Investigation by ‘The Independent’ shows judges making life-or-death decisions away from the public gaze
The Court of Protection is facing fresh questions about transparency, as The Independent reveals that its judges are making life-or-death decisions over the phone, with incomplete evidence, in proceedings that are not always recorded.
The out-of-hours rulings about care or medical treatment are sometimes made following one-sided testimony, an investigation by this newspaper has uncovered.
In one case, a judge allowed an Asian woman with learning difficulties to be seized from her home on the basis of “flimsy” evidence that she was about to be married off – leading to a damages settlement against the council. In another, a man with mental-health problems who took a drug overdose was allowed to die following a late-night decision that was never recorded. A senior MP will call today for an urgent inquiry into the practice after it emerged no one – including barristers and the High Court – knows how many such judgments are made. One chambers says its barristers alone deal with about 10 to 15 cases a year.
John Hemming MP described the use of out-of-hours hearings by local authorities as “appalling”, and accused ministers of complacency in failing to investigate the practice.
Legal experts believe the out-of-hours service can be used cynically to rush through rulings that would be more rigorously opposed in court. Some hearings have allegedly been so one-sided that in at least one case legal action was later taken to compensate the family involved.
The Court of Protection makes welfare decisions on behalf of those deemed incapable of choosing for themselves. Written evidence is rarely used out-of-hours, so the judge usually relies on an over-the-phone case summary by one barrister.
A leading barrister said: “There’s no real investigation out-of-hours over whether [an action] would be appropriate. It’s just the local authority ringing the judge up. The parents are not part of the proceedings, so it’s on full trust that the barrister gives their side. We can see from the transcripts that judges don’t ask enough questions and the barristers don’t tell them the other side of the story.”
The lawyer asked not to be named for fear of being accused of contempt of court for even discussing the proceedings with a journalist.
Another barrister said of the out-of-hours service was being abused: “The more interesting ones are welfare questions rather than medical because they’re often not genuinely urgent.” The barrister had the case where a middle-aged Asian woman with learning difficulties was seized from her family home, where she had lived all her life, because of fears she would subject to a forced marriage.
The Independent was told that, after a few weeks in care, the woman was returned home and has never married. The out-of-hours service was used the evening before she was snatched, and only a barrister representing the local authority gave evidence.
They allegedly failed to put the other side of the case properly or to speak to the parents. The family sued and several thousand pounds were paid in a damages settlement.
“It’s a major thing to sweep into someone’s house to remove them on the basis of flimsy evidence, without the family saying anything”, the barrister said.
“Judges do their own investigations but some do it really badly. They often just get one person’s side of the events and panic and rush off and do something drastic because [they think] they’re going to get into trouble. The kind of investigations they do before taking that kind of action are completely inadequate.”
In a second case, a judge decided at 10pm that a suicidal man with mental-health problems could be allowed to die of an overdose rather than order doctors to pump his stomach. The decision was never published or recorded.
Speaking to The Independent, Sir Mark Hedley, who retired as a High Court judge in January, said of his ruling: “I decided he had capacity [to refuse treatment], so he died that night. That’s exactly what he wanted to do… That one never found its way into any report of any sort.”
In another case, Sir Mark was called on his mobile phone outside a zoo one weekend and asked to rule on whether a Jehovah’s Witness with learning difficulties should have an organ transplant. He said: “The transplant case was made in the back of a car outside Chester Zoo… My wife said it was the only time she’d heard me making judgments.”
In March, another judge allegedly ignored expert evidence that a man did not have capacity to deny himself life-saving treatment after a quick phone chat one evening. A barrister said: “the judge had a conversation with a patient that others weren’t party to and it wasn’t recorded and he decided to refuse life-saving treatment… I was shocked.”
The doctor later went on to persuade the patient to accept treatment, but the judge’s ruling was to let him die.
As in other courts, a judge is on call between 4pm and 9am and over the weekend.
This emergency service is only supposed to be used when there is “a clear risk that someone may suffer serious loss or harm” without immediate action, but lawyers say it is often used in many less urgent circumstances.
The Court of Protection handles 24,450 cases a year, of which some 1,200 involve a full court hearing. A Freedom of Information request to the Ministry of Justice by The Independent has established that no official records are kept of how many judgments are made out-of-hours.
Mr Hemming, the chairman of the All Party Parliamentary Group on Family Law and the Court of Protection, will call for an inquiry into the out-of-hours service by the Justice Select Committee in an Early Day Motion.
He said the out-of-hours service was “the most extreme version” of the Court of Protection, “where the family are not told about it but the judge is called to rubber-stamp a decision”.
He told The Independent: “I was shocked when I found out this was going on. The court is there to protect people, but seems more concerned about protecting local authorities and their incomes. I’ve been to see ministers several times and they’re just not interested in looking at individual cases.
They turn a blind eye to the problem. It’s a disgrace.”
On-call judges are only supposed to be contacted when an immediate decision needs to be made; for example for urgent medical treatment or to prevent someone being removed from the place where they live.
“There are very few cases which can’t wait until Monday morning. For example, any cases involving turning off of machines can wait,” Sir Mark said.
Sir Mark says he made out-of-hours decisions in “three or four” cases between 2007 and 2012. He did not record all the phone hearings he made out-of-hours, but said: “There’s a duty to keep a note. I’ve kept them, but I’ve never been asked for them.”
Usually only the barrister for the local authority or health trust is involved out-of-hours, but they are obliged to present the whole case, not just their own. Yet they often only represent one side of the story over the phone and there is no obligation to have a barrister representing the interests of the patient. Ordinarily an order is written and a summary of what is said is published, but if the judge decides the patient has capacity to make the decision, then there may be no records at all.
Hearings are often not recorded, which means transcripts can be unavailable, limiting the ability to appeal against a decision.
The same barrister said that he had been involved in “several” out-of-hours cases, none of which had been recorded. He said this was often an issue of lacking the basic technology to record a call.
Mark Paulson, head of family and social justice for the Law Society, said: “Appropriate transparency is essential to maintaining public confidence in the courts. The Court Service should consider how it can support the judges who are being asked to make these difficult decisions.”
A spokesman for the judiciary said: “In the Family Division and the Court of Protection there will be cases which are matters of life and death and so urgent they cannot wait until the following morning. In these cases speed is of the essence. It will not always be practical for written evidence to be considered, for the conversation to be recorded or for both parties to be notified. The decision cannot be delayed until all these things are in place.”
A Ministry of Justice spokeswoman said: “The presiding judge will only make an order out-of-hours if it would be against the interests of a vulnerable person to delay it. When an application is accepted the decision is made with the same degree of seriousness and diligence as any other judicial decision, and is subject to the same rights of appeal. Most applications to hear a case out of hours are not accepted.”
Case studies: Rushed justice
Woman seized from home over ‘bogus’ forced marriage risk
The Independent has been told that a middle-aged Asian woman with learning difficulties was taken from her family home without warning last year, because of flimsy evidence that she was about to be married off. The out-of-hours service was used the evening before she was snatched and only a barrister representing the local authority gave evidence. The family sued and were paid thousands of pounds in damages. A barrister connected to the case said: “It’s a major thing to sweep into someone’s house to remove them on the basis of evidence, without the family saying anything. It may be there are cases where there’s a risk, but I’m not sure.”
Drug overdose man ‘allowed to choose to die’
Late on a Sunday night, Justice Sir Mark Hedley decided to let a man with mental health problems die of an overdose rather than pump his stomach, because he believed the man “had capacity” to refuse treatment. The judgement was never recorded or published. Sir Mark, now retired from the bench, said of his ruling: “I decided he had capacity, so he died that night. That’s exactly what he wanted to do.” He added: “It was a phone call at 10 o’clock on a Sunday night. Actually directly from a consultant at the hospital, though usually they come through lawyers. There would have been no [published] order at all because once I’d made a finding of capacity, there was no jurisdiction for the court to act.”
“We got hold of the official solicitor to seek his views, but no application was ever made, other than notionally by a consultant, who was really just saying “what do I do?’ It was the usual thing that life-saving treatment was ridiculously simple – it was just a wash-out, and the person wouldn’t let them do that. [The doctor] wanted to know whether he should sedate him and do it anyway, on the entirely understandable basis that doctors save lives.
“There were members of the patient’s family there and I managed to talk to one of them. They said “we think he’s completely wrong but he knows his own mind, this is what he’s been saying…’. He was in his Eighties and his wife had died the month before and he had nothing left in life to live for. That’s how he saw it.”
Organ transplant granted over mobile phone outside a zoo
Justice Hedley was on a day off outside Chester Zoo when he ruled that a Jehovah’s Witness (whose religion prohibits the transfer of blood and organs between people) should have an organ transplant. He said: “It was the not unusual problem of a woman needing a life-saving transplant that was a Jehovah’s Witness and nobody would consent. In fact it’s relatively straightforward because they don’t tend actively to oppose. The [ruling] was made by mobile phone in the back of a car outside Chester Zoo. It was a full-scale hearing and a BT conference call recorded it. My wife said it was the only time she’d heard me making judgments.”
SOURCE: The Independent