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21 May 2021 | Comment | Article by Cari Sowden-Taylor

ABI Week 2021: An inability to visit clients; the reaction of Deputies and the Court of Protection

One of the most substantial impacts of the lockdown restrictions has been the inability to visit individuals. This has been particularly impactful for individuals who have suffered brain injuries who, as a result, may struggle with technology or may require support to communicate with others.

How have Deputies adjusted to being unable to visit clients?

Hugh James manages over 130 deputyships. A strong relationship with our clients is vital to ensure their funds are managed in their best interests, as this is often specific to the individual. In line with the Deputy Standards, our practice has always been to visit every client at least annually if not more frequently. Unfortunately, the restrictions surrounding travel and visits have meant we were unable to visit our clients during lockdown. It has therefore been important to ensure we make every effort to remain in contact with our clients and keep updated as to their needs and changes in their lives.  

Case managers, care teams and families have been vital in ensuring that communication remains frequent and effective so we can act in the very best interests for each of our clients.

Lizzie Potter of Anglia Case Management explains how we have managed to work around the restrictions surrounding visits:

“The Covid-19 pandemic has caused us all to learn to work in new ways when it comes to ensuring effective communication with Clients, support teams and professionals involved. It was a pleasure to work alongside individuals in the Hugh James Neurolaw Department who I knew were always at the end of the telephone if we needed them and they were always quick at responding to emails.  It wasn’t a particularly easy time for them to start working with our mutual client during the last Covid-19 lockdown (and with restrictions even tighter due to our client being in a residential home). However, they knew how important it was to meet the client as soon as possible so they could start the process of building up a trusting and effective relationship. Our client could only have one visitor at a time due to government restrictions, so I was with her in person and Hugh James met with us virtually, this worked really well and allowed us to get things discussed and done quickly.”

During this time Lizzie was assisting with completion of a capacity assessment for the client in question. The client was allowed one visitor and we were therefore fortunate that she was able to conduct an in-person assessment.

How has the Court of Protection adjusted to an inability to visit P?

Unfortunately, the restrictions have not always provided for in-person capacity assessments, and even once allowed, visits have not always been feasible. In light of this, the Court of Protection published guidance relating to virtual capacity assessments. Guidance includes ensuring that P is in the presence of a ‘trusted person’ during the assessment, and that the arrangements should be those which are most likely to assist P in achieving capacity. This has allowed medical practitioners to ensure the capacity assessments they are completing are valid and will be accepted by the Court, thereby reducing delay from invalid assessments; a delay that may be significant given that applications usually relate to determining P’s best interests.

In addition to virtual capacity assessments, the Court of Protection has published an array of guidance to assist deputies, lawyers and medical practitioners to continue their roles whilst unable to see P in person.

The most significant change is arguably remote hearings. The Court of Protection was required to move quickly to remote hearings as many matters could not be postponed, especially those concerning P’s rights and freedom of movement in light of the newly announced lockdown. However, whilst all courts have now moved to virtual hearings, there have been additional factors to consider when making these changes within the Court of Protection due to the nature of applications that are made and the vulnerability of the individuals they concern.

An example is BP v Surrey County Council, a case that was brought to the Court of Appeal in April 2020 during the early days of the lockdown. P was living in a care home when the lockdown began and visits were suspended. His family made an urgent application for him to be moved with his daughter on the basis that the inability to visit others offended his right to liberty and security and respect for private and family life (Article 5 and Article 8 of the European of Convention Rights respectively). The Court decided that the care home was not acting disproportionately by suspending visits due to the pandemic and the need to keep P safe. This case highlights the need for the Court of Protection to continue to list hearings after the lockdown was announced. It also provides an example of the sudden questions arising as a result of restrictions, which were previously unexplored. Any guidance revolving around the pandemic was therefore welcomed by deputies.

Guidance produced by the Court included advice regarding participation of P in proceedings. Even prior to the pandemic, there was a strong emphasis on involving P in proceedings where appropriate and desired. This is unsurprising given applications to the Court of Protection almost inevitably revolve around P and it is therefore vital that P is able to participate where possible. In the 2016 case of A County Council v (1) AB (2) JB (3) SB, P was assisted to attend a hearing through support from Speech and Language Therapy and being shown photographs of the judge and all lawyers involved prior to the hearing so he was aware of their identities. This is an example of the lengths that deputies and lawyers are expected to go to ensure P can attend hearings.

The restrictions on visits and travel resulted in an inability to attend physical hearings and the simple provision of remote hearings could not be sufficient in Court of Protection matters where P may not have the ability or assistance required to log on to a virtual meeting. The Court’s example of this is where P is living in a care home with reduced staff and services, as a direct result of the pandemic.

In light of the need to ensure P’s involvement where possible, the Court of Protection published specific guidance regarding P’s attendance at hearings. The guidance advises that it is important to consider whether P can be involved in an alternative way. The obvious choice would be to obtain P’s thoughts prior to the hearing so they can be heard, though the Court does encourage “imaginative ideas” to ensure P can participate.

Conclusion

In conclusion, the flexibility of the Court, the swift response in providing guidance, and the understanding of other parties involved in Court of Protection proceedings has ensured the sudden move to virtual meetings, electronic signatures, and electronic service has been a smooth one. It is expected that many of these changes are likely here to stay.

Furthermore, the adaptations made by deputies and the teams assisting individuals who require support has greatly improved multidisciplinary communication, though these virtual meetings are no replacement for in person visits. Charlotte Fletcher, Associate, describes virtual meetings as a halfway point “more than a phone call but less than a meeting”. Whilst they have been beneficial when we could not visit clients, and it is likely elements of these adaptations will remain in the future, we will certainly welcome in person visits again.

 

Blog written by Anu Manda, Trainee Solicitor in the Neurolaw team.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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