Waiving anonymity to promote care home visiting rights: Michelle Davies Part 1

By Celia Kitzinger, Wednesday 9th December 2020

Editorial Note: An interim ‘judgment’ on this case has since been published here: https://www.bailii.org/ew/cases/EWCOP/2020/60.html

I’ve watched 114 hearings in the Court of Protection since 1 May 2020 and this one, concerning Michelle Davies before Mr Justice Hayden (Case No: 13677469, 23rd November 2020), is the first time I’ve been permitted to share the name of the person at the centre of the case.  

Michelle Davies, her husband Dr John Davies, and their son Kane Davies, were all named in oral submissions in court and in the documents included in the bundle.  That is not unusual.  

What is unusual is that no transparency order was made.  There is no reporting restriction.  Public observers and journalists can name Michelle when we write about the case.

The legal firm, Irwin Mitchell, who represent Michelle via her litigation friend (her husband), has put out a press release naming Michelle (as well as her husband and son). Michelle Davies has been named in numerous newspaper articles, and in radio and TV programmes (for example, here, here, and here).  The media reports are accompanied by photographs of Michelle supplied to Irwin Mitchell press office by her husband.  In one, Michelle and John Davies are dancing together at their silver wedding anniversary in 2008; another shows them celebrating John’s 50^th birthday party in 2010.  In the photograph accompanying this post, Michelle Davies is pictured in Muir woods near Sausalito in California in September 2018, when the couple were on holiday together just a couple of months before she became ill.

It’s very unusual to be able to report a person’s name, or publish their photograph, in connection with a Court of Protection hearing. This is because the standard transparency order prevents publication of “any material or information that identifies or is likely to identify where any person listed above [i.e. P and their family and sometimes care staff] lives, or is being cared for, or their contact details”.  The order reminds us that “If any person disobeys the order made by paragraphs (5) to (9) (the Injunction) they may be found guilty of contempt of court and may be sent to prison, fined or have their assets seized.”

The intention of the transparency order is to protect the person’s privacy and this is what many people who become “P”s in the Court of Protection want (or would have wanted).   For others, though, their Article 8 right to privacy may be outweighed by the competing interest of their Article 10 to right to freedom of speech and open scrutiny of the circumstances in which they have been placed.

Background

On 14 December 2018, when she was only 56, Michelle Davies suddenly and without warning suffered a subarachnoid haemorrhage secondary to an aneurysm in her brain.  A week later, this was followed by a stroke.  She has extensive brain damage and since then has been cared for in hospital (for the first 11 months), then in a specialist brain injury neurorehabilitation centre, and now in a care home, pending suitable adaptations to the family home and a care package to enable her to return there.

From the moment of her injury, John Davies spent at least 3 hours a day at his wife’s side, and up to 6 hours some days.  “I didn’t miss a day for 15 months”, he told me.   

That all changed on 17^th March 2020 due to the public health crisis. 

In addition to watching the court hearing as it unfolded, I was also privileged to spend two and a half hours with John Davies (via Zoom), listening to his account of what’s happened.  

He described the time he had spent with his wife before Covid-19 – taking her out, helping her physical recovery with passive movement of her limbs, talking to her, and watching television with her – all of which he sees as an essential part of Michelle’s neurorehabilitation and psychological health.  Then, between 17^th March 2020 and 6th July 2020, the placement permitted no visits at all, and very few video calls.  In July 2020, when pubs, shops and restaurants started opening up again, there were three weeks when visits were allowed twice a week for 30 minutes each time.  Her husband described how Michelle was wheeled outside onto a patio to be with her husband and son (“she was absolutely beaming”).  But then on 31 July 2020, Manchester moved to higher restrictions and all visits were ceased.  No window contact was permitted and contact reverted to video calls (4 times a week for 30 minutes) for the next 15 weeks.  This, her husband believes, was hugely detrimental to Michelle’s rehabilitation, and to her mental health.  

John recognises that visiting restrictions have the legitimate aim of protecting public health but he believes that it is wrong to impose a blanket policy on everyone.  Instead, individualised care plans, including visiting arrangements, should be drawn up for each resident.  Michelle Davies is “a darn sight younger” than most care home residents and (apart from her brain injury) she is in generally good health.  She’s also already had Covid and the evidence suggests she was likely to have had immunity from reinfection for some months after recovering.  He considers the visiting restrictions “hugely disproportionate” . He wrote first to his MP,  who wrote back to say he’d passed it on to the Department of Health and Social Security – but there was nothing subsequently from either the MP or the DHSS to improve the situation. He then discovered  the public letter from Mr Justice Hayden about permitted contact in care homes.  “I thought, ‘ooh, that makes it sound as though we should be able to visit, and that didn’t tally with my reality”, so he wrote to the judge himself.  The court signposted him to the potential to seek legal advice, which in turn led to the application before the court.

A week before this hearing, Michelle had been moved from her previous placement to a new care home (closer to her husband and son), and her room is on the ground floor, permitting window visits.  Because of the move, Michelle is in quarantine for two weeks.  John described the window visits as “simultaneously delightful and frustrating” because Michelle doesn’t understand why her family can’t be in the same room with her: “when you’re on a video call you understand that you can’t be physically close, but when you’re a couple of metres apart with a window in between it’s more frustrating”.  Later, when I spoke to him, he said “Michelle’s not had a hug off her husband for 9 months. It’s diabolical.”

The window visits from family and friends had also revealed some problems in the care that Michelle is receiving in the new care home.  On one occasion friends had looked through the window only to find Michelle on the floor, having fallen out of her chair – apparently the fact that she needs to be belted into her chair had not been communicated to the new care home (“I was distraught” said John).  On another occasion, John discovered that his wife had been left alone in her room with the door closed to eat her lunch – but she is at high risk of choking and needs to be monitored while eating: he immediately ensured that someone came in to be with her.  His visits are more than simply social occasions: they are (as counsel for Michelle said) “a check, a balance, a monitor, an opportunity to communicate Michelle’s needs as this new home gets to know her, from the wealth of information that her son and husband have about her”.  Her husband is, said Mr Justice Hayden, “the conduit by which institutional learning is conveyed from one institution to another” – and that makes his visits important for Michelle’s wellbeing.

At the hearing, Lorraine Cavanagh QC, as counsel representing Michelle Davies (via John, as her litigation friend) asked the judge to order that it is unlawful for Michelle to be prevented from having daily face-to-face contact with her husband and son, and that from the end of her quarantine period she would be permitted face-to-face contact with John and Kane Davies for no less than 1.5 hours per day.   She asked him to order a risk assessment for contact between Michelle and her family members, a contact plan, statements about the various options for face-to-face contact, and all documentation concerning Michelle’s Deprivation of Liberty (some periods of which seem to have been unlawful, since it appears that no urgent or standard authorisation was in place). She said in particular that Michelle Davies’ Article 8 rights (respect for private and family life) were engaged in respect of her marriage of 37 years, and her relationship with her son and her parents.

On behalf of the local authority and clinical commissioning group Victoria Butler Cole QC suggested a way forward that joins the care home as a respondent, since the decisions being challenged are those made by the care home and not by the statutory bodies.  They will be notified of the proceedings, and joined as a party and required to file evidence and a position statement setting out (among other things) the arrangements they propose to put in place for visits between Michelle and her family, the basis of their decisions about contact, and their reasons for asserting that their policies and arrangements for contact do not violate the Article 8 rights of Michelle and her family.

Michelle Davies’ case will be back in court again on 11 December 2020. 

Waiving anonymity

The court case brought on behalf of Michelle Davies has the potential to change visiting rights for many people in care homes across England and Wales.  It’s for that reason that John and Michelle Davies want their names to be public.  

Many people in care homes, and their families are affected by restrictions on visiting similar to those endured by Michelle Davies and her family.  The submission on behalf of Michelle Davies described her case as “a paradigm example of the personal desolation caused by the application of blanket visiting policies”.

John Davies referred me to two campaigns concerned with this issue: Rights for Residents (“a campaign to end the current inhumane restrictions to visiting loved ones in care homes”) and John’s Campaign (supporting “the right of people with dementia to be supported by their family carers”). 

Although Michelle Davies was, her husband says, “a person who valued her privacy”, she is also “a very caring person and had a very strong sense of doing the right thing, especially where it would improve someone’s lot”.  He said that he “believes strongly that Michelle would want for something positive to come out of this dreadful situation that she finds herself in and this case presents an opportunity for that to happen”.

Twenty-three paragraphs (10 pages of the submission by Lorraine Cavanagh on behalf of the applicant) are devoted to arguing the case for ‘transparency’ and for allowing Michelle Davies’ name to be publicly reported.  She submits that the public has a right to know what is being done in its name in the Court of Protection and that this is strongly in play at a time when the public health crisis has imposed on the general population considerable restrictions on their rights and freedoms, along with growing campaigns to overhaul the ‘chaotic’ and ‘stringent’ arrangements for visiting loved ones in care homes.  And she argues that Michelle Davies herself has an Article 10 right to “… freedom of speech and open scrutiny of her circumstances, particularly important where, as here, her marriage and private relationships are being profoundly deprived by the operation of policy.  This is specific to Michelle Davies’ right to have her cause made public in order to attempt to avail herself of the power of ‘forensic sunlight’ to assist her cause but also, to assist the cause of others to bring about change and public pressure on theGovernment.”

The use of Michelle Davies’ name (as opposed to anonymising initials) is an important part of publicising her story, because “stories about particular individuals are simply much more attractive to readers than stories about unidentified people, It is just human nature” (Lord Rogers in Re Guardian and Media Limited. [2010] 2 AC 697)

The question of whether or not Michelle Davies could be named occupied around half an hour of court time.  Mr Justice Hayden asked to speak to John Davies directly about the issue.  He said: 

“A named individual rather than someone referred to with just their initials attracts a much greater degree of public interest – it makes an issue become real to the public.  But being the focus of public attention can bring its own stresses and be very wearing and burdensome.  Ms Cavanagh tells me you’ve thought about this, but I want to hear from you.”

John Davies explained how he’d assessed Michelle’s past and present wishes over the course of two video conversations with her.  Michelle has a communication impairment due to her brain injury: it’s not clear to the professionals how much she understands – though John thinks she understands everything – and certainly her ability to respond is limited mostly to single words.

 “My starting point was my long-term understanding of Michelle as a person.  She is a quiet person, never one to put herself in the public eye.  But she is a very caring person and has strong feelings about helping others and when I said to her there were potentially thousands of people up and down the country like us, not able to see their relatives, she said “aww, aww” in a tone that showed sympathy and her facial expression was very upset.  I said ‘has that upset you?’ and she said ‘yes’.  I said there was the possibility of legal action on this and as soon as I said ‘legal action’ she went, ‘oooh!’, her way of expressing that something has caught her attention. And I said, ‘but we need to think carefully about using your name – I don’t want to cause any distress to you. I said we might be able to assist people by using her name and photo to publicise our case and she said “yes”.  I repeated the same process the following day and I got the same responses.  So, I had a discussion with our son, and we were both of the same opinion.  Michelle has had an absolutely awful thing happen to her and her nature is such that she would want something positive to come out of it if that were at all possible, and this seemed like an avenue through which that could happen.”

Mr Justice Hayden pointed out that the press, social media, and bloggers can sometimes be “irresponsible” in reporting on a case, and there was a discussion about how John and Kane might manage negative comments on Facebook and Twitter.  John’s view was that “we’ve got the resilience to deal with that. A few comments from some ill-informed individuals won’t slay me”.  Journalist Brian Farmer, who was in court, was consulted and agreed that “a story about someone who is named will attract more attention”.  Counsel for the Trust and CCG did not oppose it, and so Mr Justice Hayden indicated that he would not seek a reporting restriction concerning Michelle’s (or her family’s) name. 

Most persuasive was the fact that she had worked so hard to improve the lot of others during the course of her working life, and outside it. She would want to do the maximum to help those like herself during these difficult circumstances, and her husband considered she would recognise that she would be most likely to achieve that by being ‘Michelle Davies’ rather than by being anonymous”. 

This has been borne out by the subsequent media publicity, which has included BBC, ITV and press interviews.   One of the quotations from John Davies that has been used on several occasions in the press is this: 

“There has been a failure to treat Michelle as an individual over the last eight months. Instead, she has been dealt with as one member of a huge amorphous group of people living in care homes. These people have names, families and lives. This one is called Michelle Davies.”

What’s ‘going public’ been like?

When I spoke to John Davies, he told me he’s “not had a single negative comment” from journalists or from the public – and he’s had positive feedback from strangers who’ve messaged him on Facebook to say they’re in similar situations and they’re “so glad someone was brave enough to challenge things”.  

“If we’d said we wanted to stay anonymous, everyone would have said, ‘of course, yes’, but I did a cost/benefit analysis and I could see that there would be a massive benefit from the extra publicity if we let our names be used.  People can’t relate to ‘Mrs X’. But people become emotionally engaged if you’ve got a real name, and a photo. … If something good can come out of this horrible experience, we will take the risk of not having anonymity.”

He is clear about what he won’t do for the media.  He won’t share any photographs of Michelle since her brain injury “because that’s not respecting her personal dignity, and that’s not how I want people to think of her”.  He’s had “a few attempts from journalists to try to identify the care home” and has tried to prevent the media knowing where Michelle now lives. He’s declined requests to be filmed standing outside the window of her care home and has become “slightly paranoid” that journalists might follow him when he goes to the care home: in our zoom conversation he mimicked anxious glances over his shoulder as though checking whether he was being tailed.  “I’ve never been in this situation before, so I don’t know what to expect”. 

When I asked him if there was anything the media hasn’t reported that he wishes they would, he told me about his quadruple heart bypass.  He’d been “fit as a butcher’s dog”, played rugby for thirty odd years, was doing high intensity gym classes every week and was “the picture of health” when he found he couldn’t breathe in as deeply as normal and went to the GP about it.  After a series of tests, he was told he needed major heart surgery, and was off work afterwards for five months. 

 “Michelle nursed me through recovery. She demonstrated absolutely how much she cared for me. That’s when you find out – when you’re in adversity.  It’s part of my motivation for wanting to do everything I can for Michelle.  And once I’d recovered, I thought our challenge was done. Then just a few months later, Michelle had the aneurysm.”

One of the things the couple had planned to do, after John’s heart bypass, was to take out Lasting Power of Attorney, so that if either of them were to lose capacity to make their own decisions in future, the other would be able to make decisions on their behalf.  (‘Next of kin’ do not have decision-making rights over incapacitated adults.)

 “It was one my list of things to do after what happened to me, but we hadn’t got round to it. I wish we had. It would have made life so much easier for us.  And although I got to be Michelle’s RPR [Relevant Person’s Representative] and then her litigation friend in court, I still don’t have the Deputyship in place – either for health and welfare or for finance – though I started that process back in May.”  

He’d recommend to everyone reading this blog post that they should appoint Attorneys for both Health and Welfare and for Property and Finance, as soon as possible, and (obviously) before they are needed.  You can’t create them after you’ve lost capacity for making these decisions – these instruments have to be set up in advance.  (Information about how to do this is available on the government website here.) 

So far, ‘going public’ about what’s happened to Michelle has been less stressful that he expected. He explained that it helps that he’s a (recently retired) academic professor with a raft of skills in public speaking and analysis developed during his work.  He’s even been in court before, in Employment Tribunals, and found the Court of Protection a much better experience, and “far less intimidating”.  He had anticipated a more “adversarial” courtroom experience but found in fact that “everyone was working together to figure out what was best for Michelle”.  In a context where ‘remote’ courts (conducted via video-platforms) are sometimes criticised, it’s worth reporting that John Davies valued that experience: “sitting in my office at home, being able to nip out to get a glass of water or a lunch time bowl of soup in my own kitchen – it’s all a bit more chilled than a physical courtroom”.  

Anonymity, Freedom of Expression, and the Court

Many people who become “P”s in the Court of Protection would not want the kind of publicity that John Davies is certain Michelle would have wanted – and does want – for herself.  But others do – and for many of the same reasons that John and Michelle do.  Very often a case is in court because something has gone wrong – and it may well be something that has gone wrong not just for “P” but for others in P’s situation.  P and their family may hope that making it public they can help to improve other people’s lives.  

Yet often it feels as though the standard ‘transparency order’ is applied without really considering whether P would want their identity concealed in this way.  

The person’s name is almost always used in public court hearings,.  But the documents in the bundle  – the position statements and skeleton arguments – mostly use initials only.  And when we write about the hearings, we cannot use the person’s real name (or the names of their family members) even though we usually know those names.

So, as you can see from other blog posts for the Open Justice Court of Protection project, we have to find another way of referring to the person at the centre of the case.   Sometimes we simply use “P” (e.g. “When P is in prison”), which is how such people are referred to in the Mental Capacity Act 2005, in the Court of Protection Rules and in legal analysis  (such as this article by Alex Ruck Keene and colleagues).  Sometimes we use initials assigned by the court (which may or may not be the person’s real initials): AL,  KB, F, or AB. Other times, we invent pseudonyms (like “Michael”,  “Andrew” , or “Barbara” in recent blog posts) to try to foreground the person as a unique individual.  

Some lawyers are concerned about the “dehumanising” effect of referring to someone as “P” or by their initials.

In my experience it is now relatively unusual for the lawyers and judge to do other than refer to the person by the name they – or, if they’re not able to participate, their family – prefer: sometimes a first name, sometimes a title and surname, sometimes a nickname or – for a trans person – a new chosen name (only his mother, giving evidence, repeatedly tripped up with name and pronouns).  My experience, like Oliver Lewis’s, is that Mr Justice Hayden normally insists on the use of real names:  just once when a person objected to the public use of her name, did he and the barristers refer to and address her throughout as “Ms P”, as was her preference.  

Many of the position statements I have been sent have not been anonymised, so they, too, contain the person’s real name: the logic of not anonymising them is that I know the names anyway (from having been in court) and I am bound in any case by the Transparency Order, so cannot reveal the person’s identity to anyone else. 

There is relatively little concern, however, about what feels to me, as an observer, like a routine (even ‘default’) acceptance that P herself should not be identified in any reports of the case. The exceptions stand out,  One was  Paul Briggs, whose real name can be used largely because his wife Lindsey Briggs talked extensively to the media about her husband (catastrophically brain injured by a dangerous driver) well before the case ever reached the Court of Protection – so he was already publicly identifiable: for families who believe their loved one would want publicity, making sure to launch publicity in advance of an application to the court might be a sensible strategy.  Another was Manuela Sykes a campaigner with a history of social activism, now with dementia and prevented from returning to her own home, who strongly wished for her situation to be reported in her own name.  In an insightful judgment, which authorised use of her name, District Judge Eldergill wrote:  

“She has always wished to be heard. She would wish her life to end with a bang not a whimper. This is her last chance to exert a political influence which is recognisable as her influence. Her last contribution to the country’s political scene and the workings and deliberations of the council and social services committee which she sat on.”

These are the exceptions – departures from the fact that “ordinarily” there’s a standard order that P will not be named publicly. As I watched this hearing before Mr Justice Hayden, I was dismayed to see how much work was needed (those 23 paragraphs of submission and half an hour of court time) to enable Michelle’s name to be used.

For myself, I hope very much that I am never a “P” in the Court of Protection.  I have done everything possible to make this unlikely.  I have an Advance Decision, an Advance Statement and have appointed both a Health and Welfare Attorney and a Property and Finance Attorney. (Check out the charity, Compassion in Dying, for more information about all these options.)  So, if I am ever a “P” in the Court of Protection, something will have gone dreadfully wrong.   I would want it to be made public, and I would want to be publicly named. I have said so in my Advance Statement – and would advise anyone who feels likewise to do the same.  

Of course, many people value the ‘transparency order’ that protects their identity from being publicly reported.  For others, though, it is an impediment to having our voices heard.  As Jeremy Bentham once famously said, “publicity is the very soul of justice”.  The use of P’s real name is still one aspect of “publicity” that individuals and families caught up in the Court of Protection may need to advocate for – as John Davies has for his wife Michelle, in recognition of her commitment to helping others who, like her, have been deprived of visits from family and friends during the pandemic.

Acknowledgement: Thank you to Dr John Davies for talking to me about the challenges his family is confronting, and for sharing the lovely picture of Michelle Davies that illustrates this article.  I am grateful to Mathieu Culverhouse and David York of Irwin Mitchell for alerting me to this case and for putting me in touch with John Davies.  I am also grateful to Lorraine Cavanagh QC (Counsel for Michelle Davies) and Victoria Butler Cole QC (Counsel for Wigan Council and NHS Wigan CCG) for making their position statements available to me.