Over-ruling P’s Strong Wishes in a Best Interests Decision: Autonomy, Protection and P’s voice

By Celia Kitzinger with Astral Heaven and Jenny Kitzinger

The judgment from this hearing has since been published here: https://www.bailii.org/ew/cases/EWCOP/2020/50.html

It is now widely accepted in the Court of Protection that P’s own wishes should generally weigh heavily in making a best interests decision about her, though they are not automatically determinative. 

In the hearing we observed (Case number 13462068 Re LW) before Mr Justice Hayden on Wednesday 22 July 2020, P’s views were clearly heard, both via reports from her psychiatrist, and in her own voice when she addressed the court.  However, the barrister representing P via the Official Solicitor (Fiona Patterson) argued for a course of action that was self-evidently not what P said she wanted for herself, and the judgment was contrary to the course of action P had chosen.

This hearing highlights the distinction between decisions made by vulnerable people for themselves and ‘best interests’ decisions made for them by a court. As this case graphically illustrates, best interests is not the same as ‘what P wants’. 

The hearing was listed with a time estimate of 2 hours starting at 10.30am, but it continued after a lunch break for another couple of hours in the afternoon – with most of that time being devoted to facilitating P herself to speak with the judge.  Due to other commitments, Celia only observed the morning; Astral and Jenny observed the afternoon.

Celia (morning)

The ‘P’ at the centre of this case, LW, is a woman in her sixties, sensitively described (by the barrister acting for her via the Official Solicitor) as a ‘talented individual’ who completed two years of nursing training and worked as a carer, and who enjoys playing the piano, listening to music, reading and dancing.  “Assessment of her capacity has been delicate”, counsel added: “on meeting LW one could be forgiven for thinking she’s a perfectly ordinary lady in her middle years”. 

LW has been detained for about three years under s. 3 of the Mental Health Act.  On admission to hospital she was emaciated, with poor personal hygiene, behaving bizarrely and had attracted concern from members of the public. Prior to that, LW, who has a long history of involvement with mental health services, lived in her own home with M, a man she referred to as her “domicile partner” and “spiritual adviser” and with whom she lived for around 18 months prior to her hospital admission.   The hearing focussed on the impact of M on LW’s mental and physical well-being.  It is LW’s ardent wish to return home and to live with M who she believes (apparently, wrongly) will care for her.  She also plans, with M’s support, to gradually reduce her medications once she returns home with a view to coming off them altogether.  It was reported that she was eager to talk to the judge, believing that he would authorise her return home. 

Neither the applicant county council, nor the NHS Trust, nor LW’s own counsel supported LW’s wishes, and the outcome of the hearing was an injunction preventing M from having any further contact with LW.  This is, as counsel for the NHS Trust (Conrad Hallin) pointed out “entirely contrary to LW’s wishes”. 

I’ve observed 7 hearings before Mr Justice Hayden since 1 May 2020 (and blogged about two of them, here and here).  What stands out about this judge – who is also Vice President of the Court of Protection – is his commitment to listening to P’s values, wishes, feelings and beliefs before arriving at a best interests decision.  This makes it particularly notable that in this case P’s wishes were heard and then over-ruled.

The first indication, for an observer, that the judgment might turn out not to support LW’s wish to return home and live with M came early on as Mr Justice Hayden intervened in the opening summary provided by the barrister (Winsome Levy) representing the applicant county council.  She described how LW and M “appear on the face of it to be a couple, but she refers to him as her spiritual advisor”.  The judge interjected: “They had a sexual relationship for maybe a year and then it evolved into something more sinister” – with which counsel concurred, adding “sinister, coercive and controlling”.  The judge subsequently described M’s engagement with LW as “destructive” and “extraordinarily exploitative” and asked:

“How has the manifestly deleterious contact been allowed to continue for as long as it has?  It’s been going on for three years.  He writes the scripts for what she says to the professionals.  He dismantles the relationship between her and the professionals who are trying to help her.  Have people lost sight of the goal here, which is protecting her?”

Some initial uncertainty was expressed about whether in fact LW might have capacity to make her own decisions about contact with M.  It was explained that the case was before Hayden (as a Tier 3 judge) because “there was some hesitation as to whether LW might have capacity, so we might have needed the inherent jurisdiction only exercisable by the High Court”.  The inherent jurisdiction (explained in a Guidance Note from 39 Essex Chambers here) is the ability of the High Court to make declarations and orders on behalf of people who have capacity to make their own decisions but are deemed ‘vulnerable’ and at risk from the actions (or sometimes inactions) of other people.  As it turned out, however, the judge quickly accepted evidence from the psychiatrist treating LW that she lacks capacity to make this decision.

The psychiatrist reported that LW has attracted various diagnoses over the years from different professionals but her own view was that a combination of episodic bipolar disorder and ‘schizotypal personality disorder’ impairs her reasoning and judgment.  She considered LW’s underlying impairment of mind to cause her to be unable to weigh up information and discern risk.  She further testified that it would be in LW’s best interests to prevent her from having further contact with M who has “manipulated her”, “caused her to be in hospital longer than necessary” and has “alienated her from her family who were very involved with her until he came along”.  She believes that “stopping contact will improve her mental health, her general well-being and her quality of life in the long run”.  The evidence is that “she becomes distressed and her mental state deteriorates when she is in contact with him. It improves and she is happier when she does not have contact with him”.

The psychiatrist responded to questions from both counsel for the NHS Trust (whose witness she was) and from the judge, by describing what was currently happening in terms of contact between LW and M.  It is limited to two phone calls each week – and these are supervised calls via landline (her mobile having been confiscated), with carers listening in to the conversation on a loudspeaker.  The conversations typically involve long prayers – many orthodox Catholic but sometimes with additional idiosyncratic features – and religious discussions.  Recently there has also been discussion about the court process and about LW’s plan to return home.  She has asked M to do some maintenance work on the property but when she asks about progress on this he is “evasive” and changes the topic.  LW is “displaying increasing levels of distress prior to the phone calls” and is “asking staff for advice on how she should manage the calls so as not to agitate M”. 

According to the psychiatrist, “she thinks that to follow the true religion, what he has instructed her to do is right”.  These instructions are “pervasive and all-encompassing”.  They include the clothes she wears, a ban on listening to music or reading for pleasure and the manner and order in which she has to say a long litany of prayers every day (needing to start again at the beginning if she gets anything wrong).  The judge said that he finds it particularly distressing to read in the bundle about an event more than a year ago when M instructed LW to smash up her piano – and then taped up the room with the piano in, telling her there was toxic powder in there and the room could not be used. The psychiatrist agreed, describing it as “a sadistic control in getting her to do that” and characterising it as “a distressing mental image in this very tragic case”. 

There was some discussion about why the supervised contact (the 2 phone calls each week) were continuing: (Note – All quotations in this blog are drawn from notes taken at the time and are as close to verbatim as possible under the circumstances, but audio-recording is not permitted, so they are unlikely to be word perfect.)

Judge:  What’s disturbing is that this is manifestly abusive, and a professional sits there watching her being abused, and implicated in it. It strikes me as an incredibly unhealthy state of affairs.

NHS Trust: That’s why we’re sitting here, My Lord, wanting you to cease this.  We couldn’t simply prevent her from having contact with him.  She has Article 8 rights. And the extent of the abuse emerged over time.

Judge: I have heard that and I give it some weight.  My strong impression is that there hasn’t been sufficient communication between professionals here.  The element of control that has been part of the history of this case is sufficient to put the professionals on constant alert as to whether continued contact is abusive.  I hear that there were lots of changes of personnel and nobody keeping their eye on the goal.  I’m sure everyone has been doing their best and it’s all very well for me as a judge over-viewing the evidence to come to that view but I understand it’s not always so clear on the ground.

NHS Trust: From our perspective the contact is malign and abusive, but from her perspective she absolutely desires that contact.  Despite the malign quality of it, it appears – even to this day – that she wants to go back into his company.  Clearly her wishes and feelings are important to a best interests decision and it is entirely contrary to her wishes to have contact terminated.

It was arranged that LW herself should have the opportunity to express her own views directly to the court at 2pm, after a lunch break.  Mr Justice Hayden lauded the use of the video-platform which made this possible at such short notice: “In this court, in Tier 3, it’s enhanced the participation of P in the court process.  I see P more now than I did before we went into this new world, and more easily.”  A private conversation with the judge was mooted – and Mr Justice Hayden explained how he had managed this before, but expressed the view that in this case “it might seem patronising. I’m sensing that she wants to participate in a process that is properly judicial”.  Her psychiatrist said “I would agree”.

Astral (afternoon only)

I’m so glad that I was able to observe this afternoon’s hearing.  It was a fascinating and important insight into the workings of this important Court.  Celia contacted me shortly after 1pm to suggest that I might want to observe this hearing, and that P would be speaking to the court about her wishes.  She sent me a summary of what had happened in the morning and I was able to get access in time to join the hearing at 2pm.

Listening to LW’s conversation with Mr Justice Hayden was really interesting. I cannot underestimate how anxiety-provoking this must have been for her – and likely to have been worsened initially by what must have been frustrating difficulties with technology.   It took about 45 minutes and multiple efforts to establish a sufficiently clear link.  The judge noted that technology had worked well the past four months until this hearing. He was extremely keen to ensure LW was able to see and hear him clearly and to ensure he could clearly see, hear and get a sense of LW, and no effort was spared to ensure this happened. He spent considerable time guiding the parties supporting LW to help her establish the very clearest communication that was possible. When this was still proving less than satisfactory, further efforts were made to improve the situation and the importance of being able to hear LW’s evidence clearly was reinforced and how LW must not be impeded in any way. Only when communication was clear, did proceedings continue.

I couldn’t see LW and assumed this was intentional as I was a member of the public. I later learnt Jenny had been able to observe her, so that is very frustrating as I feel I would have picked up so much more from being able to actually see her, observe her body language and facial expressions as she spoke.  This brought home to me the importance of being able to see, as well as hear, people in court during remote hearings.

I also had so many questions. Although I received a summary of the issues Celia had gained from the morning hearing, there was so much left unanswered. I was unaware of LW’s personal background, the events in her life which had led to her becoming the person she was today, her beliefs and value systems, and the circumstances resulting in the development of this abusive relationship. I also didn’t know who had assessed capacity, the details of the capacity assessment, or whether LW was likely to regain capacity at some point. However, I did very quickly become aware of the extremely poor physical and mental state LW had been in at the time of her detention under the Mental Health Act, at which point she had been subjected to abuse for some considerable time.  This was difficult to hear and I wondered how the situation had not come to light earlier. I also questioned how the abuse had seemingly continued over telephone calls whilst LW was in hospital and wondered what had happened here, but I am aware professionals will no doubt have been struggling with how best to manage a very difficult situation.

The hearing was entirely centred around LW and moved at a pace that was appropriate for her. What came across so strongly for me was the kind and sensitive approach taken by all parties throughout the hearing, but in particular by Mr Justice Hayden. He placed LW at ease, asked with genuine interest about the things she enjoys doing and explained that whatever decision he came to, it would be the best for her. The success of this approach was reflected in LW’s acknowledgment at the end of the hearing that she had not found talking to the judge at all stressful and you could detect in the tone of her voice that this was genuine. 

It was acknowledged that LW gained nothing from her relationship with M, so I felt sad hearing her speak of her wish was to continue contact and return home to live with her abuser again. However, it was a little encouraging to see that she was acknowledging some disappointment about his unreliability.  She said he was telling her he wished to do right by her, yet ‘it doesn’t seem to happen’.  She wondered whether the court could order him to make the improvements to the house that were needed and which he had promised to deliver.

What was unclear to me during this hearing was what LW felt she still gained from this relationship, a relationship described by Justice Hayden as being ‘corrosive of her welfare and impeding her capacity to enjoy life’. It surprised me how during the hearing I observed it was never put to LW that professionals felt M’s actions were abusive and the concerns they had about her welfare. I’m aware this will have been discussed with LW at great length outside of Court, but it was interesting to note how this was not raised with her during the hearing.

Considering a person’s past and present wishes and feelings and the beliefs and values that would be likely to influence their decision if they had capacity is something I am very familiar with through my professional role as a Best Interest Assessor for DoLS. In Wye Valley NHS Trust v Mr B [2015] EWCOP 60, Peter Jackson J reminded us:

‘[A] conclusion that a person lacks decision-making capacity is not an ‘off-switch’ for his rights and freedoms. To state the obvious, the wishes and feelings, beliefs and values of people with a mental disability are as important to them as they are to anyone else, and may even be more important. It would therefore be wrong in principle to apply any automatic discount to their point of view’. (para. 11)

It was therefore fascinating to observe how Mr Justice Hayden considered this. It was acknowledged that although the Court of Protection never lightly goes against the wishes and feelings of those who lack capacity, in LW’s case to allow her wishes to prevail would expose her to a ‘regime of sadistic and cruel abuse’. It was explained how very clear welfare factors outweighed P’s expressed wishes and feelings in this case and compliance with her wishes would have resulted in such adverse consequences for her that there was no doubt about the need to override her wishes in her best interests. However, I wondered who would be explaining the decision to LW and what her reaction would be. I felt her psychiatrist came across really well and I assumed it would be her.

It was great watching Mr Justice Hayden deliver his judgement at the end and highlighted the absolute importance of this Court and of allowing the public to see the critical work it does. The decision made during this hearing will now stop LW being subjected to a cruel, abusive and exploitative relationship and provide her with the future she would otherwise not have. I could also sense the genuine gratitude of the treating clinicians and professionals involved in LW’s case who have no doubt battled with what to do to protect LW for some considerable time.  

It was acknowledged that withdrawal of contact with M was likely to result in short term deterioration in LW’s mental health and result in some difficult weeks ahead for her and for the professionals supporting her.  But, given the frustration LW was currently feeling at her abuser’s empty promises, it was acknowledged that this might be the least worst time for contact to be severed and there was agreement that should contact cease, LW would have the potential to flourish long term.

Jenny (afternoon only)

Mr Justice Hayden has a reputation for being able to get people to talk and I have previously witnessed the skilled, supportive but probing way in which Mr Justice Hayden has questioned relatives of patients in court cases about patients in prolonged disorders of consciousness (e.g. here and here).  I was, therefore, very pleased to have the opportunity to observe him in action when Celia rang asking if I might pick up the afternoon hearing. 

He began by commenting to LW that “you look well”, and asked her about the things she enjoyed.  She mentioned playing Scrabble and reading newspapers.  With prompting she admitted to having enjoyed playing the piano, but said that she had given it up now.

Judge:  Who taught you to play the piano?

LW:      My father.

Judge:   What grade did you get to?

LW:       Grade 1. I wasn’t very good. But the thing is that this is all memories of the

              past.  I don’t want to go over my past. I toe the line as a good Catholic.

Judge:   Some of the best music in the world has been written by Catholics – some

              beautiful church music. You know that don’t you.

LW:       Probably yes

The judge seemed keen to put LW at ease – for example, by asking about her favourite Abba song and commenting that she and he were a similar age when a particular song was released. He also offered her the opportunity to say whatever she wished rather than just responding to questions asking “Is there anything you’d like to tell me that we haven’t discussed”.

For her part LW was obviously anxious to impress upon the court her desire to go home. Her very first statement to the judge was “I want to go home” and she asked several times if M had called the court “to build trust” with them, believing that this would facilitate an agreement that she could move home.  I do not know whether or not M had been notified of the proceedings and if so whether he had given a reason for not participating – or whether there had been a prior decision that he should not be allowed to argue his case, and if so on what basis.

LW was also concerned about the work that needed doing on the house before she could return.  She worried that M appeared not to have taken things forward with the carpenter: some stairs needed repair, and the floorboards in the front room, and there was a leak in the front elevation.  She also mentioned the need for some electrical work. “I get the feeling M lets you down a bit” said Mr Justice Hayden.  She replied. “He does when I am in hospital. He hasn’t before that.”

Judge:   I know you want to go home and be with M. I want you to know that whatever decision I make, it will be what I think is best for you.

And a little later:

LW:     Yes, I want to go home though.

Judge:   Let me assure you that I know you want to go home

After LW left the court, there was no serious discussion of the possibility of LW returning home. 

The County Council position was that contact between LW and M should be stopped and the “fallout” for LW should be managed over the subsequent 6 weeks or so by supervision and support in her current placement from the psychiatrist and other carers.

The NHS Trust supported this position, acknowledging that there is “a risk that LW will suffer a period of deterioration due to lack of contact, but will have the potential to flourish in the medium and long term that she wouldn’t have if she continued to be subject to the malign influence M has on her.”  Counsel said: “We recognise that this is entirely contrary to her wishes and feelings. The Official Solicitor is always careful to vindicate someone’s wishes and feelings where it is appropriate to do so. But the Official Solicitor takes the same position as we do, notwithstanding that it is contrary to her wishes and feelings.”

Counsel for the Official Solicitor supported the application from the County Council to stop contact.  She said it was:

 “…absolutely clear from [the psychiatrist’s] evidence that LW lacks capacity to make this decision. Her wishes and feelings are clear but the evidence is that contact with M is detrimental to her physical and mental health. There are cruel and highly damaging attempts to control.  M has quite deliberately sought to thwart the therapeutic relations with [the psychiatrist]. Maintenance of a strong therapeutic relationship is key to keeping her safe and well. This attempt to thwart the therapeutic relationship is particularly disturbing.  Note the speed with which she diverted when asked about the piano – and said that as a true Catholic she must toe the line. It’s very disturbing”

The plan endorsed by Mr Justice Hayden was to keep LW at her current placement for a further period of around 6 weeks, and then to move her to a long-term placement.  She would not have further contact with M. 

Like Astral, I was impressed by the efforts put into ensuring LW was heard in person. But time and technology devoted to allowing P to present to the court, and a skilled judge who devotes care to drawing P out is NOT the same as hearing P’s voice in the sense of ensuring a full exploration of her values, wishes, feelings and beliefs. Like Astral, I was struck how, at no point in the afternoon, was LW directly presented with, or allowed to rebut, the evidence that might be used to prevent her returning home  – a basic right that would surely have been accorded someone in a criminal court at risk of being deprived of their liberty. Nor was LW given the opportunity to address the scepticism with which some of her expression of views was treated. For example, her statement that “I toe the line as a good Catholic” was subsequently treated as evidence of the ‘script” written by her abuser, but this interpretation was not proffered to her, allowing her to counter this or assert ownership of the statement as an ‘authentic’ representation of her own. In that sense I wondered if this part of the hearing ended up as more a symbolic ritual (in an effort to make LW feel heard and to be assured she had been enabled to “participate in a process that is properly judicial” as Mr Justice Hayden put it) rather than actual serious engagement with her wishes.  But maybe the emphasis was on avoiding anything that could have come across as confrontational cross questioning which, perhaps, existing documentation suggests would serve no useful purpose. Perhaps the exploration of her views was better facilitated by in-depth one-to-one discussion and was well represented in the bundle?  Coming in just for the afternoon, and, of course, not having seen the bundle, left me with many unanswered questions.

Celia’s reflections

The question of LW’s capacity to make her own decision about contact with M seemed to be dealt with surprisingly quickly, given the “hesitation” expressed by at least one of the barristers.  Having subsequently read another of Mr Justice Hayden’s judgments, I can see that the outcome might have been the same whether she was deemed to have capacity or not. 

In Southend-on-Sea Borough Council v Meyers [2019 EWHC 399 (Fam)) a 97 year old man, Douglas Meyers, wished to live at home with his son, in deeply squalid conditions,  and was found to have the mental capacity to make that decision.  Normally, the fact of his having capacity would suggest that no court could intervene, and that any choices that Mr Meyers made, no matter how apparently unwise, would have to be respected.  It is clear from the judgment that Mr Justice Hayden talked with Mr Meyers, listened carefully to his views, was in no doubt about his wishes, and (as in this case) made a decision that ran counter to them.  Considering that father and son had a “dysfunctional” relationship and that the son’s influence on his father was “malign”, “insidious”, “abusive” and “corrosive of his dignity,” Mr Justice Hayden required an order to be drawn up to ensure that “Mr Meyers be prevented from living with his son, either in the bungalow or in alternative accommodation”.  Contact with his son was to be restricted “in order to keep him safe”.  So, in the event that LW had been found to have the mental capacity to make her own decisions, but could reasonably be described as ‘vulnerable’,  a parallel line of reasoning could have resulted in the same outcome – which, I believe, is why the applicant wished the matter to come before a High Court judge. 

For anyone interested in learning more about the ambit of the inherent jurisdiction, the seminal judgment is Re: SA [2005] EWHC 2942, subsequently endorsed and amplified in the Court of Appeal in Re: DL [2012] EWCA Civ 253; [2012] CPLR 504.  According to Alex Ruck Keene and colleagues, there is no agreement between High Court judges as to whether the inherent jurisdiction can be used – as in the Mr Meyer’s case – against the “victim” (as opposed to against the “perpetrator” (i.e. Mr Meyer’s son, or LW’s ‘spiritual adviser’). They flag this in their guidance here.

The urge to ‘rescue’ vulnerable people from their abusers is a strong, compassionate human drive and it is not always easy to balance this with our impulse to respect individual autonomy and guard against unwarranted paternalism. So when people like Mr Meyers or LW state clearly and repeatedly that they wish to return to their abusers, we confront a challenging dilemma.  The criminal law offers little help (despite the relatively new Section 76 of the Serious Crime Act 2015 – Controlling or Coercive Behaviour in an Intimate or Family Relationship) when victims will not press charges.  There is long-standing feminist discussion about why some women apparently do not recognise when they are being abused, harassed and oppressed – and may even dispute it when others label it this way.  I wrote about this very issue from the perspective of feminist psychology more than two decades ago (here) – arguing that we should not simply dismiss these voices as ‘inauthentic’ or as the ‘ventriloquised’ voice of the abuser, while simultaneously endorsing those we agree with as valid representations of women’s wishes and experiences.  It is ironic, and chastening, to confront the same issue I identified back then in a research context, arising in the very different context of the Court of Protection today. The two competing impulses (to safeguard vulnerable individuals and to promote their autonomy) are addressed in detail from the perspective of law and philosophy by Camillia Kong and Alex Ruck Keene in their book, Overcoming Challenges in the Mental Capacity Act 2005, which is highly recommended.

I do not want to argue that the outcome of the hearing was substantively wrong.  I am relieved that LW is going to be protected from further abuse from M and I would have been distressed had her intention to return to live with him been endorsed by the court. There are costs associated with either the decision to protect her from him (counter to her wishes) or the decision to let her wishes prevail (continuing abuse). That is what makes cases like this so difficult. 

But for me, there is a problem with the way in which LW’s wishes were handled during this hearing (i.e. with the procedural aspect of the hearing). Counsel appointed to represent LW argued for exactly the opposite of what she wanted.  This is not uncommon in Court of Protection hearings, since the litigation friend is supposed to secure P’s ‘best interests’, not what P wants for herself. However, as legal experts in this area have pointed out:

Ordinarily, a lawyer who submitted entirely the opposite of what she knew her client to wish would face, at best, professional sanctions, and at worst, a claim for negligence. In the Court of Protection, however, current practice would tend to suggest that there are circumstances where the lawyer must indeed argue against their client’s wishes. It is ironic and is (or should be) a cause for concern that they are doing so in relation to the most vulnerable of clients, and do so on the basis of instructions given by a person—a ‘litigation friend’—contending that they are acting in the best interests of the individual concerned. (Alex Ruck-Keene, Peter Bartlett and Neil Allen)

The position taken by the Official Solicitor (OS) meant that the Local Authority (the applicant), the NHS Trust (the second respondent) and the OS (the first respondent) all took exactly the same position – all opposed to P’s wishes.  It felt very one-sided and as though nobody was arguing for what P wanted, except for P herself.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of Open Justice Court of Protection and co-director (with Jenny Kitzinger) of the Coma and Disorders of Consciousness Research Centre. She is Honorary Professor in the Cardiff School of Law and Politics. She tweets @kitzingercelia

Astral Heaven is a Local Authority AMHP and DoLS Manager.  She tweets @AstiHeaven  

Jenny Kitzinger is co-director (with Celia Kitzinger) of the Coma and Disorders of Consciousness Research Centre.  She is a Professor in the School of Journalism, Media and Culture at Cardiff University.  She tweets @JennyKitzinger

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