Journal of Elder Law and Capacity
2025
Law Society of Northern Ireland
Journal of Elder Law and Capacity
Editorial Panel
Linda Johnston, (Chair), TEP (Retired)
Elizabeth Dowling (Assistant Librarian, LSNI)
Arleen Elliott (Solicitor, Elliott Trainor Partnership)
Dr Barbara English (Consultant in Old Age Psychiatry)
Dr Patrick Hann (Consultant Psychiatrist)
Andrew Kirkpatrick (TEP, Solicitor, Boyd Rice Solicitors)
Aimee Miller (Head of Legal Services, Commissioner for Older People for Northern Ireland)
Claire McNamee (Conveyancing and Non-Contentious Practice Lead, LSNI)
Peter O’Brien (Deputy CEO, LSNI)
A Change in ‘Culture’: Hearing Adjustments for Vulnerable 1
Witnesses and Litigants
Emma McIlveen BL and Dr John Taggart Living with Autism -
in conversation with Claire Burke LLB Hons
Linda Johnston, TEP (retired)
Olga C Pandos
Monye Anyadike-Danes
Andrew Kirkpatrick, TEP, Solicitor, Boyd Rice Solicitors
Rachel Sullivan, BL, 39 Essex Chambers
Information
The Journal of Elder Law and Capacity is a source of information for a range of practitioners dealing in all aspects of elder law and capacity. Published by the Law Society of Northern Ireland, it aims to have UK and international appeal with coverage on legal issues relevant to elder clients, clients with capacity issues, their families and carers.
Submission of content
We welcome the submission of articles for the consideration by the Editorial Panel with a view to publication. Authors are asked to contact Elizabeth.Dowling@lawsoc-ni.org to obtain a style sheet.
Submission of an article will be held to imply that it contains original unpublished work and is not being submitted for publication elsewhere. All contributions are sent at the author’s risk. Please note that where there are references to websites, links to these websites were live at the time of writing.
ISSN 2632-3923
Disclaimer
The Law Society of Northern Ireland accepts no responsibility for the accuracy of the contents of the Journal and any views and opinions expressed in the Journal are those of the contributors and are not necessarily those of the Law Society of Northern Ireland, save where otherwise indicated. Although all reasonable care is taken in the preparation of material for publication in the Journal, the Editorial Panel, publishers and contributors accept no responsibility for any loss caused to any person acting or refraining from acting as a result of material contained in or omitted from the Journal. The Journal is not a substitute for professional advice. Readers should satisfy themselves as to the accuracy, completeness, adequacy and currency of the contents of the Journal.
© Law Society of Northern Ireland 2025. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means electronic or mechanical, including photocopying, recording of any retrieval system, without the written permission of the Law Society of Northern Ireland.
Published by the Law Society of Northern Ireland, 96 Victoria Street, Belfast BT1 3GN
A Change in ‘Culture’: Hearing Adjustments for Vulnerable Witnesses and Litigants
Emma McIlveen BL and
Dr John Taggart, Lecturer School of Law QUB
Introduction
In 2011, the Northern Ireland Law Commission (NILC) made a raft of recommendations in its report entitled Vulnerable Witnesses in Civil Proceedings. 1 In the report, the NILC recognised that ‘justice would be threatened and injustice would flourish’ if the needs of witnesses rendered vulnerable due to their age, emotional or physical well or any other reason were not taken seriously and addressed. The NILC concluded that the types of accommodations introduced for vulnerable witnesses in criminal proceedings should equally apply to the civil courts. Central to this, the NILC outlined, should be the availability of ‘special measures’, including the use of screens, live-link and witness intermediaries.
Despite its ambitious list of recommendations, the NILC has been nonoperational since 2015. Ten years on, how do civil courts and tribunals in Northern Ireland provide accommodations or adjustments for vulnerable individuals? Northern Ireland occupies a relatively novel position in this area since the Civil Procedure Rules in force in England and Wales, which establish an overriding objective for courts to deal with cases ‘justly’, do not apply in Northern Ireland. Instead, a series of older procedural rules relating to different areas of law exists. While a similar overriding objective can be distilled, the rules have been described as ‘disparate and often obscure'.2 This can make it difficult for litigants, particularly litigants in person, to familiarise themselves with the court process and the relevant rules. In recent years there have been several key developments in both
1 Northern Ireland Law Commission, Report: Vulnerable Witnesses in Civil Proceedings (NILC 10, July 2011).
2 G McKeever, L Royal-Dawson, E Kirk and J McCord, ‘The Snakes and Ladders of Legal Participation: Litigants in Person and the Right to a Fair Trial under Article 6 of the European Convention on Human Rights’ [2022] 49(1) Journal of Law and Society 71.
caselaw and procedural guidance that relate specifically to the position of vulnerable litigants. This article surveys these developments and gauges the extent to which they promote and enable the participation of vulnerable litigants.
Litigants and the value of participation
The ability of individuals to participate in legal proceedings which they are party to is of fundamental importance. Participation is regarded as a ‘core element of procedural and substantive justice and of legal values embedded in legal rules’.3 Of course, it is recognised that legal representation plays a crucial role in ensuring that lay persons can participate in legal processes.4 It is often the case that individuals indirectly participate through their legal representative who has a better knowledge of court procedures, rules and processes. In this regard, research from McKeever et al suggests that litigants in person face numerous barriers to participation. These barriers can be intellectual (inability to understand legal issues and/or legal terminology), practical (inability to access support to help to understand and navigate the process), emotional (feeling overwhelmed/balancing the emotional impact with the legal arguments), or attitudinal (being stereotyped as ‘problematic’ and having little or no trust in the process).5
If court proceedings are complex and difficult to navigate for most lay persons, it is obvious that these challenges are only increased for those considered ‘vulnerable’. The image of the archetypal ‘vulnerable individual’ involved in court proceedings has his historically been limited to the criminal process. For example, the special measures regime introduced in England and Wales through the Youth Justice and Criminal Evidence Act 1999 (and by the Criminal Evidence (NI) Order 1999 in Northern Ireland) applied solely to criminal proceedings. Yet, the reality is that vulnerability is not exclusive to criminal courts and all justice fora present their own individual challenges.
3 Grainne McKeever, ‘Comparing Courts and Tribunals through the Lens of Participation’ [2020] 38(3) Civil Justice Quarterly 217, 228; J Jacobson and P Cooper, Participation in Courts and Tribunals: Concepts, Realities and Aspirations (Bristol University Press 2020) 1. It’s also worth noting that participation is emerging as an international trial norm irrespective of procedural tradition, see: J Jackson and S Summers, The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions. (Cambridge University Press 2012).
4 J Jacobson and P Cooper, Participation in Courts and Tribunals: Concepts, Realities and Aspirations (Bristol University Press 2020) 74.
5 G McKeever, L Royal-Dawson, E Kirk and J McCord, ‘Litigants in person in Northern Ireland: Barriers to Legal Participation: Briefing Paper 3: Can litigants in person participate in court proceedings? (available at: https://nihrc.org/assets/uploads/publications/LIPS_Briefing_ Report_3.pdf).
Employment Context and Galo
Within an employment context, it is worth noting that tribunals were originally set up to avoid formality and encourage efficient resolution of disputes.6 As Jacobson and Cooper point out, this was underpinned by a desire to facilitate lay participation without the need for expert legal representation.7 In recent years, employment Judges have enjoyed increased discretion to adapt proceedings in various ways to assist litigants and maximise their participation. Indeed, in both Northern Ireland and England and Wales the power of tribunal Judges to ‘regulate its own procedure’ may include adopting a more inquisitorial approach to help avoid ‘undue formality’.8
In Northern Ireland, the most significant development in this area in recent years has come from a decision of the Northern Ireland Court of Appeal (NICA). The question of adjustments at hearings for vulnerable and disabled litigants was examined by the NICA in the case of Galo (Patrick) v Bombardier Aerospace UK [2016] NICA 25.9 The case has since been described as establishing and promoting ‘procedural fairness’ by setting a ‘framework for behavioural changes at hearings.’ 10 The Court of Appeal in Galo called for a change in the ‘culture’ of employment hearings in Northern Ireland when vulnerable individuals are involved.11
The appellant in the Galo case suffered from Asperger’s Syndrome. In his case before the Court of Appeal, he argued that he was not accorded a fair hearing of his claim because the tribunal failed to take properly into account his disability and his medical evidence, in circumstances where he was not represented, particularly at his tribunal hearing.
The appellant submitted that a range of tribunal acts and omissions were tainted with unlawfulness including:
• Failure to make reasonable adjustments for his disability;
• Unreasonably failing to adjourn the case on a number of occasions;
6 H Scrope and D Barnett, Employment Law Handbook (4th edn, The Law Society 2008) 405.
7 J Jacobson and P Cooper, Participation in Courts and Tribunals (Bristol University Press 2020) 34.
8 The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Regulation 2 & 41; The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020.
9 [2016] NICA 25.
10 P Cooper and C Allely, ‘You can’t Judge a Book by its Cover: Evolving Professional Responsibilities, Liabilities and ‘judgecraft’ when a Party has Asperger’s Syndrome’ [2017] 68(1) Northern Ireland Legal Quarterly 35, 57.
11 [2016] NICA 25 [61].
Articles
• Placing unfair and oppressive demands on the appellant in relation to the hearing and in the course of the hearing week;
• Striking out all claims except his unfair dismissal claim;
• Proceeding to hear his unfair dismissal claim in his absence and in the face of medical evidence supportive of an adjournment;
• Dismissing his unfair dismissal claim.
Having considered the issues, the NICA ultimately concluded that the requirements of procedural fairness were not met. It was noted by the NICA that that 'no attempt appears to have been made to engage with or address his disability of Asperger’s Syndrome’. 12 The appellant had been denied both fair case management as well as fair final hearing. The NICA accordingly allowed the appeal and remitted the matter back for a hearing before a differently constituted tribunal.
Within the decision, the NICA gave guidance, constituting a mix of principles and guidelines, for ensuring procedural fairness when a party has a disability:
(1) It is a fundamental right of a person with a disability to enjoy a fair hearing and to have been able to participate effectively in the hearing.
(2) Courts needs to focus on the impact of a mental health disability in the conduct of litigation. Courts must recognise the fact that this may have influenced the claimant’s ability to conduct proceedings in a rational manner.
(3) Courts and tribunals can, and regularly do, have regard to general, non-binding guidance and practical advice of the kind given in the Equal Treatment Bench Book published by the Judicial College (Revised 2013) (hereinafter called “the ETBB”) in considering how best to accommodate disabled litigants in the court or tribunal process. It is clear, therefore, that courts and tribunals should pay particular attention to the ETBB when the question of disability, including mental disability, arises.
(4) The Equal Treatment Benchbook (ETBB) (discussed further below) provides helpful information for Judges about the problems experienced by such litigants in accessing the courts or tribunals or participating in proceedings. The authors point out that “this may lead to erroneous perceptions such as that the person is being
[23].
awkward or untruthful and inconsistent. In fact the problem may come down to a difficulty in communication or understanding.” The ETBB has regularly been revised and updated. It has a section dealing with mental disabilities describing the different ways in which mental disability may arise and manifest itself. It points out that adjustments to court or trial procedures may be required to accommodate the needs of persons with such disabilities. Memory, communication skills and the individual’s response to perceived aggression may all be affected. Practical advice is given to particular situations when they arise. Decisions concerning case and hearing management ‘…. should address the particular needs of the individual concerned insofar as these are reasonable. The individual should be given an opportunity to express their needs. Expert evidence may be required.’ (paragraph [20]). It is recognised that if a litigant has a condition that is worsened by stress, the difficulties will almost certainly become greater if he/she is acting in person (paragraph [25]).
(5) The presence of a McKenzie Friend in civil or family proceedings or an independent mental health advocate in a tribunal should be encouraged in order to help locate information, prompt as necessary during the questioning of witnesses and provide the opportunity for brief discussion of issues as they arise. A more tolerant approach to the use of a lay representative may assist.
(6) A modified approach may be necessary when seeking to obtain reliable evidence from a person with mental health problems especially those who are mentally frail. It is necessary to ascertain whether any communication difficulties are the result of mental impairment. Section 7 of the ETBB stresses the need for particular assistance to be given in relation to those with mental disabilities, specific learning difficulties and mental capacity issues.
(7) An early ‘ground rules hearing’ is indicated in the ETBB at Chapter 5. Such a hearing would involve a preliminary consideration of the procedure that the tribunal or court will adopt, tailored to the particular circumstances of the litigant. Thus, for example, the tribunal may consider:
• The approach to questioning of the claimant and to the method of cross-examination by him/her. Adaptions to questioning may be necessary to facilitate the evidence of a vulnerable person.
• How questioning is to be controlled by the tribunal.
• The manner, tenor, tone, language and duration of questioning appropriate to the witness’s problems.
• Whether it is necessary for the tribunal to obtain an expert report to identify what steps are required in order to ensure a fair procedure tailored to the needs of the particular applicant.
• The applicant under a disability, if a personal litigant, must have the procedures of the court fully explained to him and be advised as to the availability of pro bono assistance/ McKenzie Friends/voluntary sector help.
• Recognition must be given to the possibility that those with learning disabilities need extra time, even if represented, to ensure that matters are carefully understood by them.
• Great care should be taken with the language and vocabulary that is utilised to ensure that the directions given at the ground rules hearing are being fully understood.
• As happened in the Rackham case (Rackham v NHS Professionals Ltd (2015) UK EAT/0110/15), consideration should be given to the need for respondent’s counsel to offer cross-examination and questions in writing to assist the claimant with the claimant being allowed some time to consult, if represented, with his counsel. These were deemed “reasonable adjustments”.
• The tribunal must keep the adjustments needed under review.
The concept of ‘Ground Rules’ which are discussed and agreed on at a ‘Ground Rules Hearing’ was conceived by Professor Penny Cooper during the first training course for registered intermediaries in England and Wales in 2003. In 2013, Ground Rules Hearings (GRH) were formally recognised by the Criminal Practice Direction (CPD) 1 as a key step in planning the questioning of a vulnerable witness.13 The role of an intermediary should be distinguished from other roles such as a McKenzie friend – the latter providing lay assistance to a litigant in person and can be a volunteer, friend, family member or even a paid advisor. McKenzie Friends are not lawyers but can offer practice assistance, emotional support and even assist with case preparation.14 Intermediaries, however, are neutral communication specialists who conduct a thorough assessment of
13 P Cooper, P Backen and R Marchant ‘Getting to Grips with Ground Rules Hearings: A Checklist for Judges, Advocates and Intermediaries to promote the Fair Treatment of Vulnerable People in Court’ [2015] 6 Criminal Law Review 420.
14 For further information on the role of a McKenzie Friend, see: Guidance from the President’s Office – McKenzie Friends available at: https://www.judiciary.uk/wp-content/ uploads/2022/07/pfd-guidance-mckenzie-friends.pdf.
an individual’s communication needs and provide the court with a comprehensive report on how to maximise the individual’s participation in proceedings. The role of intermediaries in facilitating communication between vulnerable witnesses and the justice system will be developed in more detail in a follow-up article in this journal.
Equal Treatment Benchbook
Cited with approval in Galo, and of considerable importance in the present context, is the ETBB, published by the Judicial College in England and Wales. The most recent version was published in July 2024 and is available to access online.15 While the ETBB does not have the status of legislation, its citation in Galo and several other appeal authorities in England and Wales is welcome. While the Judicial College organises and delivers continuing education for the judiciary in England and Wales only, the judiciary in Northern Ireland disseminates and promotes the principles and guidance underpinning the ETBB.16
The ETBB aims to increase awareness and understanding of the different circumstances of people appearing in courts and tribunals. It helps enable effective communication and suggests steps which should increase participation by all parties. Its contents apply to all judicial office holders, to enable them to uphold the principle of fair treatment embedded in the judicial oath.
In the introduction, the ETBB states:
‘Treating people fairly requires awareness and understanding of their different circumstances, so that there can be effective communication, and so that steps can be taken, where appropriate, to redress any inequality arising from difference or disadvantage. This ETBB covers some of the important aspects of fair treatment of which all Judges should be aware, making some suggestions as to steps that Judges may wish to take, in different situations, to ensure that there is fairness for all those who engaged in legal proceedings in our courts and tribunals’.
The ETBB also acknowledges that the following individuals/groups may be at more of a disadvantage than others:
15 Judicial College, Equal Treatment Bench Book (July 2024) (Available at: https://www.judiciary. uk/wp-content/uploads/2022/09/Equal-Treatment-Bench-Book.pdf)
16 Judiciary NI, Judicial Studies Board Publications (Available at: https://www.judiciaryni.uk/ judicial-studies-board-publications).
Articles
‘Those at a particular disadvantage may include people from minority ethnic communities, those from minority faith communities, those who do not speak or understand the language of the court or tribunal, individuals with disabilities (physical, mental or sensory), women, children, older people, those whose sexual orientation is not heterosexual, transgender people, those who have been trafficked and those who through poverty or any other reason are socially or economically marginalised’.
The ETBB is written with a proactive ethos and an expectation that the individual needs of court users will be identified and fairly accommodated ahead of time. In this regard, it exists not merely to ‘identify the traps that must be avoided but instead, it has a much more ‘positive aim’. 17 This chimes with developments elsewhere, for example, in criminal litigation, where it is increasingly recognised that Judges are expected to proactively intervene in the management of cases before and during trial.18
It is important to emphasise that the ETBB has application outside of the employment tribunal context. The guidance can be referred to in any court or tribunal in Northern Ireland. Indeed, in the ‘Statement of Ethics For the Judiciary in Northern Ireland’ published by the Lord Chief Justice’s Office, attention is drawn to the need for Judges to ensure that:
‘In cases involving those with a disability, or young persons particular care should be taken that arrangements made for a Court hearing do not place them at a disadvantage. Further guidance is given in the Judicial Studies Board for England and Wales Equal Treatment Bench Book’. 19
It is interesting to note that this guidance pre-dates Galo. As such, while Galo represents a very useful statement of good practice in relation to how vulnerable witnesses and litigants should be treated to ensure procedural fairness, the ETBB already contained valuable guidance in this regard.
17 Consultative Council of European Judges (CCJE), ‘Questionnaire on the Conduct, Ethics and Responsibility of Judges: Comments by the Delegation of the United Kingdom’ (18 June 2002) (available at: https://rm.coe.int/1680747c71).
18 Jenny McEwan, ‘From Adversarialism to Managerialism: Criminal Justice in Transition’ [2011] 31(4) Legal Studies 519, 527.
19 Northern Ireland Lord Chief Justice’s Office, ‘A Statement of Ethics For the Judiciary in Northern Ireland’ (Issued 28th February 2007, 2nd revision 5th August 2011.
The Advocate’s Gateway Toolkits
The changing attitudes to vulnerability among court and tribunal users is exemplified in the work of the ‘Advocate’s Gateway’ – established by the Advocacy Training Council in England and Wales in 2012. The organisation’s ‘Toolkits’ for advocates has been described as heralding a ‘sea change in the treatment of vulnerable witnesses in court’ by encouraging and promoting ‘reasonable adjustments so that the justice system is fair.’ 20 In total, the Advocate’s Gateway (TAG) has designed 20 toolkits aimed at improving advocates’ practice with respect to vulnerable court users.
While the TAG toolkits were not specifically mentioned in Galo, there are several aspects of various toolkits that relate to the issues which arose in the case. For example, Toolkit One is entitled ‘Ground Rules Hearings (GRH) and the fair treatment of vulnerable people in court’. 21 It provides:
‘The toolkit contains information about ground rules hearings (‘GRHs’) in the criminal courts and is primarily intended for use by advocates as well as solicitors, police officers, social workers and Judges. This toolkit is written with criminal proceedings in England and Wales in mind, however, the ground rules approach is also being applied in other parts of the justice system, for instance, the family courts, the employment tribunals and the Court of Protection.’
As Judges and lawyers have become increasingly used to GRH, their operation is increasingly regulated. For example, the Criminal Procedure Rules in England and Wales now explicitly cover the operation of GRH and specific Practice Directions have been issued.22 Indeed, in other jurisdictions, such as Victoria in Australia, guidance lays out very clear guidelines about what is expected of lawyers and Judges when a Ground Rules Hearing is being held. In Northern Ireland, Practice Direction No.2/2019 which includes protocols for vulnerable individuals applies only to criminal cases in the Crown Court.24 Despite this, more general
20 Matthew Radstone, ‘The Advocate’s Gateway: A Sea Change In the Treatment of Vulnerable Witnesses’ (available at: https://www.25bedfordrow.com/cms/document/The_Advocates_ Gateway.pdf).
21 The Advocate’s Gateway, ‘Ground Rules Hearings and the fair treatment of vulnerable people in court’ (Toolkit 1, Revised March 2014) (available at: https://www. theadvocatesgateway.org/_files/ugd/1074f0_68833d346ed2486b9006512096a27963.pdf).
22 Criminal Procedure Rules (CPR), 3.9; Criminal Practice Directions 2015 (CPD) [2015] EWCA Crim 1567, 3F.
23 County Court of Victoria, ‘Multi-jurisdictional Court Guide for Ground Rules and the Intermediary Program’ (28th July 2023).
24 Lord Chief Justice’s Office, ‘Case Management in The Crown Court Including Protocols for Vulnerable Witnesses and Defendants: Practice Direction No. 2/2019’ (12th November 2019).
guidance on best practice in GRH can be found in the literature. For example, Cooper et al have compiled a ‘Ground Rules Hearing Checklist’ to help promote ‘better, more consistent practice’ among Judges.25 While this Checklist focuses mostly on criminal proceedings, it contains important general guidance relating to the participation and questioning of vulnerable persons in the justice process.
Perhaps the most obviously relevant Toolkit when considering vulnerable witnesses and litigants is Toolkit 17 which focuses on ‘vulnerable witnesses and parties in the civil courts’.26 Within civil proceedings, the Toolkit acknowledges the importance of identifying vulnerabilities from an early stage. It outlines that:
‘Recognition of vulnerabilities at an early stage is vital to ensure that vulnerable witnesses are identified and enabled to effectively participate. Attention should be paid to the potential for triggers to vulnerability throughout proceedings (see Toolkit 18 - Working with traumatised witnesses, defendants and parties). The focus is on witnesses and parties being enabled to participate effectively in civil proceedings, thus ensuring access to justice and a fair hearing. This is achievable particularly through applying measures to ensure communication is facilitated and recognising what may trigger vulnerability.’
Key takeaways from the Toolkit which are applicable to the Northern Irish court system are as follows:
1. As there is no definition of a ‘vulnerable witness’ or a ‘vulnerable party’ in the civil justice system, where a significant proportion of parties and witnesses are likely to be vulnerable, it is vital for advocates, representatives and judges to seek to identify those who are vulnerable and the assistance they will need to give their best evidence
2. Vulnerability should be identified at the earliest possible stage and information sharing is key to achieving this.
3. There is currently no bank of available intermediaries, independent sexual violence advisers (ISVAs) or technological facilities to assist in dealing with vulnerable clients or witnesses so the burden is on the advocates, representatives and judges up to the point of settlement or judgment to ensure that efforts
26 The Advocate’s Gateway, ‘Vulnerable Witnesses and Parties in the Civil Courts’ (Toolkit 7, 31 July 2015) (available at: https://www.theadvocatesgateway.org/_files/ ugd/1074f0_095d4a26cf2b4300bcd421894c78c96f.pdf).
are made at every stage to ensure the effective participation of vulnerable parties and witnesses.
4. The need for a ground rules hearing (GRH) should be considered if a vulnerable witness or party is due to give evidence. Civil Judges should consider ‘additional measures’ and other reasonable adjustments throughout proceedings.
5. Advocates, representatives and Judges should be proactive in ensuring that suitable measures are available to enable parties or witnesses to give their best evidence during case preparation and to be able to effectively participate in settlement procedures, at any hearing and, where appropriate, immediately after any hearing and/or settlement procedure.
6. Special consideration should be given to managing and funding cases with interpreters, intermediaries or ISVAs. ISVAs are a small network of independent advisers. They have been established across England and Wales as part of a government initiative to provide targeted professional support to victims of serious sexual, violent crime.
7. There is clearly a need for more informed support for vulnerable witnesses in the civil justice system, particularly adults who are at risk of being triggered to self-harm, attempt and/or commit suicide either before, during and/or after the legal process.
8. There is also a need for the provision of training for advocates, representatives and Judges, particularly those who spend comparatively less time in contested hearings.
Identifying Vulnerability
As Cooper and Allelly note, there exists no explicit legal obligation on a lawyer to diagnose their client’s disability.27 Lawyers are not qualified medical practitioners and cannot be expected to diagnose physical and mental conditions. The Law Commission in England and Wales has suggested, especially in the early stages of client interaction, solicitors may be best placed to identify the particular needs of their client.28 This position is, however, at odds with research showing that lawyers often fail
27 P Cooper and C Allely, “You Can’t Judge a Book by Its Cover: Lawyers’ Evolving Professional Responsibilities and Judgecraft when a Party has Asperger’s Syndrome” [2017] 68(1) Northern Ireland Legal Quarterly.
28 Law Commission, ‘Unfitness to Plead, Volume 1: Report’ (2016), Law Com. 364, HC.
to detect issues such as learning difficulties, communication issues, mental health issues and mental disorders.29
Nonetheless, it is important for lawyers and judges to be aware of how to identify vulnerability in witnesses and litigants. Toolkit 10 of the Advocate’s Gateway is useful in this regard. Toolkit 10 highlights that:
• There are many reasons why a witness or a party might be vulnerable in court;
• Vulnerability should be identified at the earliest possible stage and information sharing is key to achieving this;
• Certain behaviour/characteristics/circumstances are ‘risk factors’ and these can indicate potential vulnerability;
• Once vulnerability is suspected, action should be taken to obtain expert advice as necessary. This can be from, for example, liaison and diversion services (where they exist) for suspects, an appropriate medical expert, or an intermediary;
• Research has shown that vulnerability is often missed or not properly acted upon;
• Advocates should not assume that vulnerability in a witness or party has always been identified before the matter comes to court;
• Advocates should ensure that the interests of their vulnerable clients are taken into account and their needs are met;
• ‘Special measures’ and other reasonable adjustments must be considered.30
Toolkit 10 goes on to identify a list of risk factors that indicate a person might be vulnerable in court include:
• Being a victim of domestic, racial, financial or sexual abuse;
• Being a victim of trafficking, hate crime or discrimination;
• Being a victim of exploitation;
• A lack of fluency in the English language;
• Being unable to read or to write very well;
• Having a disability, such as a learning disability, autism, or a
29 Iain Dickie et al, ‘The Criminal Justice system and People on the Autism Spectrum: Perspectives on Awareness and Identification’ [2018] 4(1) Journal of Applied Psychology and Social Science 1; Lore Mergaerts, ‘Defence Lawyers’ Views on and Identification of Suspect Vulnerability in Criminal Proceedings’ [2021] 29(3) International Journal of the Legal Profession 281.
30 The Advocate’s Gateway, ‘Identifying Vulnerability in Witnesses and Parties and Making Adjustments’ (Toolkit 10, 20 March 2017) (available at: https://www.theadvocatesgateway.org/_files/ ugd/1074f0bc65d21318414ba8a622a99723fdb2a0.pdf).
hearing impairment;
• Difficulty with communicating and/or understanding;
• Having a mental health condition.
• Note: all children (i.e. those under 18) are deemed vulnerable
The Toolkit also lists examples of reasonable adjustments ordered by Judges in a civil context. It is recognised good practice that the GRH should afford the advocates and the Judge an opportunity to discuss any adjustments and, if an intermediary is involved, to allow the recommendations contained with the intermediary’s court report to be discussed.
Some of these adjustments include:
• Advocates moving to the live link room to conduct their questioning from there;
• Allowing a witness or defendant to pause cross-examination by pointing to a ‘pause’ card on the table in the live link room and then the intermediary alerting the Judge that a pause has been requested;
• Use of an egg-timer in the live link room to time short threeminute breaks as required by the witness – the court remaining sitting during these breaks;
• Allowing a witness to take a comfort toy into the live link room;
• Allowing a defendant to have ‘Blu-Tack’/a stress toy/a pen and paper in the dock to help maintain their concentration;
• Allowing ‘Post-it’ notes in the dock to help a defendant who has difficulty understanding the order of events – these are stuck onto the glass screen and show the order of events during the trial and can be changed around and also removed once a particular event has happened;
• Ensuring that the flat screen that is ordinarily visible to the defendant be turned off/covered so that the defendant can hear but not see the vulnerable witness giving evidence.
It is worth noting that the ETBB (discussed above) contains specific guidance for Judges on ‘the duty to make reasonable adjustment for witnesses, defendants and jurors with disabilities’ 31 to ‘remove any unnecessary barriers to participation.’32 Giving some specific examples of its own, the ETBB notes that: ‘Adjustments such as wheelchair accessibility
31 Judicial College, ‘Equal Treatment Bench Book February 2021 Edition (April 2023 Revisions)’ (April 2023) 106.
32 Ibid, 97.
and fully functioning loop hearing systems are reasonably commonplace in courtrooms these days.’33 Further, in a very useful appendix, the ETBB outlines a glossary of impairments and corresponding reasonable adjustments that a court or tribunal could make to promote the participation of a vulnerable and disabled court users.
Fair Treatment in the Court of Protection in England and Wales
The Court of Protection in England and Wales is responsible for making decisions on behalf of individuals who lack the capacity to make decisions for themselves, particularly concerning their health, welfare, and property. Ensuring that ‘P’ (the individual at the centre of the proceedings) can participate effectively is crucial to safeguarding their dignity and autonomy. While the court is recognised as dealing with some of the most vulnerable individuals in society, previous research shows participation of ‘P’ has often been hindered by the culture of the court, judicial and professional attitudes and the court set-up.35
In 2016, Mr Justice Charles, the Vice President of the Court of Protection in England and Wales published practical guidance entitled ‘Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings’.36 This guidance offers a roadmap for enhancing the meaningful participation of ‘P’, primarily in health and welfare cases, though it may also be useful in property and affairs matters. The guidance has been described as emphasising the importance of ‘P’’s ‘participation and voice’ being heard in the Court of Protection.37
In line with the ETBB’s approach to individualising the participation of vulnerable individuals, the guidance is not intended to be prescriptive nor a ‘checklist’ to practitioners and Judge. The guidance begins with the premise that effective participation should be tailored to the needs and abilities of ‘P’. It recognises the diversity of situations and impairments, stating:
33 Judicial College, ‘Equal Treatment Bench Book February 2021 Edition (April 2023 Revisions)’ (April 2023) 76.
34 ibid, 244.
35 Jaime Lindsey, ‘Testimonial Injustice and Vulnerability: A Qualitative Analysis of Participation in the Court of Protection’ [2019] 28(4) Social and Legal Studies 450.
36 Mr Justice Charles, ‘Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings’ (3rd November 2016) 2016 available at: https://www. dropbox.com/scl/fi/6x8jkbwp77biu0d01r4jf/Practice_Guidance_Vulnerable_Persons. pdf?rlkey=105w7x8wdc71r1ttlne1igvd1&e=1&dl=0)
37 Camilla Kong et al, Capacity, Participation and Values in Comparative Legal Perspective (Bristol University Press 2023) 248.
‘Sometimes what is necessary will be self-evident; sometimes it will not, especially with more subtle cognitive or other impairments.’
The guidance also emphasises early consideration of the support and assistance required for ‘P’ to participate meaningfully. This process should begin at the earliest stages, ideally from the first meeting between ‘P’ and their representative. This echoes the point made by the Law Commission (noted in the previous section) that legal representatives occupy a key role in identifying vulnerability in their client.
One key aspect of the guidance is determining whether ‘P’ wishes to attend court hearings. The guidance recommends seeking the views of ‘P’ early and providing them with suitable explanations about what attendance might entail, including what might happen during the hearing and the support available to them. Different considerations apply to various types of hearings. For example, ‘P’’s attendance may have distinct implications during interim directions hearings compared to final hearings or situations where ‘P’ might give evidence or observe the proceedings. Empirical evidence gathered by Lindsey suggests that vulnerable individuals rarely attend proceedings in the Court of Protection, sometimes despite expressing a willingness to do so.38
If ‘P’ wishes to attend proceedings in the Court of Protection, the guidance suggests considering the following practical arrangements:
• Public Hearing Considerations:
Assess the impact of the hearing being public and explore any necessary directions to safeguard P’s privacy.
• Liaising with Court Staff:
Notify the court staff in advance to ensure they and the Judge are prepared for ‘P’’s attendance.
• Alternative Options:
Explore whether attendance via video link might be a suitable alternative. Ensure that facilities are available and operational, with a test conducted in advance if necessary.
• Preparatory Support:
Provide assistance to enhance ‘P’’s understanding of the courtroom layout, roles of participants, and the decisions to be made. Consider offering visual aids, pre-hearing visits to the courtroom, or other accommodations tailored to P’s needs.
38 Jaime Lindsey, ‘Testimonial Injustice and Vulnerability: A Qualitative Analysis of Participation in the Court of Protection’ [2019] 28(4) Social and Legal Studies 450.
• Practical Considerations:
Address logistical issues such as who will accompany P, their medication schedule, physical accessibility, personal care requirements, and breaks during proceedings.
If ‘P’ is deemed competent to give evidence, the guidance outlines several steps to ensure fairness and minimise distress:
1. The holding of a Ground Rules Hearing: Determine the arrangements for P’s evidence in advance, including any special measures.
2. Use of an intermediary:
Assess whether P requires an intermediary and how this will be funded.
3. Preparation of Questions:
Agree on questions to be posed to P before the Ground Rules Hearing to avoid unnecessary distress or confusion.
The guidance highlights the court’s commitment to respecting ‘P’’s rights while addressing practical challenges. It also serves as a reminder of the broader principles of justice and fairness that underpin the legal system. This balance between ‘autonomy and protection’ underpins the operation of the Court of Protection and has been judicially described ‘the fundamental principle that the promotion of autonomous decision making is itself a facet of protection’. 39
Despite its thoroughness, the guidance presents practical challenges, such as resource limitations and the need for coordination between multiple parties. Additionally, technological barriers, such as unreliable video link facilities, may hinder ‘P’’s participation in some cases. There is also the (perhaps inevitable) subjectivity about what ‘participation’ means for a given vulnerable individual and how that might be ensured. Kong et al have conducted research that identified a range of divergent ways in which participation is understand and enacted by both lawyers and Judges in Court of Protection cases.40 This point does not undermine the importance of the guidance – rather it highlights the individuality of participation as a concept.41
39 London Borough of Tower Hamlets v NB & AU [2019] EWCOP [27].
40 Camilla Kong et al, ‘Justifying and practising effective participation in the Court of Protection: an empirical study’ (2022) 49(4) Journal of Law and Society 703.
41 For further discussion around the concept of participation and what it entails, see: J Jacobson and P Cooper, Participation in Courts and Tribunals: Concepts, Realities and Aspirations (Bristol University Press 2020).
While the guidance focuses on ‘P’, its principles can benefit other vulnerable individuals involved in proceedings, such as family members or caregivers. It also provides a model for courts in other jurisdictions seeking to enhance inclusivity. Indeed, measures such as the holding of a GRH, careful drafting of cross-examination of questions to ensure the witness can understand and the use of intermediaries to facilitate communication are readily transferable to other justice settings. Indeed, in his guidance Mr Justice Charles highlighted the transferability of good practice from GRH and intermediaries from the criminal courts to the Court of Protection.
The guidance issued by Mr. Justice Charles represents a significant step toward ensuring that vulnerable individuals can meaningfully participate in Court of Protection proceedings. By addressing barriers to participation, it aligns with principles of fairness, dignity, and access to justice. As legal systems evolve, this guidance should inspire ongoing efforts to create inclusive processes that respect the rights and needs of all individuals. For example, the use of technology, such as video conferencing and digital tools, plays a significant role in facilitating participation. However, courts must address accessibility concerns and ensure that technological solutions do not inadvertently exclude ‘P’. As has been noted above, a ‘one size fits all’ approach to enabling participation is to be eschewed in favour of an individualised assessment of needs.
The Introduction of Practice Direction 1A in Great Britain
Another significant development in Great Britain has been the introduction of Practice Direction 1A as part of the Civil Procedure (Amendment) Rules 2021 (PD1A), which took effect on 6 April 2021. This amendment was driven by recommendations from the Civil Justice Council Report on Vulnerable Witnesses, aiming to bring civil proceedings closer in line with the protections offered in criminal courts. The new Practice Direction provides specific provisions for vulnerable witnesses, recognising the need for tailored support and adjustments to ensure fair participation in legal proceedings.
The guidance contained within PD1A was cited and given effect in the case of AXX v ZAJA, which was the first reported case in the High Court involving the new Practice Direction.42 In the case, the Court relied on PD1A to justify a split trial, enabling the best prospects for the Claimant’s evidence to be effectively presented. Senior Master Dr Victoria McCloud, in
(KB).
her observations on the application of PD1A, described it as a ‘structured reasoning tool’ that outlines a process for assessing vulnerability and determining how it affects a witness’s role and position within a claim.43 Further, it provides a systematic approach for courts to consider various factors, such as health conditions, social circumstances, and disabilities that may impact a witness’s ability to participate effectively. This structured approach does not replace existing provisions for cases where a party actually lacks litigation capacity but instead complements these by providing a framework to support the participation of vulnerable individuals in civil proceedings.
In the decision, the Judge emphasised the flexibility of PD1A, describing it as neither an exhaustive set of rules nor a narrowly construed statute.44 The court further noted that the Practice Direction was designed to be applied in a ‘purposive manner’, allowing courts to consider each case individually and make appropriate adjustments to ensure fairness.45 The structured reasoning tool enables courts to identify what support and assistance are necessary from the earliest stages—often starting with the first meeting between the vulnerable person and their representative— to facilitate effective participation in proceedings. This might include providing visual aids, arranging pre-hearing visits to the courtroom, or utilising technology such as video links to allow attendance without undue stress.
One of the key aspects of PD1A is its emphasis on the broader duty of the court to ensure fair hearings under the principles of Article 6 of the Convention, which guarantee the right to a fair trial. Parallels may be drawn with judicial observations in some criminal cases, for example, in the case of R v Grant-Murray & Anor 46, where the court noted that ultimately the burden for ensuring the effective participation of a vulnerable person rests with the judge. In other cases, such as R v Rashid, it has been recognised that defence advocates have a duty to ensure that their lay client is fully able to participate in every aspect of the trial.47 In AXX, however, the High Court highlighted the ‘wider duty’ to ensure hearings, and the management of cases, are fair and to have regard to and apply equalities duties under Article 6.
43 [33].
44 [34].
45 [34].
46 [2017] EWCA Crim 1228.
47 David Wurtzel, ‘Intermediaries for Defendants: Recent Developments’ [2017] 6 Criminal Law Review 463.
It is noteworthy that the decision in AXX draws on the ETBB, noting that it serves as a guide for Judges on best practices for managing cases involving vulnerable individuals. It commented that the ETBB provides a ‘wealth of information across a wide range of areas which can give rise to vulnerability…’ 48 from health issues like deafness or depression to social challenges such as domestic abuse or being part of stigmatised groups like the "trans" community. It also recognised that the ETBB provides practical advice on ensuring fair hearings, such as the use of accessible formats and the provision of support throughout the legal process.
Further comparisons can be drawn between what the court in AXX identified as a ‘disability adaptations appointment’ and the concept of a GRH discussed above. The innovative approach underpinning an adaptation appointment allows vulnerable litigants to meet with the court informally, away from the pressure of a contentious hearing. The court in AXX described this as a court ‘mention’ which provides a non-judgmental space to discuss trial planning and necessary adjustments, ensuring that the needs of vulnerable individuals are met without the stress of a formal court appearance.49 This method is particularly useful for complex cases where disability adaptations are required, enabling participants to plan for their participation in a supportive environment. In reality, the term ‘Ground Rules Hearing’ is sufficiently broad to cover the purposes of a disability adaptation appointment and there does not appear to any qualitative different between what the two aim to achieve.
There is arguably a need to expand the scope of PD1A to address emerging issues, such as digital accessibility and remote hearings. Courts may wish to consider developing guidelines for the use of assistive technologies and ensuring that digital platforms are user-friendly for all participants, especially those with disabilities. Regular training sessions for legal practitioners also could enhance understanding and implementation of PD1A, ensuring that the legal community is equipped to support vulnerable witnesses and litigants effectively. Collaboration between legal professionals, healthcare providers, and support organisations could also provide comprehensive support throughout the legal process, creating personalised plans that address specific needs.
To further enhance the impact of PD1A, it is crucial to establish systems for regular reviews of its effectiveness. This could include mechanisms for collecting feedback from vulnerable witnesses on their experiences and making necessary adjustments to the guidance and its implementation. 49 [35].
The use of innovative technologies, such as AI-powered accessibility tools, virtual reality simulations of courtroom scenarios, and digital support platforms, can also play a role in enhancing participation and understanding for vulnerable individuals.
Conclusion
It is increasingly recognised that there is a disproportionate prevalence of vulnerability throughout the justice system. The ways in which vulnerability manifests are legion and include learning difficulties, mental illness, communication difficulties, age, and even physical disability. Vulnerable individuals face multiple barriers to engaging effectively with and participating in the justice process. As recognised by the Vulnerable Witnesses & Children Working Group in England and Wales, civil justice has tended to lag ‘woefully behind the criminal justice system’ in terms of accommodating the needs of vulnerable individuals.50
In Northern Ireland, Practice Direction No.2/2019 relates to case management in the Crown Court including Protocols for Vulnerable Witnesses and Defendants.51 To date, no specific rules or guidance exists in relation to accommodating the needs of vulnerable witnesses or litigants in a civil context. Save for cases arising in an employment law context, there does not appear to be any published civil decisions in Northern Ireland which refer to the ETBB despite its wider applicability to other areas of law. With an increasing awareness of vulnerability, the ETBB and potential adjustments for vulnerable witnesses and litigants within the civil law sphere should be better understood. Indeed, the Advocate’s Gateway Toolkits are an excellent resource for all practitioners and contain practical advice covering a range of issues relating to vulnerable court and tribunal users.
Finally, the role of intermediaries for vulnerable witnesses has been noted but not fully developed in this article. Intermediaries are communication specialists who facilitate communication between vulnerable court users and the justice system. A ‘Part Two’ article focusing on the work of intermediaries, the scope of the role and a commentary on some Northern Irish cases involving intermediaries, will follow in a subsequent issue of this journal.
50 Judiciary of England and Wales, Report of the Vulnerable Witnesses & Children Working Group (February 2015) (Available at: https://www.judiciary.uk/guidance-and-resources/finalreport-of-the-vulnerable-witnesses-and-children-working-group/).
51 Lord Chief Justice’s Office, Case Management in The Crown Court Including Protocols for Vulnerable Witnesses and Defendants: Practice Direction No. 2/2019 (12th November 2019).
Living with Autismin conversation with Claire Burke LLB Hons
Linda Johnston, TEP (retired)
Introduction
I recently sat in on a fascinating talk which I only wish I had heard in the early days of my career and not at the end. Claire Burke had been invited to speak to practitioners attending the Law Society of Northern Ireland’s Vulnerable Persons Practitioners course led by Fiona Donnelly (Course Director). Claire has autism. She is no stranger to the legal system as she completed a law degree, studied for the Bar, and had cause to engage solicitors to act on her behalf on more than one occasion. Knowing that everyone in the room learnt a lot from Claire’s experiences, I asked if she would sit down with me to explore in more depth how lawyers might better inform themselves about neurodiversity, identify it, and manage client relationships as a result. Again, the experience was fascinating, entertaining and thought provoking.
I will use our initials in the dialogue.
LJ: Claire how would you describe your current role?
CB: As an autistic advocate. I volunteer with the National Autistic Society of Northern Ireland, and often speak on their behalf.
LJ: Are there sensitivities to be aware of in our use of language around autism? Is it appropriate to refer to a person as autistic or is ‘neurodiverse’ preferred?
CB: I refer to myself as autistic, others refer to themselves as having autism and whilst for many it is important, I feel that it isn’t a big deal and people should be free to express it however they see fit. For myself, it is more important that people actually know how the condition affects myself and others, rather than becoming too bogged down in terminology.
LJ: When were you diagnosed as autistic?
CB: In my early 30s. The diagnostic process took roughly two years with the psychologist seeing my mother, my sister and myself. When the psychologist said ‘Claire, I can confirm you are autistic’, I said ‘Okay, that’s great, thanks very much’ and got up to go. At that point, she stopped me and said ‘Where are you going?’ I replied ‘Well, you have just told me what I have known since I was a child - I just didn’t have the name for it’.
Whilst I knew from a very early age, and my family knew, my mother (no matter how much she pursued it) could not get health professionals to diagnose me as a child. They simply dismissed the notion, referring to me as a weird child.
It took a traumatic incident when, at the age of 33, I tried to jump out of a fast-moving car simply because my sister took a wrong turn on a regular route, for me to realise I needed to understand my behaviour and have it medically assessed. In the moment of that wrong turn, my routine had been disrupted, my world had fallen apart, and I was inconsolable.
LJ: What made you decide to study law and when?
CB: The psychologist who gave me my diagnosis encouraged me to channel my energy and organisational skills and consider going back to education. So, I applied to Belfast Metropolitan College (Met) to do an access course. However, I almost opted out before signing up, as I was overwhelmed by the noise and bustle of the Admissions Hall. It was too much, and I turned to walk out. Thankfully one of the staff approached me and asked if I was okay. I explained I had come to enrol, but I could not cope with the fray. She took me aside and signed me up in a much calmer space. In the second year I really enjoyed the legal module, and from that successfully applied to university to study Law, aged 34.
LJ: Was that a good decision?
CB: I graduated - however my autism caused problems throughout my time at university. Overall, it was not a good experience. Having a formal diagnosis, I advised the disability services unit of the university that I had particular needs, and understood arrangements would be made to accommodate my heightened sensory awareness and other issues. That didn’t always happen. For example, to check books out of the Library required a scanning process which generated a sound I couldn’t bear. Asking a librarian to do this for me or give me an alternative method was met with annoyance and a determined demonstration of the process which she said was compulsory. Thereafter I was reluctant to use the
Library, despite its importance to my studies. Busy noisy lecture halls were not easy, nor were roving lecturers sweeping past in close proximity.
I attained a high 2.1 and believe I lost out on a First Class Honours degree because I would not write an essay in the style one of my lecturers had asked.
She told me I was on course for a First Class degree, but she would mark me down if I did not write an essay in the manner in which she had directed. No amount of reasoning with me would get me to change how I wanted to construct this particular piece of work. It was my work. I was a capable student and I felt I should be able to write it whatever way I wanted. I told her she was not giving me my creative freedom. My lecturer was exasperated and dumbfounded. I think she thought I was just rude. I had not disclosed to her that I was autistic. I genuinely believe I lost out on a First Class degree, because of how I was perceived, and not the content of my submission.
LJ: Was the discipline of the law a good subject for you? Which aspects did you most enjoy?
CB: Law seemed a perfect choice for someone like me, and it was, as long as rules were stuck to literally. I enjoyed family law and found I was typically more emotionally detached than my fellow students. I enjoyed tort and applications of strict liability.
I remember the case of London and North Eastern Railway v Berriman [1946] AC 278, which I believe explained the literal rule in law, that words should be given their ordinary plain meaning, even if the result is not very sensible. In this case, Mrs Berriman’s husband was killed when oiling points on a railway line. The case turned on the interpretation of ‘maintaining’ in the relevant legislation. It was held that ‘oiling’ was not ‘maintaining’, and Mrs Berriman was not entitled to compensation for her husband’s death. I thought this decision was correct, but the rest of the class was shocked. I soon realised I had to inform the class of my condition as I disagreed with everything that seemed “so right” to them.
LJ: Is it your experience that a person with autism thinks more literally than a ‘non-autistic’ person, if I may use that expression? I could say neurotypical, but maybe that’s a tricky definition.
CB: Yes. When I was child, if someone said it was bucketing when it was raining, I looked into the sky to see where the buckets were. In an early job I remember being asked, when we weren’t busy, to ‘run round the reception with the Hoover’ and to ‘rub the cups’. I couldn’t work out why rubbing
cups would have any value, or indeed how I was supposed to run around reception with the Hoover. Was it plugged in? What way am I supposed to run? Besides these weren’t on my job description, so I shouldn’t be doing them anyway. A figure of speech is likely to be interpreted literally by an autistic person, or it may simply confuse.
LJ: When you graduated, did you think of staying in Law as a career?
CB: Yes, I studied for my Bar exams, and enjoyed that course more than my degree as we were a small group of 10 and we were well taught. However, I didn’t complete the exams, again due to my autism. I had been assured that I would be able to sit my final exams in a room on my own without any distraction, but on the day I was in a room with 20 people. I made myself stay and focus but was ill at ease. I presumed we would work through all four papers consecutively. However, after two papers there was a one-hour lunch break which I wasn’t expecting. Everyone spilled out into a confined space, which I found overwhelming. There was a lot of noise, food smells and people talking over the top of each other. I couldn’t bear it! I was completely knocked off. Although I did return to the exam room for the last two papers, I barely wrote anything and just stared out of the window. I couldn’t regain my composure and concentrate. My train of thought had completely gone. I blame the university. I had been told I would go in at 9am and do the four papers, with no mention being made of a break. Had the day been explained to me or the promise I would be in a room on my own been kept, my experience would have been entirely different. The first two papers went well, but the day turned into a horrendous experience. Consequently, I didn’t qualify, and didn’t apply for a resit.
LJ: Had you qualified do you think you could have worked at the Bar? Could you have coped with courtrooms and all the activity around them?
CB: I remember being taken into the Industrial Tribunal Court rooms on a training visit. I immediately asked that they turn off the microphones, but no-one else in the room, including the President, could hear that the microphones were on. They checked and I was right. Once the microphones were off it became an entirely different place for me. What I could find overwhelming others could not hear. It is common for autistic people to have very acute hearing.
LJ: So how could that be managed in a busy courtroom?
CB: Even for a neurotypical person there is a lot to concentrate on, but for an autistic person it is extremely difficult to filter out noises such as the
shuffling of papers and other distractions, to hear what the barrister is saying. I often wonder is there anything that can be done. Can noise be cancelled out to some degree? I think that if you were going to do work in a setting like that you would probably have to do a bit of work on yourself. You just can’t have everything adjusted to you. It may take some cognitive therapy to help with this.
LJ: Are you unusually generous about that thought?
CB: Yes. We, autistic people, do have very rigid ways of thinking, but I also think the world cannot necessarily bend 100%. There has to be a bit of flexibility but that is extremely hard for autistic people. It’s not about being awkward. When I was younger, I was very rigid but now as I am older and articulate, I will say what I can’t work with, and there can be discussion about it. It has not been easy to develop this skill. With more awareness of autism, methods could be put in place to help the autistic person. Being aware of the most common sensory triggers and behaviour would be a good starting point.
LJ: What are the most likely sensory triggers that cause problems for an autistic person?
CB: Noise, smell, and light are the most obvious. I become overwhelmed if there is too much sound in a room, such as the Admissions Hall at the Met, or the lunch break at my Bar exams. Think how this will affect autistic people in a court room. Leaving aside the constant movement in and out of a courtroom, sounds created by files and heavy books thumped on desks, ring binders clicking, seats moving, and high-pitched humming from microphones, would easily overwhelm a litigant or witness with autism. This may not be obvious, but the implications are serious to a testimony.
Bright lights are problematic, as it can actually hurt autistic people.
Smells can also be very distracting. When I was shown round the Industrial Tribunal Court Rooms, I was shown into a room set aside as a quiet space for someone like me. Unfortunately, it was beside a bathroom. That would not bode well for people with high sensory needs, despite the intention to make thoughtful provision. The smell of food or strong perfume often causes sensory overload.
LJ: You mentioned noise as a sensory trigger. I hadn’t realised until I heard your talk that there are many sounds around us that I don’t take notice of but could cause problems to you. You illustrated this so well when you recounted an experience familiar to most practising
lawyers. You were introduced to a gowned barrister who then sat down beside you on one of the benches in the Great Hall of the High Court. I have often thought many of those gowns are not in a great state, but it came as a great surprise that you had such an adverse reaction to it. Tell me more.
CB: Some fabrics, whether their texture or the sound they create, can cause a strong reaction to the point of distress. On this occasion because of the sound and texture of the gown I felt I needed to get away from it. I slid along the bench to put distance between myself and the gown. To my horror the barrister slid along too. More distress! Thankfully the solicitor with me knew my sensitivities spotted the reaction, and was able to explain to the barrister. That meeting wasn’t critical as I was on work experience, but imagine if I had been a client already anxious about meeting my barrister. I would have been totally distracted and my legal team may not have known.
LJ: What else may not be obvious but important to appreciate about behaviour?
CB: The main thing that will strike someone coming into contact with a person on the spectrum can be a lack of eye contact. Eye contact can be particularly painful to the point of searing pain and therefore it is easier to look down or look away. People instantly think we are being ‘shifty’ or ‘furtive’, but it is not so. We cannot simply look someone in the eye the way others can. Think how this may look in court. I have learnt to look at someone’s mouth when I am talking to them, but they won’t be able to tell.
LJ: Well, you do that very successfully as I am not sensing anything unusual about your look.
CB: I have perfected a way of doing this so I can fit in when I need to. One of many adjustments I have taught myself.
LJ: In your talk, you spoke about two instances in which you instructed a solicitor. I have to say the first made me laugh as I could have been that earnest thoughtful second solicitor trying to put her client at ease. The detail of the second experience was more shocking. First tell me again about the day you were determined to get a divorce.
CB: I decided that I wanted to get a divorce. When I met the first solicitor, I said ‘Hello, I’d like a divorce please’. The solicitor looked at me and said, ‘You’d like a divorce’? I said yes. He said ‘Can we talk about this?’ I replied ‘No, I don’t want to talk about this. You are a family law solicitor, and this is
what I want and can we go forward?’ I think he thought I was a bit mad. He said, ‘Well no, maybe you would like to go away and think about this’. He then gave me excuses and I thought right, okay, this is no good and I left. The next legal practice offered to make an appointment on another day. I told them I wanted to see somebody that day and if necessary, I’d come back later. It was sorted and a solicitor saw me. I said I wanted a divorce please. It happened to be a nice day and she started to comment on the weather, probably to make me feel at ease. I said ‘No you don’t understand - I need to get this done today. I want to cut the small talk’. When she started to take instructions and realised it was my 30th birthday, she was sympathetic. I told her I didn’t see that that was relevant. Looking back, she probably wondered what had walked into her office! I repeated, ‘Please can we start this now. I need you to get on with it.’
LJ: Wow! That was a challenging start. How did the relationship work out?
CB: Fine. I wasn’t being rude. I was prepared to try every solicitor in Belfast that day until one did what I needed. Once it was underway I was satisfied.
LJ: The second time you needed to instruct a solicitor was a very different situation. Ironically this came about as a result of your degree course and as you graduated. Tell me more.
CB: I was on sickness benefit when I was accepted for university. I informed the Department of Social Security (DSS) and did my best to fill in the form they sent me about the financial situation with my student finance details. I returned the form with a covering letter stating I wasn’t sure I had interpreted the form correctly, so I enclosed all the financial information given to me by student finance, and they could work from that. It was confirmed that they received it. For the next three years I received sickness benefit along with student finance which surprised me. As I had disclosed all my financial information, I thought they must have known what they were doing, because I’m pretty sure I didn’t know. Following my graduation, I received a rather fierce letter from DSS with lots of red on it alleging that I had committed fraud. I thought no, I hadn’t. I sent all my finance details to DSS. Thankfully, my mother realised it was serious and we went to a solicitor, who said ‘Claire, do you realise how serious this is?’ I didn’t. I was summoned to an interview which he attended with me. Unfortunately, he was late (more stress for an autistic person) but thankfully he had told me NOT to go in by myself. I was very lucky and to this day I am so grateful to Patrick Higgins that he came with me as otherwise I think I could have ended up in jail. So much about the setting and conduct of that interview, which was done under PACE regulations, was challenging for me because of my sensitivities.
The room had very bright lights, there was glass between myself and my three interrogators, questions were being asked at speed without giving me time to process, and the volume and pace of three people questioning me at the same time was too much for me. I couldn’t make eye contact with them and felt totally disbelieved. In no time I would have agreed to anything to get out of that room! Had my solicitor not been with me to stop leading questions and manage the situation, the outcome would have been different. When all was explained, and they became aware I had not spent the money and would be able to refund immediately (which surprised them) the matter was concluded without further action. It was a dreadful experience and yet I had made full disclosure. The panel had been told I was autistic, and had obtained my medical records to confirm this, yet they did not ask if I needed any adjustments to allow me to be more at ease.
LJ: When you said that in no time you would have agreed to anything to get out of that room, I shuddered to think how many autistic people will have done just that. Did the solicitor know you were autistic?
CB: My mother told him when she came to the first meeting with me. He never questioned why I did ‘things’. What worked so well was that he was relaxed with me, even when he asked if I realised how it would look that a Law graduate could not properly complete a DSS form.
LJ: So how does a lawyer spot neurodiversity? Should I have been asking my clients directly? Would that not offend? Do you think an autistic person should volunteer this information?
CB: I think if you are coming into contact with the justice system on any level it is up to the autistic person to tell their representatives. People are not mind readers and you might display autistic tendencies but unless you actually disclose you are autistic how do you expect anyone to help you. I think a lot of lawyers do not know what the condition is. There is a spectrum in this condition, but even if you are at the high functioning end it doesn’t mean that you will not need help at some point in your life.
LJ: I think your experience says it all. For you as a very articulate law graduate, at the high functioning end of the autistic spectrum to say that you would have agreed to anything to get out of that interview, is alarming.
CB: Yes, I would have admitted to anything to get out of that room and all its stimuli.
LJ: What advice would you give lawyers when they are aware they have clients with autism?
CB: Preparation for a person with autism (an autist) is key. Plan to give extra time for a neurodiverse client. Autists need more time to process what is being said and to settle in new surroundings.
A relaxed atmosphere is best! A solicitor/barrister who feels comfortable with their autistic client will get the most out of that person. One of my solicitors sat on the end of the table while he was speaking with me - this relaxed me. When my solicitor sensed I was getting agitated, he used calming gestures with his hands - most autists are visual people - therefore if we can see what is happening, we are most likely not to get as agitated!
For barristers, the gown and wig are best left to the court setting - if you let the autist know that you have to wear a gown and wig in court, even let them see the attire you shall be wearing, then the autist is prepared for it and will know what to expect when entering a court room setting. Barristers - be aware that the sound of your gowns ‘swishing’ and ‘flapping’ can be an upsetting noise. Also, the feel of your gown can be particularly disturbing to someone with sensory issues - it would be best not to wear your gown and wig while interviewing someone on the spectrum.
When preparing your client to come to the courthouse or your office, a good idea is to send up-to-date pictures of the place where you would like to meet. Sometimes an address is not enough – a lot of autistic people think in pictures, so it really is a great idea to send visual aids. If you are going to be in a court room setting, it may be a useful idea to have a pre visit to the court room at a quiet time, so the autist knows what to expect.
Make sure and inform your client of any changes. If you say your meeting is at 3pm, it is better to stick to that time otherwise anxiety can set in‘flapping’, ‘babbling’ and ‘lashing out’ can all occur, simply because you set a time and did not stick to this! If you are going to be late inform your client, then they will not get agitated, they will know what is going on and won’t get as upset. If you don’t know what is going on, it heightens anxiety. Communication is key.
If you set a timeline, stick to it. If you are not in touch when you say you will be, it’s a big deal for an autist. Update to explain there will a delay.
Change can result in meltdowns and lashing out - routine and sameness are of utmost importance to the autist. Solicitors should not change, if possible. The autist will need to feel comfortable with their legal representative and it can take time to build a good client/solicitor
relationship. To change a representative can cause untold problems! Routine and rigidity in anything should be a must at all times! Changing times for appointments etc will panic the autist who has maybe spent the best part of the week planning for such appointment at a specific time and place - any changes can and most probably will result in chaos for the autistic person.
Also be aware that if you are mentioning a specific date - and this is especially relevant if you are dealing with someone who has a learning disability along with autism - many of us will relate to that date in pictures. If you are asking us to remember something, for example, ‘Do you remember February 4th?’, it is perhaps better to add in a visual like, ‘Do you remember February 4th and it was snowing very heavily and you talked about how cold it was being out in the snow?’ (It can be a lightbulb moment.)
LJ: Can we look at another angle of interest for lawyers? How might we be more sensitive to autistic colleagues in practice? I recall a colleague I worked with many years ago who never said hello or goodbye, barely made eye contact, and did not mix during breaks. It’s obvious to me now that she had autistic tendencies but for a time, to be honest, it was irritating and it felt very rude. I wonder would I ask her more if we were working together now.
CB: It is unfortunate that autists can often appear rude. This can be a misinterpretation of their directness, or a misinterpretation of the lack of eye contact. Autistic people often prefer to work on their own in a solitary way. They would not be natural team players, and would have to work on that. The fashion of hot desking could be problematic as their own space and place would be preferred. Trying to increase staff awareness about autism would be good. As autistic people are often very visual, I often wondered if a simple but effective logo, much like the Legal Aid logo, could be produced and displayed in practices prepared to be particularly autistic aware.
LJ: Presumably this would send a positive message to autistic staff and may invite them to explain more to their colleagues.
LJ: Are there thoughts we haven’t touched on which you want to share?
CB: I know the legal profession will stand to gain by listening to someone who is on the spectrum and is able to explain what it is like to live with the condition. It is not visible but is debilitating.
I am a bit anxious about a positive spin being put on the condition by some. It has almost become hip for some celebrities to announce they have discovered they are autistic. People have said to me ‘Oh, that must be like having a superpower.’ No, it’s not. The debilitating nature impacts on mental health. I may have days when I know I can’t interact with people. Should I need to buy food when I feel this way, I may spend the day ruminating about how I can manage that without meeting neighbours or having to talk to people. This can be exhausting.
I’m also concerned about the relationship between autism and capacity, particularly with recent mental capacity legislation being rolled out. Autism is not incapacity but certain behaviours can cause concern. This is a very difficult area and I am not sure how well some medical and social care professionals assess it. That is perhaps a much bigger topic for another time.
LJ: Claire I am really grateful for your candour in sharing very personal experiences with me. You have given me great freedom to enquire where otherwise I may have thought it was intrusive. I know I now have lots of food for thought and I hope together we will have prompted thoughts for many others. It’s been a pleasure as well as an education. Thank you.
A Protectionist versus Interventionist Approach to Adult Safeguarding – Capacity, Consent and Coercion
Olga C Pandos, Lecturer in Law & PhD Candidate;
The University of Adelaide, Adelaide Law School, Australia
Barrister and Solicitor of the Supreme Court of South Australia, Australia
Introduction
The increasing prevalence of elder abuse has been the impetus for policy and law reforms in Australia. In South Australia, it has necessitated governmental action as a means to enforce accountability and prevent its escalation. This article explores two dominant responses to elder abuse through an Australian lens – a protectionist and interventionist approach. A protectionist approach maintains the rights of the vulnerable adult, pursuing least restrictive means prior to formal intervention. In contrast, an interventionist approach advocates for the involvement of a third independent party, to remove an adult from an abusive situation and implement safeguarding measures to promote their rights/interests.
As an author of a recent legislative review into South Australia’s Ageing and Adult Safeguarding Act 1995 (AAS Act), this article draws upon the findings of this major report to State Government.1 In particular, an emphasis on the complex relationship between decision-making capacity and consent will be provided in cases of abuse. In doing so, this article considers whether a more protectionist or interventionist approach to safeguarding adults who may be experiencing abuse ought to be adopted.
1 South Australian Law Reform Institute, ‘Autonomy and Safeguarding are not Mutually Inconsistent: A Review of the Operation of the Ageing and Adult Safeguarding Act 1995 (SA)’ (South Australian Law Reform Institute, 2022).
The Establishment of South Australia’s Adult Safeguarding Unit
Australia fundamentally adopts the definition of elder abuse formulated by the World Health Organisation, which is ‘[…] a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.’ 2 Notably, South Australia’s AAS Act also statutorily defines the term ‘abuse’. It is defined as physical, sexual, emotional, psychological or financial abuse or exploitation of a vulnerable adult, neglect or omission to act where a duty of care or a position of trust/authority exists and a denial of basic human rights.3
The incidence of elder abuse was recently reported in the 2021 Australian National Elder Abuse Prevalence Study. Data indicated a total of 14.8% of individuals aged 65 years and older living in the community were experiencing abuse.4 Among the various categories of abuse, psychological abuse was the most common type reported at 11.7%.5 Further, a higher proportion of females reported abuse (15.9%) in comparison to males (13.6%).6 This also accorded with higher likelihoods of females experiencing psychological abuse (12.6%), when compared to males (11.7%).7 In South Australia, latest findings indicated 60.6% of abuse was perpetrated against individuals aged 65 years and older.8 Consistent with the National Study, psychological abuse was the most commonly reported at 37.7%, followed by financial abuse at 19.5%.9 Notably, in 43.2% of reports in South Australia, adult children were identified as the suspected or known perpetrator of abuse.10
In light of this increasing prevalence, the South Australian Government established a statutory body known as the Adult Safeguarding Unit (ASU) in 2019. The ASU is a creature of statute, created under the AAS Act and is housed within the State Government, Department for Health and
2 World Health Organisation, ‘Abuse of older people’ (World Health Organisation, 15 June 2024) <https://www.who.int/news-room/fact-sheets/detail/abuse-of-older-people> accessed 1 October 2024.
3 Ageing and Adult Safeguarding Act 1995 s 4 (AAS Act).
4 Australian Institute of Family Studies, ‘National Elder Abuse Prevalence Study: Final Report’ (Australian Government, 2021) 2.
5 ibid.
6 ibid 55.
7 ibid 42.
8 Department for Health and Wellbeing, ‘2022-2023 Annual Report’ (Government of South Australia, September 2023) 33. Please note these are the latest available statistics, as the 2023-2024 Annual Report has not yet been published as at October 2024.
9 ibid 34.
10 ibid.
Wellbeing. Its original remit was to provide a state-wide response service to reports of known or suspected cases of abuse for adults aged 65 years and older (or 50 years and older for Aboriginal and Torres Strait Islander people). Interestingly, in 2022, its remit was vastly expanded to respond to cases of abuse regarding any adult who may be vulnerable. Despite its initial role as a mechanism to address elder abuse, the ASU has become a triage service for all cases of abuse.11
The ASU is statutorily vested with responsibility and authority to respond to cases or reports of abuse or neglect of vulnerable adults. To provide context, the general process for the management of cases by the ASU is enumerated within the AAS Act. Upon receipt of a report, the ASU is legally obliged to undertake an assessment. A suite of statutory powers may be exercised to acquire further information, if appropriate. These powers include information requests (enforced by a financial penalty for failure to comply) and information sharing with other relevant bodies (such as State authorities or non-government service providers). Following an assessment, the ASU has three primary courses of action:
1. Pursue an investigation; or
2. Refer the matter to an appropriate body (such as the National Disability Insurance Scheme); or
3. Close the matter.
If the ASU chooses to pursue the matter further, this may lead to the implementation of safeguarding measures for the vulnerable adult.13 It is clear the ASU serves a valuable role as a central body to receive and respond to cases of abuse. However, a particular issue arises in the invasive statutory powers conferred upon the ASU under the AAS Act. These powers will be the focus of this article, as they enable the ASU to override an adult’s consent to pursue a complaint of abuse.
11 In the absence of legislative clarity or guidance pertaining to the definition of ‘vulnerable’ in its new remit, the South Australian Law Reform Institute considered appropriate legislative reforms.
12 AAS Act s 23.
13 Of important note, ‘safeguarding measures’ are not currently defined or prescribed by the AAS Act.
Decision-Making Capacity and Consent – An Examination of Section 24 of AAS Act
The South Australian Law Reform Institute (SALRI) identified a close interaction between psychological abuse (manifesting as gaslighting and/ or coercive control) and financial abuse. This was a critical finding, as it introduced practical complexities in determining a threshold warranting the ASU to exercise these powers under section 24 AAS Act.
1. The Powers Conferred
Pursuant to the AAS Act, where a case of abuse is established by the ASU, an adult with decision-making capacity has the right to refuse further action. However, section 24 enables the ASU to override an adult’s consent to refuse further action, despite having decision-making capacity. In very limited circumstances, this section empowers the ASU to intervene, which effectively overrides the adult’s consent.
According to section 24, the ASU may take action without the consent of the vulnerable adult if:
1. Their life or physical safety is at immediate risk; or
2. An allegation of a serious criminal offence has been, or is likely to be, committed against them; or
3. They have impaired decision-making capacity; or
4. The ASU is unable to contact them after reasonable inquiries; or
5. Any other circumstances prescribed by the regulations.
This highlights the innate tension between a protectionist and interventionist approach. Consent is a fundamental element of the ASU’s process and role. In practice, an adult’s decision-making capacity will determine whether the ASU proceeds with a report of suspected or known abuse.
2. Legislative Definition of Decision-Making Capacity
In order to better understand the impact of this provision, it is useful to provide the legislative definition of decision-making capacity:
5—Decision-making capacity
(1) For the purposes of this Act, a person will be taken to have decision-making capacity in respect of a particular decision unless the person has impaired decision-making capacity in respect of the decision.
(2) For the purposes of this Act, a person will be taken to have impaired decision-making capacity in respect of a particular decision if—
(a) the person is not capable of—
(i) understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision); or
(ii) retaining such information; or
(iii) using such information in the course of making the decision; or
(iv) communicating his or her decision in any manner; or
(b) if the person has given an advance care directive in which the person sets out when they are to be considered to have impaired decision-making capacity (however described) in respect of a decision of the relevant kind—if the person has impaired decision-making capacity as so set out.
(3) For the purposes of this Act—
(a) a person will not be taken to be incapable of understanding information merely because the person is not able to understand matters of a technical or trivial nature; and
(b) a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time; and
(c) a person may fluctuate between having impaired decisionmaking capacity and full decision-making capacity; and
(d) a person's decision-making capacity will not be taken to be impaired merely because a decision made by the person results, or may result, in an adverse outcome for the person.14
There are important observations to note with respect to this definition. First, there is a statutory presumption that all adults have decisionmaking capacity. Second, the definition is underpinned by four key components. These are: an adult must understand the information relevant to the specific decision, retain that information, use the information in the course of making a decision and communicate their decision in any manner appropriate. Third, section 5(3) AAS Act identifies known truisms associated with decision-making capacity. Namely, it is decision-specific. An adult may have capacity to make certain decisions, such as purchasing groceries, but lack capacity to make more complex decisions, such as purchasing a house. Further, the assessment of capacity is not a valuebased judgement. All adults have the right to make mistakes, decisions
14 AAS Act s 5.
that have adverse outcomes or those that others do not necessarily agree with. In this way, dignity of risk becomes relevant in the context of safeguarding vulnerable adults. However, of particular importance is that the presence of fluctuating capacity does not indicate an adult lacks capacity. This is of relevance in the context of older persons, where cognitive decline is an inevitable symptom of ageing. Capacity is not a binary concept – we either have it or we do not. It is a more nuanced exercise, that is decision and time-specific. Finally, the presence of a disability, cognitive impairment or neurodegenerative disorder does not mean an adult lacks capacity. These are not sufficient grounds to rebut the statutory presumption.
Capacity and autonomy in decision-making are highly valued commodities in society. To deprive an adult of their decision-making capacity is a significant act. Especially in sensitive cases involving the abuse of an older person, perpetrated by a child or trusted individual, we must carefully balance that adult’s autonomy to refuse further action against a need to safeguard them. In this way, how do we balance consent and autonomy of an adult who is subject to abuse?
3. Guidance in Applying Statutory Powers
SALRI’s consultation was comprehensive. Some recurring cases raised to SALRI involved:
• An older parent being abused by their child;
• Abuse perpetrated by the adult’s primary carer;
• Financial gain achieved by selling the adult’s home and moving them into residential aged care;
• Financial entitlement, expressed as “my inheritance is due”;15
• Changes made to the adult’s will and enduring power of attorney;16
• Gaslighting – for example, an adult child suggests their older parent is no longer able to speak for themselves during medical or legal appointments, despite no evidence to support this conclusion; and
• “Befriender cases” – a vulnerable adult develops a friendship or romantic relationship with the perpetrator of abuse.
These examples aptly highlight the relationship between psychological and financial abuse. Further, they indicate the complexity of balancing
15 South Australian Law Reform Institute (n 1) 201.
16 An enduring power of attorney confers power upon a nominated individual to make financial decisions once decision-making capacity is lost.
an adult’s consent and autonomy, particularly in cases where the abuse is severe. How might the ASU enforce their powers under section 24 AAS Act, without doing so prematurely?
In order to answer this question, it is useful to conceptually distinguish three fundamental terms relevant to the ASU’s exercise of power under section 24 AAS Act. These are:
1. Capacity: an adult is presumed to have decision-making capacity. This is exercised by making a decision to pursue a claim of abuse or refuse further intervention.
2. Consent: to provide valid consent, the adult must have decisionmaking capacity, giving free and voluntary consent, without coercion. Consent is communicated as the decision to pursue or refuse a report of abuse.
3. Coercion: this is an external factor, which can vitiate the voluntariness of consent. An adult can still retain full decisionmaking capacity, despite the presence of coercive conduct.17
Importantly:
‘… the presence of psychological abuse, gaslighting or coercion does not automatically rebut the presumption that an adult has decision-making capacity. It is a factor that should be considered when the adult is in the course of making a decision. The impact of coercion relates to an adult’s ability to freely and voluntarily make a decision whether to consent to ASU intervention. As a result, coercion may be relevant to decisionmaking capacity where the adult is using information and weighing up the consequences of available options.’ 18
Clarification of these terms were integral in establishing an understanding of the impact of abuse (namely, coercive conduct) upon decision-making capacity and consent. These formed the foundation for circumstances which may warrant the ASU’s intervention pursuant to section 24 AAS Act.
In practice, the decision to override an adult’s consent can be very difficult, in light of the consequences attached to the pursuit of a complaint. Consider the following hypothetical scenario, noting this was a common experience recurring throughout SALRI’s consultation: a vulnerable older adult is being psychologically and financially abused by their child, who
17 South Australian Law Reform Institute (n 1) 177.
18 ibid.
is also their primary carer. Their child is exerting a significant degree of coercion upon the vulnerable adult to make certain decisions regarding finances (such as, ‘gifting’ this child large sums of money) and lifestyle (such as, selling their home, with a view to move into residential aged care). Often, in this scenario, the vulnerable adult is aware of their circumstances, recognising the behaviour of their child to be abusive. Accordingly, an adult with capacity retains the right to refuse further intervention on behalf of the ASU. In reaching this decision, the adult will inevitably consider the consequences or outcomes of refusal or consent to pursue a complaint. In this way, we perceive this as a reasoned decision, that takes into consideration the specific circumstances of the vulnerable adult. SALRI regularly encountered situations in which the vulnerable adult indicated that remaining in the abusive situation was the “lesser of two evils”.
This hypothetical scenario provided cause to consider two issues. First, the impact of culture upon perceptions and definitions of abuse. Second, the need for a case-by-case approach when determining whether to enliven the powers conferred under section 24 AAS Act.
A Case-by-Case Approach:
To exercise a protectionist or interventionist approach will be contingent upon the specific case and circumstances. These circumstances are rendered more difficult where an adult with decision-making capacity refuses further action and chooses to remain in an abusive situation. At what point should the ASU determine whether it is necessary to enforce their section 24 AAS Act powers?
1. Adults with Decision-Making Capacity
In many instances, consultees preferred to remain living in an abusive situation, particularly where the perpetrator of abuse was a child and/or primary carer. A decision to pursue a complaint may lead to social isolation, losing contact with family members (such as children and grandchildren), the fracturing of relationships, displacement from home and overall diminishment of quality of life.19 For these reasons and more, consultees chose to accept the abuse.
It is important to reinforce that the decision made by the vulnerable adult may be influenced by a number of factors, including, but not limited to, cultural norms, expectations, religion and family dynamics. Culture might translate to differences in perceptions of what behaviour/s might
19 ibid 177–78.
constitute abuse or coercion. In cultural settings of collective decisionmaking, some may argue these are circumstances lending themselves to greater risk of abuse or coercion. There are many families who solely rely upon the advice of children and other trusted individuals when making decisions. In addition, where an adult is culturally and linguistically diverse, it might be commonplace to have a child present in meetings and appointments as the interpreter. Some cultures might perceive these examples to be inappropriate over-involvement of a child or trusted individual.
However, this attempts to highlight that individual circumstances will dictate whether or not behaviours are abusive and/or coercive. Further, we cannot be prematurely presumptuous to label these behaviours or practices as abuse or coercion. It may be that a child or trusted individual is facilitating supported decision-making on behalf of the vulnerable adult. In response to this, Scholten et al argued that supported decision-making ‘may sometimes be nothing more than covert substitute decision-making without accountability.’ 20 In these circumstances, steps should be taken to ensure a decision on behalf of the vulnerable adult is independent and voluntary.
The significance or value ascribed to any one of these factors is a highly individualistic exercise. Therefore, the ‘valuation of these options and consequences is related to the goals, values and norms a particular [person] considers to be important in [their] life.’ 21 Consequently, the factors formulating justification for refusal or consent reflects what the adult perceives to be of material relevance to their decision.22 This renders the role of the ASU more complicated, particularly where there are differences in culture, norms, expectations and family dynamics. Overall, a personcentred approach, in which the ASU considers the exercise of section 24 AAS Act on a case-by-case basis was recommended.
In light of these observations, SALRI recommended the following list of non-exhaustive factors be considered by the ASU:
• The decision-making capacity of the adult;
• The autonomy of the adult and their right to make mistakes or decisions that have adverse outcome/s;
20 Matthé Scholten et al, ‘Combining Supported Decision-Making with Competence Assessment: A Way to Protect Persons with Impaired Decision-Making Capacity against Undue Influence’ (2021) 21(11) American Journal of Bioethics 45, 46.
21 Ron Berghmans, ‘Capacity and Consent’ (2001) 14(5) Current Opinion in Psychiatry 491, 493.
22 South Australian Law Reform Institute (n 1) 178.
• The influence of family, culture and language;
• The validity of consent – whether the decision was made freely and voluntarily;
• The presence of coercive conduct/behaviour, its scope and severity; and
• Whether the coercive conduct justifies the ASU’s intervention and interference with the adult’s decision-making autonomy.23
The above discussion pertained to adults with decision-making capacity. That is, there is no basis to question whether an adult has the ability to refuse or pursue a complaint. In these instances, the ASU should respect the adult’s autonomy and right to make a decision that may not necessarily be in their best interest (such as that they continue living in an abusive situation). This is consistent with the underlying premise of the AAS Act – to champion an adult’s autonomy to make decisions upon their own volition.
However, should the ASU intervene when an adult is unable to appreciate or recognise the presence of coercion and as a result, cannot exercise their decision-making capacity?
2. The Impact of Coercion on Decision-making Capacity and Consent
In cases where an adult is incapable of appreciating the presence of coercion, this raises more complex concerns. Notably, under these circumstances, it may be argued the adult is no longer able to make a free and voluntary decision to refuse ASU intervention. In this context, coercion is an external factor which vitiates the voluntariness of the adult’s decision. Further, it indicates a greater severity in the nature and extent of the abuse. This is a common symptom of elder abuse and has been described as ‘more complex because the abused person appears to have capacity and appears to be prepared to live with the abuse.’25
David Lock aptly captured the complexity of this circumstance – ‘what is the law’s response to people who technically have decision-making capacity, but are in circumstances where they are de facto unable to exercise that capacity?’
26 To assist SALRI in formulating its response and recommendations, the approach taken in the United Kingdom was
23 ibid 204.
24 ibid 211.
25 David Lock, ‘Decision-Making, Mental Capacity and Undue Influence: Action by Public Bodies to Explore the Grey Areas between Capacity and Incapacity’ (2015) 20(1) Judicial Review 42.
26 ibid.
instructive. In cases of severe abuse, it has been held ‘[…] such individuals require and deserve the protection of the authorities and the law so that they may regain the very autonomy that the [individual] rightly prizes.’ 27 This is consistent with Munby J’s conclusion that an adult may be ‘incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.’ 28 It is clear there are instances which require the ASU to override an adult’s refusal to pursue a claim, particularly where that adult’s capacity is completely overborne by the perpetrator’s coercive conduct.
The South Australian Law Reform Institute relied upon two cases from the United Kingdom, which offered a useful approach in determining the circumstances warranting ASU intervention.
A. WU v BU [2021] EWCOP 54
The first case concerned BU, a 70-year-old woman, who had vascular dementia. BU was an affluent divorcee, who subsequently developed a close relationship with NC, the perpetrator of abuse. Over time, NC ingratiated himself in BU’s life. This case involved significant coercive control, accompanied by financial abuse. Further, it clearly identified the intricate relationship between decision-making capacity, consent and coercion.
There were several indicators of coercive abuse. These behaviours included, but were not limited to, a formal establishment of a partnership, using BU’s money to sustain costs of living, substantial gifts to NC, attending medical and legal appointments, controlling the release of information to family, social isolation, controlling BU’s diet, weekly monetary payments to NC and control of finances.29 In this case, Roberts J recognised personal autonomy ought to be respected and intervention should only occur in limited circumstances.30 With respect to BU, her vascular dementia was not sufficient to render her with impaired decisionmaking capacity. However, the ‘corrosive and coercive nature and control’ exercised by NC deprived BU of her capacity to make autonomous, free decisions.31 This was sufficient to justify further intervention to safeguard BU from this abusive relationship.
27 DL v A Local Authority [2012] EWCA Civ 253 [63].
28 Re SA [2006] FLR 867 [79].
29 WU v BU [2021] EWCOP 54, [3], [10]-[11], [21]-[22], [30], [91].
30 ibid [2].
31 ibid [89].
B. DL v A Local Authority [2012] EWCA Civ 253
In this case, Mr and Mrs L were aged 85 and 90 years respectively. They resided with their adult son, DL, who was the perpetrator of abuse. Both Mr and Mrs L had full decision-making capacity.32 DL was aggressive, which manifested itself as physical and verbal abuse.33 Within their home, DL controlled his parents, including their movements, visitors and leaving the house. Coercive behaviour led to the transfer of ownership of their home to DL, accompanied by threats of moving Mr and Mrs L into residential aged care.34
Despite the abuse, Mrs L did not wish to pursue further action, as a means to maintain the relationship with her son.35 However, the Court held intervention was necessary to restrain DL’s actions. Importantly, Davis LJ held ‘[…] any such intervention will indeed need to be justified as necessary and proportionate.’ 36
Further, the relationship between decision-making capacity and consent was highlighted, especially where coercive conduct overpowers an adult’s capability to make free and voluntary decisions. The Court aptly considered the additional complexity of abuse perpetrated by family members, such as DL:
‘[W]here the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may ... be subtle, insidious, pervasive and powerful. In such cases, moreover, very little pressure may suffice to bring about the desired result.’ 37
Therefore, when determining whether an adult’s capacity is completely overborne by coercive conduct, ‘the nature/dynamic of the relationship (child, spouse, parent), the underlying premise of the influence (religious or cultural expectation/norm, obligation) and the significance of that relationship’ 38 ought to be actively considered.
32 DL v A Local Authority [2012] EWCA Civ 253 [9].
33 ibid.
34 ibid.
35 ibid.
36 ibid [76] (emphasis added).
37 ibid [22], citing Munby J in Re SA [2005] EWHC 2942 (Fam) [78].
38 South Australian Law Reform Institute (n 1) 211.
Lessons Learned
The cases of BU and DL provide instructive insights pertaining to an interventionist or protectionist approach to adult safeguarding. The prevailing position ought to remain protectionist of an adult’s rights to exercise decision-making autonomy. However, there are instances which warrant an interventionist approach. Namely, where an adult’s ability to provide valid consent is completely overborne by an external factor, such as coercion. Therefore, SALRI concluded that where the adult’s capacity is overborne by the coercive conduct and control of a third party, this should be the relevant threshold initiating the consideration of intervention and safeguarding measures. The severity of abuse in these cases indicates the adult is no longer able to appreciate the nature of abuse and cannot exercise evaluative judgement in weighing the consequences of a decision to refuse or pursue a complaint. In practice, this would translate to the exercise of powers enumerated under section 24 of the AAS Act.
Prior to exercising these powers, SALRI reinforced the need to gather evidence to support a conclusion that an adult’s consent is no longer valid. A clinical capacity assessment undertaken by a professional with the requisite skills may be necessary. SALRI recommended in cases of serious psychological abuse, a clinical capacity assessment should be undertaken prior to ASU intervention. Clinical capacity assessments are valuable, incorporating clinical interviews as a means to collect collateral information about the vulnerable adult. This facilitates greater understanding regarding the adult’s specific circumstances and the factors that are ascribed significance in the course of making a decision.
In cases where the ASU exercises their powers, overriding the consent of an adult, the intervention must be necessary and proportionate. The prevailing aim of intervention ought to be to restore the adult’s decisionmaking autonomy. By re-framing the purpose of an interventionist approach in these limited circumstances, a decision to override consent ultimately empowers the adult. In severe cases of abuse, the adult is unlikely to bear the onus of consenting to the pursuit of a complaint. The identification of this threshold – coercive conduct completely overbears the decision-making capacity of an adult – promotes a case-by-case approach to exercise section 24 AAS Act powers.
These conclusions are reflected in Recommendation 30 of SALRI’s Final Report, which was subsequently accepted by State Government:
‘SALRI recommends that, when determining whether to override the decision of an adult with decision-making capacity under s 24(4) of the Ageing and Adult Safeguarding Act 1995 (SA), the Adult Safeguarding
Unit should take into account the following, non-exhaustive, list of factors:
a. The decision-making capacity of the adult;
b. The adult’s autonomy and right to make ‘poor decisions’;
c. The influence of culture, family and language;
d. The nature/dynamic of the relationship and its significance to the adult;
e. The underlying premise of the influence (religion, cultural expectation/norm, obligation);
f. The risk of displacement or destitution from preferred residence;
g. The validity of consent and whether a decision was made freely and voluntarily;
h. The gravity of the abuse (whatever form(s) it may take);
i. The presence of psychological abuse and its severity and effects;
j. The potential outcomes of the proposed actions for the adult who may be vulnerable to abuse and any other relevant parties; and
k. Whether the coercive conduct justifies the Adult Safeguarding Unit’s intervention and subsequent interference with the adult’s decision-making autonomy.
SALRI further recommends that where consent is overridden in the case of an adult with decision-making capacity, that intervention should be necessary, reasonable and proportionate.’ 39
This recommendation promotes consistency and clarity for the ASU in the application of section 24 of the AAS Act. In addition to this recommendation, there is a clear need for education to increase understanding of abuse. Importantly, increasing awareness of the indicators for abuse (all types), will assist in reporting cases earlier.
Importantly, measures to preserve an adult’s decision-making capacity and respect for autonomy should be implemented. This article explored circumstances in which an interventionist approach should be considered, thereby infringing fundamental rights of significance in our society. This is not a decision that should be made lightly, without sufficient cause.
39 South Australian Law Reform Institute (n 1) 227.
When your Care Home Ceases to be your Home: How Secure
is your Community Placement?
Monye Anyadike-Danes KC
INTRODUCTION
This article looks at the position of those in residential care homes and considers how secure they are in those placements.1 These are people who, either by choice or circumstance, call home a place other than their own private home or their family’s home. This renders them particularly vulnerable as invariably they do not have either the means or the ability to move to another placement. Generally, this means the placement needs to work as failure can not only be hugely distressing for them and their families, but it can also have serious consequences for their mental health and quality of life.
CONTEXT
Definitions
First some definitions. There are three basic types of such community placements: residential care homes, nursing homes and specialist homes.2 The definition of a residential care home is provided by article 10 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003, with that for nursing homes provided by article 11. The difference between them is characterised by the services they provide, with a residential care home typically providing meals and accommodation and having staff available 24-hours a day to provide general personal care together with ongoing care and supervision in circumstances where nursing care would normally be inappropriate. Some facilities are designed and operated so as to provide both a residential care home and nursing home units.3
1 All emphasis in the article is added, save where it appears to the contrary.
2 ‘Types of residential care and nursing home’ available at https://www.nidirect.gov.uk/articles/ types-residential-care-and-nursing-home#toc-1
3 Registered Nursing and Residential Homes and Beds Trend Report, 2008 – 2018, RQIA available at https://www.rqia.org.uk/RQIA/files/0f/0ff745be-514f-4013-8309-7d63de74bbc1.pdf
In 2016 the Northern Ireland Executive published its Active Ageing Strategy for 2016-2020 (“Strategy”). The vision stated then was ‘one of Northern Ireland being an age friendly region in which people, as they get older, are valued and supported to live actively to their fullest potential; with their rights respected and their dignity protected.’ 4 In 2020 it was updated and extended to 2022 and work has been ongoing to evaluate its design and operation.5
Strategic Aim 3 of the original Strategy relates to ‘care’ and its operation is considered in the 2022 extension under ‘Outcome 3’. Whilst there is no explicit reference to the means by which the ‘vision’ is to be delivered or how the standard of “valued and supported to live actively to their fullest potential” is to be gauged, article 38 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 confers powers on the Northern Ireland Department of Health to prepare, publish and review statements of minimum standards applicable to all services including regulated services and the provision of services to those in a residential care home is a regulated service.
The Residential Care Homes Minimum Standards 6 specify the arrangements, facilities and procedures that apply, and provide a basis for the Regulation and Quality Improvement Authority (“RQIA”) to assess the extent to which the required services are being delivered to the appropriate standard. The ten sets of values that are intended to be ‘embedded’ in that service are specified as: Dignity and Respect; Independence; Rights; Equality and Diversity; Choice; Consent; Fulfilment; Safety;’ Privacy; and Confidentiality. Under-pinning the minimum standards are the requirements of the European Convention on Human Rights (“ECHR”) as read with section 6 of the Human Rights Act 1998 (“HRA”), and the principles set out in ‘People First’.7
As regards the HRA, the human rights duty of private bodies who provide residential, nursing or domiciliary care on behalf of public authorities such as the HSCTs was clarified by section 73(1) and (2) of the Care Act
4 www.communities-ni.gov.uk/sites/default/files/publications/ofmdfm/active-ageing-strategy.pdf
5 According to the Department for Communities it has been engaged in an ‘Evaluation of the Strategy and co-design of a new Strategy to take us beyond 2022’, available at https:// www.communities-ni.gov.uk/sites/default/files/publications/communities/dfc-active-ageingstrategy-2016-22.pdf
6 Residential Care Homes Minimum Standards (ver.1.2) December 2022, DHSSPS at https:// www.rqia.org.uk/RQIA/files/ea/ea7c184c-8bb5-41e3-a270-db34fc2fad9a.pdf
7 ‘People First; Care Management: Guidance on Assessment and the provision of Community Care; Community Care in Northern Ireland for the 1990s’, at https://www.health-ni.gov.uk/ sites/default/files/publications/dhssps/people_first-care-management.pdf
2014. Under those provisions, where a HSCT pays or arranges for a person registered under Part 3 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003, i.e. registered with the RQIA to provide services in residential accommodation together with nursing or personal care, the assistance services under article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972, that person will be deemed to be exercising the function of a public authority for the purposes of the Human Rights Act 1998. Section 73(1)(d) (ii) specifically refers to “residential accommodation together with nursing or personal care” as an included service.
Turning specifically to the ECHR, the Article 8 right to respect for private and family life is likely to be most obviously engaged in relation to the management of services in a residential care home and, depending on the circumstances, the Article 3 prohibition on degrading treatment or punishment and the Article 5 right to liberty and security together with the Article 14 prohibition on discrimination, may also be relevant.
Those values, principles and rights are an important perspective from which to view what is happening at any given residential care home to its residents and the extent to which the regulatory authorities are doing their job. A very good example of that was exposed by a recent investigation by the Commissioner for Older People into the Dunmurry Manor Care Home.8 The Commissioner for Older People has a statutory duty to keep under review the adequacy and effectiveness of law, practice and services as these relate to the interests of older people and to advise the government.9 The report of the investigation found that:
‘Despite Dunmurry Manor being regulated against care home standards within a regime of regulation and inspection, harm still occurred. It became clear as the investigation progressed that none of the organisations involved were aware of the full scale of the issues being experienced by residents in the home.” 10
Orders of magnitude
Next, the numbers. The target population for residential care homes is the elderly and others who may find it difficult to manage daily life at home but who do not require nursing on a frequent basis to deal with a
8 Home Truths: A Report on the Commissioner’s Investigation into Dunmurry Manor Care Home, June 2018, COPNI at https://copni.org/assets/general/resources/copni-home-truthsreport-web-version.pdf
9 The Commissioner for Older People Act (Northern Ireland) 2011, section 3(2) and (3)
10 The report recorded: “Evidence of physical and sexual assaults on female residents, residents leaving the home unnoticed and multiple instances of inhuman and degrading treatment were witnessed and reported”, Executive Summary, p.8, ibid.
disability or illness. Identifying the precise size of that population is not straightforward.
Age and disability are useful aids to predicting the likely requirement for residential care homes. Whilst not all those over a given age or who have a particular disability will necessarily require a placement, nevertheless older people and those with disabilities are highly represented in the residential care home population. The age distribution and its trends can be seen from the 2021 census11 and the 2023 mid-year population estimates12 published by the Northern Ireland Statistics & Research Agency (“NISRA”). These show, in relation to age, that as of 2021 Northern Ireland had an over-65s older population of 326,500 representing 17% of its total population. The trends are that the total Northern Ireland population will continue to grow - indeed the annual population change has remained positive over the last 25 years - with the proportion of the over-65s population also growing. As to the future, over the 25 years from the last census the Northern Ireland population is projected to grow by 5.1% while that for the over-65s is projected to grow by 49.2%.13 So if age is an indicator of the likely need for residential care homes, then that need is growing.
That view is only reinforced by the statistics for those with long-term health problems or disabilities who are the other population group likely to require residential care homes. The figures for this group are less straightforward to interpret. The 2021 census provides the total figure of 463,000 (24.3%) for those in population who have a long-term health problem, which is broken down into 245,100 (12.9%) where that limitation is ‘a little’ and 218,000 (11.5%) where it is ‘a lot’.14 There is an obvious overlap between the ageing and the long-term health problems or disability categories, with older people featuring disproportionately (nearly 30%). Perhaps unsurprisingly, this ‘long-term health problem or disability’ category is also forecast to grow both absolutely and as a proportion of the total population. What is more difficult to assess is the likely needs of this
11 Census 2021 population and household estimates for Northern Ireland | Northern Ireland Statistics and Research Agency (nisra.gov.uk) at https://www.nisra.gov.uk/system/files/ statistics/census-2021-population-and-household-estimates-for-northern-ireland-statisticalbulletin-24-may-2022.pdf
12 NISRA Statistical Bulletin, 19 September 2024: 2023 mid-year population estimates for Northern Ireland at https://www.nisra.gov.uk/publications/2023-mid-year-populationestimates-northern-ireland
13 2021-based Interim Population Projections for Northern Ireland, 30 January 2024, NISRA at https://www.nisra.gov.uk/publications/2021-based-interim-population-projections-northernireland#:~:text=Details,the%20UK%20as%20a%20whole
14 Census 2021; Main statistics for Northern Ireland statistical bulletin: Health, disability and unpaid care; 15 December 2022, NISRA at https://www.nisra.gov.uk/system/files/statistics/ census-2021-main-statistics-for-northern-ireland-phase-2-statistical-bulletin-health-disabilityand-unpaid-care.pdf
group. NISRA provides a breakdown of the prevalence of 11 different types of long-term health conditions and disability extrapolated from the census, which goes some way to assist with that. These include conditions that can anecdotally be associated with likely need for a residential care home, such as ‘mobility or dexterity difficulty that limits basic physical activities’, ‘frequent periods of confusion or memory loss’, ‘autism or Asperger syndrome’, and ‘blindness or partial sight loss’.
However, what is missing is a comprehensive needs assessment of the population to enable a reliable prediction for policy and planning purposes. It is worth noting that an independent report on professional nursing assurance commissioned in 2018 by the Belfast Health and Social Care Trust (“BHSCT”) recommended the development of something similar.15 This recommendation has been reiterated in subsequent reports.16
As to meeting that need, the current position is that as at 30 June 2023, Northern Ireland had some 470 registered17 facilities of which just under half, (229), were residential care homes providing a total of 5,265 beds.18 The statistics published by NISRA show a marked difference between residential care packages and nursing care packages. The largest allocations of residential care packages are for those with a learning disability (47%) and a mental health issue (35%). Some of these are likely to be for delayed discharge patients being resettled from learning disability and mental health hospitals as part of the outworking of the 2007 Bamford Reviews of Mental Health and Learning Disability.19 The next largest allocation is for the elderly (29%), with the remaining small percentage for those with a physical and sensory disability (12%).20
15 ‘Issues for Future Consideration … The development of a Comprehensive needs assessment of our Learning Disability population in Northern Ireland, to inform the development of a regional strategic approach to an integrated hospital and community service model, clinical practice, standards of service provision and future accommodation needs’ (p.12); Report on Professional Nursing Assurance: Muckamore Abbey Hospital: Findings, Recommendations and Action Plan; February 2020, Francis Rice at https://www.mahinquiry.org.uk/files/mahinquiry/ documents/2024-08/M10%20-%2002%20-%20McArdle%2C%20Charlotte%20%28Prof.%29%20 -%20Exhibits%2013%20-%2063.pdf
See e.g., the ‘Independent Review of the Learning Disability Resettlement Programme in 15
16 Northern Ireland’, Bria Mongan & Ian Sutherland, July 2022, commissioned by the Health and Social Care Board (“HSCB”).
17 The reference to ‘registered’ is because running a care home requires registration with the RQIA.
18 Statistics on Community Care for Adults in Northern Ireland (2022 – 2023), 25 October 2023, NISRA (p.30) at https://www.health-ni.gov.uk/sites/default/files/publications/health/cc-adultsni-22-23.pdf
19 ‘Delivering the Bamford Vision: The Response of the Northern Ireland Executive to the Bamford Review of Mental Health and Learning Disability – Action Plan 2012-2015’ at https:// www.health-ni.gov.uk/sites/default/files/publications/health/cc-adults-ni-22-23.pdf
20 ibid, Figure 23, p.33.
Drawing all of that together and by way of a snapshot: one in six people are aged 65 and over; one in four have a limiting long-term health problem or disability with the majority of them being in that 65 and over age group; and those figures are predicted to rise. This means that there is a sizeable section of the population that is likely to require residential care home placements in the future and for whom appropriate arrangements need to be made to ensure they are able to live their lives as fully and enjoyably as possible in the place that is to act as their home.
Placement arrangements
Now to the important issue of how the required residential care home placements are provided.
Of the 229 residential care homes registered in 2023, just over four fifths (81%, 186) were in the independent sector and about one fifth (19%, 43) were in the statutory sector. This level of commissioning from the private sector has its origins in the People First Community Care Policy of 1980, which facilitated the privatisation of adult social care and led to the rapid expansion of private residential nursing and care homes.21 It described the arrangements that the four Health and Social Services Boards (subsequently restructured into a single regional Board22 whose functions have since been absorbed into the Department of Health23) should put in place to identify the community care needs of their service users. That led to a rapid expansion of private residential care homes and nursing homes to meet the assessed needs.
Essentially the statutory requirement of HSCTs to provide social care services has been outsourced, at least those services that can be provided in residential care homes and nursing homes. The commissioning of those services and management of their delivery is through a ‘regional care home contract’ (”Regional Contract”).24 This is a contract to which the resident is not a party. Rather it is between the HSCT and the care home provider pursuant to the Commissioning Plan developed by the HSCB in partnership with the Public Health Agency (“PHA”) and in accordance
21 People First, ‘Care Management: Guidance on Assessment and the Provision of Community Care’; Community Care in Northern Ireland for the 1990s at https://www.health-ni.gov.uk/ sites/default/files/publications/dhssps/people_first-care-management.pdf
See e.g., the ‘Independent Review of the Learning Disability Resettlement Programme in 15
22 Health and Social Care (Reform) Act (Northern Ireland) 2009.
23 Health and Social Care Act (Northern Ireland) 2022.
24 A specimen of this contract, ‘Regional Residential & Nursing Provider Specification and Contract’, being used by the Northern Health and Social Care Trust can be found at https:// www.northerntrust.hscni.net/wp-content/uploads/2017/07/REGIONAL_RESIDENTIAL__ NURSING_PROVIDER_SPECIFICATION_AND_CONTRACT-1.pdf
with the current Residential Care Homes Minimum Standards. Standard 4 of those minimum standards requires that: “Each resident has an individual written agreement setting out the terms of residency regarding the services and facilities to be provided”. The criteria for meeting that standard provides at para.4.1 that this individual written agreement (“Residency Agreement”) “sets out their terms of residency”, whilst para.4.2 specifies what it must set out at a minimum, including:
• The date of admission and the duration of the stay, if known;
• The accommodation, services and facilities provided by the home (these are the general services and facilities agreed through contracting arrangements with an HSC Trust), the weekly fee plus an itemised list of all agreed services and/or facilities over and above the general services and facilities;
• The general terms and conditions of residency with reference to any of the home’s relevant policies;
• A copy of the home’s complaints procedure;
• The arrangements for regularly reviewing the signed agreement and the circumstances when the agreement can be reviewed outside these arrangements;
• The period of notice for terminating the agreement.
By way of example, the Regional Contract used by the Northern Health and Social Care Trust (“NHSCT”) provides for this individual written agreement as follows:
‘The Provider shall provide each Resident who is the subject of Care Management by the Trust with an individual written agreement (“Residency Agreement”) which must be consistent with the terms and conditions of this Contract and the requirements of the Minimum Standards. If any difference or conflict arises between a Residency Agreement and this Contract relating to the Resident, this Contract will take precedence.’25
Accordingly, the position of residents in a care home is largely dependent on the operation of a Regional Contract to which they are not a party and Minimum Standards formulated without their direct involvement. Importantly, given the scarcity of residential care home placements, prospective residents will have little scope to negotiate the terms of their Residency Agreement and many are likely to have no option but to simply accept whatever agreement is presented to them.
25 ibid, para.5.1, p.30.
THE ISSUE OF EVICTION
Nature of the concern
For many residents the care home is in a very real sense their home. It may be in the same geographic area as they used to live, making it possible for friends and family in the community to readily visit them. It may have been their home for many years, so that they have friends (and in some instances family) in the same residential care home, who will be difficult if not impossible to replace in any move. As residents get older the familiarity of surroundings and faces may have become of fundamental importance to their quality of life, which may be particularly the case for those who go on to develop dementia. Therefore, any question of a move is likely to be a very serious matter and the ability of the residential care home provider to impose an enforced move is an issue requiring very careful scrutiny. That is the issue now to be considered.
The particular concerns over ’evictions’ arose not only from the perceived imbalance of power between a service provider on whom an elderly and infirm person may be wholly dependent for their healthcare and very quality of life, but also because despite the fact that the residential care home may be their only home, their legal rights to remain in it may not be as clear as they and their families would have expected. Furthermore, poor notification procedures may provide very inadequate warning of impending termination and/or transfer.
Those issues were considered in the 2007 House of Lords and House of Commons Joint Committee report on the ‘Human Rights of Older People in Healthcare’,26 which was prompted in part by the recognition of the growing proportion of the population that was elderly and concerns that were increasingly being raised over their human rights. The inquiry addressed specifically the issue of ‘eviction’, which those giving evidence considered gave rise to article 8 ECHR issues:
‘235. A fundamental issue for older people in healthcare is the relationship that they have with their care provider. A number of submissions described the “power imbalance” which exists between older people and those who care for them. This imbalance is one of the key factors contributing to the poor treatment of some older
26 House of Lords House of Commons Joint Committee on Human Rights, The Human Rights of Older People in Healthcare, Eighteenth Report of Session 2006-07, Volume I - Report and Formal Minutes, 14 August 2007 available at https://publications.parliament.uk/pa/jt200607/ jtselect/jtrights/156/156i.pdf
people in healthcare and one which leads, as many witnesses told us, to a reluctance by older people in healthcare to complain. Other factors include a lack of confidence in asserting their rights; a failure to identify themselves as people with (human) rights; a reluctance to “make a fuss” on their own behalf (not wishing to cause trouble, fear of recriminations); lack of security of tenure and fear of eviction; internalised ageism in the individual him or herself (i.e. lower expectations of what is fair) or lack of family support …’
237. As for care homes, it is no wonder that older people in some homes are scared to express concerns. We were shocked by the number of witnesses who told us of people who had faced eviction from care homes because they or their relative or carer had complained. Care home residents, unlike ordinary tenants, do not have security of tenure.’
The inquiry also voiced its ‘alarm and concern’ at para.241 ‘by how little protection care home residents appear to have against eviction, as compared to ordinary tenants in rented accommodation who have the protection of housing legislation, and suggest that rectifying this anomaly be considered as a matter of urgency.’
Many of the issues identified in that Joint Committee report can also be seen in the 2014 report of the Independent Review of the concerns raised about Cherry Tree Nursing and Residential Care Home between 1 January 2005 and 31 March 2013.27 Whilst the concerns largely related to standards of care, there were at least two occasions when a resident was asked to leave or was transferred following a complaint made about their care by a family member.28 However, the resulting recommendations did not specifically relate to ‘eviction’, the height of any connection is in the first recommendation that: ‘The regional contracts for residential and nursing home care should be amended to require homes to report each complaint about the care of residents …’ 29
The Commissioner for Older People responded to the report of the Review into Cherry Tree pointing out: ‘At the heart of this is the appalling reality that vulnerable older people lived in a care home in which some were treated
27 Independent Review of the Actions Taken in Relation to Concerns Raised about the Care Delivered at Cherry Tree House, Carrickfergus, July 2014, RQIA, at https://www.rqia.org.uk/ RQIA/files/1f/1fc36cdd-154f-47a6-bd5d-366dcea2f3bf.pdf
28 ibid, see p.16 for a complaint made on 25 April 2005 about a lack of bed rails, which led to the family being given notice to move the resident to another home. See too p.18 where a complaint on 13 February 2006 about neglect in medical attention and weight loss led to a refusal of re-admission when the resident was discharged from hospital.
29 ibid, section 7, p.135.
badly, at risk of assault or abuse, not cared for properly and if they or their relatives spoke out some were removed from the home, and felt passed off as 'troublemakers’.’ 30
Status of residents
The particular status of care home residents in Northern Ireland lies at the heart of the eviction issue. Currently they are considered to only have a contractual license to occupy, as opposed to being tenants. This means they cannot avail of the protections under the Private Tenancies (Northern Ireland) Order 2006 as amended 31 and essentially have no security of tenure. Whilst it has been accepted that this arrangement “provides less legal protection than a tenancy or a lease would, especially in relation to eviction”,32 no steps appear to have been taken to strengthen the protection afforded to elderly people in care. Indeed, no legislation appears to have been proposed or introduced.
This feeds directly into the incidence of eviction as essentially the residents have no statutory protection and must rely on either their contractual rights or equity for protection in the event of eviction.33 It is worth noting that other countries afford elderly people in care much more protection than this. In Sweden and Denmark for example, elderly people in residential care are accommodated in individual flats and have secure tenancies.34
The current terms
The Residential Care Homes Minimum Standards say little specifically about eviction. Standard 4.2 requires the individual agreements with residents simply set out the period of notice for terminating the agreement, whilst Appendix 1, para.6 provides in relation to the register of residents that: “If the resident is transferred to a hospital or nursing home,
30 Commissioner responds to Cherry Tree House Review, 1 July 2014, COPNI, at https://copni. org/news/articles/commissioner-responds-to-cherry-tree-house-review. See too ‘Changing the Culture of Care Provision in Northern Ireland: Commissioner’s Advice to the Minister for Health, Social Services and Public Safety’, November 2014 available at https://copni.org/ assets/general/resources/changing_the_culture_of_care_provision_in_northern_ireland_pdf. pdf
31 See the guide published by the Department for Communities on the amendments introduced by the Private Tenancies Act (Northern Ireland) 2022 at https://www.communitiesni.gov.uk/publications/private-tenancies-act-northern-ireland-2022-guide-sections-1-6-tenantsand-landlords
32 ibid, Changing the Culture of Care Provision, p.39.
33 See e.g., John Wylie, Irish Land Law Northern Irish edition (Butterworths 1997) 3rd ed p259.
34 ibid, Human Rights of Older People in Health Care paras.237 and 238.
the date of, and the reasons for, the transfer and the name of the hospital or nursing home to which the resident is transferred.” There is no provision for the Regional Contract to require care home providers to specify the type of tenure they are granting residents, far less to specify what that should be. Whilst each HSCT will have its own version of the Regional Contract, in practice they are similar, and offer little protection to residents from eviction. Their purpose is to set out the terms and conditions under which the services in the care home will be delivered by the provider. In the absence of any requirement to the contrary Residential Agreements tend to expressly exclude any intention to create a tenancy, other estate or interest of any kind. This affords considerable flexibility to the care home providers in how they deal with residents, such as moving them to other rooms within the care home when necessary to facilitate the needs of the care home and other residents.
Taking the version of the Regional Contract published for the NHSCT, it is immediately clear that it does not require care home providers to include a provision in their Residency Agreements that specifies tenure. Further, whilst clause 7 of the ‘General Terms and Conditions of Contract’ outlines circumstances in which the NHSCT can terminate a contract with a care home provider, there are no provisions that properly either set out the circumstances in which a care home provider will be permitted to terminate the Residency Agreement, or the procedure that will need to be followed. There are, however, useful provisions in relation to ‘Human Rights Obligations’ (clause 13) and ‘Equal Opportunities’ (clause 14):
‘13.1.1 The Provider shall comply with the Human Rights Act 1998 as if it were a ‘Public Authority’ within the meaning of the legislation.’
14.1 In the performance of the Services, the Provider and its Staff shall not unlawfully discriminate within the meaning and scope of any Law, enactment, order, or regulation relating to discrimination (whether on grounds of race, gender, religion, belief, disability, marital or civil partnership status, political opinion, sexual orientation, age, human rights or otherwise).’
The ’Special Terms and Conditions of Contract for Residential & Nursing Homes’ in NHSCT’s Regional Contract includes the following provisions on transfer and discharge (clause 6); change in assessed needs (clause 15); and closure of the service provider (clause 13):
‘6.12 If the Provider considers themselves to no longer be able to meet the needs of a Resident, they must inform the Trust as soon as possible to ensure that the interests of the Resident are fully considered when alternative accommodation is being sought. Until alternative
accommodation is available, the Trust and the Provider will work together to ensure the needs of the Resident are met. Payment will cease on the date the Resident leaves the Provider.’
6.13 In extreme cases where the behaviour of the Resident or any other circumstances relating to the Resident are materially detrimental to the safety and welfare of other Residents or the conduct of the Provider, the Provider will be entitled to terminate the placement by giving the Trust 48 hours written notice. The Trust and the Provider will work together in making interim arrangements to reduce any risk.’
13.1 In the event of the Provider ceasing to conduct business the appropriate guidelines as issued by RQIA should be adhered to. The Provider shall inform the Trust and RQIA at least three months in advance, or at the earliest possible stage, in the event of the possibility of sudden Provider closure. The Provider will support the Trust in any subsequent plans to facilitate the transfer of Residents and minimize disruption.’
Scope for protection
The provisions in clauses 6.12 and 6.13, which are generally reflected in the Residency Agreement, are open to abuse. In particular clause 6.13 that entitles a care home provider to terminate the placement on 48 hours written notice, once the care home provider has determined the behaviour of the resident, or ‘any other circumstances relating to the Resident”, which could include the behaviour of the resident’s family, “are materially detrimental … to the conduct of the provider’. The evidence over the years has suggests that this facility, or provisions like it, have given the care home provider considerable scope to simply remove a resident from the care home because they or their family are perceived to be too ‘demanding’ or ‘disruptive’. Such a practice can be difficult for residents or their families to resist. The absence of any readily accessible published guidance or procedures applicable to the use of these terms makes that task all the harder. However, the guidance produced by the Competition and Markets Authority (“CMA”) may well be worth considering to determine whether the terms themselves are likely to infringe consumer law.
The effect of the misuse of terms equivalent to clause 6.12. and 6.13 by the care home provider is of course to terminate the Residency Agreement. That will require compliance with the ‘reasonable notice’ provisions in regulation 33 of the Residential Care Homes Regulations (Northern Ireland) 2005:
‘33.—(1) Subject to paragraph (2), the registered person [i.e., the care home provider] shall not terminate the arrangements for the accommodation of a resident unless he has given reasonable notice of his intention to do so to –
(a) the resident;
(b) the person who appears to be the resident’s next of kin; and
(c) where a HSS Trust has made arrangements for the provision of accommodation, board and personal care to the resident at the residential care home, that Trust.
(2) If it is impracticable for the registered person to comply with the requirement in paragraph (1) –
(a) he shall do so as soon as it is practicable to do so; and
(b) he shall provide to the Regulation and Improvement Authority a statement as to the circumstances which made it impracticable for him to comply with the requirement.’
It will also require compliance with the ECHR as the care home provider will be operating as a public authority. It is accepted that the eviction of a resident from their care home, whether or not through closure, engages Article 8 ECHR.35 Depending on the context, it may also engage Article 3 ECHR and Article 2 ECHR. Additionally, Article 14 may also be engaged.
The significance of that is not always recognized by residents and their families who may be caught up with the trauma and practicalities of a move. However, careful attention should be paid to those provisions and the ECHR to determine whether they can provide the basis for a legitimate challenge. Furthermore, the extent to which any notice given was ‘reasonable’, may also a matter to be carefully considered. What constitutes reasonable in the absence of any specified period is always dependent upon the circumstances of the case.
There may also be an argument based on ‘legitimate expectations’ depending on the circumstances of the resident’s placement. In that regard the statements made in a letter dated 15 September 2020 from the Chief Social Work Officer to independent providers and Directors of Adult Services HSC Trusts are of note. The purpose of the letter was to highlight a concern that some residents and their families felt under pressure to move from their placements. This was in the context of the implementation
35 See, e.g., R (Madden) v Bury MBC [2002] EWHC 1882 in which the applicant successfully judicially reviewed the decision of the respondent authority to close two of its residential care homes on the ground that the authority had acted unfairly by, by amongst other things, not adequately consulting the claimants. The decision was found to be unlawful and was quashed.
of the programme to resettle delayed discharge patients from longstay hospitals into community placements. The Chief Social Work Officer emphasised in his letter that individuals had a ‘legitimate expectation that their community placement will be treated as their permanent home, with all the attendant rights and protections.’ 36
RESPONDING TO THE CONCERNS
The Commissioner for Older People included in his 2014 report ‘Changing the Culture of Care Provision in Northern Ireland’ a proposal that the ‘contract through which older people occupy care homes must be reviewed so that as long as the home can meet the assessed needs, they cannot be evicted without due process, reasonable due cause and without appropriate alternative care being in place.’
37 That recommendation was confirmed and reiterated in the evidence given by the Commissioner to the Committee for Health, Social Services and Public Safety on 7 October 2015:
‘Lastly, the contract through which older people occupy care homes must be reviewed so that, as long as somebody's care home can meet their assessed needs, they cannot have their right to remain there terminated without due process, reasonable due cause or reasonable alternative care being in place. In Northern Ireland at present, care home residents have what is called a licence to occupy. This licence provides much less legal protection than a lease or a tenancy, for example, especially in relation to eviction. In more and more casework coming through my office, I see threats and people being told that they will be asked to leave a nursing or residential care facility, often within a week, usually due to complaints or behaviours being raised by residents' families and not the behaviour of the older person or complaints raised by them.’
38
Subsequently, in 2018, the Commissioner for Older People published a report on the draft consumer law advice that had been issued by the CMA.39 His intention was to have it strengthened so as to provide clarity
36 MAH Inquiry, statement of Charlotte McArdle (Chief Nursing Officer), exhibit 58, STM-294841, at https://www.mahinquiry.org.uk/files/mahinquiry/documents/2024-08/M10%20-%20 02%20-%20McArdle%2C%20Charlotte%20%28Prof.%29%20-%20Exhibits%2013%20-%2063.pdf
37 ibid, proposal 13, p.39.
38 Official Report: Minutes of Evidence, Committee for Health, Social Services and Public Safety, meeting on Wednesday, 7 October 2015, at https://aims.niassembly.gov.uk/ officialreport/minutesofevidencereport.aspx?AgendaId=15259&eveID=8709
39 Helping Care Homes comply with their Consumer Law Obligations: Response from the Commissioner for Older People for Northern Ireland, July 2018, COPNI, at https://copni.org/ assets/general/resources/helping-care-homes-comply-with-their-consumer-law-obligations. pdf
to care home providers in complying with their consumer law obligations, including on the issue of evictions. This reflected a concern over increasing reports that older people in residential care homes were being served with very little notice of the termination of their accommodation, or were being threatened with termination. Often the notice provided was only 28 days and in some instances it had been less. The Commissioner noted that in all the cases brought to the attention of his office, the service of notice had been prefaced by ‘relationship issues’ with the resident and/or a breakdown of the relationship between the family of the resident and the care home management.
In seeking to meet some of the concerns in the UK over the position of residents in care homes, the CMA issued updated advice. The current CMA advice on consumer law to UK care home providers was published in December 2021.40 It deals explicitly with termination and complaint handling as follows:
‘1.32 The circumstances in which you can terminate your contract with a resident must be clearly explained in the contract. They must be limited to valid reasons, for example, where you can no longer meet the resident’s care needs even after making reasonable adjustments.
1.33 You should not ask a resident to leave the care home without first consulting with them and their representatives, and any other relevant independent professionals, and after efforts have been made to meet the resident’s needs.
1.34 You should give the resident at least 28 days’ written notice to leave, unless they are staying with you on a trial period, in which case you must still give them adequate notice to make alternative arrangements.
1.35 You must never ask a resident to leave or restrict a resident’s right to have visitors or threaten to do so in retaliation to a complaint.
…
…
1.44 You must never, for example:
• Mislead a resident about how they can exercise their rights, for example, by failing to tell them that they can escalate their complaint to a more senior manager or head office, or to an
40 UK care home providers for older people – advice on consumer law: Helping care homes comply with their consumer law obligations, 8 December 20121, (CMA96), at https://assets. publishing.service.gov.uk/media/61b09fbde90e070448c520f0/CMA_care_homes_consumer_ law_advice_----.pdf
external body such as an Ombudsman, the Care Inspectorate in Scotland, or the appropriate local authority.’
CMA advice also includes examples of eviction terms likely to be unfair, such as:
‘We may end our agreement with you on four weeks’ written notice at any time where you breach any of the terms of this agreement; Where it is felt by our home manager that the resident would be better suited to an alternative environment, or where circumstances arise where the home manager feels there is no reasonable alternative e.g., acrimonious disputes, then we will give you 28 days’ notice to leave.’
(p.92)
Furthermore, it states that terms which allow termination of the contract on short notice or without any notice at all, are likely to infringe consumer law, as the resident (who may be vulnerable) may not have sufficient time and opportunity to make arrangements for suitable alternative accommodation. It then goes on to list a number of reasons for terminating that it considers legitimate, and therefore not unfair:
‘(a) A voluntary decision by the resident to leave the home (provided that this decision is genuine and the resident has sufficient capacity to make it or there is someone lawfully authorised to take this decision on their behalf).
(b) The need for the resident to move to accommodation that can better meet their care needs, even though you have made reasonable adjustments to try to meet those needs (e.g., where you are not registered to provide the type of care that the resident now requires).
(c) The need for the resident to move to extra care or supported accommodation, and you do not provide this.
(d) Where you are closing all or part of your business, including the resident’s home.
(e) The need for the resident to go into hospital (provided that the resident is unable to return to the home in the foreseeable future, the absence is not temporary, and you have consulted with the resident and their representatives before a final decision is made).
(f) Where the resident has repeatedly failed to pay their fees and significant fees remain outstanding.
(g) Where the resident is violent towards your staff or other residents and there is a significant risk of serious harm to staff, other
41 The CMA advice cautions that in such circumstances there should always be consultation with the resident and their representatives as addressed at para.1.35 and the care home should be able to evidence and justify its decision.
42 Reference is also made to paras.4.84 to 4.87 of the CMA advice.
residents or the resident themselves if they remain in the home.’ (pgs.92 to 93)
The case of care home closure warrants careful consideration given its impact on what may be a sizeable number of residents. This is provided for in the Regional Contract and in clause 13.1 of the version published by NHSCT.
The CMA advice is that where the closure is planned, residents and their representatives should be consulted and informed well in advance. In the case of unplanned closures at short notice, the advice is that the relevant authority, in Northern Ireland the HSCT, should be contacted immediately as they will have a temporary duty to meet the needs of the residents. However, the advice is also that where possible the care home provider will retain primary responsibility for the immediate welfare of the affected residents. Accordingly, it will need to not only do all that it can to safeguard those residents and act in their best interests, but be able to show that.
NHS England has produced a good practice guide to assist, not just care home providers but all parties involved, in best managing the closure of a care home.43 The fundamental principle as set out in the guidance44 is that: ‘The needs of people using services must be at the heart of everything we do’. That principle is expressed primarily as managing the process with a focus on the choices made by residents, their dignity, and treating them with compassion and respect: ‘People using services should have their choices supported, and they should be placed at the centre of the process and kept safe throughout.’ Some local authorities in England have produced their own guidance, e.g. Kent County Council, which produced a protocol with its NHS Foundation Trust and the relevant Clinical Commissioning Groups.45 In Scotland the Convention of Scottish Local Authorities (“COSLA”) has produced a good practice guidance on care home closure46 that is based on the same fundamental principles of the resident’s dignity, respect, choice and wellbeing. The COSLA guidance helpfully also includes specimen forms and a checklist.
43 Managing Care Home Closures: A Good Practice Guide for Local Authorities, Clinical Commissioning Groups, NHS England, CQC, Providers and Partners, October 2015, DOH at https://careprovideralliance.org.uk/assets/pdfs/quickguide-carehomes.pdf
44 ibid, p.3.
45 Closure of a Care Home: Protocol for Managing the Process (post decision), Adult Social Care and Health Strategic Commissioning (adults), January 2020, Kent County Council, at https:// proceduresonline.com/trixcms2/media/11581/closure-of-a-care-home-protocol-for-managingthe-process.pdf
46 Good Practice Guidance on the Closure of a Care Home, 12 May 2011, COSLA at https://www. careinspectorate.com/images/documents/1477/cosla_-_good_practice_guidance_on_closure_ of_a_care_home.pdf
Northern Ireland does not appear to have equivalent guidance, or indeed any published guidance. However, regulation 15 of the Regulation and Improvement Authority (Registration) Regulations (Northern Ireland) 2005 deals with the cancellation of care home registration. It specifies at regulation 15(4) the information that the care home provider (strictly, the ‘registered person’) is obliged to provide to the RQIA, which includes:
‘(a) the proposed effective date;
(b) a statement as to the arrangements (if any) that have been made by the registered person to ensure that on and after –
(i) the date of application for cancellation; and
(ii) the proposed effective date, service users will continue to be provided with similar accommodation (if any) and services as those provided to them in the establishment or by the agency at the date on which the application for cancellation is made;
(c) the registered person’s reasons for making the application for cancellation;
(d) particulars of any notice of application for cancellation that has been given to any of the following persons –
(i) service users;
(ii) persons who appear to the registered person to be representatives of service users;
(iii) the HSS trust in whose area the establishment or the premises used by the agency are situated;
(e) where the registered person has not given notice of application for cancellation to –
(i) each service user;
(ii) in respect of each service user, a person who appears to the registered person to be a representative of that service user; and (iii) the HSS trust in whose area, the establishment or the premises used by the agency is situated. a statement as to whether there were any circumstances which prevented the registered person from giving, or made it impractical for him to give, notice of application for cancellation to any of the persons or bodies referred to in heads (i) to (iii) before the date on which he applied for cancellation;
(f) where the registered person has applied for cancellation less than three months before the proposed effective date, a report as to whether the establishment or agency has ceased, or is likely to cease within the next following twelve months, to be financially viable.’
In addition, regulation 15(5) obliges the care home provider to supply the RQIA ‘with any other information or any documents that it may reasonably require in relation to his application for cancellation’.
CONCLUDING REMARKS
The problem being addressed by this article has been ongoing for many years. However, despite investigations, reports, standards and contract templates, it persists. This state of affairs is to the very considerable detriment of vulnerable people and their families.
The Care Quality Commission (“CQC”) monitors, inspects and regulates health and adult social care, which includes collating data on ‘notices to quit’. In March 2023 King’s College London published a report into the experiences of families of care home residents who were served ‘a notice to quit’ (an ‘eviction notice’).47 The report confirmed the problem was ongoing and, despite data on all instances of evictions and malpractice not being recorded, it was able to show from CQC’s material that in the preceding year, i.e., between September 2021 and October 2022, there were 5,871 care home residents who had received an eviction notice. This amounted to at least one in every 70 care home residents in England receiving an eviction notice in the past year. That was considered likely to represent a mere fraction of the problem, as incidents of people being threatened with eviction are not currently included in the CQC's data. The report also highlighted48 that ‘notices to quit’ “may follow strained relationships between care homes and residents’ families following relatives’ complaints or concerns over quality of care.” Furthermore, they were “almost always one piece of ‘traumatic journeys’ within a particular care home experienced by the families interviewed for this report, who felt that constructive, empathetic and person-centred communication was lacking.”
The position is much the same in Northern Ireland, for which there is no comprehensive statistical data on the number of residential care home evictions, nor reliable data for the reasons for such evictions. By way of example, a Freedom of Information Request to the BHSCT in December 2023 which sought that type of information, elicited only the response that the information was not held centrally, rendering the cost of retrieval above the ‘appropriate limit’.49 Notwithstanding the absence of such data, it is clear that the issue of care home eviction continues. As recently
47 ‘Angry, Relieved, forever Traumatised: A Report into the Experiences of Families of Care Home Residents who were served ‘a Notice to Quit’’, Emmer De Albuquerque Green, C., & Manthorpe, J. (2023), NIHR Policy Research Unit in Health and Social Care Workforce, The Policy Institute, King's College London at https://kclpure.kcl.ac.uk/ws/portalfiles/ portal/202329337/Green_and_Manthorpe_2023_Notice_to_quit_report.pdf
48 ibid, p.4.
49 SCT Regional Contract and Care Home Provision, 29 December 2023, FOI/30245,available at https://belfasttrust.hscni.net/about/access-to-information/foi/disclosurelogs/#225-568-2023
as 7 March 2024, the BBC reported the traumatic eviction of an elderly woman with dementia from her residential care home.50 On the same day, the Commissioner for Older People launched a report looking specifically at the Regional Contract, ‘Respecting residents’ rights in care homes’.51 The report includes the finding that the conditions for terminating a residency in a care home are being misused and that on occasion, it is being used as a means of evicting residents who are complaining about the level of service they receive, or whose family is seen as difficult or undesirable. The report highlights examples where the current contract is not offering the adequate protections it should for care home residents:
‘These examples are of non-voluntary transfers for reasons other than a change of healthcare needs and at unreasonably short timescales. These feel like evictions to the residents involved.’
The report includes several recommendations that the Commissioner considers would ensure the rights of residents are placed at the heart of the contracts for the provision of care home placements, including:
• Amending the contract to embed a culture of human rights in care homes;
• Making explicit the residential protections available to residents of care homes;
• Clarity on reasons for compulsory transfer to avoid abuse of the system;
• An independent appeals process with advocacy support for residents.
The arrangements for residential care home placements are currently being reviewed by the Department of Health as part of its 2023-2024 Strategic Business Plan’, in which objective 2 – system improvement - is to publish an ‘enhanced clinical care framework for people who live in care homes’ that ‘will provide a series of recommendations and links to good practice which will help transform care for people living in care homes in NI’. The timescale for that was April 2023 but it has yet to be published. There is, however, ongoing work being conducted under 8 workstreams
50 Care home resident eviction ‘traumatic’ – son, 7 March 2024, BBC NI at https://www.bbc.co.uk/ news/uk-northern-ireland-68495760#:~:text=Mr%20Lynch%20continued%3A%20%22Being%20 moved,reduced%20physical%20or%20mental%20capacity.
51 Respecting Residents’ Rights in Care Homes: A Review of the Regional Care Home Contract by the Commissioner for Older People in Northern Ireland, March 2024, COPNI available at https://copni.org/assets/general/resources/respecting-residents-rights-in-care-homes-reviewof-regional-care-home-contract.pdf
in relation to the Department of Health’s programme of work on social care. All of those 8 workstreams impact, to a degree, on the arrangements for those in residential care homes. However, workstream 6, which is focussed on ‘commissioning and contracting’, is particularly relevant as it is reviewing the current Regional Care Home Contract. It has a timescale of December 2024 to produce a ‘revised and updated care homes contract ready for pre-procurement assessment’ . 52
The Commissioner for Older People is sceptical about the extent to which the work will address the concerns over the Regional Care Home Contract, referring to a Department of Health facilitated workshop in October 2023 that made little reference to the residents of care homes, the strengthening of human rights protections, or improving the security of tenure of residents.53
Nevertheless, the opportunity is there to put the arrangements for residential care home placements on a properly human rights complaint footing and to ensure that the needs and interests of the residents are truly at the heart of the arrangements and, importantly, how compliance is monitored and enforced.
52 Workstream 6, Social Care Collaborative Forum, Delivery Plan 2024/25; Department of Health and NI Social Care Council, available at https://www.health-ni.gov.uk/sites/default/files/ publications/health/doh-sccf-delivery-plan-24-25.pdf
53 Respecting Residents’ Rghts in Care Homes: A Review of the Regional Care Home Contract by the Commissioner for Older People for Northern Ireland, March 2024, COPNI available at https://copni.org/assets/general/resources/respecting-residents-rights-in-care-homes-reviewof-regional-care-home-contract.pdf
Casenotes
Andrew Kirkpatrick, TEP, Boyd Rice Solicitors
Appointment of Attorney
AB v Jane Watson and CD [2024] NICA 76
Court of Appeal in Northern Ireland – Keegan LCJ – Judgment delivered 29th November 2024
This case was an appeal from a decision of McFarland J ([2024] NIFam 7) on 19th July 2024 which itself was an appeal by AB against an order of Master Wells on 23rd May 2024 whereby she refused an application by AB that he be reinstated as attorney of his mother. Jane Watson, solicitor, had been appointed as Controller and CD is the brother of AB but did not appear.
The background to the case is that the donor mother, aged 91, appointed her two sons AB and CD as attorneys under an Enduring Power of Attorney jointly and severally with unrestricted powers. The EPA was registered on 26th November 2021. In December 2022 Danske Bank alerted the High Court to activity in the mother’s bank account which, upon investigation, revealed that AB had transferred a sum of £250,000 from his mother’s account for the benefit of himself and one of his daughters. Proceedings were issued and despite this, AB continued to remove funds from his mother’s bank account. Master Wells stayed his appointment as attorney and appointed Jane Watson, solicitor, as Controller Ad Interim. Following further investigations, AB was discharged as attorney on 16th June 2023.
On 19th March 2024, AB applied to the court to be reinstated as attorney on the basis that CD was inactive in managing their mother’s affairs. Master Wells refused this application on 23rd May 2024 as AB had refused to accept the June 2023 order, he refused to accept that he did anything wrong in using his mother’s money to discharge his mortgage, finance his daughter’s education in Paris and buy himself a car, if reinstated he would act without consultation with CD his co-attorney and he retained his belief that his mother consented to the transfer and use of the money.
AB appealed the 23rd May 2024 decision of Master Wells, seeking a variation of the order, an apology from the court and that he be reappointed attorney without restrictions. AB argued that his ‘needs’ ‘might’ be reasonably expected to be provided for by his mother on the terms that he wished.
Master Wells had regard to the terms of the mother’s will which divided the estate 1/3 to CD, 1/6 to AB, 1/6 to AB’s wife and 1/6 to two granddaughters. The estate was over £1million however the transfers by AB had made a significant dent in this amount.
McFarland J held that CD had not engaged with the matter sufficiently to act as attorney. He also held that AB had not demonstrated any understanding of how his previous conduct was inappropriate therefore he was not suitable to be reinstated as attorney.
McFarland J also added a postscript which suggested that, if recovery of the gifts made by AB to himself and his daughter was not appropriate, serious consideration should be given to the execution of a statutory will to remedy the losses suffered by the remainder of the beneficiaries under the mother’s will.
The appeal to the Court of Appeal by AB was based on three grounds:
1. The donor had not been acceptably medically examined.
2. There was a contradiction in the order of Humphreys J dated 19th July 2024.
3. Several important elements were overlooked in the order of 19th July 2024 namely:
a. The appeal only concerned the decision of Master Wells in May 2024 not the June 2023 decision to discharge AB as attorney;
b. Rejection of Humphreys J’s interpretation of the definition of ‘needs’ and ‘might’ under the legislation when applied against the use made by AB of his mother’s money;
c. The lack of weight given to AB’s family values and his military values (AB having been in the French Foreign Legion);
d. AB’s contention that his mother would have agreed to the transfers;
e. AB’s contention that he is suitable to be attorney;
f. The mother’s estate is more than capable of sustaining such spending.
HELD
Lady Chief Justice Keegan held on the first ground of appeal that AB could not now rely on an assertion that the donor had capacity to make decisions and that a medical assessment should be carried out. At the time that AB applied for registration of the EPA, he had asserted to the Court that the donor lacked capacity and could not now go back on that position.
Keegan LCJ stated that the role of the Appeal Court is to review the decision of the lower court and not proceed by way of a re-hearing. She held that McFarland J had applied the correct standard when interpreting the definition of “needs” and “might”. His finding that the nature and extent of the money transferred from the donor’s account could not be justified by such a wide definition was held to be correct. Keegan LCJ noted that whilst the legislation does permit the attorney to benefit themselves, this is not opened ended and the donor obtained no clear benefit from that spending. She further noted that AB continued to see no issue with the spending and this indicated that AB was still not an appropriate person to be reinstated as attorney.
In relation to the argument that the estate could sustain AB’s spending, Keegan LCJ held that this did not solve the issue as no account had been taken of the other beneficiaries.
The decision of Humphreys J was upheld in its entirety.
Keegan LCJ added a postscript to the judgment which noted that an application for costs had been made against AB with AB given one week to respond in writing. Rather than abide by the Court’s direction, AB took the opportunity to provide 78 paragraphs of comment on the judgment with only paragraph 78 dealing with the issue of costs. Keegan LCJ noted that it was not appropriate for any litigant to correspond in this way. Costs followed the event.
Proprietary Estoppel
John Robert Irvine v Gerard F Drain (as executor of the estate of Robert John Irvine deceased), Gillian Napier and Heather Verner [2024] NICh1 High Court of Justice in Northern Ireland – Huddleston J – Judgment delivered 6th March 2024
This case was based on proprietary estoppel in relation to farming lands and relies on the recent Supreme Court case of Guest v Guest [2023] 1 All ER 695.
The plaintiff was the son of the deceased and his case was that he had been encouraged by verbal and other behaviours and undertakings that his father’s interest in jointly farmed lands would pass to him in their entirety upon his father’s death on 27th March 2016.
The history is that a farming partnership was established in 1970 between the plaintiff and his father. The plaintiff’s case is that since 1970 there was an aggregated cohesive unit and that for the farming enterprise to continue he and his son, Matthew Irvine, must have ownership of all of the lands that devolve in the deceased’s free estate. The plaintiff’s son was added to the partnership in 2012 to take advantage of grant assistance.
The wife of the deceased was heavily involved in the farming business and continued to live in the farmhouse until she moved to a nursing home and subsequently died in 2018. There were three children, the plaintiff and his two sisters who are the second and third named defendants.
Over the years the deceased acquired a number of different portions of land. A site was carved out for the plaintiff in the late 1970s in advance of his marriage. Gillian Napier, the daughter of Robert John Irvine, became a headmistress and was given a site by her father upon her marriage. Heather Verner, another daughter of Robert John Irvine, worked in the administration of the farm until her father’s death in 2016. Gillian and Heather had helped in the care arrangements for their parents.
The deceased executed a will in 2007 leaving a gift of the dwelling house to his wife with a gift over to Gillian Napier. The yard, some lands and outbuildings were left to his wife for life with a gift in remainder to the plaintiff. Other lands were left to Gillian Napier and additional lands were left equally between the three children as tenants in common and it is these two gifts which were under challenge. Cash was left to his wife and daughters and the residue of his estate to the plaintiff.
HELD
The Court spent some time considering the nature of the purported representations made to the plaintiff by his father. At its height the case of the plaintiff was that it was the ‘furthest thought’ from his head that anything other than primogeniture would apply. Huddleston J considered however that the plaintiff’s supposition fell short of being a representation upon which the plaintiff could rely. In the Judge’s view, the plaintiff’s case was built upon generalities and was lacking in detail as to any particular statement or representation.
Huddleston J also considered the terms of the will and held that it appeared that the deceased’s view was that the business should pass to plaintiff and not the lands in their entirety. In the Judge’s view, there was insufficient evidence to justify a claim by the plaintiff that he had been treated unconscionably and no specific representation had been made by his father to justify his position.
Huddleston J dealt with the gift of each of the portions of the land and held that the terms of the will would stand, irrespective of whether the plaintiff liked the terms of the will or not. An assumption by the plaintiff that he would receive all the lands was insufficient as a representation by his father to justify any change to the will.
Casenotes
Rachel Sullivan, BL
Deathbed gifts in the digital age
Rahman v Hassan & Ors [2024] EWHC 1290 (Ch)
In Rahman v Hassan, the High Court examined the doctrine of donatio mortis causa (“DMC”: literally ‘a gift in contemplation of death’) in the context of modern assets, including digital bank and shares accounts and registered land.
Facts
The claimant, Mr Rahman, had come to the UK in 2011 from Bangladesh and there met Mr Al Mahmood, who was a distant relative. Over time, he had developed a close relationship with Mr Al Mahmood and his wife, to the extent of moving into their house with his own wife and child. Mr Al Mahmood’s wife died of pneumonitis on 6 October 2020. Mr Al Mahmood, understandably distraught, indicated that he intended to make a new will bequeathing his estate to the claimant and instructed a wills draughtsman whose details had been contained in a pack from the hospital following his wife’s death. Due to health issues and pandemic-related restrictions, he was unable to execute the new will. On 15 October Mr Al Mahmood asked the claimant to bring down some bags from his office containing documents relating to property, bank accounts and a shares account managed by Hargreaves Lansdown, and talked the claimant through all of them, explaining that he was old and would die soon, and all of this would become the claimant’s. On 20 October, Mr Al Mahmood became agitated, asking why the new will had not yet been executed. The claimant reminded him that the draughtsman was returning on 22 October. Mr Al Mahmood again asked the claimant to bring the bags from his office, this time explaining the log in details for all the accounts and handing over bank cards, cheque books and pin readers. He handed over the land certificate for the house, told him where the spare keys were and told him that the house and everything in it would belong to him when he died. Mr Al Mahmood also handed over the leases for two investment properties he owned. On 22 October, Mr Al Mahmood called the wills draughtsman asking him to come over and “get the will done now”, and also messaged a relative, stating that the claimant was to be the sole owner of all his assets and the executor of his new will.
Legal Issues
The case centred on whether Mr Al Mahmood's actions constituted valid DMCs, particularly concerning the delivery of digital assets and registered land.
Judgment
The court found that Mr Al Mahmood had effectively made DMCs of his assets to the claimant. In a detailed judgment, the court considered the authorities on the requirements for the making of a valid DMC:
- A DMC is a gift made by person in contemplation of their impending death (‘impending’ meaning the donor must contemplate their death in the near future, not some indefinite time in the future).
- It is revocable, and subject to the condition that the donor dies: this may either be subject to a condition precedent (i.e. the donor’s death must occur before ownership passes) or subsequent (ownership passes immediately, conditional on the donor’s death in fact occurring). Upon the donor’s death, title becomes absolute not under but against his estate.
- The donor must take sufficient steps to implement the gift, either through delivering the gift itself or some way of coming into possession or making use of the gift (for example, the key to a locked box). In the latter case, the donor must part with dominion over the subject matter of the gift.
The Judge carried out a detailed survey of the authorities on ‘parting with dominion’, when assessing whether there had been valid DMCs of the claimant’s properties, shares, and bank accounts. As the Judge noted, the case raised novel questions of whether it is possible to create a DMC of registered land, and how to law applied to handing over of intangible means of control such as login details and passwords.
For the bank accounts, the delivery of login details, passwords, and security devices was deemed sufficient to transfer dominion over the accounts. The login and password are ‘the indicia of title in the modern age’ (at [160]). This applied to the shares account managed by Hargreaves Lansdown as well as the bank accounts.
Regarding the properties, the Judge held that handing over the land registry certificate for the house amounted to effective delivery. The certificate in the hands of Mr Al Mahmood had not ceased to become indicium of title following the entry into force of the Land Registration Act
2002: the fact that title could have changed thereafter without a certificate, so that the certificate was outdated, was irrelevant as a purported gift of land to which the donor had no title would not have been effective anyway. The question was really one of evidence: what was intended when the certificate was handed over? On the facts the Judge was satisfied Mr Al Mahmood intended to give the house to the Claimant. The handing over of the leases for the investment properties was likewise sufficient delivery: the fact the land was registered did not affect this analysis.
Significance
This case underscores the evolving nature of testamentary dispositions in the digital age. It also emphasizes the importance of clear evidence and proper delivery in establishing the validity of such gifts.
New Publication:
Youth Court Practice in Northern Ireland
This recent publication by Seamus McIlroy BL and John Mackell BL will be of particular interest to practitioners instructed in criminal law matters relating to adolescents or young adults with vulnerabilities. Chapter 8 is entitled “Juveniles with Learning Disabilities or Lacking Capacity” and explores what is a difficult area of law and one in transition. It will be of great assistance to practitioners in Northern Ireland to have such an up to date resource, specifically focused on this jurisdiction.
Copies are for sale through the Library at the Law Society of Northern Ireland.
Youth Court
Practice in Northern Ireland
Séamus McIlroy BL and John Mackell BL
Law Society of Northern Ireland
Table of Cases Referred to
AXX v ZAJA [2022] EWHC 2463 KB
AB v Jane Watson and CD [2024] NIFam 7
DL v A Local Authority [2012] EWCA Civ 253
Galo v Bombardier Aerospace UK [2016] NICA 25
Guest v Guest [2023] 1 All ER 695
London and North Eastern Railway v Berriman [1946] AC 278
London Borough of Tower Hamlets v NV & AU [2019] EWCOP
(Madden) v Bury MBC [2002] EWHC 1882
v Grant-Murray & Anor [2017] EWCA Crim 1228
v Rashid [2017] EWCA Crim 2
v NHS Professionals Ltd (2015) UKEAT 0110/15
SA [2006] FLR 867
v BU [2021] EWCOP 54
Table of Cases Reported
AB v Jane Watson and CD [2024] NICA 76
John Robert Irvine v Gerard F Drain (as executor of the estate of Robert
John Irvine deceased), Gillian Napier and Heather Verner [2024] NICh 1 Rahman v Hassan [2024] EWHC 1290 (Ch)