Court of Protection

          “It is said in the Court of Protection that decisions are taken via the judge, who relies on an expert witness.”

(John Hemming (Birmingham, Yardley) (LD), 17 Mar. 2011 Westminster Hall)

“Official Solicitor” = often appointed as litigation friend even though the Official Solicitor ought really to be appointed as a litigation friend of last resort.

“Contempt of Parliament” = where effort is being put into stopping external scrutiny of the processes.

1.  Example of wrongful doing by the Court of Protection:

Last week, I raised the issue of Fred Goodwin and Lee Gilliland. Everyone tended to concentrate on Fred Goodwin and the banker issue, but I think that the issue of Lee Gilliland is more important.

The Gilliland case is slightly complex, and I cannot refer to some things, because proceedings are continuing. However, in the historic proceedings to which I referred last week, he had his mental capacity removed, on his right to instruct a solicitor, on the basis of a report from his GP which was written some five months after his GP had last seen him and which he has still not seen—I spoke to him about half an hour ago.It took me a little time to get into the issue of mental capacity, when I first encountered it a number of years ago, because it seemed so shocking.

Yes, we have the Mental Capacity Act 2005, which specifies circumstances under which people’s capacity can be removed, but I was surprised to find a situation in which someone who seems coherent could be told, basically, “You’re too stupid to tell a solicitor what to do. And, because you are too stupid to tell a solicitor what to do, we will appoint what is called a litigation friend”—one must distinguish between a litigation friend and a McKenzie friend, because people sometimes confuse the two.

The litigation friend acts on someone’s behalf. The Official Solicitor is often appointed as litigation friend even though the Official Solicitor ought really to be appointed as a litigation friend of last resort.

With the agreement of the Official Solicitor on behalf of Mr Gilliland, a decision was made by the court. The house he lived in was to be sold, with half the money going to him—roughly £50,000. However, he was to be evicted and, of the £50,000, more than £37,000 would go to his solicitor. Who is protecting Mr Gilliland’s interests?

He did not start out as a particularly wealthy individual, then the state came in and said, “You are too stupid to instruct a solicitor, but you can’t see the basis upon which we have made that decision. Oh, and by the way, we are going to take three quarters of the money you might have had, turfing you out of your house and putting you on the streets, and give it to your solicitor.

I do not see that as treating Fred Goodwin on the one hand and Lee Gilliland on the other hand equally. Fred Goodwin can afford to spend a lot of money on getting an injunction, or even a super-injunction under which someone cannot even talk about him having the injunction. I will come to what I call hyper-injunctions.

One of the freedom of speech issues is that media organisations are generally commercial organisations, and there gets to be a point at which it is not worth their while trying to challenge the system and to get information out. With that, we return to the article 9 issue, because our freedom of speech in the House is obviously on behalf of the citizens. We need to know of grievances so that we can raise them and talk about them publicly, so that the citizens of the UK can know. If it costs £20,000 or £30,000 in legal fees to write an article, in most circumstances a media organisation will just give up. The freedom of speech is basically sold down the river, because of the costs of the legal processes.  (John Hemming (Birmingham, Yardley) (LD), 17 Mar. 2011 Westminster Hall, Column 142WH)

2.  Example of wrongful doing by the Court of Protection:

That is not really a long assessment in terms of the Mental Capacity Act 2005. Where in the assessment is there an attempt to assist her in making her decision? There is no record of it whatsoever. The assessment is given as a sufficient basis to, basically, imprison her. It was in secret and there was no accountability and no second opinion at that stage.

I wrote to a Minister who told me to write to the Care Quality Commission, which told me to write to the solicitors, who did not respond.

I wrote to the council, which told me: “The judge has banned us from talking to you.

I wrote to the Official Solicitor—this is a mental capacity case and the Official Solicitor has been appointed to deal with her best interests—and I got a letter back that said:

“You are correct when you suggest that I take the view that I am not accountable to you as an MP for the way in which I act in individual cases.”

We have a sort of vacuum here. There is no proper accountability in this area whatsoever.  

Her sisters were talking to me and were threatened that they would be in contempt of court if they continued to do so. One of the sisters is a constituent and another one lives just outside my constituency.

We have here another contempt of Parliament, where effort is being put into stopping external scrutiny of the processes.

In the case I am talking about, a large sum of money has been spent on keeping this particular girl in the custody of the state—she is effectively a secret prisoner. The family has expressed the view that the true reason she was taken into care some 10 years ago was to prevent the investigation of an allegation of sexual assault against a member of staff of the city council. They think that the reason this kicked off is that, when she came back to Birmingham, someone did not want the investigation of the sexual assault from 10 years ago to kick off. I have seen some of the police records, and the family have a reasonable case for saying that that might be the motivation underlying such a massive expenditure of public money. Whatever way we look at the matter, this is a dreadful case and it is very clear what is going on. It has been said that her father is a risk to her. However, he died last July—possibly partly as a result of the stress of the case—so he is not much of a risk now. It is therefore difficult to understand what the justification is for what has been done.

The Official Solicitor’s answer is that he is accountable to the court. However, I cannot see where the real scrutiny of that process is. Let us consider the case I mentioned earlier—the £37,000 case—which also involved the Official Solicitor. Obviously, Alastair Pitblado does not trundle around the country like Father Christmas, visiting every court for a few seconds. We are talking about members of his staff, who will vary in calibre. As far as I can see, there is no real scrutiny of the Official Solicitor. Yes, the court may spot something, but it is very difficult. Who is actually acting to protect somebody against what the Official Solicitor does? That is a very difficult question. In addition, I have asked if I can go and see the constituent concerned and have been refused. So, someone is being held incommunicado from her Member of Parliament. (John Hemming (Birmingham, Yardley) (LD), 17 Mar. 2011 Westminster Hall, Column 147WH)