By Celia Kitzinger, 9th September 2021
UPDATE: After I corresponded with counsel in this case, the Transparency Order was varied. The original transparency order that was sent to me prohibited publication of any material or info that could identify P including her age, ethnicity/national origin, and the identity of the clinicians or any other witnesses in the case. As I pointed out to counsel, the earlier judgment already published by Mr Justice Mostyn on BAILLI states: “This case concerns P, a 60-year old woman” (para. 1) “of Ugandan origin” (para. 2) and also names P’s consultant psychiatrist and care-coordinator. As a result of my intervention, the court subsequently determined “that it was necessary and appropriate to vary the terms of the order made on 1 February 2021 because the publicly available April 2021 judgment in this matter conflicted with the terms of the order and the terms of the order were unduly restrictive“. The court has varied the previous order “so that the only publishing restriction relates to any material or any information that identifies or is likely to identify P.“
For more than three years, P’s HIV infection has been left uncontrolled because she has refused to take her antiretroviral medication.
According to an earlier published judgment in this case, P believes, as a consequence of her schizophrenia, that God is telling her not to take the medication.
In this previous judgment, published on BAILII, the judge found P to lack capacity to make her own decisions about HIV medication and ordered that she should take it in the form it was then prescribed (orally, once a day).
When that had no effect (i.e. she still refused), the same judge then authorised blood tests to establish P’s eligibility for treatment by injection. He also authorised the use of restraint, if necessary, to enable the necessary blood samples to be taken.
I would normally quote from this earlier judgment and include a link to it, so that readers can understand how this case has developed.
I have not done so here because the Transparency Order prohibits me from (amongst other things) publishing “any material or any information that identifies or is likely to identify” (a) “[P’s] age” and (b) “her ethnicity or original national origin”.
Information about P’s age and national origin is provided in this earlier (approved, published) judgment, which is publicly available on BAILII. In that judgment, P is described as “a XX year old woman … of XXXXX origin”.
If I were to link to the judgment, or provide quotes from it such that it could readily be located via google, I would be publishing material “likely to identify” P’s age and national origin. Doing so would also be likely to mean that readers could identify other information prohibited in the Transparency Order, including the name of the Trust.
I consider it completely out of kilter with the court’s commitment to open justice for the public to be denied information that would allow them to read the earlier judgment in this case. Because I am not able to link to that judgment, readers are denied background context for this blog post reporting on later developments.
I plan to appeal against the terms of the Transparency Order, but meanwhile here is what I can say about this case.
The hearing was before Mr Justice Williams, the “urgent hearings” judge on 8th September 2021. (He was not the judge who’d previously heard this case.)
Because he’d been in other hearings all morning, he hadn’t had the opportunity to read the position statements from the two barristers (Jack Anderson for the applicant Trust and Katie Gollop QC for the Official Solicitor) which had been submitted that morning, and nor had he received their agreed draft order.
The order they were asking him to approve was that it was in P’s best interests to receive HIV medication via injection once every 2 months for the rest of her life, and that this could be administered with restraint or via force if necessary (i.e. as Jack Anderson put it, on the same terms that the previous judge had authorised the taking of blood samples).
It was an “urgent” application because without treatment she would die within a year. The treatment was described as having minimal side effects and as being “life-saving” – even “miraculous”.
Mr Justice Williams said he was “hesitant in the extreme to make an order that results in her being restrained or deprived of her liberty or taken to hospital against her will without having had the opportunity to read the position statements [and the medical reports]”.
The judge indicated early on that he might “adjourn the deprivation of liberty aspects of the order”. He said “I’m slightly- well, no, I’m more than slightly troubled at making such orders without having a grasp of the full information available.”
Jack Anderson suggested that one way forward might be that the judge might decide today that treatment was in P’s best interests, and then decide about the use of force/restraint “on the papers” (i.e. without a hearing) later, because “it’s an agreed position”.
The judge resisted this course of action, saying “the court has an obligation to scrutinise even agreed orders, even with applicants and respondents as expert as you both are”. He called a short adjournment of around 20 minutes so that he could read the relevant papers.
On return the judge said that, having read the documentation:
“… it seems fairly clear that it is in P’s best interests for the HIV medication to be administered, and that’s an order I’m content to make today. There is a residual question in terms of authorisation of the use of force. Is there any material that sheds light on the possible effect on her schizophrenia – or other mental presentation – of force being used on her to administer HIV medication, and if it became necessary whether there would be a risk of deterioration in her psychiatric condition?”
Katie Gollop said that she was not aware of any evidence that would answer those questions. “I am not aware that force has ever been used, so the answer may not be known.”
Mr Justice Williams said that evidence about the possible psychological effect of the use of force on P “should form part of the final decision about whether force should be used”.
He said he would make an order “that P should have injections to avert the risk of death within the next 12 months…. Her best interests are overwhelmingly in favour of authorising medication – especially given that when she wasn’t suffering a loss of capacity she consented to HIV medication, and so absent the schizophrenia would probably consent to it now.”
He said that if she was reluctant to accept the injections then “a degree of, uhm, ‘pressure’ is legitimate in terms of administration of medication that perhaps goes beyond pure encouragement, for example telling her the court says she has to have it. But if despite that – if I can call it – ‘gentle pressure’, she continues to refuse, I think the issue of the use of force should be adjourned to another hearing with a psychiatrist who can give evidence to shed light on the impact of the use of force on her psychiatric condition. I am not content to make that order today. That part of the case will have to go off for further consideration.”
There was some discussion about how full the Court of Protection lists are (“my availability before December is almost non-existent for anything more than a half-hour hearing” said the judge). Consequently the hearing concerning the use of force/restraint could be before Mr Justice Williams or the previous judge, or someone else entirely – and that would depend in part on how long the hearing would be likely to require.
And then the hearing ended – after a little less than an hour.
The Transparency Order
The Transparency Order wasn’t mentioned either before or during the hearing.
When I asked the two barristers for it after the hearing, I was given what to me appeared to be contradictory information about its contents, but I was not actually sent it. When I asked again – for a third time – I received the Transparency Order. That was at 10.45pm on the day of the hearing, and that’s when it became clear that I was being prevented from publishing anything “likely to identify” P’s age or national origins, information that was already in the published judgment on BAILII.
I don’t know why it has been decided that information about P’s age and ethnicity cannot be reported except, apparently, in a published judgment. I haven’t heard any arguments about how the Article 8 right to privacy has been weighed in the balance against the Article 10 right to freedom of information. I don’t know why it’s been deemed acceptable for information about P’s age and ethnicity to appear in a public judgment but not in my blog post. I had no opportunity to address the judge about these reporting restrictions because I did not learn about them until 10 hours after the hearing finished. This doesn’t seem like transparency to me.
I understand that journalist Louise Tickle has previously appealed against an unlawful reporting restriction order from the Family Court which, as here, restricted her from being able to report facts that had previously been published in a Court of Appeal judgment about the same case. It’s disappointing to find the same problem arising again.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia
 Quotations are based on notes made at the time and are as close to verbatim as I can make them, but as we are prohibited from audio-recording hearings they are unlikely to be word perfect.