Court of Protection: Out-of-hours process is one-sided and inherently unfair - and it must change

It only takes 237 words written by a single social worker on form COP3 (a Court of Protection “Assessment of Capacity” application) for a judge to decide to imprison someone in a care home. I know because I counted the words in the assessment relating to case I am involved with.

What The Independent has uncovered is that many of these decisions are taken without a court hearing. Instead, they are made on the phone, and often with only one side present. Single-sided hearings are inherently unfair, as it is difficult for the judge to refuse what is requested.

Obviously, there are situations where people’s liberty does need to be constrained for their own good or for that of others. But as it stands, the system is currently very one-sided.

I welcome the fact that one judge spoke to someone who was said not to have capacity and decided on the basis of the phone call that they did have capacity. It is difficult for the judges to challenge the experts and expert witnesses come under a lot of pressure from local authorities to come up with the conclusions that the councils want.

Because people on a low income don’t have to pay for care at home, but can have their home taken if they are in a care home, local authorities may find a financial advantage in caring for such people in care homes.

John Maddocks, whose daughter Wanda was imprisoned in secret for taking him to see a solicitor, died from “poor oral intake” and dehydration weighing only 48 kilos (7st 6lb) with a BMI of 16.8 in a care home.

Previously “on the run” with his daughter in Turkey he had been 85 kilos. He was a “self-funding” resident because he owned his own home.

The Government, however, turns a blind eye to all of this. It is complacent about the fact that it doesn’t know what is going on. It uses the lack of evidence as to what is happening to justify not collecting any evidence.

What is needed is for the Justice Select Committee to investigate what happens in individual cases. I am tabling a motion to call for this today.

Select Committees have generally refused to look at individual cases, but without that it is not possible to understand what is happening.

John Hemming, MP is chairman of the All Party Parliamentary Group on Family Law and the Court of Protection

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