About face: changing your position during Court of Protection proceedings part 3

This is the third post in a series about changing your mind during Court of Protection proceedings. If you’ve not read parts 1 and 2, feel free to do so. But I’ll briefly recap the scenario too.

Essentially, my client was in a care home, suffering from dementia and objecting to her residence there. Her needs are not of such a level that only residential care was appropriate but there had been significant concerns when she lived on her own. Early in the s21A proceedings, the social worker stated that P’s needs could be met in a less restrictive setting such as supported living. A placement was identified and assessed her as suitable. But then, shortly before a court hearing we received a (late) statement saying that the social worker no longer supported any move and thought it was in her best interests to remain where she was.

“Why?” you might ask. So did we. Quite firmly because the statement sent to us, and the court, was very, very brief.

The social worker committed the cardinal sin of failing to explain their reasons.

In any decision-making by any public authority, some kind of reasoning is required. But when there is limited scrutiny professionals can sometimes get away with being ‘light touch’ with this. But when there are ongoing court proceedings this is completely ill-advised.

I am willing to accept that maybe the social worker didn’t realise their reasoning was not robust enough to be convincing. I am not sure how much experience they had with court proceedings. So I lay a lot of blame for this debacle in the lap of the local authority solicitor who saw this statement and went “aye, that’ll probably do it”.

Just in case you are in any doubt here, if you ever find yourself in a similar situation, you really need to give some kind of reason for changing your opinion. That might be very easy because P might have deteriorated, or there might have been an incident that caused professionals to re-evaluate the risks and P’s best interests.

That wasn’t the case with this situation though. On pressing, the social worker eventually told us that their reason for changing their mind was that a medical professional had said they thought the move was too risky. But they hadn’t probed that at all, or asked any kind of follow up questions like “what particular risks?” Or “what if we put in place risk mitigation measures?”.

Especially frustrating from our perspective was that said medical professional had been involved in treating my client throughout the entire proceedings. So either they weren’t consulted earlier, when they should have been, or the medical professional had changed their view and needed to give their reasoning. Yet we had to tease this information out of them through meetings and various emails taking weeks of time during which my client was incredibly unhappy.

And that is my next top tip for dealing with this situation: expect some criticism. There are no two ways about it, there is going to be some level of disapproval from P’s representatives when this occurs. It is very unlikely that an unexplained change of position will just be accepted by the court either. So it is far better to acknowledge that and do some damage control. If you’ve written your statement in a hurry, you can still keep asking questions and exploring what has happened so that you have answers to the questions when they are asked. That always impresses me far more than when I attend a meeting, ask questions and they go “oh, I don’t know, I’ll look into it” because that just slows everything down.

Part of limiting the damage might also include admitting you’ve made a mistake and owning it. If you didn’t consult someone you should have, 9r you didn’t read a report before you formed your view, then just say so. I mean, ideally check everything before you make a decision. But we all make mistakes. Saying “I made a mistake and this is how I am fixing it” is going to come across as more professional and less frustrating than keeping quite about it whilst more and more questions are asked until eventually you have to admit it anyway because it’s been figured out.

The important thing to remember is that the Court of Protection isn’t about blame and compensation. So the ramifications of a genuine mistake are limited. However, the court can order that a party pay the other party or parties’ costs if it considers that the party acted unreasonably and caused unnecessary costs. So trying to hide a mistake, resulting in another party having to do more work could have costs implications.

So saving face and saving resources both come into it.

As a concluding note, I will say that my client did ultimately move to the identified supported living placement and has settled really well there. There’s a happy ending but it was delayed for months completely unnecessarily.

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.

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