Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Wednesday, 24 April 2013

Human Rights will be in touch

[Update 05/05/2013: Since this post, events have moved on.  The court has published a transcript of an earlier hearing of the case, and Lord Judge and Munby LJ have issued this guidance on committal hearings.  The guidance reiterates that all committal hearings should either be held in public or it should be stated in public that a person has been committed - including their name and details of why.  This was already what the court rules required, and this was what Cardinal J did in this case (read on for more details), but the new guidance also states that committal hearings should be listed (I have no idea if this case was) and that an anonymised transcript should be produced at public expense and posted on Bailii.  This, I think, is a very welcome development.  Before jumping to any conclusions about Wanda's case from what you read in the press, I strongly urge you to read this transcript of the earlier hearing.]

Whatever you think about Wanda, that has to be the best voicemail message of all time.

Yes, belatedly the Daily Mail has cottoned on to a case that has been on MHLO since at least last November (at least, that's when my complicated case cataloging system says I added it).  Wanda Maddocks was jailed by a Court of Protection judge for breach of various court orders in relation to her father, who was in a care home under a deprivation of liberty safeguards authorisation (incidentally, unlike the MHA, there is no offence of helping a person under a DOLS authorisation go AWOL).  The Daily Mail would have you believe 'that it is only thanks to persistent inquiries by the Mail that we know of her fate at all — for the court heard the case in secret and chose not to publish the ruling containing details of her sentence.'  This is a somewhat bizarre claim to make, not only because the judgment was published on MHLO (albeit not on BAILII until today), but even according to the Mail the judge 'ordered the doors of his courtroom in Birmingham to be unlocked and told ushers to announce in the corridor that members of the public were free to come in.'.  What the judge didn't do was ring the press - and neither did Wanda herself, by all accounts, since the Mail only cottoned onto the case eight months later.

What orders did Wanda breach?  According to the judgment there were two:
On 19th May District Judge Owen made an order that the respondents should not encourage JM to leave or to ask to leave his placement, or discuss with him the possibility of moving back home, or remove him from the jurisdiction of the court. The reason why that order was made was because there was a history on one occasion of John Maddocks being removed from the Home where he was situated and, indeed, taken to Turkey for a short period. That, I think, in contravention of Deprivation of a Liberty safeguards order. [4]
and
On 19th May District Judge Owen made a fuller order restraining, inter alia, Wanda Maddocks, the third respondent, from using or threatening violence against her father or any employee of the applicant or the AH home, or instructing, encouraging or in any way suggesting any other person should do so. She was further forbidden from intimidating, harassing or pestering her father or any employee of the applicant Local Authority or the AH home. It is mistyped as AR home in the orders, but that matters not as she knew full well what was involved. [5]
Wanda breached both orders rather dramatically, by taking her father to see a solicitor to discuss his placement [7], by distributing a leaflet about the final hearing and giving details of the case, including a photograph of her father [8], by abusing and threatening the lead social worker on the case [8] and leaving charming messages on the social worker's voicemail 'referring to her as "you in your tarty little stuck up voice" and calling council staff "arrogant little wankers" and a lot of "arrogant little cunning bastards"', and:
"I wish you all the bad luck. I put curses on you. I've got friends in [the area] who are capable of doing that and I will get my own back. I hope you all end up where my dad is and you all end up cursed. You will all be ill. You all deserve to be cursed".
and
"You're not a social worker, you're a witch, you're a flipping cold bitch". [9]
 And, the eponymous:
"I've had a total enough now. I don't give a shit if there's a court case coming up in July. I've taken enough shit so it's going to the papers. Human Rights will be in touch. I don't give a toss what happens to me". [11]
This is the kind of judgment where everybody slips into their entrenched positions in the family vs. state (in the form of social services and the Court of Protection) war of words.  Social workers and doubtless many lawyers shudder at the thought of relatives like Wanda, and John Hemming trots out a quote about secret courts and secret prisoners, with a dash of Christopher Brooker for good measure.

The case leaves me with a lot of questions hanging in the air:
  1. Why didn't Wanda attend court on the day it ordered her imprisonment?
  2. Why didn't Wanda have legal representation during this case - and if she had, could a solicitor have warned her that leafleting and abusing social workers were unlikely to help her situation?
  3. Most important: what did Wanda's father actually want?
The judgment offers no answers to the first two questions, but they do sit uneasily with me.  We can perhaps infer either that Wanda was not made representative by her father's DOLS authorisation - or she would have  had access to legal aid - or that for some reason she did not want legal representation.  My guess is that for some reason - not discussed in the judgment or by the Daily Mail - she chose not to attend court, as she would almost certainly have been notified of the hearing.  She did flout court orders, undeniably, and ultimately courts need teeth.  But it does sit uncomfortably that a woman could be jailed by a court process where she may have had no legal advice.  Perhaps she did at some point, perhaps she turned down representation, and the judgment did not report it - that's the trouble with trying to make sense of these cases with half the facts missing.

But the more interesting question, for me, is what did Wanda's father actually want, and how this issue has got lost somehow in both the judgment and the Daily Mail's reporting of it.  It's a pattern I notice quite a bit in both Court of Protection judgments and the reports of the Mail (and, to a lesser extent, the Telegraph) about those cases.  There is so much focus on the conflict between family members and social services, or doctors, that sometimes it is extremely difficult to discern the thoughts, wishes and feelings of the person at the heart of the case.  The cases become about relatives obstructing the state, not the rights of the person at the heart of them.

Yet the rights, and wishes, of the person concerned change everything in how cases like this are framed.  In this particular case, if Wanda's father was expressing a wish to come home, and Wanda was trying to facilitate a visit to see a solicitor to exercise his appeal rights, then that puts a very different slant on things.  It makes the order of 19th May which forbade her from discussing a return home with him seem very problematic, as it essentially prevents her from assisting him in exercising his Article 5(4) (and 8 and 6) rights.  On the other hand, if Wanda's father is perfectly happy in the home, and Wanda is persistently upsetting him by trying to persuade him to return home, then the order could be interpreted as trying to protect him from harassment, upholding his rights against a relative who is persistently disturbing his peace and privacy.

The judgment doesn't really tell us a lot about John Maddocks and his views.  This passage gives us a sliver of insight, but barely enough to hang an informed opinion from:
Perhaps worse than that because this does not physically harm, on 27th June she gave her father a wooden cross at a visit, saying he should keep it on him at all times to prevent the evil in the Home hurting him. She asked him again if he wanted to go home with her. She caused him to cry and John Maddocks even complained "she never shuts up". On 7th July she spoke to her father on the telephone, urging him to tell people that he wants to go home and causing him, again, to cry. [10]
As I said, a sliver, but it does look rather as if the father may not share Wanda's passion for a return home.  I can't help but feel extremely sorry for John Maddocks, either way, caught in the middle of this struggle between the local authority and his daughter.  Somebody once described these Court of Protection cases to me as like the Judgment of Solomon: not really about 'P' and what P wants at all, but about who owns P, who gets to decide on P's behalf.  The Daily Mail view of this tug-of-war is of course that it is families who own P, not the state.  That is the fundamental message their coverage of Court of Protection cases sends out.  (That - and that they should be free to cash in on one-sided coverage of families who want to splash their stories all over the news).  Yet from a disability rights perspective, one informed by the debates around Article 12 of the Convention on the Rights of Persons with Disabilities, the real question at the heart of this case is not what Wanda wants, but what her father wants.  Somehow that gets lost amongst all the sound and fury about secret courts and secret prisoners, the voices of the people these cases are actually about are drowned out by  everybody else's noisy political agendas.  Hopefully, someday soon, human rights will be in touch and the UN Convention will help to amplify their voices.

[Edit: There's a great post by Obiter J on committal hearings in the Court of Protection - it explains that Wanda Maddocks would have been given the opportunity to be heard in person.  I have no idea what the legal aid arrangements are for somebody being committed for contempt - any ideas out there?]

[Update 27/04/2013: The Mail has continued to run with this story this week.  Yesterday they ran with the story that Maddocks' brother had been given a suspended sentence for breaching court orders, and today a further story about why Wanda wanted to remove her father from the care home.  There are still a number of problems with the Mail's coverage.  In the first place, they're placing a lot of emphasis on Wanda being jailed without having attended court in person or being legally represented.  If you read the judgment, Wanda actively evaded service of this form, which suggests she had a fair idea of the matters at stake.  The form is also pretty clear that you MUST attend court, and that you could be sent to jail.  It advises you to get legal advice from a solicitor, which Wanda clearly did not do.  Committal proceedings are criminal proceedings, so she would have been entitled to legal aid.  We can't know how things might have turned out differently if she had attended court, but my guess is that she would have significantly reduced her chances of an actual prison term had she turned up, apologised to the judge and convinced him she wouldn't breach court orders again.  From the sounds of the most recent Mail article, she had already had several psychiatric assessments during the court proceedings, so if there had been concerns about her capacity to understand the court order and the implications of not turning up to the committal proceedings, my guess is the court would have considered that in its judgment.  There are multiple other problems with the factual accuracy of the Mail's coverage of this case, and their description of the Court of Protection in general.  However, the most recent article did set me thinking.  Wanda's father tried to escape the care home, if the Mail's coverage is to be believed, he did not want to be there.

Now, Wanda and her brother were taking him to see a solicitor, and the thing is, he must have already had a solicitor in these proceedings (although 'P' isn't always joined as a party in Court of Protection proceedings - a remarkable fact in itself - I think it would be unheard of for P not to be represented in his own right in a case like this).  There are no statistics on this, but in the vast, vast majority of COP cases (that I have read or heard of) P is said to lack the capacity to litigate and his solicitor is instructed by the Official Solicitor who runs the 'best interests' case - not necessarily the case for what P himself wants.  If this was the case, it would be interesting to know whether John Maddocks' own solicitor was challenging the placement in the care home which John Maddocks (according to the Mail) objected to.  If he did not, if he (or she) was instructed to support the placement, we might interpret Wanda taking John Maddocks to see a solicitor as her attempt to find a solicitor who would challenge the placement.  To anyone familiar with the COP, this was a misguided attempt, as no solicitor would be able to take instruction from John Maddocks if he had been found to lack the capacity to litigate.  Unless, of course, they were prepared to go to court and challenge the finding that he lacked litigation capacity (I've only once heard of a solicitor doing so; it's technically possible if they felt that 'P' had litigation capacity to instruct them).  But it is possible, even likely, that Wanda and her brother didn't understand that.  This is all totally hypothetical, we can't know whether this is what was going on without the earlier judgments in the case being published - which I suppose might happen now that John Maddocks has passed away and the family seem pretty keen on publicising their side of the story (any enterprising journalists out there want to make that application?).  And I'm aware that the Mail's coverage is completely tendentious and largely inaccurate.  And I'm aware that Wanda's behaviour regarding the court order was irresponsible and unlawful, and her decision not to attend court to defend herself or find a lawyer to do so was extremely stupid (to put it bluntly).  But, still, you can see how a litigant in person could feel extremely frustrated by a process where they are advocating for what they think their father wants, and his own solicitor might not be.  If that is what happened, and we don't know that it did.]

13 comments:

  1. Even the person with a dementing illness, not yet lacking capacity to make the decision to return home to an situation falsely alleged by social workers/ nurses as having some risk, can find their wishes being ignored. So problems begin before the CoP process in attitudes of these 'professionals' (control freaks).

    A case where during family visit to hospital, when elder was expressing concern at not being discharged home, it was asked by family what could they do if elder discharged self? Sometime afterwards the elder getting fed up with not being listened to stated the wish to discharge self. The consultant by all accounts said elder could not- but must have been informed she was wrong as all attempts to stop the elder failed.

    Most elders (of the very great age and declined in health) would not have the strength to act against professional decisions; thanks to the family for suggesting what the elders rights were to the elder.

    It seems that there is a state versus family issue only in the UK. The fact so many people end up alone living with strangers or by themselves is a witness to trends in the way the British government has developed a system pitched against family. You cannot have a caring society if family are not central to it. There is no more relevant best interests decisions by the state 'professionals' than by family, when the person at the centre is left out

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  2. What someone 'wants' is not as clear cut as the idea suggests. Some people cling to situations despite abuse because of other factors - fear, predictability etc ...also lack of legal & other forms of literacy by family members seem to be used against them ...odds are stacked in favour of professionals in terms of legal & modes of expression... What prompted ms maddocks to think father being mistreated? Not suggesting that family is always best placed but participation by families alien to court & professional language & behaviour should not be held against them. The 'wooden cross' thing may not be as literal as portrayed ...imagine say 'lucky mascot' or 'favourite object' ...may be only mode of expression someone has with person with limited mental faculty ...just a few thoughts on the other side without taking sides ... People who don't have language & legal skills may care about their family members but express it in a way different to legal & LA professionals

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    1. Hi Anonymous,

      I don't disagree with you - the information we have about this case is so sparse and leaves so many questions unanswered that I'd be cautious of coming to any view about it. I certainly wouldn't jump on the Daily Mail manifest-injustice bandwagon, but there are questions about how well supported she was in the legal process, what was going on at the care home, and where her father wanted to be. My point is that in this vacuum of information the DM uses it to lobby for greater access to the court and ability to publish more information - when plenty of families don't want that. They aren't really interested in the access to justice issues (for Ms Maddocks or her father) - if they were, they'd be campaigning for legal aid for families in the COP. And in amongst it all, nobody is really talking about John Maddocks and what he wanted.

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    2. " They aren't really interested in the access to justice issues (for Ms Maddocks or her father) - if they were, they'd be campaigning for legal aid for families in the COP".

      Lucy, I think you do not realise how few yet understand the CoP system, or the 'control' and 'secrecy' afforded by what goes on inside it. People only start to voice things that strongly when it gets closer to home in a situation they themselves know about. We are not an 'activist' nation and tend to take what is shelled out- the state of politics is a good example of this.

      As to families not wanting 'publicity' I think if cases could only be reported in anonymised and in agreement with the families concerned I suspect more would wish this- especially where they realise the local authority or NHS has fabricated some 'evidence' to get their outcome.

      Many lack faith now in the British institutions e.g. banks- but do not exactly make heavy protest to bring them down to the level of working more honestly. The same is with the feelings about the impartiality of the judiciary, or miscarriages of justice.

      The fact is that there are vested interests involved that obscure the facts that are missing in this case. The DM has its place and I for one, although not a reader, am grateful it does this. The reporting is no worse than the fabrications and wrong views of 'professionals' used against 'jo public' when in dispute with powers in the courts.

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    3. I've always argued that judgments of the COP should be routinely anonymised and published. I can think of cases I would love to see in the public domain but aren't. In fact, if the earlier judgments in this case were, then we wouldn't be having this discussion in this vacuum.

      The Mail was squealing about the injunction in the case W v M, where a family applied to allow their relative to be allowed to die. The family in that case absolutely did not want the press to harangue them, that's why they sought the injunction. The Mail aren't interested in whether or not families want to tell their stories, they're interested in telling their stories whether they want them told or not!

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    4. Lucy, legal issues and language apart, looking at 27th April Daily Mail article Wanda's account as reported is entirely credible. You clearly lack personal experience of trying to care for a close family member lacking mental capacity who has social services involvement.

      Many many people, including myself, state to family / friends that they would rather die than be put in a care home- they may not be able to say this when they loose verbal skills / capacity and no power of attorney is made.

      When a family member, where social services have 'taken over' (usually those owning houses /own funds- allowing local authority to spend their money), raises any issue regarding the care / services the family will often find themselves in Wanda's situation.

      No safeguarding issues will be raised about care homes or social services poor assessment, leaving family naively to think they can do something. CQC unfit for purpose does not record or take into account the issues brought to its attention in its reports, or previously known about care provider, yet this is normal in safeguarding investigations of families. So care providers have light touch inspections not really giving a correct view e.g. of poor management /abuses occurring over time (think of Winterborne View).

      Your protection of the system you research is diametrically opposed to my experiences (and that of many many others)of it. Coercion and Control is state authorised for public sector staff- not the families who know P who may just be trying to help P or protect P.

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    5. Anonymous, I've posted your comment but I'd appreciate it if your comments could try to avoid getting personal. If there's something specific you think you've misunderstood, or some issue you think I should consider, please do get in touch here or by email. But I'm not interested getting into a personal experience arms race with you. I've no idea who you are (anonymous), but you don't know me, my family or anything about my personal circumstances. In future I won't be responding to comments like this.

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    6. Apologies to you Lucy if you feel this is personal, I should have written it so it did not appear so. But I have concerns about social research. Its academics, from personal experience in the field, tend to interpret from a viewpoint held, failing to look fully at the other aspects of importance (I know why too).

      It matters in CoP / MCA that many families are being treated as if criminal because the laws made are so concerningly constructed- to allow state / official abuses without redress.

      Personal experiences count more now if the laws are to be challenged or changed to avoid normal family relations being rendered illegal by judges and social services.

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    7. No worries anonymous, sorry - it's been a very long day.

      So - one of my chief concerns about the MCA is the amount of power it hands to professionals (and, in some contexts, families too) with very very weak safeguards and opportunities for redress. I also think the academic literature on the MCA has focussed far too much on the views of professionals and not enough on the people who are alleged to lack capacity. There is a literature on the experiences of families, but it tends to focus on families as decision makers, not on their experiences of other decision makers (i.e. social services, the COP) - the chief exception to that being medical practitioners, where there is a limited literature. I would like to see more research done on the experiences of 'P' and family members of having care decisions made under the MCA, and also of their experiences of the COP. In fact, I am hoping to do some research on this myself with colleagues - but there are far more technical challenges to this than you could believe. Hopefully we'll be able to surmount these so we can formally record the experiences of those with personal dealings with the COP's welfare jurisdiction.

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  3. Lucy - a case for you to read on committal. Hammerton v Hammerton. In my view HHJ Cardinal's disgusting decision in this case is malum in se, and unlawful.

    If family members are prohibited from talking to service users about objections to a placement on grounds of 'distress' then in reality that is akin to prohibiting them from talking to their family about it. It is a de facto circumvention of their article 6 rights.

    Similarly, if a person is deemed to lack litigation capacity (but per the European Court in Stanev v Bulgaria and confirmed in RP v United Kingdom have a right to challenge that finding) and in UK law have a theoretical right to have a solicitor go to court and assert litigation capacity how can they assert that without speaking to a solicitor? How can they assess their chances of asserting capacity?

    I am afraid that I agree completely with the Mail on this.

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    1. Hi MH,

      Thanks v much for the Hammerton v Hammerton suggestion - v interesting!

      This I will say: if John Maddocks had no other route to challenge his placement than by being taken to see a solicitor by his children, the order was problematic. But we don't know the full circumstances of the order, we don't know why the court made it or what other avenues for representation he had.

      However, in strictly legal terms, I'm not sure the Art 6 issues are as clear cut as you suggest. A person who 'lacks capacity' has a right to challenge a deprivation of liberty (Shtukaturov, Salongaji, Stanev, Kedzior, DD, Lashin...), seek the restoration of their capacity where they have formally been deprived of it by a court (Stanev, Kedzior) and the right to challenge a finding that they lack capacity to litigate (RP v UK), but nothing says that they can instruct a solicitor for any of these purposes. And RP v UK suggests that they may not be able to, as the solicitor may have to take instruction from a litigation friend who represents their 'interests'.

      In effect, the ECtHR has got itself in a pickle. On the one hand, they've said that Art 6 means that a person can challenge deprivation of legal capacity which means they can't instruct a lawyer. On the other hand, it's committed itself to the view that a lawyer can't take instruction from an incapacitated person, and Art 6 requires their 'interests' to be represented instead. One reading of this is that a person can challenge DoL/DOLC, but they can't do so with the aid of a solicitor. That's a problematic reading, because it renders their right of challenge to 'theoretical and illusory' territory, but the court hasn't ruled conclusively on this issue yet and you can see how RP v UK taken to its logical conclusion supports the reasoning that John Maddocks didn't need to see a solicitor as the solicitor couldn't taken instruction from him anyway.

      I'm not saying that I agree with this line of ECtHR jurisprudence, personally I think it's really problematic, but I am saying that it's not obvious that it was a violation of Art 6 as the law stands.

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  4. """
    In this particular case, if Wanda's father was expressing a wish to come home, and Wanda was trying to facilitate a visit to see a solicitor to exercise his appeal rights, then that puts a very different slant on things. It makes the order of 19th May which forbade her from discussing a return home with him seem very problematic, as it essentially prevents her from assisting him in exercising his Article 5(4) (and 8 and 6) rights.
    """

    Well, yes. Any such order will have that affect at any and all times. How can she even find out whether he needs her to contest the order, without breaching the order?

    """
    The judgment doesn't really tell us a lot about John Maddocks and his views. This passage gives us a sliver of insight, but barely enough to hang an informed opinion from
    """

    Again, yes, exactly so.

    How are we, as electors, whose responsibility it is to evaluate the performance and actions of our members of parliament, as they themselves keep tabs on the executive and judiciary... how are we to know whether to ask them to change the law, if we cannot know how the law is being applied?

    For that is how it works. We are subject to the law as applied by judges. The law is made by parliament. Parliament is accountable to us. We must know what judges are doing so we can ask parliament to intervene if necessary. But all we have is "a sliver of insight".

    It's enough to know that it isn't enough -- to prove that publicity is indeed the very soul of justice.

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  5. I received a comment from 'I.S.' today, but I must apologise to the author that I cannot publish it in full as it contains information which cannot be published without committing a contempt of court. However, I would like to reproduce the author's last comments, describing welfare proceedings in the Court of Protection as ' an area where little legal specialism is freely available. In one case the legal costs ran to £50k before it even got to a public court - and needless to say the authority won as the individual ran out of money. The system and procedures, coupled with the freedom given to social services and the difficulty in questionning their actions could almost be compared to issues that occur in the so called third world. Sounds extreme but it is far from any ethos of freedom, respect and justice. And there is only one loser - the family.'

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