Making the public body’s point for them: what not to do as a family member in the Court of Protection – part 1

Despite the great work being done to improve transparency within the court of protection it is still largely misunderstood.

Where this lack of understanding comes to the forefront, in my line of work anyway, is when P’s family members are parties to proceedings. For a variety of reasons, mainly due to the poor state of the legal aid system and the shocking disparity between legal aid rates and private rates charged by lawyers, it is often very difficult for family members to get representation for themselves. So instead they participate as a “litigant in person”. This means they prepare their own evidence and speak for themselves throughout the proceedings.

The court and all lawyers involved have a duty to assist litigants in person to understand the proceedings. This means the judge will usually take special effort to explain their decisions to the family members and that the lawyers might do things like convert a statement and exhibits to a single PDF for them, or send paper documents to them (since the court is largely using electronic service these days). They may also direct litigants in person to the right forms to be used, and explain parts of the process where needed.

What neither the judge nor lawyers representing other parties can do is advise the litigants in person on what to argue, how to argue it or what to do next.

Unfortunately, a lot of the time the reason family members are involved in the first place is that there is a disagreement between them and the professionals about what is best for P. Where family members support the professional view, they generally don’t go to the effort of becoming a party to proceedings. Understandably. Examples of this I have come across are situations where family want P to remain living with them and professionals consider a residential or supported living placement is more appropriate; or where there are concerns about family members behaviour during contact with P, so restrictions on contact are being sought.

For the purposes of this post, I will use a fictional example about S. Today I will set out an example of how S’ family have behaved in a way that presented a not very successful case. In my next post, I’ll give an alternate account of a more successful approach using the same scenario. Whilst the precise scenario is not based on any case in particular, a lot of the issues I’ll address have come up in more than one of my cases over the last decade.

S is a young woman in her 20s. She has history of mental health problems including an eating disorder, anxiety and depression. The combination of her diagnoses and the complexity of her presentation are such that she is assessed as lacking capacity to make decisions about her care and residence. She is currently living in a supported living placement commissioned jointly by the local authority and NHS Integrated Care Board under s117 aftercare. Her package of support includes 10 hours a day of 1:1 support and there are staff at the placement 24 hours a day to be called upon if needed.

There is a tense relationship between S’ mother, T, and the placement. T thinks S needs more support than 10 hours a day as S spends the time she is alone on her phone or watching TV and T doesn’t think S is getting enough sleep. T also thinks the placement doesn’t try hard enough to encourage S to try different foods and S is still having a very restricted diet. The placement considers it is supporting S well and promoting her choices. They also state that they are following clinical guidance concerning S’ diet.

The disagreement has escalated to the point that the placement is threatening to terminate the package and evict S as S is witnessing T argue with support staff and then displaying challenging behaviour and refusing support. T is angry that the placement is taking this action rather than meeting with her to discuss her concerns. The authorities make an application to the court for an injunction restricting T’s contact with S to once a week under supervision and preventing T from discussing issues with the care package in front of S.

As soon as T is told about the proceedings, she sends an angry email to the social worker and the manager of the placement calling them both incompetent. She says she is not going to meet with either of them to discuss S’ case except during court hearings. She does not respond to invitations to attend a meeting in advance of the hearing.

It’s understandable that T is frustrated. Like many family members in this scenario she does have some valid points about the way the placement care for S and how they communicate with T herself. Emotions are going to be high. But emotions don’t make a good case. And when another party is saying that T is unreasonable in her interactions with professionals and support workers, it doesn’t help to continue to loudly and passionately criticise them. This can have the opposite effect of what T wants, because, if so inclined, the social worker or care co-ordinator will say to the judge “this is what we are talking about. How can we work constructively with T when she behaves this way?!”.

In this case, the public bodies have prepared detailed witness evidence from the various professionals involved, supported by extracts from the records made by the support staff after each time T has visited S. There are numerous incidents where multiple people say they have seen T be rude to staff and they have observed S to be aggressive shortly after T’s visits. It’s all likely to be quite convincing to a judge, on the face of it. This pattern goes over 18 months and the social worker says she offered to meet T to discuss her concerns 5 times during that period and S declined each time. Email correspondence between T and the social worker is also attached as evidence.

In response T prepares a short statement that just says she has never been rude and she wants to see her daughter multiple times a week. She also says she wants S to be moved to a different placement as soon as possible. That is unlikely to be as convincing to the judge. This doesn’t mean the judge is biased towards the professionals or isn’t listening to T. It just means that the judge, when faced with multiple differing accounts, has to decide which accounts are most likely to be true. And it is unlikely that multiple professionals made up stories that match and fabricated records and emails. It is, however, quite likely that T has behaved in a way that professionals consider to be rude without thinking that she is being rude or causing issues, and that T isn’t aware of any changes in S’ behaviour after she leaves.

At the first attended hearing, the judge explains that they have considered all of the evidence so far and directs that a meeting takes place between the placement staff, the social worker, care co-ordinator and T to try to resolve the issues. T says to the judge that this is what she wants and she just wants everyone to do what is best for S. But later, when she is asked for her availability for a meeting she says she doesn’t know when she is free. Again, it is understandable why T would be reluctant to attend that meeting on her own. It is likely to feel like she is going to be outnumbered and criticised.

The difficulty though, is that judges don’t like people being contradictory. And they really don’t like it when people say one thing but do another. Actions so often speak louder than words.

Eventually T does agree to attend a meeting. An agenda is sent to her in advance and she is invited to add anything she wants to on the agenda. She doesn’t add anything to the agenda because she says she doesn’t really know what the agenda is for.

When she attends the meeting, she comes with a list of problems with the placement going back 3 years. When the chair of the meeting suggests that they focus on the recent incidents, T keeps referencing things that she says happened going back even longer. She says she wants an apology for the way the manager has spoken to her in various meetings before she will consider agreeing to S remaining where she is.

The problem with this approach is that the Court of Protection isn’t about apportioning blame. Unless there is a particular fact in dispute that is relevant to the decision it has to make, findings about what did and did not happen in the past are unlikely to be made. For example, if there was an allegation that T had hit S, and this was the reason for restricting contact and T denied having hit S, the judge might make a decision about whether it believes it is more likely than not that T did hit S. But whether the previous social worker did or didn’t cancel a meeting 18 months ago is not something the judge is going to spend a lot of time on.

And by fixating on things that may have occured in the past, T is again displaying behaviour that could strengthen the case against her. The primary concern of the court is what is best for S. If T can’t look past historic grievances to think about what is best for S now, then a judge is likely to see this as evidence that T’s view that S should move is less about what is right for S and more about what T wants. Which makes it much more likely the judge will agree with the professionals rather than T.

Following the meeting, the professionals make various suggestions of things that could be done to try to resolve some of the issues. For example, they say that if T will agree to not talk negatively about the placement with S, they will trial the contact taking place without supervision. T refuses to agree this. They offer to look into clubs S can attend on evenings to give her more meaningful activities. T won’t agree this either. She says she is not going to agree anything and she will wait for the judge’s decision.

When the next hearing comes around, the judge agrees that clubs should be explored and makes an order that T mustn’t speak negatively about the placement to S. T says she is happy with these decisions. The trouble here is that if T had agreed these things when offered, the progress could have been made sooner and less of the judge’s time would be needed. So essentially T is delaying changes being implemented and not using the court’s time efficiently. Which further strengthens the view that T is being obstructive and not trying to work with professionals. Given the level of T’s needs, she is likely to have some form of professional in involvement for many years yet so a judge is going to be very concerned by a family member who is not engaged properly with the professionals.

Indeed, it is possible that if T had agreed to these measures when offered, the heating wouldn’t have been needed at all and could have been dealt with by the judge reviewing the papers. So what T has actually done is increase the cost of the proceedings for the authorities and for S’ legal aid. In extreme cases, this could result in T having to pay some of the other parties’ costs if the judge decided she had acted unreasonably.

The public bodies file updating evidence on how S has been and on alternative options they have found. T is directed to provide evidence of what she considers the issues are, and her views about the alternative options identified. T doesn’t do this within the timeframe set by the court. When chased, she says that she has made her views known and the judge should just make an order approving a move to a placement T has selected. That placement doesn’t currently have a vacancy.

So this is yet another issue. The court does not have the power to order things to happen unless they are confirmed as an available option. From a legal perspective, it is very clear that the court can only choose from options that would be available to S if she were making the decision herself. But from a more pragmatic stand point, the court does not have the ability to make a place available in a full placement. It can’t evict someone else so S can have the space. It can’t require the placement to build an extension so there is another place that S could fill. If T insists in a move to a full placement, it just suggests to the court that T isn’t really understanding what the court’s role is. Which doesn’t exactly make T’s arguments more convincing.

To make matters worse, T then doesn’t attend the next hearing. The morning of the hearing she sends a message to say she is too busy to attend. The hearing proceeds without her. The judge makes directions for further evidence on the options available and directs T to provide her views in a further witness statement. Again she does not do so. Again she doesn’t attend the next hearing without giving any explanation beyond that she is unavailable.

Ignoring directions from the judge is never a good strategy in court proceedings. For anyone. Directions are not requests, they are orders. The judge expects them to be followed. There are circumstances where evidence might be delayed and it is possible to request that the court grant more time to comply with a direction. But this should be done as soon as it is clear the timeframe can’t be met, and reasons have to be provided.

Not attending hearings is also a very dangerous strategy. Again, it is possible to request permission not to attend, or to attend remotely, or even to move a hearing date so long as clear reasons are given based on something other than what is convenient or preferable for T. But judges are busy people and it is incredibly disrespectful for T to suggest that her time is more important than the judge’s. Especially since T is saying that S’ welfare is very important to her, as not attending suggests that there is something T thinks is more important than decisions about S’ care.

Real case examples for why a family member couldn’t attend a hearing in my cases have included “I’m picking up a friend from the airport”, “I’m packing for a holiday” and my current record holder for sheer audacity “I’ve not been sleeping well so don’t know if I’ll be able to get up in time.”

But I digress…

If T continues to behave in the way she has been, unless S’ representatives share any of her concerns and push for further explorations, then the judge is going to be left with little option but to grant the order as requested. The judge simply can’t order that a move take place on the basis of vague concerns from T when there is a growing amount of evidence that T is not putting S’ needs first. Without a clearer explanation of what T’s concerns are, or of what benefits a move to an available placement could bring for S, the judge is going to decide that T should remain where she is. And if the only way that can be achieved is by restricting the contact, then that is what will be decided. Since T has not shown any willingness to change her approach to the professionals or reflect on how her behaviour is impacting S, the judge won’t be left with any other options.

All proceedings before the court must be dealt with proportionally, and it is unlikely to be proportionate to continue proceedings for months longer just to see if T is able to attend a future hearing. Different judges will give a different number of opportunities to attend, but they all, quite rightly, have their limits.

S is going to continue to be angry. She’s going to continue to feel like she wasn’t listened to. But the reality is she was given a number of chances to make herself heard. If she wasn’t able to provide a written statement for whatever reason, she could have explained herself to the judge in a hearing. Or she could have attended meetings with the other parties and given her views there. As far as the judge can see, T simply chose not to take those opportunities. And their patience will run out.

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.