A judge in the Court of Protection has set directions for trial after a dispute emerged between a so-called ‘litigation friend’ and family members.
Read more: ‘We know her best’ – family members disagree with the litigation friend
This was a well-attended hearing with the front row consisting of barristers representing the Local Authority and P’s litigation friend, along with P’s daughter in law and her husband appearing in person. Of the seven people in the row behind were P’s social worker & his line manager, along with solicitors both practising and trainee.
With a listed start time of 10.00am this hearing began late at just shy of 11am. As the hearing had a time estimate of 1-hour this led the judge to mention the over-running at several points throughout the proceedings:
“It’s ten past 11, you’ve already exceeded your one hour.” … “I cannot finalise the proceedings as there is a dispute, as it’s quarter past 11 I won’t be able to resolve that dispute today“… “my difficulty is I have a case waiting. Whilst this case is important every case is important”… “I’m now eating into the next case”.
Heavy case loads seem to be a regular feature of our courts.
This was a difficult case to gain access to with the court clerk approaching me outside the courtroom to tell me that in fact the “proper procedure” for observers to attend CoP cases is to e-mail the court in advance and ask permission from the judge. I had only thought about attending this hearing at 09.59am as my first choice had been taken out the list so that would have been impossible.
In my opinion this is not the correct starting point for a hearing listed as being in public. The Court of Appeal considered that a test for whether a hearing is in public is the ability of “a member of the public dropping in to see how [the court works]“. The clerk did advise that this was the first time a member of the public had observed this judge, who also apparently doesn’t conduct remote hearings.
Contrary to the former VP’s guidance there was not an introduction to the case given at the start of the hearing so it was a bit of a puzzle working out exactly what was going on.
The hearing concerned an application made on behalf of the so-called ‘Litigation Friend’ of a woman, whose identity is protected by court order, and who is currently ‘deprived of her liberty‘ in a care home.
Litigation friends make decisions for adults (and children) who lack the mental capacity to manage their own court case either with or without a solicitor.
The lady concerned had been declared as lacking capacity at a hearing before the same Judge at a hearing in March of this year.
Mr O’Ryan*, on behalf of the litigation friend, said that the woman, who I shall call Susan, “expresses a desire to go out more” and that she “says she is bored and wants to go out”. It was submitted that “the deprivation she is currently experiencing is currently disproportionate” as “greater community access has not been fully explored”.
We were told that Susan leaves the care home with an activities coordinator once a week, and with her daughter-in-law, who is the second respondent to this application, able to take her out “2 or 3 times a week”.
Mr O’Ryan submitted it was “likely to result in [Susan] experiencing a richer and more fulfilled life if she is able to access the community”.
A further spanner in the works is that Susan is a ‘self-funder’ at the care home and the daughter-in-law, who we were told has a lasting power of attorney over Susan, “would need to agree to spend [Susans] resources, as [the litigation friend] understands it the 2nd respondents do not currently consent to that”.
The court heard that the local authority had agreed to fund a trial period of an additional one session a week for a limited time.
It was submitted by Ms Layton*, on behalf of the local authority, that the current depravation of liberty was proportionate as the proposed addition of one session a week was “a difference of degree so small that it doesn’t cross the line between proportionate or disproportionate … what we’re talking about is [Susan] accessing the community once a week with care staff, twice a week with family, and once or twice more with a provider”. The difference was “so small” it was asked “what is the purpose to be served in prolonging these proceedings?”
The Judge checked that “presumably that trial would be under constant review” and “if it caused distress, it would stop?”. The judge was reassured that the local authority “would exercise discretion” if after one or two sessions the plan was found not to work.
Addressing Susan’s daughter-in-law, as the second respondents to the application, HHJ Woodward said “I’m being asked to consider the arguments put forward by the litigation friend, that the restrictions could be significantly reduced if she had more access to the community. Only then could I be satisfied that the conditions of the standard authorisation [for a deprivation of liberty] are met, so bearing in mind I can’t resolve that issue today, there is time for the local authority to put in place a trial run for community access… what’s the issue that concerns you the most?”
The daughter-in-law then addressed the court. She said that Susan “is a very complex lady” and that “she is very very confused”. We were told it had taken her fifteen months to get used to the staff at the current care home and that she is “really aggressive with people she doesn’t know”.
“It’s not that she wants to go out, it’s that she wants to get back to her own house”. It was said that on one occasion Susan had grabbed the hair of a car driver whilst out and about. “In shops she puts things in her bag or pocket so you have to watch her”.
In any event “when she gets back to the care home she forgets within 10 minutes she has been out”.
On greater access to the community “I just feel it would just confuse her too much.“
The judge replied saying “if I don’t trial this [additional one-session-a-week] it’s very difficult to make a final decision… what I’d like to know is, given there’s a few weeks between now and the court trial, on the understanding it would be risk assessed, and on understanding it would be stopped if cause distress, then I will have the evidence at the next hearing … my preference would be to know if that works between now and then because it gives me the evidence to know, and gives the litigation friend the information to know if this should be put in place.”
The daughter-in-law replied saying “I actually believe we know [Susan] best, the litigation friend wanted more photos in her room. That has upset her more.”
It was also said that a TV was installed in Susan’s bedroom against the family’s wishes. The daughter-in-law explained that she now “stays up watching it, spending half the day in bed, she stays in bed until after lunch”.
The matter is expected to return to the Manchester Civil Justice Centre on 29th August 2023 at 11.00am, with a time estimate of half a day, for a final hearing.
Wednesday, 7 June 2023
Manchester CJC HHJ Woodward
Before: Her Honour Judge Woodward (P)
Court 35 Level 7
10:00 AM 1 hour
COP14033947 VH [a] Deprivation of Liberty
In Public with Reporting Restrictions
In Person
*Names of counsel were written down as they were said in court.
Mouse in the Court 