Wishes and feelings statements: getting to know P

I am often asked by family members how the Official Solicitor and the court can make decisions about P without knowing them. More often than not, this is followed by comments about how they know P best so they should be able to make all of P’s decisions. That follow up is problematic, for a number of reasons, but it remains an interesting question. One of the ways the court “gets to know” P is through the instructed solicitors attendance notes, generally filed as what we call statements of wishes and feelings.

Any lawyers reading this will be familiar with the concept of “attendance notes”. These are essentially what they sound like: notes of the meeting (which is referred to as ‘attendance’ in lawyer-speak). These are usually detailed, but not word for word notes, of what was said in the meeting by the lawyer and the client. They serve lots of different purposes. But primarily they are used by the lawyer to remind themselves of facts given by the client in the meeting, or to demonstrate what advice they gave. That last is particularly important where there is a dispute or disagreement between the client and lawyer. “You never told me that!” The client might protest, only for the lawyer to reply “in our first meeting you asked me about the possibilities and I did tell you about this, to which you responded that you wanted to go ahead anyway”.

I digress.

What I have learned in this role is that attendance notes when visiting an incapacitated person require different skills. Generally, attendance notes are quite cold and factual. They are a dull read because their purpose is to serve as reminders only. We don’t tend to note if the client is upset, or smiling or any of the “small talk” that might take place in the meeting. This isn’t necessary in ordinary circumstances.

But with P, it often is.

When writing a statement in other proceedings, the focus is often on facts. A statement will set out what happened and the statement writer themselves can add as much “colour” as is appropriate in the circumstances, to explain how they felt at the time, their motivations etc. The lawyer will help them articulate that in the statement, but it isn’t the kind of thing that would generally be put in an attendance note.

In this circumstance though, P can’t write a statement. Instead, the lawyer writes the statement. But the statement itself is generally much more bland than statements would otherwise be. It will most likely say the basis upon which the lawyer acts, when they visited P and then exhibit the attendance note.

So the attendance note itself includes the “colour”. “Small talk” for example, is very helpful in demonstrating P’s personality. It might show what is important to them. For example, if P speaks a lot about their family, this indicates that family is very important to P and so options that keep them near their family are more likely to be in their best interests. If P talks a lot about a particular area, it will indicate P’s ties to that area. But in both circumstances, a direct question of “what is important to you?” may not illicit the same information.

It’s more than that, though. Including a lot of information that would be irrelevant in other circumstances, helps to show P as a person. Which is something that must be kept at the heart of Court of Protection proceedings. If P is cheeky, or funny, or a bit sassy, the wishes and feelings notes are often how the judge finds this out. And the more they see P as a rounded human being, the more sensitively they are going to handle the issues, and potentially the more weight they will give to P’s wishes and feelings.

Emotion is a big part of this as well. And I always consider that this, and the context of this, are both very important and I pay extra attention to P’s body language and facial expressions when I am talking to them. Because if the verbal response and the body language don’t match up, this is something the court needs to know. For example, if P says they are really unhappy, but they are smiling and chatting with staff and other residents, the court needs to consider how strong the person’s wish to leave is, and whether losing the relationships which they say they don’t value, will actually be quite damaging. Whereas if P is very distressed, being tearful or angry, this demonstrates a bigger impact on their emotional wellbeing.

I have also had clients that have a tendency to answer “yeah” to any question asked. So the cues from their behaviour are even more important. I have also had a client who acted quite fearfully around care staff, whispering when they walked by, or stopping talking altogether when they knocked on the door. This was noted in my colleague’s attendance note, which enabled us to do some work to investigate why that might be. Thankfully, we found no evidence of anything untoward.

I can also think of one client who was non-verbal and so when my colleague visited she didn’t say anything. But because my colleague did a very thorough note of the meeting, we knew that P was presenting as quite settled where she was. My colleague wrote about how she smiled at support workers when they approached, and reached for their hands. They wrote about how she giggled when support workers got out her favourite toys, and how she had engaged in a game with my colleague and a support worker. This told us that P was social, and enjoyed company when in a situation that suited her. It showed she had built relationships with some of the support workers. No decisions were made based on this visit alone, of course, but it was very useful to know that P was settled at least some of the time, and it reassured us all that harm would not be done to P if we took some time to figure the issues out.

This has to be balanced though. Because a wishes and feelings statement is not the place for the lawyer to set out their rationale or their interpretation. In the example I have just given, my colleague didn’t write in their note that P was settled and happy. That would be seen as us making argument in the wrong place. But they did write that they saw P smile and giggle and interact with support workers. This was done so clearly that it would have been very difficult for anyone reading the statement not to reach a view similar to the view we reached. Although P’s parents tried to argue otherwise, the judge was satisfied, after looking at all the evidence (the note was a strong factor but not the only factor) that it was in P’s best interests to remain where she was.

It’s a difficult thing to do, initially, as a lawyer. We are generally taught two styles of writing: clear and factual, or persuasive legal argument. This type of note sits in between the two, and finding that balance is hard. There have definitely been times when I have thought a note lacked the details and context to give a clear picture about P’s wishes and feelings.  But there have also been times when notes have been criticised for straying too far into making arguments.

What also takes some practice is finding the balance when it comes to what we, as lawyers, have said in the meeting. As I have said, this is often a big part of what we put in a usual attendance note. But the court doesn’t want to know a lot of detail about what the lawyer has said. And the Official Solicitor gives guidance to limit the amount of the information the lawyer gives. Yet if we don’t include any information about what was said, the court doesn’t know, for example, if information P gives is from their own memory or if we reminded them of it. The judge needs to know whether when we write that P said they want to go home, this was because we asked “Where do you want to live?” and they replied “I want to go home”, or if we asked “Do you want to go home?” and they replied “yes” so they can get information as to P’s meaning and watch out for P being overly led by well-meaning but unduly closed questioning. A very common theme in Court of Protection proceedings is disagreement about whether P means what they say. And it’s not uncommon for P to say different things depending on who they are talking to. So having an understanding of both sides of the conversation can be helpful in unpicking some of that.

I confess that when I worked in-house, I underestimated the skill involved in preparing really useful wishes and feelings evidence. There is definitely a skill in observing and capturing all of the salient information, but doing so without preconception or judgement. It can be tempting to gloss over some elements and focus on others, depending on what supports the argument we have been making. But that isn’t what our job is about. It doesn’t matter if I think the placement is not the best for P, if the evidence is that, on balance it is in P’s best interests to stay there. Instead, our position has to evolve with the evidence at each stage.

It’s one of the many aspects of this job that I have seen lawyers who’ve trained in other areas of law find difficult to adapt to. Its also something that I know family members find difficult. Because they adopt their position with such clarity, often to the point of entrenchment, that our approach can seem like “flip-flopping”. It isn’t, though. Not usually anyway. It’s just about us following where the evidence takes us.

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.