she had discussed with her daughter about the possibility of her dying one day, k thought that her mother would live forever.

This hearing took place virtually via Microsoft Teams. Since the lockdown in March, the Court of Protection has swiftly adapted to these hearings taking place virtually. This is to be congratulated, considering that the Court deals with some very serious issues. In light of the serious issues being dealt with, I think it is important that the hearings continue to be public and it should not be underestimated how much work goes on behind the scenes.

For myself, I found the hearing very interesting and helpful for my training. It was interesting to see the doctor giving evidence and also hearing from K’s mother. As I’ve said above, my role involves drafting the witness statements of clinicians like the doctor who gave evidence in this hearing. In my short time at the NHS, whilst I have attended Directions hearings, I have not attended a final hearing and therefore, I am yet to see a clinician give evidence in this way. Mr Justice Hayden challenged the doctor and he was not frightened to question him thoroughly. When it is time for me to attend a final hearing with an NHS Health Board, this experience will be invaluable in preparing them for what is to come.

In terms of what I’ll take from it, I will definitely take the lesson that NHS Trusts should not be frightened to make these applications and actually they will be highly regarded by the Court for doing so. Being proactive in this type of situation, which can often become very urgent very quickly, is so much better than being reactive.

I have read the Judgment following the drafting of this blog. Whilst the content is very similar to what Mr Justice Hayden said in Court, there was some additional references to his Serious Medical Treatment Guidance. Whilst it is important to read the Judgment afterwards, it is not the same as actually listening to the hearing as the Judgement does not go into detail of the questions and answers posed. However, after listening to the hearing, and reading the Judgment, the doctor’s answers are subtly included and you can tell that they influenced the decision of Mr Justice Hayden.

I would also say to other solicitors – please listen to these hearings.

Natalie Matthews is a solicitor for the Complex Patient Team of NWSSP Legal & Risk Services. The Complex Patient Team assist Health Boards across Wales with some of the most complex cases and issues facing clinicians in the NHS today. Natalie obtained her degree from Cardiff University in 2013 and qualified as a solicitor in May 2019. When not in work, she is busily caring for her 2 young children.

Who’s Who in the Court of Protection?

By Victoria Butler-Cole, 7th July 2020

There can be a large number of people involved in a hearing in the Court of Protection, and as an observer who does not have access to the court papers, it is not always easy to figure out who is who.  This Explainer may help.

The Judge.  There are three levels (tiers) of judge in the Court of Protection.  If you observe a case listed on the Family Division of the High Court (here) it will be a Tier 3 Judge.  It could be the President or the Vice-President of the Court of Protection.  Otherwise it will be a High Court Judge who also sits in the Family Division of the High Court.  All medical treatment cases are heard by High Court Judges.  There are no clear rules about when other cases will be allocated to a High Court Judge, but generally speaking, the more complex the case, the more likely it is to be heard by a High Court Judge.   Tier 2 judges are Circuit Judges, and include the Senior Judge of the Court of Protection (Judge Hilder).   Tier 1 judges are District Judges.  Generally, cases listed at First Avenue House (here) and the regional cases listed in CourtServe are before Tier 1 and Tier 2 judges.

P.  All Court of Protection cases are about a person whose mental capacity is in question.  That person is routinely referred to as P, although during a hearing they may be referred to by their actual name or by their initials.  P is almost always a party to the proceedings in a welfare or medical treatment case, but may not be a party in a case that is about financial matters.  If P is a party, P will often have a litigation friend – that means someone who can instruct lawyers on P’s behalf, if P lacks the mental capacity to do so him or herself.  Very often, the litigation friend is a professional – either the Official Solicitor, or a paid advocate. Sometimes the litigation friend may be a family member, friend or carer, someone P had appointed with a lasting power of attorney, or a court-appointed deputy.

The Official Solicitor.  The Official Solicitor is a real person – presently Sarah Castle.  Her department employs a number of solicitors and one of these solicitors will be appointed for each case.  That solicitor will then instruct a solicitor from an external company in most cases – although in medical treatment cases the Official Solicitor’s office generally doesn’t use external firms.  What this means in practice is that as well as P, you may have P’s solicitor (instructed by the Official Solicitor) and P’s caseworker within the Official Solicitor’s office, who is also a solicitor. 

Relevant Person’s Representative (RPR).  If P is subject to a deprivation of liberty authorisation under the Deprivation of Liberty Safeguards in Schedule A1 to the MCA 2005, they must have an RPR. The RPR could be a friend or family member, or an independent advocate.  Sometimes RPRs act as litigation friends in the Court of Protection.  They could instead be a party to an application in their own right.

Accredited Legal Representative (ALR).  The court can decide to appoint an ALR under rule 1.2 of the Court of Protection Rules as an alternative to a litigation friend or as another way to ensure that P’s views are before the court. An ALR is a solicitor, barrister or chartered legal executive who has completed a training course run by the Law Society.

Statutory bodies.  There is very often a public authority involved in a Court of Protection case.  This might be a local authority who owes duties to P under the Care Act 2014 (to provide social care services), or through the deprivation of liberty system.   If P is in receipt of NHS Continuing Healthcare, then a CCG might be the relevant public body.  If the case is about medical treatment, then the NHS Trust involved is likely to be a party.  Sometimes there may be two NHS Trusts, if P is also a detained patient under the Mental Health Act 1983 and the dispute is about treatment for a physical condition in a general hospital.

Other people. Depending on the issues raised by the case, there may be other parties including members of P’s family, P’s partner or friend, a court-appointed deputy, P’s attorney, a care home or a supported living provider.  Only parties are formally permitted to address the court, although sometimes a judge may want to ask someone who is attending a hearing for their view even though they are not a party to the proceedings – for example if P’s support worker is present.

Witnesses.  People who have written statements for the court or have prepared expert reports may be required to give their evidence orally and be cross-examined.  These people could be parties to the proceedings, or employed by a party – for example a doctor or social worker.  Or they could be a member of P’s family, or a friend of P.  Or, they could be an expert who has been required to prepare a report for the court.  Expert reports about P’s capacity and best interests are often required and can be provided by independent experts – commonly psychiatrists, psychologists, hospital doctors and social workers, or by Court Visitors, who are psychiatrists and social workers who are on a panel of experts that the court instructs.

Terminology.  The person who issued the application is called the applicant.  Everyone else is called a respondent.  If there are a number of respondents, they are called the first, second, third, fourth respondent – and so on.  

Order of speaking.  Usually, the applicant speaks first, through their barrister.  They should introduce everyone who is at the hearing.  There will often be more than one person for each party – a barrister, a solicitor, the party themselves, and potentially other people such as the manager of P’s assigned social worker, P’s advocate and so on. When a witness is being questioned the party who is calling that witness starts off, and is usually permitted to ask the witness one or two questions to expand on what is in their written statement.  Then the other parties can cross-examine the witness.  The person representing P tends to ask questions last.  The party who called the witness may have some questions in re-examination, to clarify matters that arose in cross-examination.  The judge may also want to ask the witness questions.

Victoria Butler-Cole QC is a barrister at 39 Essex Chambers where she specialises in health and social care law, including the Court of Protection.

A Case Manager observes in the Court of Protection

By Jackie Waggott, 6th July 2020

I’m Director of Operations at Social Return Case Management, managing a team of Case Managers, providing support, supervision and oversight of the case management service, as well as holding a caseload of my own. As case managers we work with the Court of Protection frequently, as many of our clients have sustained a life changing injury which means that they lack capacity to make certain (specific) decisions on an area of their life.  Lots of our clients have a Property and Affairs Deputy (appointed by the court) and we work closely with these representatives when supporting clinical and social needs.

My interest in wanting to observe a case is really one of professional development and wanting to learn more, so that I can better represent the clients I work with.  I also want to be able to enhance my ability to support the team in understanding how the court works and what to expect if we’re called to court or asked to provide information, such as a statement for a hearing.  I decided that observing a hearing – one which I have no professional involvement with – would give me the opportunity to hear and evaluate processes and outcomes and deepen my experiences to date. So off I went to find the opportunity to be an observer of a Court of Protection case.

The First Avenue House list didn’t go up until after 5pm the day before the date I’d arranged to spend time observing.  I emailed that evening and sometime after 9am on the day of the hearing I got an email back saying that the judge (Senior Judge Hilder) had agreed that I could observe and also that the hearing would start at 10.30am (half an hour later than listed).

They sent me the Transparency Order with the instruction to read it before the hearing. It’s quite anxiety-provoking to get it 30 minutes before the hearing: you have to read it, and you have to declare to the judge that you’ve read it and that you understand  it. The order just isn’t clear and takes more time than that to be able to say ‘I thoroughly understand that’. I felt a real sense of responsibility to read, digest and understand the order so I could make the declaration in court, and ensure I was abiding by it. It would be good to make the Transparency Order more transparent!

The hearing I had identified was to be held by telephone conference. At exactly 10.30am they called and dialled me in.  There was an introduction that the judge said was “for the benefit of the observer…” which covered some information about the previous hearings they’d had.  It was really useful for me and enabled me to understand the context.  I would have struggled if I hadn’t had that at the beginning. I hadn’t really expected to be going into a second or third hearing in a series, and without an introduction it would have been very difficult to follow indeed. Also, although the context was given, it wasn’t stated exactly who was there in the hearing and I had to pick up names and roles and match them to voices as we went along.

It was a case where P was a thirteen-year-old child and there was an application for authority to purchase property.  The Court of Protection has jurisdiction over the property of children if they are likely to continue to lack capacity post the age of 18 years:

“The powers under section 16 as respects any other matter relating to P’s property and affairs may be exercised even though P has not reached 16, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18.” ((Mental Capacity Act s. 18 (3))

This case concerned the proposal to purchase two properties on behalf of a child whose parents were separated – using money the child had acquired, I assume, via a medical negligence claim.  The plan, I gathered along the way, was that the child would be able to live with each parent separately and both houses would be accessible and appropriately equipped. The case was about how the child could retain enough liquidity of funds to meet care needs, whilst having access to the two properties, as in essence some of the funds would be invested on each property.  Consideration was given to how the money would come back to the child, and when, and how a Deed of Trust should be drawn up.  Both parents were in court, along with a professional Property and Affairs Deputy and the Official Solicitor.

There were lots of numbers and financial information discussed, and in a technical level of detail. The parents came with their own ideas of what they wanted to contribute and when, and these were contrasted with the needs of P.  Issues discussed were things like: do they start to pay back the child when they move into the property, or when the properties are purchased – because adaptations had to be made.  The parents sounded very reasonable and level-headed but clearly had some understandable personal investments in this issue: it was of course their lives and futures that were being discussed. The judge was able to bring an objective perspective and also to consider factors which in her experience have come up in the past, to forward-plan and mitigate issues that may otherwise need to return to the court for a decision in the future. What I felt unfortunately was that the Deputy was representing the parents and not the child – and that was very much picked up by the judge.

The judge was brilliant.  She said she was concerned that the Deputy wasn’t independent of the parents. And I felt she was frustrated that the Deputy hadn’t done enough to prepare and sort things out in advance of a hearing being needed.  By contrast, I felt that the judge absolutely was standing in the shoes of P and totally upholding his rights. She was just crystal clear with what she thought should happen.  It was about fairness and drawing a line, which was good to see.  She kept bringing it back to P.  She kept saying things like, “but that doesn’t seem fair (for P)”. It was all dealt with extremely logically, which I know you’d think, “well yes, it would be” but it was impressive how there was no mess; there was no tangling up of wood for trees, just decisive resolution.

I really felt the judge knew all the inside details of the case. She was really on top of it: she knew all the family’s personal circumstances, all of their financial circumstances and small factors that made me feel she understood the family. I do wonder, as a family, what that would be like; to have the reassurance that the judge understands, but to also have all of your personal information discussed in court in such depth, and in a public hearing. I also wonder what the family were told about an observer being present. I hope they were reassured. Nevertheless, for the judge, that was a lot of (crucial) information to hold in your head for one hearing when you’ve got another hearing in the second part of your day and you have to do just the same all over again.

Having observed, I won’t be so concerned, if I’m needed for a hearing in the Court of Protection professionally in the future. It helped me understand too what the expectations are in advance of a case being in court, so you’re not in a position where the judge tells you to go away and sort something out and come back again when you’ve done it. You need to have explored all the avenues and exhausted all the opportunities to sort it – in a logical and timely manner – before it lands on the desk of the judge.

I did expect justice to prevail.  And I have to say that I do feel reassured that on the one time I’ve been in court that’s exactly what happened.

Jackie Waggott works as a case manager in the North East of England, heading up a team of Case Managers at Social Return Case Management. She has a clinical background as a specialist physiotherapist and has over twenty years of experience of working with clients with neurological difficulties in the community. Her interests lie particularly in brain injury rehabilitation and supporting clients who experience disorders of consciousness.  She can be contacted by email at jackie.waggott@social-return.co.uk. 

Protection versus Autonomy and Pragmatism versus Principle: A Balancing Act in the Court of Protection

By Patrick McBride, 2nd July, 2020

This is an account of a Court of Protection hearing before Mr Justice Hayden in the case of Re ‘D’ on Friday 19th June 2020. In it I aim to provide an insight into the hearing itself, and — as someone with a keen interest in the law but no legal qualifications — what it was like to observe.

Gaining Access

This was my second time observing a hearing at the Court of Protection. Again I followed the advice here, and my experience of gaining access was much as described in my first blog. One difference was that I emailed to request access the night before, rather than on the morning of the hearing. That I received a reply with an access link at 9:41 pm is some indication of how hard people are working, and over what long hours, to make open justice possible in this time of remote hearings.

Of course, that’s not to say everything is perfect: again, there was no reply to the email requesting a Transparency Order or paperwork to help me follow the hearing, and there were no details or keywords on the listing to indicate what it would be about.

The hearing took place using the Microsoft Teams video conferencing platform. Once the judge had arrived, the clerk announced the hearing was beginning and all those present should ensure that they did not make any recording of it, that they were in a quiet, private place, and that they had taken measures to minimise potential distractions. There were 17 people in attendance to begin with, including the judge (Mr Justice Hayden, who had presided at the first Court of Protection hearing I observed), the barristers, the clerk, solicitors, social and care workers, and observers.

The barrister for the local authority began by saying he had received the judge’s request for him to help those observing proceedings understand what was going on by introducing the facts and background of the case. The judge clarified that this was the practice to be followed in all remote Court of Protection hearings, and was in accordance with guidance that had been published for barristers. He directed counsel to that guidance and encouraged him to bring it to the attention of other members of the Bar.

Background

From the barrister’s introduction, it soon became apparent that this hearing was dealing with the same P (“D”) as the hearing I had read about here. D is a young autistic woman with ADHD, cognitive impairment, anxiety, depression and other conditions. She had previously been found to lack capacity in regard to various decisions.

She had at some stage become pregnant and given birth to a child, and the effect on her had been “catastrophic”: she hadn’t been able to recognise when she was in labour, had discharged herself from hospital very soon after giving birth, would not return to hospital when an ambulance was dispatched for her, and would not take pain medication despite the fact she must have been “in agony”.

In September last year she had been provided with accommodation, but chose not to avail herself of it and instead lived with a boyfriend. There was a suggestion that the relationship had not been a positive one, and she was at risk of exploitation. Once the pandemic had taken hold, there was also concern that she was vulnerable to contracting Covid-19, and was not abiding by social distancing and other guidelines. In April, an Order was made that she could be removed to another location, where she would be able to self-isolate for 14 days before returning to the accommodation she had been provided with in September.

By the time of the hearing I observed, there had been some happy developments. D had forged friendships with the other residents in her new accommodation and she had a new boyfriend.  Overall, she was making good progress and enjoying life, and wanted to remain where she was.

The main issues discussed in this hearing were whether D had capacity to make decisions regarding a) contraception and b) other healthcare, specifically with regard to Covid-19.

Not only did the deliberations provide an insight into the balancing act between autonomy and protection that lies at the heart of the Court of Protection’s operation — they ultimately illustrated what Mr Justice Hayden has described elsewhere as “the fundamental principle that the promotion of autonomous decision making is itself a facet of protection”.

Contraception

It was established that D’s social worker had performed a thorough and competent assessment that concluded D did have capacity to make her own decisions about contraception. The barrister for the local authority, however, submitted that because the matter was of such fundamental importance to D, the court should base its determination on the best possible information. An expert with more experience in the area should conduct another assessment. The recent assessment, for example, had not indicated that D could discuss the pros and cons of different methods of contraception.

The judge acknowledged that this request was “appropriately kind, protective and reflective”, but asked for it to be framed in the context of the Mental Capacity Act 2005 and the presumption of capacity that lies at its core.

Counsel for D, instructed by the Official Solicitor, argued that all the available evidence indicated capacity, so the presumption of capacity had not been rebutted and there was no justification for further intrusion or infringement of D’s autonomy. Moreover, D had been able, with support, to understand, retain and weigh the information relevant to these decisions. (It is one of the five principles of the Mental Capacity Act that “[a] person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”.) Among other things, D knew that the point of contraception was to avoid pregnancy, and had identified that the pill might not be a suitable option for her because she was liable to forget to take it.

The barrister for the local authority raised concerns about D’s capacity to retain the relevant information. Counsel for D argued that she did not need to retain the information for any prolonged period of time because she would receive support at the point of making the decision. The envisaged method of contraception was an injection that would be effective for three months. There were no grounds to worry that the necessary support would not be available at the appropriate time, because D was living in a residential care setting and receiving a minimum of 14 or 15 hours’ care a day.

The judge described the issues involved here as “exquisitely difficult”, and he seemed wary of getting lost in a morass. There was no direct discussion, for example, of whether if she decided not to have the injection, she would then be required to have retained the relevant information before deciding to engage in sexual relations two months later. The court may have been satisfied that the support she needed to exercise capacity in that regard would be available whether or not she had retained the relevant information on her own. Interestingly, D’s barrister raised the prospect that such discussions could lead down the road to a “person-specific” approach to capacity in dealing with sexual relations. As someone new to the functioning and jurisprudence of the court, it was surprising for me to learn how reluctant it has been to follow that road.

Concerns about the retention of information aside, the local authority’s barrister argued that as contraception was a type of medical care, and it had already been agreed that an expert should be appointed to assess D’s capacity in other areas of medical care, the disruption and cost implications of also assessing her capacity with regard to contraception would be negligible. Moreover, the information gleaned from another assessment might be of use in the reduction of support that the Official Solicitor had been seeking.

In response, D’s barrister articulated a general underlying concern that the appearance of a case before the Court of Protection should not become a licence to open up all areas of P’s life to invasive scrutiny and assessment. The judge made it clear that he was of the same view, and would never allow that to happen in his court. However, he encouraged counsel to “stay micro not macro”, hinting at another balancing act – between pragmatism and principle – that the court must perform.

Eventually the judge resolved that although “on a human level [he] would like to yield to the application”, the court must not let well-meaning paternalism dilute the autonomy enshrined by the Mental Capacity Act. D’s capacity to make decisions around contraception would not be assessed again.

Medical Treatment

This second issue demonstrated how fine distinctions can shift the balance of the court’s judgement from autonomy to protection.

Initially I was slightly confused that the barrister for the local authority had separated contraception and medical treatment into two separate issues, given that he also argued contraception was a form of medical treatment. However, in his submissions he made the point that medical treatment covers a broad spectrum, from putting a plaster on a grazed knee to carrying out major surgery. He conceded (without prompting) that the local authority needed to be more precise about the specific decisions with regard to which it considered D incapacitous.

The pressing concern was that D was at “serious risk” from Covid-19. This risk was exacerbated by the particularly severe impact of the pandemic on care homes, and by the fact that D was in the habit of leaving her accommodation to meet friends. The barrister sought an interim order that should D contract Covid-19, she would lack capacity regarding hospital admission. The need for such a remedy could be inferred from witness evidence that she would find it hard to recognise symptoms and seek help. The ordeal surrounding the birth of her child was cited as further indication that such a step was necessary.

The barrister for D agreed that if there were reasonable grounds to suspect D lacked capacity in that regard, an Interim Order could be made in accordance with the local authority’s request. She sought clarity, though, on the precise content of the Order — would the use of force be permitted if D refused to go to hospital, for example?

Here, the judge seemed pragmatically to prefer the ‘macro’ to the ‘micro’: he said it was possible to over-analyse these matters, and pointed out that in the many cases where he and the barrister had previously discussed such eventualities, P had “invariably” gone willingly. He made pains, however, to stress that the test, even for an Interim Order, was not a low bar. Neither should it be, he said — after all, the Order would represent a significant interference with P’s liberties and Article 5 (ECHR) rights.

Still, he was satisfied that in this case the test was made out. He had begun curating the ambit of the Order and would leave counsel to work out the precise wording between themselves. The matter was not so pressing that the Order had to be in place on the same day, and it would be helpful to the Official Solicitor to have some time to find an appropriate expert, so it was decided that they would have until midday Monday.

Observations on tone, technology and the presence of D

The tone of the hearing was calm and cooperative, with no sense of adversarialism. It was clear throughout that this was an inquisitorial jurisdiction, and the aim was to make sure the judge had the necessary evidence before him, rather than trying to ‘win the argument’. Arguments were raised and considered, of course, but not doggedly pressed. The impression was that everyone was working to strike the balance of protecting D while upholding her autonomy.

It also seems worth mentioning – especially in a hearing involving the issues this one did – that not only were the care and social workers, the clerk and some of the observers women, but one of the barristers was too. Given that D spoke only one word throughout, it must surely be a good thing that the voices discussing the case were not exclusively male.

Despite D’s limited verbal contribution, this hearing showed that remote hearings could, despite their limitations, maintain P at their centre. Though support workers from her accommodation were in attendance from the start, D was not initially present on the video call. The judge asked where she was and why she was not present; he had hoped and expected she might be able to join the hearing. He was, he said, “very keen that in the exigencies of remote hearings we don’t lose sight of P”.

It was explained that the hearing had been playing on D’s mind for the last few days, and she had decided this morning that she did not want to attend. The support worker then said that her manager had gone to find D and check whether that was still the case; the judge said again that he would very much like to see her, but emphasised that he did not want to cause any extra anxiety.

The barrister for the local authority suggested that a one-on-one virtual meeting (with a support worker if desired) might be a possibility if that would be easier for D. The judge suspected that such a meeting could indeed be arranged, because the potential of the video platform seemed unlimited: earlier this week, for example, he had ‘visited’ a hospital with a father and his very sick baby.

It was then announced that D had been found and was happy to participate, at least for a short while. The judge welcomed her warmly and gave her the option of a smaller, more private meeting, explaining that it could easily be facilitated by the technology. (It was, he remarked, “a wonderful thing to be able to press a button and get rid of counsel”.) D declined, but she remained visible, if not always obviously engaged, for almost the entire hearing. Although she was relatively uncommunicative, her presence helped the court fulfil its duty to identify her wishes and feelings in a more complete way than pure reliance on her care workers or the lawyers would have done.

There seemed to me a slight tonal shift once D had arrived, with counsel using more accessible language and speaking more slowly. This was especially true while discussions centred on her present circumstances and feelings, like her frustration at not being able to go out alone. Though it might not always have been understood by D, there was the humanising influence of humour, too: when the argument was put that solo outings were unsuitable because D might not understand the Coronavirus restrictions, the essence of the reply was that she wouldn’t be the only one.

As the hearing turned to matters of law, the language inevitably became less accessible and the pace picked up again. Still, D’s presence on camera was a live reminder of the human being at the heart of proceedings.

In making these observations I should note that I don’t have any experience of attending non-remote Court of Protection hearings. I couldn’t therefore say, for instance, whether or how far the presence of D was diminished by her appearing on video rather than in the flesh. It’s true that when, at some point not long before the end of the hearing, D “popped out”, I didn’t immediately notice, and neither did the judge.

On the other hand, I doubt whether, in the normal course of events, D would have been present at all. The journey from her accommodation and the stress and formality of the court building would at the very least have presented a far higher obstacle to her participation than did a webcam in an office a stone’s throw from her bedroom. And her decision that morning not to attend would have been much harder to reverse. That’s not to mention the benefits of remote hearings for other participants — not just lawyers saved a commute, but care workers who might have travelled hours for a hearing that lasted less than fifty minutes, or had to submit a statement instead of attending at all.

Although D had left by the end of the hearing, the judge closed proceedings by asking the care worker to thank her and say it had been nice to meet her. This had the effect of bookending the hearing with consciousness of, and care for D. It certainly seems fair to say that the judge succeeded in making sure that, whatever the exigencies of a remote hearing, the court did not lose sight of her.

Patrick McBride studied languages at university, before training as an actor and going on to work internationally in film, television and theatre. Alongside acting, he has pursued his interest in legal issues by other work and volunteering, including with the Southwark Pensioners Centre, the Belarus Free Theatre and the United Nations Relief and Works Agency in Syria. He is planning to start the Graduate Diploma in Law (GDL) next year, with a view to practising at the Bar. He would be delighted to hear of any and all opportunities for gaining further legal insight or experience, especially in these challenging times. He can be reached at patricklawmail@gmail.com or @patricklawtweet on Twitter (Editorial note – last time I heard from Patrick – in 2024 – he had completed his law degree and was doing pupilage)

Seven Perspectives on a Court of Protection hearing

By Celia Kitzinger – with Upeka De Silva, Grace Carter, Patrick McBride, Observer D, Observer E, and Katharine Shipley, 1st July 2020

There were more than 10 public observers at a recent hearing – we’re not sure exactly how many because it’s sometimes difficult to know which of the names that pop up on the screen are those of observers, and who might be an instructing solicitor, a journalist or a member of the court staff. 

Rather than separate blogs, some of us decided to write down our individual observations and put them together in a single blog post, not least because it illustrates the different perspectives people from a range of different backgrounds bring – and hence the diversity of things they “see” – when observing the same case. These pieces were written independently and then edited and compiled by Celia.

Rather than an integrated narrative then, here are our seven loosely dove-tailing perspectives.

Celia Kitzinger

The judge, Mrs Justice Lieven, made a point of saying at the beginning of the hearing that she’d not previously had public observers at any of her remote hearings (only journalists) and she obviously valued our presence and wanted to be helpful.  She thanked us for attending at the end and pointed out that it’s not “open justice” if nobody comes.   She did remember – belatedly as the applicant started his opening presentation – that an introduction would be helpful (in line with Mr Justice Hayden’s recommendations here) but as it turned out she wasn’t able to provide the helpful and succinct background to the issues that we were hoping for.  Asked if she’d received some of the documents she said, “I’ve had a really non-stop day and I’m not conscious of having had them”.  What she offered as summary was as follows (as closely as I could scribble it down at the time):

“This concerns a young lady who is the first respondent represented by the Official Solicitor and the second respondent is the local authority, and the third respondent is the subject of an injunction to prevent contact with the first respondent and the first respondent’s mother is the applicant”

And then we were into the substance of the hearing. 

This raised a lot of questions.  Why was the mother the applicant, and what was she applying for?  Why was this case before the Court of Protection: what did (or might) P lack capacity to decide for herself (and why)?  What decisions was the Court being asked to make in her best interests?  It would have been so helpful to have this information. 

Information emerged piecemeal over the course of the hearing.  I was very confused when one of the barristers said that “P has the mental and physical functioning to do as she chooses” (so why is this case in the Court of Protection?).  The judge responded by saying, “When I met her, she was very keen on engaging in education and going back to university this Autumn”.  This was a puzzle.  Finally, someone mentioned that P had a brain injury received in a road traffic accident last year, and that although she’d hoped to return to full-time tertiary education, this was now looking unlikely.  The judge said of P (based presumably on something she’d read in the bundle) that it “sounds as if P’s having – in a non-technical sense – a psychotic episode perhaps?”.  Much later, someone else said that P had been assessed as lacking capacity in relation to her care and her contact with others.  At no point was it clear to us as observers what P wanted to get out of this hearing or what her values, wishes, feelings and beliefs were. I assume that the Official Solicitor had this information, but it wasn’t conveyed in court.

The two key issues discussed in court were:

 First, an injunction to restrain contact with P against a man who’d been released from prison earlier this year and had been in contact with her pretty much every day, and spending the occasional nights at hotels with her until the Covid-19 lockdown.  This man was described later as “not her boyfriend or partner”.  The injunction against him was “to protect her from risk”.  There was a short discussion about “a TZ number 2 sort of care and support plan” which I didn’t understand (and which someone referred to as involving “lofty principles but quite what they mean in practice it’s not so easy to say”).  Plans were made for a next hearing at which an injunction would be served on this man (at either an in-person or a remote hearing).

Second, what care should P receive and paid for by whom.  She was the subject of a personal injury claim in respect of the road traffic accident and it seemed likely there had been some interim payments but nobody seemed to know what these were, what was being claimed for her, or what was likely to be available in future. There seemed to have been a lack of coordination and communication on this matter, which could surely have been settled by the Official Solicitor, acting on P’s behalf, obtaining this information from the Personal Injury solicitor and sharing it with the court.  There was also a muddle about whether P was or was not currently receiving psychological support – sufficient that the judge sounded exasperated when she said “It wasn’t ten minutes ago you said she wasn’t getting any psychological help and now it turns out she’s seeing a neuropsychologist on as much as a weekly basis”.  

This somewhat acerbic comment was characteristic of Mrs Justice Lieven in this hearing.  As a social psychologist with expertise in conversation analysis and institutional interaction, I was particularly interested in how the judge asked questions of the advocates and engaged with their answers.  For example, she concurred with the suggestion that there should be a Round Table Meeting (“RTM”) to sort out the care plan and this led to a discussion about whether or not lawyers should be involved in that. The judge was initially of the view that having lawyers involved was a bad idea – that “the less lawyers are involved the better”, that “it shouldn’t be necessary to drag lawyers into something like this” and that their presence would divert health care professionals from focussing on the care plan.  In response, the barrister representing P’s mother pointed out that if P’s mother were included in this meeting, as, surely, she should be, she would be disadvantaged by being the only non-professional present: he asked for his instructing solicitor to be allowed to attend to support her.  The judge accepted that this solicitor (only) should attend the meeting, but that they should be “urged not to speak more than is proportionate, restrain their lawyerly instincts and just be there to support P’s mother”.  A subsequent discussion about whether or not P’s mother was in fact to be included in the meeting led to another exasperated-sounding comment from the judge:

“Mother is a key part of whatever care plan is put together.  What are a bunch of professionals doing sitting around deciding how P is going to be supported at home if the person she’s going to be living with isn’t there?”. 

 When there was further demur, she commented:

“I’m not going to micro-manage your meeting, but if you rock up to the next hearing and it’s all gone horribly wrong because you didn’t include P’s mother, you can imagine how supportive I’m going to be.”

Upeka De Silva

What I appreciated the most was the Judge’s discussion about allowing the mother of the woman in question to have a solicitor with her so that she was appropriately supported when faced with “a bunch of professionals“. The fact that English was not the mother’s first language made that even more appropriate.  Counsel for the local authority argued that having a lawyer present makes other professionals behave differently but this was considered less important. This to me was once again what I appreciate about the Court of Protection – making sure people’s voices are heard.

Grace Carter

I am a law PhD student at Nottingham University interested in observing hearings because my key research interest is on how we can make advance planning under the Mental Capacity Act – which for people with disabilities often means making decisions on their behalf in their “best interests” – more compatible with Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD). 

Article 12 states that “persons with disabilities have the right to recognition everywhere as persons before the law”, and that all appropriate measures should be taken “to provide access by persons with disabilities to the support they may require in exercising their legal capacity”.  The Mental Capacity Act, by contrast, allows substituted decision making which has the effect of denying a person with disabilities the full legal capacity to make legally enforceable decisions. The conclusion that someone lacks capacity to make their own decisions, and the making of decisions on their behalf by a court, is problematic from this perspective.  An article by Alex Ruck Keene suggest that the Court is achieving greater CRPD compatibility by adhering to the individual’s wishes and feelings in best interest rulings, and by requiring clear and convincing justification before they are departed from. I wanted to see to what extent this was true first-hand.

In this hearing the court was conducting advance planning on behalf of someone with a disability and making decisions relevant to their future. As I was watching the hearing I was thinking about the extent to which the individual was included in decision-making, and how meaningful that inclusion was. I was glad to see that the judge included P’s mother in the multi-disciplinary discussion of her care plan – although I did wonder why this sentiment did not extend to P herself. I was also glad that the judge critiqued counsel for the local authority who used P staying out until 4am as an example of ‘risky’ behaviour. I wonder what other examples of ‘risky behaviour’ P was exhibiting however, given that a young woman without a disability staying out til 4am isn’t uncommon and likely wouldn’t be viewed as being as comparatively ‘risky’ as it was for P.

I believe P should be offered support in her decision making – in regards to both her intermediate and long-term care plan, and her relationship with the man she is meeting with. It was not made clear whether an injunction to stop his contact with her is in line with her will and preference. It was not clear how much support she had been offered or would be offered in making decisions about her care and contact, nor was it clear whether and on what grounds it had been decided that she lacked capacity to make these decisions for herself. It also wasn’t clear (to us as observers) what P’s own wishes were.  Overall, it’s hard to make any meaningful judgments on the content of the hearing without knowing more information. Having more detailed facts about the case at the start of the hearing would have been very beneficial.

Patrick McBride

I was interested in the reference to “TZ Number Two” — particularly the care plan reached in that case, which was advanced here as a model for dealing with P’s “risky behaviour” in terms of contact with other people. It turns out that A Local Authority v TZ (No.2) [2013] was a very interesting case involving, as it happens, one of the barristers from this hearing.

TZ was a 24-year-old man with mild learning disabilities, atypical autism and hyperactivity disorder, who wanted to seek out sexual partners. He had, (in No.1), been deemed to have capacity to consent to and engage in sexual relations. In the second case, though, it was found that he did not have capacity to decide whether or not a potential sexual partner was safe, or to decide what support he would need when having contact with a potential sexual partner. 

Accordingly, a care support plan was made to help TZ develop a sexual relationship without exposing him to a risk of harm. The plan focused on educating him and empowering him to make his own decisions, but until he was able to do so, various measures were put in place to protect him. His care workers, rather than an appointed deputy, were entrusted with responsibility regarding day-to-day matters: they would remind him of appropriate behaviour, for example, and encourage him to progress slowly with relationships. It was not their job to vet his potential sexual partners, but to step in — as unobtrusively as possible — if there was reason to think he was at real risk of abuse. The court retained its role with regard to more serious and long-term questions.

The Court of Protection has generally treated capacity to decide to have sex as an ‘act-specific’ rather than ‘situation-specific’ or ‘person-specific’ issue. So if P is found to have capacity to decide to have sex with one person, it is very difficult (and potentially very intrusive) for the court to find he or she does not have capacity to decide to have sex with any other person. This has led to concern about vulnerable people being left at intolerable risk of sexual exploitation by predatory actors. On the other hand, if P is found to lack the capacity to consent to sex, the Court of Protection is prohibited by section 27 of the Mental Capacity Act from deciding on their behalf that they may do so, even with a particular person, or when P has expressed a positive desire. This has led to concern about disabled people being prevented from enjoying their full human rights and freedoms, and cut off from intimacy with others. 

The judgment in TZ strove to strike a pragmatic balance between protection and autonomy — neither to shirk the court’s responsibilities to TZ nor to prevent him living his life in the way he wanted.

Observer D

I am in a Court of Protection hearing myself at the moment. And I find the whole process extremely intimidating. So it was very nice to see a hearing that I’m not involved in!  I recognised one of the barristers from my own case. He seemed nicer than when he comes up against me. 

And I thought that the judge in this case was absolutely brilliant.  She was clearly concentrating on what was happening and she was concerned that the right thing be done for P. The judge tried to get solutions efficiently that were probably in the best interests of the victim. I particularly liked the way that she tried to make everything as easy to follow as possible.  For example, when acronyms were used unnecessarily and excessively (like RTM meaning Round Table Meeting”) she pointed out that she would prefer to reduce the number of acronyms being used. “Do we need to acronymise everything – even roundtable meetings?” she said.  The reason I like what she did is that it becomes very hard to follow if people are speaking in acronyms. It is just jargon. 

She was also really interested in making sure that not too many legal professionals stayed involved in this case and to get as much agreement as possible outside the court.  She tried to create opportunities for people to work things out outside the courtroom. 

She also noticed that something misleading happened. There was a question as to whether or not the patient was receiving any psychological help from the NHS 

One of the barristers said the patient was not receiving any help from the mental health team. This clearly concerned the judge.  She said, “given the seriousness of her brain injury last year – she was an in-patient for a very long time – there must be some mental health follow-up on that, mustn’t there?”  The mother’s barrister said “I agree that there should be, but there isn’t“.  A bit later it turned out that the patient was receiving support from an NHS neuropsychologist every week.   The judge pointed out that she had been told that the patient was not receiving psychological help and then everybody corrected themselves.  Nobody really apologized for the misleading comments but it’s interesting that it was known by at least some people in the hearing that the patient was receiving frequent  psychological treatment on the NHS and yet for quite a few minutes they allowed it to seem to the judge as though the patient was not receiving any psychological treatment at all. 

The  truth came out in the end and it didn’t seem sinister,  but it was very interesting for me,  as somebody who has to use the Court of Protection, to see how something which is not true can seem to be true for some time – and I could see that it might not always get corrected. 

I’m not going to pretend that I fully understood everything that happened.  It involved a lot of different institutions and organisations: insurance companies, payments for crash victims, concerns about the behaviour of vulnerable people, possibly abusive relationships, the role of families, local authorities, hearings and prisons and roundtables and all this type of thing 

I could tell all of these things were in play but because I don’t have the understanding of how these different institutions work and collaborate together (the word ‘multidisciplinary’ was used many times) I don’t really know exactly what was going on.

If I were a bit more familiar with the case then I might have found it a bit easier to follow but I certainly am grateful for the opportunity to have been able to listen to this case and I will take up the offer to observe a Court of Protection hearing again in the future..

Observer E

This hearing is the first experience I have had of observing the Court of Protection ‘in action’. Admittedly, the fact it has taken me so long to actually observe the Court (in light of me having spent many years writing, reflecting, and teaching on the Mental Capacity Act 2005 and the work of the Court) is perhaps a slight indictment on how the Court of Protection has been presented over the years. The ‘secret court’ narrative which seems now well-established has probably been a block to many members of the public accessing open Court hearings, and even thinking they can. I was pleased to hear the judge’s thanks at the end for the public: encouraging the public to attend like this will massively help to demystify the Court’s processes. Her comment, “they’re not actually public if nobody turns up” made an important point. However, I would add to this that not only is it important that the public do turn up, but that the public have sufficient details of the case in order to make their ‘turning up’ purposeful.  

Although members of the public were welcomed to the hearing and clear instruction was given on the Transparency Order, I felt a precis of the case would have been immensely helpful to have included the public in a more meaningful way. Although I ‘worked out’ the circumstances of the case as the hearing went on, particular elements of the discussion were difficult to follow as sufficient information was not known prior to the observation. If the public really are welcome in open Court settings then I would suggest a clear precis is offered at the start of the hearing.

Nonetheless, observing the hearing was fascinating. I was surprised by how informal it seemed (apart from the obvious deference to the judge e.g. “I’m sorry M’Lady for the acronyms” etc).  Some of the informality of the hearing might have been because insufficient information had been passed to the Judge in time for her to sufficiently process prior to the commencement of the hearing. As a result of this, the initial questions she asked of those representing the respondents were conversational in nature as she tried to tease out information. The hearing presented itself more as a meeting and discussion rather than a Court hearing. Of course, this may be good in order to further demystify the Court of Protection and make it even more accessible, but it was in my opinion that the judge would have benefitted from more time to read the particular circumstances of the case before the hearing started.

I will use this, and my observation of further hearings.  to inform my work on supporting other professionals to understand the Mental Capacity Act 2005 ‘in action’.

Katharine Shipley

Access to observe this case was extremely easy.  I was emailed the Zoom meeting details within 10 minutes of requesting access.  The Transparency Order was emailed to me directly following the meeting and the judge outlined the main points of this at the start of the hearing.

I found this case somewhat difficult to follow at first.  It was helpful that the judge outlined the parties involved in the case, when she had realised that the public would not understand the context.  Even so, it took a while to work out what the key issues were (although the judge was clearly also struggling with this at times!). 

In terms of the content, as a Clinical Psychologist and Court of Protection Special Visitor, I was familiar with the mental health issues, although other members of the public might have struggled to follow some of the language.  Even the judge was flummoxed by the acronym RTM (round table meeting).

I did find myself wondering why much of the discussion was happening amongst legal professionals, when the issues related so centrally to mental health support and treatment.  The judge helpfully stated that a multi-disciplinary meeting regarding P’s needs would ideally take place without lawyers.  There was a thoughtful discussion about the effect of lawyers upon such a process and I was impressed with the judge’s consideration of the applicant’s potentially disadvantaged position in professional meetings.  

The confusion about P’s current care and support was evident and I was concerned at one point that her immediate needs might be misunderstood.  My hunch was that her needs had not been well identified by the right service/s.  It was evident that the legal professionals understandably struggled to comprehend what these needs were and the uncertainty about who was providing what care appeared to reflect inefficient communication between the involved parties.  I found this somewhat depressing as I suspect that it at least partly reflects the current burden and pressures upon public services. 

During a discussion about a committal application, consideration was given to conducting this virtually, as opposed to in-person.  It was felt that the issues might be taken less seriously in a virtual hearing and that the gravity of the situation would be conveyed more successfully with a physical appearance in court.  I found this quite fascinating and the idea resonated with me.  Many of our usual rules and social conventions have been bent or cast aside since the start of lockdown and the new methods of working can appear as a kind of game.  There is also definitely a kind of distancing involved in the use of virtual platforms.   My teenage daughter told me that when she talks to her friends on a video call, she feels that she can speak more freely, as if the interactions are not quite real!

The thing that struck me most of all, was how little mention there was of mental capacity.  Although this was only mentioned in passing, I gathered that it had recently been established that P did not have mental capacity in relation to the issues of concern, and there was mention of a proposed further assessment of her capacity in the coming months.  She had apparently sustained a head injury in the past year and considering that there can be significant recovery over the first year or two following such an injury, regular reviews of her capacity will be crucial.  There was also mention of P’s capacity in relation to her engagement with social media, but this was not discussed in detail. P sounded very vulnerable and I hope that the immediate risks to her will be addressed.  There appeared to be some confusion about the questions for this hearing, but at least by the end, these were better formed.

Embedding Open Justice Through a University Law Clinic

By Jaime Lindsey – 30th June, 2020

[Editorial Note: The Open Justice Court of Protection Project is very interested in pursuing similar short-term collaborative projects, to embed Public Observation of the Court of Protection into ongoing work and activism by offering brief “training” seminars online, and equipping members to attend, observe, and write about court hearings. We would especially love to hear from any health and social care teams, or advocacy groups and Disabled People’s Organisations that would be interested in a collaboration. Please get in touch via our Contact page.]

As has been widely emphasised both on this blog platform and elsewhere, Open Justice requires that justice is not just done, but seen to be done. As someone who has attended many court hearings over the years, the theatre of the court room is something I have always enjoyed. It’s important to be sensitive to the fact that these are the lives of real people being played out, but court hearings provide real animation to the law that we teach in universities. Many generations of law students have walked in to their local court building and sat in and watched hearings. During the pandemic, though, they cannot do this. As a Lecturer in Law at the University of Essex, I’ve been hearing that some students have been struggling during the pandemic to access work experience opportunities. So we have launched an exciting new partnership with the ‘Open Justice Court of Protection Project’ to train Essex Law Clinic student volunteers to access remote Court of Protection (CoP) hearings throughout July and then write a short blog post about their experience for this website.

A new partnership

This partnership combines two aims: maintaining Open Justice during the pandemic and facilitating law students to gain insights into how the courts work when they might otherwise not be able to do so. As part of the training for this partnership, delivered jointly by Dr Jaime Lindsey and Professor Celia Kitzinger, Essex Law Clinic students have been informed how to locate relevant hearings and how to make contact with the court to observe, as well as the etiquette for observing hearings. We realise that, for many students, this will be their first experience in a court ‘room’ and so it was important for us to provide them with some training to give them an idea of what to expect, and what is expected of them. After the training, the students will look for a case suitable for their observation and they will then be encouraged to write a blog post about their experience.

We expect that the students will develop a number of skills during the course of the project, including listening, note-taking, observing, writing and professionalism skills. Most importantly, they will see justice in action in unprecedented times and contribute their small part to securing Open Justice.

A contribution to open justice

I read Celia Kitzinger’s original blog post about supporting a participant in CoP proceedings keenly when it first made the headlines back at the start of the pandemic. While I was disappointed to read about the experiences of the ‘lay’ participants in the case, I was a little unsurprised. As I often tell my students in their first year of university, studying law is like learning a new language. It’s not always easy to understand the jargon or follow the procedural elements of what is going on, although there are ways that this can be facilitated by the professional participants in the case. In some ways the pandemic has made this even more of a challenge, though, with the physical distance creating a material separation between everyone attending. Non-professional user experience of remote hearings is rightly a priority for research in this area, and the Open Justice Court of Protection Project is providing an important contribution to this agenda.

We believe that through this partnership we will also continue the process of embedding the importance of Open Justice as an essential part of access to justice within the Essex Law Clinic, something on which, under its Director – Professor Donald Nicolson – Essex Law Clinic has been leading.

What next

I hope that readers of this blog will enjoy some posts from our students over the coming weeks, and that their contributions will further highlight the wide range of experiences of remote hearings. Perhaps some may even provide new suggestions for reform and contribute to ongoing debates about the importance of Open Justice.

Dr Jaime Lindsey is a Lecturer in Law at the University of Essex and a supervisor at Essex Law Clinic. Her current research explores mental capacity law, adult safeguarding, the Court of Protection and access to justice. She has recently observed remote hearings for research into procedural justice and virtual hearings, building on previous research  undertaken observing face-to-face hearings in the Court of Protection in 2016.

Image made by Freepik from www.flaticon.com

The first two weeks of Open Justice in the Court of Protection

By Gill Loomes-Quinn and Celia Kitzinger, 29th June 2020

It’s been a good two weeks for Open Justice in the Court of Protection.

On 15 June 2020 we formally launched our “Open Justice Court of Protection” Project and we’ve been overwhelmed by the enthusiasm with which it’s been greeted, and the number of people – many more than we expected – who want to observe hearings. 

More than 70 people (many with professional involvements in issues related to mental capacity and best interests) have contacted us in the last two weeks to say they’ve been inspired by our project to observe hearings.  These are just the people who have told us about it: there are probably others we’re not aware of who’ve also now observed hearings for the first time.

Some have written for our website about their experiences – with blogs from  several aspiring barristers, a full-time carer, a nurse, the Policy Officer from an end of life charity, a speech and language therapist and a Mental Capacity Act Trainer.  We’ve also been contacted by three people who have forthcoming Court of Protection hearings for a member of their family, two of whom have so far observed hearings

Public Impressions of Person-Centered Hearings

People explain in their blogs what they learnt from watching the hearings. What shines through is their appreciation of the huge emphasis the Court places on the autonomy of the disabled people at the centre of its work, and of individualised, person-centred decision-making. One observer (who herself advocates for a family member) said of the hearing she witnessed:

“The law enabled a person with a learning disability to access the same rights and healthcare as any other citizen. This gives me a huge sense of relief that my family member will be safe and listened to with these structures in place, and free to live the life he chooses.”

Others made similar points:

“My main focus is that the person remains at the centre of everything. It was so reassuring to see that this also was the primary focus within a formal court hearing for Mr Justice Hayden”  

(Sara Shorten).

“What I saw happen in this case, was a serious focus on getting things right for the individual person at the heart of it all”

(Meriel Scott)

 “Mr Justice Williams maintained unwavering focus on what is right for P … I left feeling reassured that person-centred decision-making, an issue I feel strongly about, prevailed.”  

(Upeka de Silva).

In one hearing, an observer was impressed by the fact that “P spoke for most of the 60 minutes of the hearing … probably for about 80% of the time. … I think P certainly had a very fair and full hearing” (David Thornicroft).  Another observer commented that she felt P’s relative was better able to contribute her views in court because “the telephone conference, compared with a physical courtroom, gave her more control and freedom to speak.  She came across very powerfully.” (Meriel Scott).   This is all very different from Celia’s own initial experience of remote justice in which P’s daughter felt utterly ignored and silenced by the Court (described here).  Thankfully, no subsequent hearing seems to have been as lacking in empathy for the patient and for the patient’s family as this first remote hearing.

How Technology is Working in Remote Hearings

Technology seems to have worked reasonably well across all the hearings and nobody expressed the view that remote justice was inferior to the physical court room or risked compromising the principle of a fair hearing.  Observers have described the hearings as “pretty seamless” with “almost no glitches or interference” (Patrick) and one 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” (Upeka de Silva). Another commented:

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. 

(Olwyn Cockell)

What Blocks and what Facilitates Access to Hearings for Public Observers?

1.  Lists

The biggest obstacle to attending a Court of Protection hearing is not knowing when and where they are happening and how to gain access. 

Court of Protection hearings are listed in three different locations ( First Avenue House, the Family Division list and CourtServe).   Checking across three different lists, each with its own peculiarities, is time-consuming and frustrating and CourtServe, especially is “very user-unfriendly …(for users who are members of the public)” (Meriel Scott).

I think I am reasonably good at finding how to do things on the internet, but I wouldn’t have had a clue about how to access this hearing without Celia’s blog post here and the daily suggestions of listings here. Open justice is a great idea in principle, but if it’s not easy to access it then surely it kind of defeats its own objective?

(David Thornicroft)

What’s needed is “a comprehensive consolidated listing system”

(Patrick). 

Also, for each court hearing (whatever list it appears on) observers would value “a few keywords to indicate the themes or issues involved (as is done on the lists from First Avenue House) (Patrick).  One observer, who left a court hearing partway through (because it was on a financial topic she found impenetrable) points out that she would never have signed up to observe it if she’d known in advance what it was about. She says:

“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)”

(Upeka de Silva)

With “precious little information available about the nature of the hearings and the potential issues to be resolved” (Meriel Scott), it’s hard to choose a hearing that will be of maximum benefit.  We’ve had several emails from intensivists, a palliative care nurse and a dentist asking if we can tell them when a hearing relevant to their specialities comes before the Court.  Of course, we cannot. We also suggest that access to information regarding the “impairment[s] of, or disturbance in the functioning of, the mind or brain” likely to be involved in a hearing would likely make it easier for Disabled People’s Organisations, and others concerned with Disability Justice to observe hearings that are of specific relevance to their work. This would not only be in-keeping with the broad aims of Open Justice in the Court of Protection, but would also embrace the goals of the United Nations Convention on the Rights of Persons with Disabilities: particularly the duty in Article 4 UNCRPD for States Parties to “actively involve” disabled people and their representative organisations in the “development and implementation” of legislation impacting disabled people.

We are delighted to be able to report that this week the Family Division (High Court) site has added a sentence specifically naming “members of the public” as among the groups who can contact them for assistance if they wish to attend a hearing (this was not previously the case). Access to hearings from this site is now straightforward for members of the public, and recent cases have seen an increase in attendance (reflected in our blog posts from observers). 

Recently however, there were four days during which the email address for contact to arrange to observe a hearing had been mistyped on the First Avenue House website, so emails bounced back: five people contacted us about this and we were able to provide the correct email address: we don’t know how many simply gave up.  During the same period one of us (Celia) found the email address for one of the regional hubs (Leeds) reproduced in CourtServe with an error, such that anyone reliant on that for observing a hearing in the North East-East Region would have been flummoxed.  Many of the hearings listed in CourtServe do not provide contact emails at all for any would-be observers and those that do often lead to dead-ends with court staff unable to help

Our solution to the patchy situation with regard to listings has been to tweet individual court hearings across England and Wales along with (as best we can determine) sensible contact information so that at least people are aware of the hearings and stand some chance of being able to observe them.  Where we are fairly confident that a hearing will be easy to access (although we can’t be sure that it won’t be adjourned or vacated) we list it as a “Featured Hearing” on our website.   

We are assured that the Court of Protection is looking into this problem and has a plan to roll out a new standard process for ensuring that all courts co-ordinate with their relevant regional Hub to provide consistent and timely information about hearings for CourtServe (this will also serve to educate court staff).   We look forward to seeing this in action!

2. Court staff

The first point of contact for members of the public wanting to observe hearings is the court staff.  Some people were very impressed by them. One observer described a judge’s clerk as “fabulously organised” and efficient.  Another observer extolled the virtues of a different member of the court staff:

So, I’d like to commend the Administrative Officer who dealt with my applications quickly and courteously. I emailed my requests to attend the 3 separate hearings at about 9.00pm the previous evening. By 9.30am on the morning of the hearings I had received several replies from the Admin Officer explaining what I could and couldn’t do. All friendly and clear, and not the slightest hint that my request was in any way inconvenient. She is a credit to the Court!

(David Thornicroft)

Equally, court staff can (and do) block access by failing to answer phone or email enquiries, not passing on messages to the judge in a timely fashion, or by wrongly informing would-be observers that all remote hearings are private – as Celia has been told on six occasions in different regional courts.

3.  Observers’ Anxieties: What’s Expected and will I Understand?

Many people anticipating their first observation in the Court of Protection are concerned about what to wear (for video-hearings), what to call the Judge, what to say if they are addressed by the judge, and what will be expected of them while attending a hearing.  This can amount to “cold-blooded fear”,  even from people who are otherwise very motivated to attend a hearing.  This kind of anxiety is a deterrent.  We would welcome Guidance from the Court on proper decorum for observers.

In the meantime, we suggest that people dress reasonably smartly and find a neutral background in a quiet and undisturbed place.  We’ve referred people to the helpful list of ways to address the judiciary here but also pointed out that in practice it’s often not necessary to use any address term – though many people report being anxious about getting this wrong in the context of  “rigid formality when addressing the judge” and the “abundance of ‘lordships’ and ‘learned friends’”.

In regional court hearings, public observers may often find it is the judge herself who calls to add them to the conference call and they are often taken aback to find themselves speaking directly to the judge (e.g. Meriel Scott; Veronika Maresova).

The most common interaction with the judge concerns the Transparency Order which is also a source of anxiety to many observers (“does it mean I can’t say anything publicly about this case?”).  We have therefore published a blog about Transparency Orders which people can read in advance of attending a hearing.

In terms of understanding what’s going on, the short answer is that most of us who are not lawyers (perhaps even more specifically, lawyers in the Court of Protection) do not understand a lot of what goes on.  We don’t have ready access to what is meant by “a Section 49 order” and we may not have the details of “the TZ No. 2 case” when it’s raised in court.  The language and terminology, the short-hand explanations and the acronyms are often opaque.  But we can understand the dilemma that has led to the court hearing, and we can understand in broad terms the way the court is trying to address this.  That’s what motivates us to attend hearings.

There are two key opportunities for public observers to gain insights into the issues before the court during a hearing: these are (1) with an introduction at the start of the hearing itself; and, (2) via access to preliminary documents (e.g. skeleton arguments, position statements, draft orders), and any other documentation relevant to the hearing and available to public observers. Our experience so far has revealed some important points about each of these processes:

Summarising the Matter before the Court at the Start of the Hearing

In order to maximise understanding, someone (the judge or counsel for the  applicant) needs to do a brief introduction to the case and to the key issues to be addressed in this hearing  – as recommended by the Vice President of the Court of Protection here.   This is still commonly not done (even when there are many public observers) and the quality of the introduction when it is provided is very variable. It may just be that this practice is new and unfamiliar but without it (or with a poor introduction that confuses more than it elucidates) we are lost!  At a minimum we need a bit of information about who P is, and the ‘history’ that has led to this case, including any declarations relating to P’s lack of capacity to make certain decisions; and a summary of what the key issues are to be addressed in this hearing.  We also need to know who the parties are (e.g. “P’s mother” represented by Barrister A is the applicant; there are two respondents, P represented by Barrister B and the Local Authority represented by Barrister C”). We also need a bit of information about the positions they are taking (e.g. “P’s mother believes it would be best for her daughter to leave the care home and come back to live at home with her; the Official Solicitor on behalf of P and the LA do not think returning home is in P’s best interests”).  Well done – which probably means prepared in advance, succinctly, accurately and neutrally – these introductions take no more than 3 or 4 minutes and make a huge difference to public observers’ abilities to follow the hearing. 

“It was very helpful to get a brief summary like this from the Judge at the beginning of the hearing … It was hard for me to know exactly what all the terminology meant and what was being referred to and also to understand exactly what stage things were at in this whole series of hearings that had been held about this young gentleman.  But I definitely felt I got the general gist.

(Meriel Scott)

By contrast, another observer attended a hearing at which there was no introductory summary and found it “hard to comprehend”.

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 … this would have considerably helped my understanding.

(Olwen Cockell)

One of us (Celia) attended a hearing at which a clearly over-worked and under-prepared judge took it upon herself (belatedly – she remembered part way through the opening submission that this had been advised) to give an opening summary.  Although the gesture was appreciated, it was actually incomprehensible and left observers piecing together information during the course of the hearing – with “ah hah!” moments as each successive piece of the jigsaw fell into place (P has an acquired brain injury – 15 mins into the hearing; P lacks capacity to make her own decisions about contact; 30 mins into the hearing etc.).  It might be an idea for judges to be provided with a kind of “template” of “ingredients” for a good introduction to a hearing.

Access to Court Documentation for Public Observers

People observe court hearings for different reasons and with different interests and skill sets.  Not everyone will want (or understand) the paperwork associated with a hearing. For many, an opening summary will provide enough background.  For some though (including some law students and trainee solicitors and people involved in delivering mental capacity training),  access to the documents is very helpful: certainly both the authors of this piece  would always appreciate having the position statements and draft order for a hearing.  As barrister, Kyle Squire explains in his blog about the “bundle”: 

“If you do intend to observe hearings it is really worth asking for it and reading whatever you are sent in advance. It will help you understand what the case is about and what the issues are for each hearing. It will all begin to fall into place after a while!”

We’ve rarely received any of this information in advance, so this is perhaps an aspiration.  It’s often revelatory, in terms of understanding what we’ve been listening to, when we get it after the hearing.

A valued experience

We believe it is very much worth addressing and overcoming these barriers, to facilitate members of the public to attend hearings: as this experience is often reported to be tremendously valuable. 

I am in a Court of Protection hearing myself at the moment. And I find the whole process extremely intimidating.  So it was very nice to see a hearing that I’m not involved in!  I recognised one of the barristers from my own case. He seemed nicer than when he comes up against me. And I thought that the judge in this case was absolutely brilliant.  She was clearly concentrating on what was happening and she was concerned that the right thing be done for P.

(Anonymous).

I would definitely encourage others to observe a hearing in the Court of Protection. Even in a case like this one, where the subject matter at first seemed completely arcane, issues were raised that were wide-ranging and significant enough to interest a (relatively!) broad array of people. The close-up camera shots of the participants provided a remarkably intimate window into aspects of the hearing, like style of advocacy, that would be of especial interest to anyone studying (or thinking of studying) the law.

(Patrick, aspiring barrister)

Absolutely fascinating to see the law in action. I was relieved to find that there was nothing that I have been saying on MCA training over the past 15 years or so that contradicted what the Judge said, and I really liked the way she set out her reasonings.  … Remote hearings won’t necessarily be around for ever. And it’s so much easier to observe (or in this case listen to) one remotely, than actually going to the court itself. If you’re involved in health & social care in any capacity (pun intended!) then you should take advantage of this opportunity now before it disappears. I’m looking forward to doing it again very soon.

(David Thornicroft, Mental Capacity trainer).

We are both delighted to have discovered over the last fortnight that many other members of the public, from the wide variety of personal and professional backgrounds touched by the Mental Capacity Act 2005, share our commitment to understanding and scrutinising the work of the Court of Protection. And that many members of the legal profession, the judiciary, and court staff share our passion for, and dedication to upholding in practice the principles of Transparency and Open Justice that underpin the role of the public observer in court hearings. One of us (Gill) spent a month at First Avenue House observing court hearings, not long after the introduction of the Court of Protection Transparency Pilot (you can read about her experiences here). She remembers feeling frustrated at having been caught in the middle of what she experienced as a communication gap between lawyers and court staff on the one hand (who perceived the Transparency Pilot as a significant increase in their workload – when “no one ever comes anyway”), and members of the public, including academic researchers on the other (who had no idea about the Transparency Pilot, or the opportunities it presented). Gill is relieved to be witnessing a resolution of this stalemate. We are both excited to be bridging this gap – and to continue building on the momentum that this project has gained in the last two weeks. We look forward to our project playing a role in championing the values of Transparency and Disability Justice in the Court of Protection.

Articulate, Eloquent and Passionate – but does P have the Mental Capacity to Make Decisions about Four Areas of her own Life?

By David Thornicroft, 29th June, 2020

Having delivered Mental Capacity Act training for many years I have been meaning to observe a Court of Protection hearing for ages, but it’s one of those things you never get around to. The travelling, making arrangements, what if I turn up in London, or Exeter, or Newcastle or wherever, and the case is cancelled at the last minute? Can I afford to turn down a day’s training (for which I would get paid) in favour of going to the Court (for which I wouldn’t)? Excuses really, I suppose. Then I saw a stream of Twitter posts from Professor Celia Kitzinger encouraging people to take advantage of the fact that the CoP is holding remote hearings. What a great idea. I contacted Celia; she couldn’t have been more helpful, and I applied for permission to observe 3 different hearings on the same day – 10.00am, 12 noon and 1.00pm.

It turned out that the 10.00am hearing was “vacated” (ie cancelled) at the last minute, and the 12 noon hearing was actually private (it had been wrongly listed as public). But I was given permission to observe the 1.00pm hearing.

I’ll give a brief summary of the hearing, and then I’ll give some thoughts and reflections on the whole process. The hearing concerned a woman (I’ll call her “P”) who had been diagnosed with delusional disorder and hoarding disorder. P did not accept either of those diagnoses. P had been assessed by the local authority as lacking mental capacity in four areas of her life: residence; management of property; care; and acquisition and retention of possessions. On the basis of that lack of capacity the Court of Protection had previously granted deputyship to the local authority in respect of P’s property and finances and of her health and welfare. P was challenging these assessments, saying that she did indeed have capacity to make decisions for herself in all of these areas, and therefore the deputyships should be cancelled.

The hearing itself lasted about an hour. District Judge Temple adjourned for 30 minutes to compose her thoughts, and then gave a very detailed explanation of her judgement which lasted about 40 minutes.

Here are some random observations of my own about the hearing …

I think I am reasonably good at finding how to do things on the internet, but I wouldn’t have had a clue about how to access this hearing without Celia’s blog post here and the daily suggestions of listings here. Open justice is a great idea in principle, but if it’s not easy to access, then surely it kind of defeats its own objective?

Which people come to mind when you imagine a court room? The Judge, the lawyers, P – after that then perhaps we’re struggling to think of any others. So, I’d like to commend the Administrative Officer who dealt with my applications quickly and courteously. I emailed my requests to attend the 3 separate hearings at about 9.00pm the previous evening. By 9.30am on the morning of the hearings I had received several replies from the Admin Officer explaining what I could and couldn’t do. All friendly and clear, and not the slightest hint that my request was in any way inconvenient. She is a credit to the Court!

District Judge Temple dialled me in to the conference call (it was all over the telephone, no video) at the correct time, made me feel welcome and explained about the transparency order. I thanked her for allowing me to attend and she replied “It’s a public hearing Mr Thornicroft” – I took this to mean that it was no problem at all and there wasn’t even a question of whether it was appropriate for me to be there. When the hearing started, she explained to everyone who I was, and she also asked the two barristers whether they had any objection to me being sent the paperwork on the hearing (they didn’t).

On the point of the paperwork, it would have been nice to have had access to this during or before the hearing, but I appreciate that it might take time for it to be sent through. Its absence didn’t really affect my ability to follow the hearing. District Judge Temple emailed it to me the following day, and it was very brief: just a one-page “position statement” from each barrister setting out their position on P’s mental capacity.

I was impressed by the fact that P spoke for most of the 60 minutes of the hearing. It consisted of firstly her barrister asking her questions, and secondly the local authority’s barrister asking her questions. The questions were short and to the point (e.g. “tell me about your hoarding…?” or “what makes you think that …?” or “why do you disagree with the diagnosis …?”). Both barristers were then quiet, and they allowed P to answer in as much detail as she wanted. Occasionally, when there was a pause the barrister would start to ask another question just as P started to speak again, and each time the barrister said “Oh I’m sorry, do carry on …”. I felt this allowed the Judge to get a really good picture of P, her opinions, her situation etc.

As an aside, I couldn’t help comparing these barristers’ questions with the journalists’ questions during the Coronavirus daily briefings over the past few months. The journalists’ questions have often been lengthy, complicated and seemingly with the purpose of scoring points rather than getting to the truth!

I found myself wanting to know the extent to which P’s answers to the questions mirrored the reality of her current life. For example, when she said that she didn’t have a problem with hoarding any more, I wanted to know how true that was. I don’t know if there was additional paperwork which would give an answer, but those links to the reality of P’s current situation were never referred to by either barrister, or by the Judge.

P displayed an impressive understanding of various pieces of legislation – for example, she said repeatedly that she doesn’t have to prove her own mental capacity!

P complained at one point that she hadn’t realised that a meeting with a social worker had been for the purpose of assessing her mental capacity. She felt that was a bit underhand, and I think her point was that she would have tried harder if she had realised that it was an assessment. Again, I don’t know whether this is true, and even so it raises the interesting question of whether we should make it clear to P that we are indeed going to be assessing their capacity in this meeting. On the one hand it’s usually a good principle to be honest, but on the other if that means that P will “try harder” then are we really getting an accurate picture of P?

The Judge gave P lots of time to put her case; nothing felt rushed and at the end both barristers, and P, were given the opportunity to add anything else. For the entire 60 minutes, P had probably talked for about 80% of the time.

Of course, a drawback of a telephone-only conference is that there was no body language to observe. We had to rely on voice and verbal language only. Video would have been nice, but I don’t think in this case it was a significant problem.

Both barristers made the point that this is likely to be an ongoing issue. These capacity questions are not single, one-off decisions (like the amputation of a leg, for example), but instead they are ongoing decisions about P’s daily life. For that reason, the Judge gave a lengthy verbal summary and explanation, which she said would be transcribed, to be used as a possible reference point for future disputes.

After a 30-minute adjournment District Judge Temple summarised all of the points that P had raised. She then reminded herself of the relevant parts of the Mental Capacity Act – i.e. how to define a lack of capacity. She also referred to Principles 1, 2 and 3 of the Act, especially Principle 1 which was her starting point, regardless of the fact that she herself, as the Judge when the deputyships had first been granted, had previously agreed that P lacked the capacity to make decisions in these four areas. She stopped when she used a complicated word or phrase (e.g. “predicated on …”) to explain what that meant.

The Judge went carefully through each area and explained why in each of them she was satisfied that P was unable to make the decision. She then said she was satisfied that P had an impairment or disturbance in the functioning of her mind or brain (delusional disorder and hoarding disorder) and that her inability to make each decision was caused by this impairment or disturbance.

District Judge Temple therefore ruled against P, and in favour of the local authority, in all four areas. She said she was satisfied that the presumption of capacity had been rebutted, and therefore the deputyships were valid and would remain.

Finally, the Judge encouraged P to engage with treatment for her conditions and said that if this treatment was successful then it might, in future, lead to her regaining capacity. I thought this was a helpful thing to say as it gave P a glimmer of realistic hope.

Absolutely fascinating to see the law in action. I was relieved to find that there was nothing that I have been saying on MCA training over the past 15 years or so that contradicted what the Judge said, and I really liked the way she set out her reasonings. Even if someone disagreed with the judgement itself (and I think it was a close call – it wasn’t obvious to me which way it would go) then I think P certainly had a very fair and full hearing.

Remote hearings won’t necessarily be around for ever. And it’s so much easier to observe (or in this case listen to) one remotely, than actually going to the court itself. If you’re involved in health & social care in any capacity (pun intended!) then you should take advantage of this opportunity now before it disappears. I’m looking forward to doing it again very soon.

David Thornicroft is Managing Director of St Thomas Training. He says: “We’re based in Hampshire, and we deliver health & social care training all over the country to staff of local authorities, NHS Trusts, housing associations, charities, private care companies etc. Around 60% of our work is to do with the Mental Capacity Act, plus we do a lot of Safeguarding Adults, mental health issues, autism, epilepsy etc. Check out our website here for more details.” David tweets @DMThornicroft

Bundles and Bundles of Documents

By Kyle Squire – 27th June, 2020

“Bundles” are often referred to during court hearings, but what are they?

The court bundle is, literally, a bundle of documents. In previous versions of the procedural rules for civil cases (i.e. those outside of the Court of Protection) it was explicitly said to be a ‘bundle of documents’ – though that seems to have fallen out of use in subsequent revisions of the rules.

Historically – at least since the eighteenth century – and still sometimes to this day, they were sent by solicitors to barristers wrapped in pink ribbon or tape.  Nobody knows anymore exactly why pink ribbon or tape was used – but it was probably a faded red originally and it’s this that led to the term ‘red tape’, meaning an excessive number of rules and regulations before an action can be taken.

In modern pre-Covid times, the bundle would almost always have been prepared and sent to the court and advocates as a hard copy lever-arch file (or several such files) of all of the documents relevant to the hearing for which it was prepared.

For remote hearings, the bundle is now usually a PDF (or set of PDFs) sent to each of the parties and the court. These may be referred to as e-bundles, but they are really just a PDF of the documents. Sometimes they are sophisticated and interactive (being able to click on links to navigate more easily), but other times they are the pages simply scanned into a document.

It has been a steep learning curve for many lawyers to get to grips with electronic bundles and remote working. I have moved from working on a single laptop with hard copy bundle and notepad (in the physical courtroom) to two laptops (one for the video conferencing platform, and the other for notes and to work from) and a tablet (to be used in place of the hardcopy bundle). It is near impossible to successfully use one screen to see the participants, your documents and your notes at the same time. At the start of Lockdown, some judges were unable to access e-bundles because of outdated technology, but in my experience, most are now able to access bundles electronically.

That being said, there are benefits to remote working and e-bundles. It enables you to work in ways you previously could not: rather than each working your way through separate documents, you can share documents on the screen. As an advocate you can more easily see your clients and co-advocates and their reactions (and pick up on facial cues which shows they may not be following your point). Not having to lug around several thousands of pages also does wonders for your back!

If you observe a hearing you will see the lawyers and the judge looking through lots of paperwork, either in lever-arch files or electronically. Most remote hearings begin with one of the lawyers checking with the judge that the relevant documents have been received from all the parties – often you will hear that they have only been emailed through the day before, or even on the morning of the hearing.

The bundle can be a boon or a bane. Prepared properly, and delivered promptly, it can help a hearing run like clockwork: it contains all the relevant documents and omits the irrelevant; organised in a logical manner and properly paginated. Prepared poorly, it has the ability to entirely derail a hearing, and certainly make it much more difficult to navigate.

Practice Direction 4B

The preparation of bundles in the Court of Protection is governed by Practice Direction 4B of the Court of Protection Procedure Rules 2017. The general rule is that it is the solicitor for the applicant (that is, the person who brings the proceedings to court) who is responsible for preparing the bundle. This is a challenging job, so when the applicant is the person who is the subject of the proceedings (the person who lacks, or may lack, capacity to make important decisions, “P”), it will be the first respondent who is responsible for the bundle.   (A ‘respondent’ is one of the people or bodies who is a party to the proceedings but who did not initiate the proceedings and is therefore responding. Note that there is no ‘defendant’ in Court of Protection proceedings: they are rather ‘respondents’.)  That being said, a good bundle will be the result of cooperation of the parties and an index should be agreed in advance.

What’s in a bundle?

What would you expect to see in a bundle? The short answer is any documents which are relevant. In the Court of Protection those documents generally include (as set out in the Practice Direction 4B):

(a) preliminary documents;

(b) any other case management documents required by any other practice direction;

(c) a time estimate;

(d) applications and orders including all Court of Protection forms filed with the application;

(e) any registered enduring or lasting power of attorney;

(f) any urgent or standard authorisation given under Schedule A1 of the Mental Capacity Act 2005;

(g) statements and affidavits (which must state on the top right corner of the front page the date when it was signed or sworn);

(h) any care or support plans (where appropriate);

(i) experts’ reports and other reports; and

(j) other documents, divided into further sections as may be appropriate.

You may hear reference to ‘preliminary documents’ and, as you will see from the list above, they are the first section of the bundle. ‘Preliminary documents’ are documents which are prepared in advance of each hearing, and are updated for each hearing, by the legal representatives of the parties and usefully summarise the facts, issues and arguments. They are not documents produced by the court, or evidence in the case (as would be the documents which fall into the remaining sections of the bundle) but are really a tool of advocacy, for the lawyers to set out their arguments in advance, and to help organise the hearing and help the judge focus on the important issues. Practice Direction 4B includes a lengthy list of what constitutes the ‘preliminary documents’ but, for the purposes of an observer, the most important are likely to be the ‘case summary’, ‘position statements’, ‘skeleton arguments’ and ‘draft order’.

  • A ‘case summary’ is a document usually prepared by the applicant, which should do what it says on the tin – summarise the factual background in a non-contentious manner, set out the litigation history of the proceedings, and summarise the issues to be determined at this hearing, and more broadly within the proceedings.
  • ‘Position statements’ are short documents prepared by each party ahead of each hearing which set out their position in respect of the issues. So, for example, one party may say in their position statement that they believe there is enough evidence to make an interim declaration that the person may lack capacity and the other party may say that they do not think there is sufficient evidence to do so.  Or one party might take the position that P should be supported to return home from a placement, while the other party might take the position that this is too risky and P might come to harm if she returned home.  In many hearings there is substantial agreement between the position statements, but the judge will focus on remaining areas of disagreement and make decisions about those.
  • The peculiarly named ‘skeleton argument’ (which is usually anything but skeletal) is intended to set out the basic arguments which will be made in respect of issues at a hearing. It will not be prepared for every hearing, usually reserved to those where there is a substantive argument to be had on a matter, and there is benefit to setting out a road map to that argument in advance (this is often helpful both to the judge, and to all the advocates). Parties will ‘exchange’ skeleton arguments. It often comes as a surprise to observers that an argument will be set out in advance of the hearing, so that it can be anticipated and responded to by the opposing lawyers: gone are the days when parties would be ambushed by arguments. In a jurisdiction like the Court of Protection it is recognised that getting the right answer is much more important than winning by all means. The points made in the skeleton argument will be amplified in oral submissions (i.e. talking in court) by the advocate.
  • The ‘draft order’ (in most Court of Protection hearings) is a document which is prepared by the applicant, but with input from the respondents, and is at its heart a list of decisions that the parties want the judge to make, e.g. a declaration that P lacks capacity, that it’s in P’s best interests to be deprived of his liberty in placement X, that he should have limited contact with person Y and so on.  During case management hearings (that is, those where the judge has to decide what evidence is needed and what enquiries need to be made to get the case ready for final determination), observers may see that discussion about this draft order often takes up a lot of the time in Court. Once the judge has made decisions about the wording and any disputed issues it becomes the order of the court.

Observers attending hearings can ask to see copies of the ‘preliminary documents’ – though there is considerable variation as to how likely they are to be provided in practice.  It is worth asking for them because they help tremendously with understanding what a hearing is likely to address and assist in following the hearing much more easily (even in the absence of the full bundle). If you are not able to get them in advance, it is worth asking at the end of the hearing, or in a follow-up email, whether you can get them then.

 The term ‘order’ can sometimes be confusing because it can be used for a number of things. An order is an imperative statement by a judge compelling a person or body to do something. It has the force of law and its breach can result in sanctions being imposed by the court. In the most significant of breaches of an order, the sanction can be a person’s imprisonment. You may sometimes hear the phrase ‘order’ (used in this sense), used interchangeably with ‘direction’. There is no hard and fast rule about this, but ‘direction’ is more frequently used when something procedural needs to happen (e.g. “the local authority must file and serve a final care plan”), whilst ‘order’ is used for the substantive decision (e.g “it is in P’s best interest to live at placement Y”). However, the term ‘order’ will often also be used to refer to the document which records those directions, and so you may hear advocates or the judge referring to a ‘draft order’, as set out above.

The Transparency Order is a type of order (for more see here – by Celia Kitzinger). Within the bundle, the Transparency Order will usually be found in section (d) ‘Applications and Orders’.

In a lot of hearings, contrary to popular television dramas, many issues will have been agreed by the parties in advance of setting foot inside a court room (be that virtual or physical) and the parties will have prepared a draft order setting out those agreements, and the directions the court will be invited to make. Where there is dispute, the judge will then make a decision and those decisions will be documented in the order, with the lawyers usually being expected to agree the terms of the wording based on the decision the judge has made. However, the order is always ultimately the responsibility of the judge, so even if the parties agree on a matter, the judge may disagree and change the orders they make.

One of the most significant problems with bundles is often their length. They will sometimes include far more material than is relevant to the hearing, or will be referred to in the hearing, ‘just in case’. The bundle is usually prepared by solicitors, yet in the Court of Protection it will often be barristers and the judge who are using the bundle during the hearing. Many are prepared extremely well, and there will be discussions between the respective solicitors and barristers as to what should go into the bundle. However sometimes a cautious approach is taken with bundles being produced which are extremely lengthy, leading to additional time being taken by judges having to read documents which are not relevant to the matters before them. There have been more than a few cases where judges grumble about this.

A bundle of laughs?

That leads me on to the final word on bundles. A note on bundles could not be concluded without sharing ‘Sedley J’s Laws of Documents’: the universal laws which are experienced by all advocates when faced with a poorly prepared (physical) bundle:

First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.

Second Law: Documents shall in no circumstances be paginated continuously.

Third Law: No two copies of any bundle shall have the same pagination.

Fourth Law: Every document shall carry at least three numbers in different places.

Fifth Law: Any important documents shall be omitted.

Sixth Law: At least 10 percent of the documents shall appear more than once in the bundle.

Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.

Eighth Law:

  • At least 80 percent of the documents shall be irrelevant;
  • Counsel shall refer in court to no more than 10 percent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.

Ninth Law: Only one side of any double-sided document shall be reproduced.

Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.

Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by:

  • a steel pin sharp enough to injure the reader,
  • a staple too short to penetrate the full thickness of the bundle.
  • tape binding so stitched that the bundle cannot be fully opened, or,
  • a ring or arch-binder, so damaged that the two arcs do not meet.

‘Bundle’ may be a foreign term and may seem daunting at first but it means nothing more than paperwork: something we are all familiar with and work with in our day to day lives. It can take a while to get used to the different types of documents in a bundle, and as an observer you will rarely, if ever, have to get to grips with it all. However, if you do intend to observe hearings it is really worth asking for it and reading whatever you are sent in advance. It will help you understand what the case is about and what the issues are for each hearing. It will all begin to fall into place after a while!

Kyle Squire is a barrister at 5 Pump Court Chambers and regularly appears in the Court of Protection and family courts. He has a keen interest in matters where the two jurisdictions intersect.   He writes regularly about cases from the Court of Protection and blogs independently at www.mentalhealthbarrister.com.

He tweets @Kyle_Squire and can be contacted at kylesquire@5pumpcourt.com.