In my last post, I gave an example of S and T. S is the subject of Court of Protection proceedings and T, her mother, does not agree with the decisions being made by professionals and wants S to move to a different placement. In that scenario, T’s behaviour gave the judge little option but to approve the local authority’s plans. In this post, we’ll look at some things she could have done differently.
For example, when the proceedings are issued, T receives a letter that tells her about the proceedings asks her to fill in a form if she wants to be a party. She isn’t really sure what that means, but the letter says to call the legal team if she has any questions. So she does that. The lawyer talks her through the COP5 form and offers to send it to the court if T to send it to her. Which again, she does. Rather than lashing out, T is reading the information sent to her and asking for help. This is much more likely to result in the other people involved in the case being willing to work with her.
At the first hearing, the T attends and the judge explains that they are going to direct the local authority to provide some further evidence as to the issues being experienced and then T will be given the chance to submit her own evidence. The judge does suggest that before the next meeting, everyone should also meet to discuss the issues
When T gets the social worker’s statement, she sees that it is 25 pages long. The judge has given her only 2 weeks to reply. And the social workers evidence was 4 days late so she actually only has 10 days to meet the court’s deadline. She calls the solicitor acting for S, and says she is worried she won’t be able to prepare a detailed statement in time. That solicitor agrees that it will be difficult for T to meet the deadline and suggests that the court is asked to amend the timetable. That solicitor contacts the local authority’s solicitor and between them, they prepare a request to amend the timetable. The judge agreed this and T is given 2 more weeks to prepare her statement. Again, T is identifying particular problems which enables more productive discussions about how to move forward.
She also speaks with S’ solicitor about what to include in her statement. The solicitor says she can’t help her write the statement, but tells her to use the COP24 form and a separate word document if she needs more space than that form has. The solicitor also explains that the best thing to do is to go through the social worker’s statement and say what she does and doesn’t agree with.
So that is what T does.
She looks at each time it is suggested that she has been rude to people at the placement and is able to explain a lot of them. For example, she says that she once saw one of the support workers trying to put S’ jacket on and S began to cry. T asked her to stop and the support worker ignored her. So she admits she did tell the support worker to just leave, and she might have said the support worker was stupid for not noticing that S was crying until T intervened. She also says she has seen bruises on S and provides pages from her diary where she said when she had seen this and the descriptions of what she has seen.
She also says that S has not put on any weight whilst she has been at the placement and she is worried that S is still dangerously underweight.
That doesn’t mean T can’t be critical of the placement. Her argument centres on the fact that the placement aren’t caring for S properly so she wants a new placement to be identified. So she has to explain what her concerns are. And how they are presented is key. She’ll need to be very specific about what the problems are and how she has tried to bring these to the attention of the professionals involved.
Now the judge isn’t going to expect T to be able to prepare evidence in the same way as a professional supported by a lawyer might. But the more specific she can be about what happened, when, the better. So to make her evidence more convincing she should look at each incident and explain what she recalls happening. For example, “on 1 July the support worker says I told her to “get lost”. I do not recall this incident and the first time anyone mentioned this to me was 1 December. I can’t remember what happened on that day.” Or “on 5 July the support worker says I told her she wasn’t doing her job properly. I remember this visit because when I arrived to visit S, there were takeaway containers and dirty dishes in her flat. I asked S to help me tidy up but S would not look up from her phone. The support worker was sat in the kitchen also on her phone. I went over to ask her to help me encourage S to tidy up and get ready to go out but she just shrugged. I couldn’t motivate S to put her phone down and I did get frustrated. By the time S put her phone down we had missed the time of the film she wanted to see so she became frustrated.”
By explaining the context of her comment to the support worker, T is giving the judge a better understanding of what happened and the judge is likely to find that more convincing.
This information is specific and it is rational. It is clear and everyone involved can read and understand it. When the judge is deciding whether they should give more weight to the professionals’ account or T’s, it is likely to be much more finely balanced. It shows the judge there are different interpretations, rather than T just being angry at professionals and not willing to listen.
When the solicitors ask for her availability for a meeting, T gives it. But as the date of the meeting approaches, she is very nervous about attending. She asks the solicitors if she can bring her sister with her, so she is not on her own. The solicitors say no, so then T says she won’t come to the meeting. The meeting goes ahead without her, but having seen T’s evidence, S’ solicitor asks about S’ weight, and whether body maps are kept. Neither have been included in the records disclosed to S’ solicitor.
After the meeting, the solicitors prepare an order. This says that the social worker will look into T’s concerns, and provide details about S’ diet, strategies to encourage her to eat and also the strategies for how they engage S in meaningful activities. It also says that if T will agree to not raise issues in front of S when she visits, direct supervision during the visits will be reduced, and that evening clubs will be considered. T isn’t sure what the order means when she receives it by email, so she calls the solicitor who sent it to her and they explain what it means. When they do, she asks what she is supposed to do if she sees a problem as no one has ever listened to her before which is why she has been so frustrated.
The solicitors speak to each other and take instructions and it is agreed that a communication protocol will be prepared which will set out how T should raise any issues, and how the social worker will then look into this and then respond. On the basis of this, the order is agreed.
This saves the judge time, as they can consider the papers without having to hold a full hearing. More importantly, it reinforced with the judge that T is willing to work with professionals and is trying to do what’s best for S. She can be seen as a caring and devoted mother rather than as an angry and unreasonable woman.
The judge approves the order.
T is able, from then, to visit S without direct supervision. She abides by the communication protocol and the placement agrees not to serve notice to end the support package for S.
T is still unhappy though, and after the social worker’s statement, she prepares a further statement herself. In it, she explains what she has seen during the visits, but also that she agreed to meet with the professionals but they would not let her attend the meeting with her sister and she was too anxious to attend alone.
The judge asks about this in the next hearing, and gives permission for T’s sister to attend the next round table meeting. The judge also says an agenda should be shared in advance to help T prepare for the meeting, and minutes should be shared after it, so she can refer back to them.
When that meeting takes place, it is tense and difficult. T becomes upset at times and says she is still concerned about the quality of the care S is receiving. She says she has looked at the care plan and strategies but she doesn’t think these are helping S because they are too generic, she also thinks the plans are not being followed as she has observed support workers acting in ways that are not included in the plan, and S is often in her room alone when T arrives.
The local authority say they have explored all options and that S should remain where she is. T does not agree with this. She wants S to move somewhere else where she will receive better support. She sets out the things she would look for in a new placement and new care arrangements, including getting dietician input regularly and her weight being monitored on a weekly basis.
What T has done here, by picking her battles, is shown that she is being reasonable and she is thinking about what is best for S. She is demonstrating that this is a genuine, reasoned difference of opinion. And that means that when the judge is having to decide whether to end the proceedings with S to remain where she is, or to continue the proceedings to allow greater investigation of other arrangements to take place, the judge is going to give a lot more weight to what T has to say.
Further, by focussing on moving forward, rather than on past issues, T is giving the judge reason to believe that progress can be made and that T’s concerns may well be legitimate. So it is much more likely that the judge will be prepared to direct that further evidence should be prepared, rather than simply ending the proceedings as the local authority wants.
There is a problem, though. The day before the hearing, T’s mother falls and breaks her hip. T cannot leave her mother at home alone in order to attend the hearing in person. She doesn’t know what to do. She lets the social worker know, and also S’ solicitor. The social worker is sceptical, but S’ solicitor agrees to explain the situation to the judge. The judge might accept this explanation alone, or they might require evidence such as a discharge letter from the hospital to evidence that this is what happened.
It is very unlikely the judge will make a significant decision without T attending the hearing when this is for a legitimate reason. Especially when T has otherwise been working with everyone and trying to be co-operative.
The judge might still, ultimately, decide S should remain. It is likely that there will be changes to care package though, in an event to alleviate any of T’s concerns which are found to be legitimate. The court often puts a lot of significance on the relationship between placements and family members and will often try to find a middle ground to enable a better relationship to develop.
And ultimately, Court of Protection is not about winning or losing. That can be a difficult thing to understand, especially for anyone that has watched a lot of court room dramas. But it is the truth.
It’s also focused on evidence though, and when faced with conflicting evidence, the judge has decided who to believe. So the clearer T can be, the more likely the judge is to believe her. Often these disagreements are not about negligence, and I’ve yet to come across a case where there is some kind of deliberate conspiracy against a family. I have had many cases where that’s what the family have tried to suggest though. And it has never gone well. Ever.
Most of the time, the issue is either in people not understanding each other, or in professionals being to busy to fully investigate issues raised by family. If it is the former, then the process of everyone setting this out in statements and talking issues through can easily lead to a solution that everyone can agree with. If it is the latter, then once a judge tells the social worker they have to investigate concerns, this usually takes place. As a result, either family members can be reassured that their loved one is being cared for properly, or a change can be made to rectify the issue.
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.