Lockdown Lowdown – Russell Caller

This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our fourth participant for Lockdown Lowdown is Russell Caller who is a Director of the Professional Deputies Forum (the PDF), and a professional deputy himself at Gillhams Solicitors in London.

It’s been over a year now since the PDF’s formation. What has happened in that year for the PDF?

A lot! We launched last March (2019) in Leeds at the offices of Clarion and we are very grateful to Clarion for sponsoring that event which “got us off the ground”. In the last year, we have gained the ear of the Office of the Public Guardian, the Ministry of Justice, the Senior Courts Costs Office, the Official Solicitor and the Court of Protection. As we speak, we are about to go to court in the SCCO to hopefully achieve some sort of increase in rates, in addition to pushing a review of the Guidance Rates at the end of the year. We are also taking a leading role in the discussion on the recent decision of ACC & Others.

How many members does the PDF now have?

We currently represent over 5,300 solicitor professional deputy appointments. There are only 9000 in total, so the PDF represents the majority of such appointments.

What are the benefits of membership?

There are 6 key benefits:

  1. Representation for Deputies to give them a voice. That is our unique selling point, as this is the first time ever that Professional Deputies are represented.
  2. There are inequities in the COP system and there are some structural issues that need reviewing in the current regulatory scheme. In our view, not all the stakeholders are “singing off the same hymn sheet” and it is important that this is addressed. The stakeholders (OPG, SCCO, MOJ, etc.) have developed over time but there needs to be consistency between what each stakeholder is asking for from professional deputies, otherwise the system doesn’t work. We are trying to set up a meeting with all stakeholders to discuss the areas which need looking at, in the hope that we can address this collectively and have a more joined up approach.
  3. We are fighting for sustainability of the whole professional deputyship system. We are “tottering on the edge” as we cannot afford to pay paralegals their true value.  Some Law firms are saying it is uneconomic to have COP departments and that means a reduction in the service being offered. If the professional deputyship service is to continue in England and Wales, we need to tackle these fundamental issues and the PDF is pushing hard for that.
  4. We are putting the solicitor professional deputy at the heart of the discussion for the first time ever. We are in discussion with all the main stakeholders.
  5. We have a resource section on our website for all members.
  6. We listen to our members and act on their views!

How can the PDF help professional Deputies and why is it key to be involved?

It is essential to be involved for all the reasons set out in the answer to the previous question. We are and will be taken seriously by the COP stakeholders and that is precisely what is happening. The PDF is a catalyst for change. We are very focused – our message is very clear- we are here to represent and protect the Solicitor professional deputy. Firstly, we need to make the system sustainable. Simply put, the greater the membership of the PDF, the more the stakeholders engage with us- they have little option to but to engage and listen to us and respond appropriately.

Do you have any concerns for professional Deputies caused by COVID-19?

Very much so! Deputies cannot gain access to Care Homes to visit the vulnerable, they have difficulty in reaching social services, doctors and other professionals as easily and cannot get things done quickly enough! My other worry is that law firms have had to furlough members of staff too, so the number of support staff has been hit, who deputy teams rely heavily on.

What are the PDF’s objectives for 2020/21?

We have several objectives which tie nicely into the benefits of being a member (see above). We want to improve the relationship between the OPG and solicitor professional deputies and challenge some of the ills of the current regulatory scheme. For example, review the OPG professional standards and how these can be achieved by deputies, without being  financially penalised for meeting the criteria. We also want to open a dialogue with the COP to improve how it is run, including a dialogue with court staff and with the judges. Where appropriate, we want to challenge MOJ policy in the deputyship world to improve and provide clarity for all deputies in the system.

Following the case of ACC & Others earlier this year, we want to make further representation on behalf of deputies to address the many unintended consequences of this case. This includes engaging with other organisations within the COP world to discuss the correct approach to the court.

We also want to achieve a pay increase for solicitor professional deputies, which will provide financial sustainability and a clear career path for younger and junior professionals practicing in this area.

We are always looking for feedback from our members and others who work in the COP profession. We are a young organisation and we know that we will make mistakes, so if anyone has some good feedback on what we do well and what we don’t do so well, we would really like to hear that so we can continue to develop.

What do you think the future holds for professional Deputies?

It is very difficult to say. Unless and until being a solicitor professional deputy becomes financially sustainable, the future is not good. We need to tackle this head on, which is what we are doing at this very minute! As I mentioned previously, we have a case being heard in the SCCO  this coming week in respect of rates of pay for solicitor professional deputies, which we hope will provide some certainty in this area, then we can start to address the inequities in the system.

How has the PDF adapted to lockdown?

One of the benefits of the PDF is that we have just 4 directors and we have a small working group, so decisions can be made easily which allows us to be “fleet of foot”. We very quickly launched our very popular “Fireside Chats” on Zoom and all the major stakeholders have come to be interviewed, which has been great! The use of Zoom and Teams has been a real advantage for the PDF, so we’re not complaining- we are firing on all cylinders!

How have you personally been keeping busy in lockdown?

I am becoming an expert in managing meetings and presentations through Zoom and Teams. I am learning new skills every day. I am Chair of a Shepherds Bush Housing Group and I now lead board meetings of up to 20 people, which isn’t easy, but I love to try new things and so I am sort of enjoying myself! I miss the fun and banter of physically being in an office, but this period has given me a lot of time to think about life and what I want from it.

What are you most looking forward to after lockdown?

I have a passion for food! I love to eat out whenever I can and I think the best meal of the day is breakfast. Until the lockdown, the working group of the PDF used to meet in Central London at 8am for a breakfast meeting ( all paid for our of personal funds, I hasten to add!). It was great fun and I am really looking forward to getting back to those breakfast meetings! I have my first Grandchild due in September too, so I am especially looking forward to that.

Clarion would like to thank Russell for taking part in Lockdown Lowdown and would like to thank the PDF for their tireless efforts in trying to improve this area of practice. Coming up in the series, we will be hearing from Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

Lockdown Lowdown – Francesca Gardner

This blog forms part of a series of weekly interviews with several professionals during lockdown. It aims to inform Deputies and their teams about how each organisation within the field of Court of Protection has adapted to Covid-19 and what they should be aware of. Our third participant for Lockdown Lowdown is Francesca Gardner from Kings Chambers, who has chosen a hectic time to return from maternity leave!

How has the Court of Protection adapted to lockdown?

The COP has adapted extremely well, and at speed to the pandemic. The Vice President has been instrumental in ensuring that the court continues to function. Hayden J has released a number of helpful guidance documents. The reality is that there will be some cases that will be delayed but there is a clear and concerted effort from the court’s to ensure that urgent cases are being properly determined. For example, within days of the lockdown measures being announced by the government, the COP heard a Serious Medical Treatment case (over a number of days) via Zoom.

I know of and am involved in many cases that are being and are scheduled to be heard over the coming weeks.

What impact do you think this will have on professional Deputies?

I am optimistic that there will not be a significant impact upon deputies, save for the challenges in maintaining contact with P and any delays that may be faced as regards court proceedings. HMCTS has issued its ‘family business priorities’ for April 2020 setting out what work must be done, what work will be done and what work HMCTS will do its best to do. Property and Affairs work falls under the work that court ‘will do it’s best to do’, whilst this may be frustrating to deputies I am aware of several P&A cases being heard both in the regions and in London so whilst there may be delays I would hope that deputies will still have proper access to the court’s should they need it on behalf of P.

Have you learnt anything so far from the pandemic?

The importance of slowing down, as lawyers we work at 100mph and I hope that lockdown has forced us to re-evaluate a little and find a better balance going forward. I am thinking ‘pigs might fly’ as I write this.

Have there been any reoccurring issues that Deputies should be aware of?

The main issue in my view and that, which I am aware of, is contact with P and ensuring that communication between P and the deputy continues. It is important that deputies think creatively during the pandemic to ensure that they (and others) can maintain contact with P. For example and where possible the purchase of an iPad or a request to the staff at the care home and/or support staff to support P to use Skype may be of real benefit. In BP v Surrey County Council 2020 EWCOP 17, the Vice President of the Court of Protection, Hayden J, reiterated the importance of P maintaining contact with others and how this should be approached based on the specific needs of the person. For example, telephone contact would not be appropriate where the person is deaf, but Skype maybe and they should be supported to use that facility.

Do you think there will be any reoccurring issues that Protected Party’s face as a result of this?

I would like to think not but I think delay will be inevitable in some cases, particularly cases that are none urgent in nature.

What do you think Deputies should be thinking about?

Whilst it may be a very difficult time, deputies must remember that their roles and responsibilities remain the same throughout the pandemic, that includes in circumstances where the deputy may be self-isolating in line with the government guidelines. The Office of Public Guardian has provided some guidance for deputies during the pandemic, within the guidance it states:  ‘If you are self- isolating or shielding, you must continue to make decisions for P. You cannot ask anyone else to make those decisions for you.’ However, attorneys and deputies can make a decision and ask someone else to carry it out. The guidance reminds deputies that they do not have to step down in their role simply because they are unable to visit the person.

How have you been keeping busy during lockdown?

My little boy keeps me very busy, but returning to work has also kept me busy. I try to exercise alone as regularly as I can. Running has always been my ‘go to’ for exercise and its great for clearing your head, particularly with all that is going on at the moment.

What are you most looking forward to after lockdown?

Spending time with family and my little boy, it has been hard that no one has been able to see him so I am very much looking forward to that!

Clarion would like to thank Francesca for taking part in Lockdown Lowdown and for her helpful insight. Coming up in the series, we will be hearing from Ria Baxendale from the OPG. If you would like to suggest another interviewee for Lockdown Lowdown, please contact Stephanie Kaye at stephanie.kaye@clarionsolicitors.com or call 0113 336 3402.

Could breaching a transparency Order ultimately lead to an application for imprisonment?

In the case of Office of the Public Guardian v Stalter [2018] EWCOP 27, an application was made by the Office of the Public Guardian to commit the Protected Party’s partner to prison due to him disclosing information that was in breach of a transparency Order.

The Protected Party had been diagnosed with dementia in March 2016, from October 2016 to January 2018, the Protected Party’s partner, named Mr Stalter, had communicated with a number of different people in a certain way which lead to a breach of the transparency Order. The transparency Order stated that ‘proceedings were not to be published, nor were the identities of other parties to be published, nor was any information tending to identify those individuals as a patient or parties to be published, nor were their addresses or contact details to be published.’ During this communication to various individuals, Mr Stalter advised that the Protected Party was in fact subject to the Court of Protection proceedings and further advised on the individuals that were parties to the proceedings, which included himself. Mr Stalter further disclosed personal details, which was in fact prohibited by the transparency Order, therefore the Protected Party’s partner had breached the Order. The Office of the Public Guardian therefore wished to bring a committal Order.

Mr Stalter was found to be in contempt of Court, however the Court determined that no Order for his committal needed to be made having regard to the fact that he did confirm that he would abide by the Order. The Courts were of the opinion that no punishment would be appropriate for this case due to the fact that Mr Stalter had already suffered as a result of the situation.

If you have any queries, please do not hesitate to contact Casey McGregor or the team at COPCosts@clarionsolicitors.com