An urgent move during Court of Protection proceedings: a how (not) to guide

It is inevitable that sometimes in Court of Protection proceedings, there will be times when a move needs to take place urgently. There are any number of reasons why this might happen: arrangements in the community breakdown, safeguarding issues happen, risks increase and sometimes, a really good placement comes up which will be lost to P if a decision isn’t made quickly. It can happen in s16 or s21A proceedings and it causes a bit of a headache for everyone.

I have had 2 cases where this has happened, recently and in both cases things have not exactly gone smoothly. And as I talk through this, you might just think I’ve got terribly anti-local authority since I moved jobs. But the truth is, everything I’m going to say here is something I have said to social work teams when I was in-house too. Because it’s not ‘the Official Solicitor being difficult’, it’s fundamental parts of the process which local authority lawyers, and experienced social care professionals, ought to be able to anticipate. Most of it is work that should be done even if the matter isn’t in court, but it certainly should be done in cases where scrutiny of third parties is guaranteed.

The first piece of advice I will always give is to be realistic on timescales, both for yourself, but also for other parts of the process. Because even when dealing with an urgent move, you still have a process to follow. Evidence has to be prepared explaining what the move will be and the reasons for it. That evidence has to be shared with the other parties and sent to the court. If all parties agree the move, then the papers will still need to be sent to the court and reviewed by the judge. The judge might look at it right away, they may not. So unless life and limb are on the line, you are looking at weeks, possibly even months, not days from the point of deciding that you want the move to take place and actually getting an order from the court.

That doesn’t mean you can’t speed things up, of course, and I’d like to offer some tips on how to do that.

If you want the court to deal with something urgently, you have to explain the reasons for the urgency clearly. That includes explaining what can and cannot be done to mitigate any risks in the meantime. Loss of a placement might be a suitable reason, and the court is generally sympathetic to the realities of trying to find beds in an incredibly pressurised system. But be careful of throwing stones if you are in a glass house. Expect to receive criticism if the risk is caused or contributed by the authority’s actions or inactions. For example, if the placement is now at risk of being lost, but the authority has known about the placement but not made its mind up for months, it needs to tread carefully. And be very wary of criticising other parties for delays unless you are confident that your own conduct hasn’t also been a factor. Otherwise, you are in for an uncomfortable time.

It also helps to think about the information that the court and parties will need in order to take a view on the proposal and start working on these urgently, rather than waiting to be asked for them. Because that alone can add days or even weeks to the timeframe. And in most cases it is not difficult to identify what information the court is going to need.

The first is a transition plan. The level of detail that needs to be included in the plan will vary from case to case. But as a bare minimum, the court is going to want to know how P is getting from placement A to placement B, and who will be involved. Evidence will be needed as to when P will be told about the move, and what will be done to minimise any distress they might experience. That might be as simple as ensuring P’s favourite carer is involved in the transfer and helps P settle at placement B. But for someone with more complex needs, who might be anxious or unsettled because of a move, this will require much more detailed consideration of how the move will be put into effect covering the lead up to and aftermath of the move, not just the mechanics of the move on the day.

If P is likely to resist a move, then there is an even greater need for thorough transition planning. If there is any suggestion that restraint might be used, then a clear, staged plan of how that restraint will be used, and what will be tried before restraint is resorted to, will need to be provided. Because these are the things that can tip the balance of a best interests assessment, not to mention the need for the proportionality of the restrictions to be considered.

The court is also going to need to see detailed best interests analysis of the options available to P at the current time. Some judges might let you get away with the basic and perfunctory balance sheets that seem to be very common. But many won’t. And always remember that the other parties, including the Official Solicitor are going to have an opinion too. Disagreements about best interests are very likely to need to be resolved in a contested hearing, and there will almost certainly be a delay whilst that is arranged. So the best way to expedite the process is generally to provide the best possible evidence right at the start.

For example, one of the cases I had recently involved P, who was living in a care home and objecting to the placement. One of her main complaints was that she needed to ask permission to go outside for a cigarette. So the local authority suggested a placement where P would have free access to the garden and gave this a lot of weight in their best interests analysis. What wasn’t recognised, however, was that even though her access to the garden wouldn’t be limited, her access to her cigarettes and lighter still would be. Which made the benefit, from P’s perspective, much less significant. So that point had to be raised because it affected the weighting of the factors, and thus could affect the outcome of the best interests decision, as we have discussed before.

And in most cases, especially if it is a matter that has been before the court for a while, it is pretty easy to spot the potential red flags, and try to anticipate the issues that might come up. Restraint, for example, if there is the slightest hint of restraint being used, the court and P’s representatives will notice and will have some questions. So there is no point making throw-away comments and hoping to get away with it. Because you most likely won’t. Instead, if restraint is needed, it is better to be honest and upfront, setting out the reasoning clearly including consideration of the proportionality of the restraint and the implications for P’s autonomy. That makes it much more likely that the plan will ultimately be agreed.

Sometimes there will be other obvious issues to be addressed, like contact with others. In my recent case, P had started a relationship with another resident at care home A, and she wanted that to continue. So whether it would be possible to facilitate contact if she moved to a new care home was always going to be a central part of the decision-making process. Yet for some reason the public authority responsible didn’t think to set this out until it was specifically requested by us, and then tried to protest that we were delaying the move.

Which brings me to my final point: professionals should try to avoid making a rod for their own back. My other recent case where this issue arose concerned a young woman with a learning disability and autism, Q, who presented with quite challenging behaviour, especially when anxious. The professionals had identified a placement they considered to be suitable, but in progressing that move made the very unwise decision to tell Q that she was moving, and the date when she would move BEFORE the court had authorised the move. Indeed, they told her before transition plans and care plans had even been shared with the Official Solicitor. And when those plans arrived they were teeming with red flags: restraint, covert surveillance, 24 hour support, 2:1 care and a whole host of issues that raised real questions as to the proportionality of the steps to be taken.

When we asked these questions, we were then told they couldn’t be answered now because that would distress her by delaying the move. What was particularly infuriating for us was that 2 weeks earlier I had already told the local authority what information was likely to be required for us to agree the move.

So, guess what, it wasn’t the Official Solicitor who was criticised by the court, but the local authority who had cut corners, made presumptions and generally orchestrated a problem. In front of the wrong judge, or with the wrong representatives for the other parties, the local authority could have found itself accused of doing this deliberately to avoid having to answer too many questions. We assumed it was bad practice, rather than bad faith, but still, it could have and should have been avoided by the professionals involved being a bit wiser and more aware of the process.

Because these are not decisions that you or I would take lightly in our own lives. So they are not decisions that should be taken lightly on behalf of others. To be satisfied a move is in someone’s best interests, the court needs to see thorough consideration not just ‘they need 24 hour care and this is the home with a bed available’. Most of us wouldn’t pick a hotel without thinking about the location, the facilities and the service to expect there, never mind a long-term home.

Bear that in mind, and you might just manage to get an urgent move agreed pretty quickly.

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

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