This is a follow up to my series of posts about best interests decision-making in the Court of Protection. In those posts I broke down the process in stages, to demonstrate the issues the court explores. But this blog is ultimately about law in practice so I wanted to provide you with a bit more information about how this actually works in the real world. Because it is most definitely not neat and tidy.
You see, by the time the matter gets to court, whichever public authority is involved (because welfare cases generally involve social care or health care authorities) will already think it has followed the best interests decision-making process. If the public authority has made the application, then alongside the application it will have submitted a witness statement that purports to explain how it has followed the process and make a recommendation to the court. So at that early stage, the authority will likely be saying to the court that all of the stages set out in my previous posts have already been followed. They will have set out the options available, consulted relevant people, set out the advantages and disadvantages and then reached a conclusion based on what they consider to be the appropriate weightings of each of the factors.
Except they almost certainly will not have included as much detail as the court and parties will want them to. So whichever professional is taking the lead is going to have to revisit some or all of the process because other options will be identified, other factors will be raised etc. And that professional is going to get annoyed when they’re asked to explain things which they think have already been set out.
Even if the public authority hasn’t made the application, because the application has been made by a family member, or a relevant person’s representative under s21A, one of the first things the court directs is usually for the public authority to set out the options and best interests analysis. Which they’ll do, and probably redo a few times throughout the process.
The reasons these get revisited so regularly are partly because where there is a dispute, the parties will be raising issues to be addressed to try to demonstrate why their preferred option is what is in P’s best interests. But it’s partly because best interests is often a bit of a moving target. Especially in social care, the options available can change from day to day because spaces in care homes fill up quickly, as does available capacity with care providers. And weeks or months can pass between the statement being provided and the court making a decision. P’s views might change during that time, or their needs might change. They may start a new medication and drastically improve, or they might have a fall, contract an infection or otherwise seriously deteriorate.
So in practice, what often happens is that in order to prevent a situation whereby the court determines the appropriate course of action, only for that to no longer be available (a COP lawyer’s worst nightmare, by the way), some mental gymnastics are required. So at least initially options will be identified as ‘potentially available’ or ‘subject to further assessment’ and discussions will be had about whether it is in P’s best interests to ‘continue to explore’ or ‘rule out’ any particular option.
Indeed, it is not uncommon to start proceedings by discussing only broad categories of options such as care homes or supported living placements. The court will not make a decision on that information, so it is basically a gamble that by the time the court is ready to make a decision, firm options will have been identified and fully explored.
The jeopardy is, of course, that a firm option might be identified too early in proceedings, when the parties are still going back and forth as to the level of detail the court needs for best interests decision-making. If that occurs, then it becomes a matter of whether the court is satisfied that this option is so good for P that it is not in their best interests for the opportunity to be lost and, therefore, make a decision on the basis of the information available at the time, or whether the information still being gathered is so crucial that a decision cannot be made without it.
This will depend on the specific circumstances of the case and the court will generally look at factors such as how rare or specific the option is, the likelihood of a similar opportunity arising again in the proceedings, how safe the interim arrangements are, how valid the parties concerns are and the implications of the lost opportunity on P. So the best chance the authority will have of getting the court to authorise an option on an urgent basis is to be very clear and thorough in their evidence at each stage.
A lot will also hinge on how realistic the other parties are being. If they are arguing for options that are simply not available then the court is going to be more likely to make a quick decision than if they are raising genuine and valid concerns. Which often comes down to how well everyone is able to articulate themselves.
What the court doesn’t take well to is when one party engineers a situation that then restricts the options available for P. The worst be example of this that I have come across is when a property was sold before a decision about care and residence was made and a return home had not been ruled out. But it is usually more subtle than that, with current care arrangements being put in jeopardy by one party’s behaviour such as a family member creating conflict with the care provider so that they serve notice, or with information being given to prospective care providers that is incomplete or misleading so that care providers will say that they can’t meet needs.
Most complicated is where the public authority limits the available options because of its own funding decisions. But I have spoken about that before.
Even more of a headache is where the the court is ready to make a decision but there are no firm options for it to make a decision about. This might happen because no care provider contacted has availability, or a provider has been identified but staff need to be hired, or a property needs to be found. Because these are practical issues over which the court and parties have very little control (assuming, of course, that the parties have been acting appropriately and not creating or contributing to these issues).
So the process is rarely a straight line. Rather it veers left and right depending on circumstances. One party might try to push forward, whilst another seeks to step back so it can become difficult to see the stages I have identified in practice in any kind of logical way.
I do encourage you to try to think about the stages as you go through the process though as this will, hopefully, assist you in preparing more detailed and thorough evidence and in formulating more successful reasoning and arguments. Because ultimately the court is making a decision based on the evidence available to it. So it isn’t about who the judge agrees with, it is about whether the recommendations fit within the statutory framework and the applicable case law precedents.
Which is one of the reasons why so many cases within social care end up being agreed. Once the process has been followed thoroughly and the evidence set out clearly, it is often clear what option is in P’s best interests under the law. The cases that end up in a contested hearing are usually those where best interests factors are very finely balanced, or where one party is ‘digging in’ and not willing to consider other options.
The key, therefore, to achieving a swift outcome is generally in providing clear, detailed explanations of reasoning from the outset of proceedings and throughout. The enemy of progress tends to be unanswered questions.
In case it isn’t obvious from the fact I still haven’t identified the authority I worked for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation