About face: changing your position during Court of Protection proceedings – part 1

I want to talk about a relatively common occurrence that occurs during Court of Protection proceedings: changing the professional recommendations. In writing this I’ve realised I have a lot to say on this topic so I’ve broken it down into 4 parts.

To start us off, I’ll set the scene.

In one of my cases we are currently about 9 months into proceedings. They concern a lady who has had difficulty with alcohol and taking care of herself when she lived in the community. Her diagnosis is dementia but with interlinking mental health issues. And she hasn’t had a drink in a long time, she’s on medication that is improving her presentation and she is, by all accounts, doing well. She currently lives in a care home, but is very unhappy there. She is more able than other residents in a lot of areas, and has taken on roles within the home to assist and support the staff. They don’t think she needs to be there, and believe she should be considered for a supported living placement.

Early on in the proceedings the social worker submitted a statement saying they agreed that P’s needs could likely be met in supported living. The social worker arranged for various placements to assess whether they could meet P’s needs and a suitable one was identified that appeared to be suitable. All was proceeding nicely.

Until approximately one week before a hearing when we were suddenly notified that the social worker had changed their mind. They no longer thought the supported living placement could meet her needs, and didn’t consider a move to be in her best interests. We were not best pleased, as I am sure you can imagine.

Whilst I was giving the local authority’s solicitor a bit of a grilling in the pre-hearing discussions, they told me that they did not think I was being fair, and that professionals ought to be able to change their minds.

For what it is worth, I do not disagree with that as a principle, I think there is a way this can be done which is, well, professional. And there is a way to do this which is pretty much guaranteed to result in a lot of criticism.

For instance, in this case we were following a directions order which set out what the court expected to happen including giving a date for the social worker’s statement which was to include their recommendations for a transition plan. So very unhelpfully, the social worker in this case filed their statement 2 weeks later than directed. Not only that, but the statement didn’t contain the transition recommendation or the other evidence directed in the order.

If you are not aware, I’ll explain this quite simply. Directions are not a recommendation or a suggestion, they are what the judge says must happen. Now applications can be made to change directions for various reasons, but generally the court is saying that this is the evidence that the judge needs to make their decision about what is in P’s best interests. That means it is not for any party to say they don’t think that evidence is relevant any more so they are not going to do it. It’s a bold move. And by bold I mean audacious, risky and more than a little arrogant.

You see there is a fundamental difference between saying “we’re not looking into that option any further because it is not actually an option any more” for example because a vacancy has been filled, and saying “we’re not looking into this option any more because we don’t think that’s in P’s best interests”. That’s because the former is a factual change that the court is unable to alter. The latter is actually undermining the whole purpose of the court because it is not any professional’s role to decide on best interests when the issues are before the court, only to make recommendations. The judge decides on best interests and to do that they need the evidence as directed.

What would have made that social worker’s life much easier is if they had let the other parties know as soon as they had doubts about the move and applied, via their legal department, to the court to vary the order. At the very least, they should have filed their statement on time, to give everyone time to consider it fully. And they should have still included the evidence as to transition plans. It is entirely appropriate to say the professional does not think a particular course of action is in best interests, but they ought to also say “but if the court disagrees with my recommendation, this is what the other option looks like”. Because the court can, and often does, disagree with professionals on the issue of best interests. If they couldn’t, then there would be absolutely no point in having the court at all.

Which is why this type of action can be perceived as arrogant.

But beyond that, Court of Protection proceedings are not like other forms of litigation and are certainly nothing at all like litigation as portrayed on television. It’s not about being tactical and trying to ‘catch each other out’. It’s jurisdiction is more investigatory than it is anything else. The court is gathering all the information it needs in order to make decisions. Everyone doesn’t have to agree, but they do have to co-operate as much as they can. A transparent discourse between all of the parties is expected throughout and information is to be shared openly, not just at specific times when statements are expected. It’s not a poker game, and playing your cards close to your chest doesn’t get you very far at all. It just gets you a bad reputation, as an individual and as an organisation. I also level a good amount of criticism at legal departments in this situation because it suggests to me a failure to properly case-manage.

So that is my first tip if you find yourself in this situation: timing is crucial. And for your own sake and everyone else’s sanity, pay attention to the directions order!

In case it isn’t obvious from the fact I still haven’t identified the authority I used to work 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.