A ‘secret’ hearing on life-sustaining treatment

By Celia Kitzinger, 7th February 2022

This is the first hearing in more than two years that I’ve observed in a physical courtroom, rather than remotely via phone or video-platform.

It’s a case (COP 1354439T Re: PH) that’s been before Mr Justice Hayden repeatedly over a long period, and I’ve watched several previous hearings over MS Teams.  But this time I was there in person, sitting in a physical courtroom in Newcastle County Court on 2^nd February 2022. 

It turned out to be a ‘hybrid’ hearing.  

Along with the judge and court staff, counsel for the protected party (Ian Brownhill of 39 Essex Chambers) also attended in person. 

Counsel for the Health Board (Roger Hillman of Exchange Chambers) attended remotely, as did the protected party himself, a nurse who acted as his advocate, his consultant psychiatrist, and the instructing solicitors. (I think there may also have been others whose roles I missed.)

Background summary

We’ve blogged about hearings in this case several times, most recently in “Capacity to refuse intensive care”, and previously (in reverse date order), “When academic theory becomes reality” “Delays in finding an acquired brain injury placement” and “Inviting family into the decision-making process”).

In summary, the protected party, PH, is a man in his 40s who drank highly corrosive hydrogen peroxide in 2016, resulting in oesophagectomy (removal of part of his oesophagus), splenectomy (remove of his spleen), a tracheostomy and a colostomy and the insertion of a PEJ, a percutaneous feeding tube, into his small intestine.   

He’s been assessed as having an “Emotionally Unstable Personality Disorder, Impulsive Type”, exacerbated by an acquired brain injury, following a fit in 2019. Capacity assessments have determined that he does not have litigation capacity, nor does he have capacity to make decisions about his residence and care, or (at the end of last year) to make decisions about treatment for his broken hip. 

There is however some disagreement between the Official Solicitor and the Health Board as to whether or not PH has capacity to make his own decisions about clinically assisted nutrition and hydration.  (A consultant psychiatrist says that he does.)

PH is currently refusing nutrition (but not hydration) not because he wants to die but because – as Hayden J put it – “he’s had enough, and this situation is compromising his dignity”.

The situation is that he’s still in hospital, despite having initially been ready for discharge (with intermittent medical emergencies) since the end of 2019. Previous hearings before the court have been concerned (first, and ongoingly) with finding him a suitable place to live, and also with his refusal of medical treatments (intensive care, and clinically assisted nutrition).

Following a hearing I did not attend on 13^th October 2021, it was reported in the media that Mr Justice Hayden “slammed” the Health Board and spoke of “substantial and alarming failures” in PH’s treatment.  But at that time, the response of the Health Board, and of the new psychiatrist treating PH, led Mr Justice Hayden to feel “considerable optimism that [PH’s] needs would be better met in future” and that this marked “a new beginning”.  At the end of October 2021, it had been agreed that PH was due to transfer from the general surgical ward at the Hospital to a mental health rehabilitation unit run by the Health Board.

The move was delayed by an accidental fall in early November 2021 when PH fractured the neck of his femur, which required hip replacement surgery. It had been hoped that PH would have recovered sufficiently to move to the rehabilitation unit in early February 2022 but he was unhappy with the proposed placement and had stopped eating.

So, some 18 months after the case first came before Hayden J, the Health Board is seeking a declaration from the court either:

1. that PH does have capacity to refuse nutrition and that his wishes not to continue to be fed should continue to be respected, even if this means his death; OR
2. that PH lacks capacity to refuse nutrition and that it is not in his best interests to attempt to feed him nutrition against his wishes and so he should be allowed to die. This is on the basis of advice from a consultant respiratory specialist who gave evidence that any attempts at sedation to overcome PH’s resistance to being fed nutrition itself runs a high risk that it will so suppress his respiratory function that it may well prove fatal in any event. Physical restraint to force-feed PH would be “demeaning and traumatic” for PH and “should not be contemplated as it would be destructive of his dignity and self-respect”.

This Health Board had initially sought this declaration at an “emergency” hearing a few days before (on 31^st January 2022).  That hearing (which I’m told continued until 7pm) was adjourned after Hayden J spoke privately with PH who told him that he wanted an agreement in writing with the Health Board about leaving the hospital to go to a home for him to live where he could have privacy.  If such an agreement were possible, it was suggested that PH might agree to resume accepting nutrition.  The case had been adjourned for these possibilities to be explored.  

Hayden J had not at that point made either of the two alternative possible declarations sought by the Health Board.

A “secret”  hearing

I’m describing it as a “secret” hearing because (despite apparently having been arranged two days earlier, at the hearing on 31^st January 2022),  this hearing didn’t appear on any of the daily court lists for Wednesday 2^ndFebruary 2022 – not on the Royal Courts of Justice list where Hayden J’s hearings normally appear, and not on the County Court Civil and Family Courts “Court of Protection” list in CourtServe under the “Newcastle” tab, which was where I expected to find it.  

If a hearing doesn’t appear on the court lists, there’s usually no way for anyone not involved in the case to even know that it’s happening, let alone ask to observe it^[1].  

I was in Newcastle in person for a different hearing (attended, in-person) before Mr Justice Hayden – one that was (more-or-less) correctly^[2] listed on the Newcastle County Court COP list, for 2pm that day.  I’d known about that one for a while because arrangements for it were made at the conclusion of an earlier hearing, back in November 2021, in the same case.  

Newcastle is one of the courts closest to where I live, and as ‘attended’ in-person hearings are slowly replacing the remote online hearings we’ve become accustomed to during the pandemic,  I was keen to observe a hearing in a physical courtroom.

After arriving (early) in Newcastle, I heard from Ian Brownhill, one of the barristers involved in the 2pm hearing, that there was an 11am hearing before Mr Justice Hayden in which he was also involved. 

I checked the listings again.  Nothing. 

I emailed the judge’s clerk asking whether or not there was an 11am hearing and requesting that, if there was, it be publicly listed.  I knew people in Newcastle who’d read blogs about this case would be interested in observing the hearing. 

Although she confirmed that the hearing was happening, and indicated that she would endeavour to ensure it was listed, I don’t think it ever appeared in the lists.  

It wasn’t there when I walked into Newcastle County Court at around 10.30am and checked the lists pinned up on the boards after passing through the airport-style security scanners. 

The court staff on the ground floor couldn’t find it on any lists when I asked about an 11am hearing before Hayden J.  They directed me up to the second floor to the waiting area outside the courtroom where Hayden J’s 2pm hearing was listed as taking place.  They suggested I ask the staff there.  

The staff on the second floor didn’t know of any such hearing either – and were also anxious that I’d turned up without (in their words) “asking permission” since (under COVID restrictions in place in the court) the courtroom only holds six people plus the judge and court staff.

Then Ian Brownhill emerged from one of the small ‘consultation rooms’ around the perimeter of the waiting area.  Yes, the hearing was going ahead at 11.am in the same courtroom as Hayden J’s 2pm hearing.  He emailed the judge’s clerk (copying in me and the other barrister in the case, Roger Hillman) asking for permission for me to enter the courtroom. Permission was immediately granted (and I was also sent the MS Teams link, since it turned out that the hearing was hybrid).  

Once I knew the hearing was happening, and was able to get my request to observe it before the court, everything went smoothly.  I absolutely don’t believe that the court was trying to prevent me from observing this hearing.

This case has been heard in ‘secret’ before on at least one other occasion – in November 2021.  Back then, the judge’s clerk sent me an email (unprompted) at about the time it was due to start, alerting me to the hearing which, she said, had erroneously not appeared on the lists. I was otherwise engaged and didn’t read the email until hours later, so didn’t watch that hearing, but it was clear to me then that despite the hearing having been unlisted, I was welcome to attend.

Once the hearing got underway, I learnt that this case had also been heard a few days earlier in the Royal Courts of Justice on Monday 31^st January 2022 as an ‘emergency’ hearing.  Had I known about it, I would have observed it then.  I didn’t because it wasn’t on the lists when I checked on the previous Friday (which is when Monday’s cases usually appear), nor on the Monday morning.  I didn’t check again on Monday afternoon, but the judge said that the RCJ cause list had been amended at some point in the afternoon shortly before the hearing started – presumably as soon as was reasonably practicable under the circumstances. I understand there were no public observers, but given that it actually appeared on the lists,  I don’t characterise the Monday 31^st January hearing as “secret”.

But it does concern me that there are hearings taking place which are never listed (anywhere) and so without any possibility of members of the public observing them –  except under very peculiar circumstances such as led me into this hearing. 

This isn’t a one-off experience.  I’ve encountered unlisted hearings before. On a couple of occasions family members contacted me, asking me to observe their hearings, giving me COP case numbers, judge names and dates/times for the hearings, and – despite attending them after family members negotiated access for me – I was unable to find these hearings listed anywhere on CourtServe.

Of course, given that I succeeded in attending this “secret” hearing  and am blogging about it now, there’s an argument to be made that it wasn’t “secret” at all. I want to distinguish between “secret” (unlisted) hearings and “private” ones. It’s the absence of information that the hearing was even happening in the first place that renders it “secret” –  in the sense of not known by the public, and not available on the lists for them (us) to know. Knowing that a hearing is happening and that it is “private” is very different. Even “private” hearings – from which members of the public are excluded – are nonetheless listed on public websites; they’re not “secret”. 

I should add that there was in fact a “private” part to this hearing when the protected party was offered, and accepted, the opportunity to address the court without being observed by members of the public.  I was entirely content with being asked to leave the courtroom for this “private” exchange.

“Secret” hearings seem often to be, as in this case, a consequence of administrative error.  When the error is discovered, I have seen the courts act rapidly (if not always effectively) to try to ensure that it’s rectified and that the public is alerted.  I’ve been sent (unsolicited) links to unlisted hearings I haven’t been able to ask to observe. I’ve never been refused entry to an unlisted hearing. I’ve never felt, when observing an unlisted hearing “ah hah! I can see why they didn’t want to let us know about this one!”.  

Secret hearings are not part of a sinister conspiracy to evade transparency, and conduct justice behind closed doors  – but of course the effect (excluding the public) is just the same as if they were.

To my Newcastle colleagues who would have liked to observe this hearing and who saw in it a unique opportunity to observe the Vice President of the Court of Protection hearing a serious medical treatment case, in person, just down the road from where they work, a case they’d read about over several blogs….  I’m sorry it didn’t work out.  

I’d imagine the court is too.

What happened at the hearing on 2^nd February 2022?

The hearing opened with the information that there is now a skeleton plan in place for a home that PH can move to – and a video of the property was available, although due to encryption problems nobody seemed able to send it to the judge.  This would be a temporary home for PH for maybe 6 months, while something more permanent was organised for the long term in the geographical area where he wishes to reside.

Judge:     Has the plan been put before PH?

Hillman:  No.

                 (c. 20 second silence)

Hillman:  Your Lordship is asking me why not?

Judge:      No. I’m letting the question float through the ether.  Why is it that everyone

                  knows the plan except the person it most affects?

Hillman:  The plan has only been finalised in the last few hours. We have wanted to 

                  avoid putting down things we would later need to resile from.

The psychiatrist (Dr R) was called as a witness and reported that he’d met with PH the day before and updated him. They’d talked at length about the new property and Dr R had shown him pictures from Google maps.  “PH replied he’d like to visit. It was explained to him that he’d need to be somewhat heavier in weight.”

Shortly after this the judge addressed PH, saying: “PH, you can hear that. Until you’ve put some more weight on, you’re not going anywhere.”

There was some discussion of the property. It’s a two-story house, with four bedrooms, one with en suite facilities to a good-sized wet-room.  On the ground floor there are 2 bedrooms and an office.  Staff caring for PH  (it’s a condition of the use of the premises that he continues to receive 24/7 care) would be downstairs “out of his hair so to speak” and “not in his living apartment”. 

Ian Brownhill (cross-examining Dr R) asked how much weight PH would need to put on before the visit could be accomplished.  “That’s difficult because we don’t know what weight he is today… If he were to eat or accept feeds over a period of five days, a visit would be possible” (Dr R). 

Ian Brownhill suggested it might be possible to “do a deal” with PH – to which the judge took exception: “I don’t like that term.  He can if he wants accept nutrition. What I am trying to do is not negotiate, but let him have options to choose between” (judge).

On (not) making the declarations sought

The ongoing dispute about whether or not PH has capacity to make his own decision about nutrition (the Official Solicitor thinks not; the Health Board thinks he does) was not explicitly addressed in the hearing, but caused problems in making the declarations sought.

Mr Justice Hayden asked counsel for the Health Board: “Are you asking me to resolve the issues in paragraph 6 [of your position statement]. It seems rather difficult to do so in time.”

Paragraph 6 was the paragraph seeking a declaration from the court either 

1. that PH does have capacity to refuse nutrition and that his wishes not to continue to be fed should continue to be respected, even if this means his death; OR
2. that PH lacks capacity to refuse nutrition and that it is not in his best interests to attempt to feed him nutrition against his wishes and so he should be allowed to die.

“I am not instructed to abandon that point”, said counsel for the Health Board, “and I understand My Learned Friend [Ian Brownhill, for the Official Solicitor] opposes it.  Starkly, what should we do if PH decides not to eat and not to accept nutrition and hydration.  We would ask the court to give a declaration so the Board knows what to do.”

Counsel for the Health Board outlined the two alternative possible declarations he was seeking.  

Hillman:  Your Lordship on Monday made the comment that in effect either he has capacity and should say what should happen to him and not be made to be fed, or if he doesn’t have capacity, I suggest it’s not in his best interests to compel him to have food – partly for medical reasons, partly because of his respect and dignity.  Considering the use of force to compel him to be fed would be appalling.

Judge:  I don’t think anyone is suggesting that sedating him and forcing him to be fed is in his best interests. I think I was pretty clear about that on Monday.

Hillman:  With the greatest respect, My Lord, I don’t believe you were. The issue was parked rather than being dismissed out of hand, and hence I feel a need to raise this matter now, as the clinicians could use some guidance. It’s the belief of Dr R that PH has capacity to decide on accepting nutrition and hydration or not. In the event that you are not so persuaded and it becomes a best interests decision, sedation is medically counter-indicated. And the use of physical force is such an appalling prospect in terms of trauma, loss of dignity, and humiliation of PH that we don’t wish to go down that road at all.

Judge:  What is ambiguous is why such a declaration is necessary. I am trying to empower PH to have the maximum options to assert his own autonomy. When he started refusing food, it was not as a bargaining tool at all.  Dr R said it was simply that he’d had enough – as he put it, that his dignity was being compromised.  It came off the back of a series of issues in his own life when he’d become upset, not least because a close friend had died. It wasn’t a device to get his own way. It wasn’t an attempt to compel the Trust. If he is able to agree the way forward today- Not ‘agree’.  If he decides to go to the proposed placement, does the declaration achieve anything other than to undermine PH’s autonomy?

Hillman: All I’m asking is that the Health Board be empowered to continue to respect the autonomy of PH. That is in effect the outcome of the declaration we are asking you to make.

Judge: When you say the Health Board needs to be empowered, what greater empowerment could it have other than the consent of the patient, freely given. Why does it need a court declaration?

Hillman: Because there is still a view that this man may not have capacity to make this decision, and I wish it beyond doubt that a failure to compel this man to accept nutrition is lawful, and that the Health Board would be doing the right thing by not compelling this man to be doing something he doesn’t want to be doing.  If we are not able to move forward in a consensual way, which is absolutely the wish of the Board.

Ian Brownhill (for PH via the Official Solicitor) said “the OS agrees with Your Lordship’s decision not to make the declarations sought” because she was “uncomfortable with the declaration that PH has capacity to refuse nutrition”. He suggested that “What’s happening here is that Mr Hillman’s submissions are designed to protect the Health Board, not to protect PH”.  

The judge demurred, rejecting the proposition that the Health Board was “cynically protecting themselves”, and pointing out their reliance on psychiatric opinion.  He asked what was required to assess whether PH had capacity to make his own decisions about nutrition – what matters PH would have to be able to weigh and balance.  The resulting to-and-fro touched on a lot of issues (involving comparisons with political hunger strikers and anorexics, and touching on capacity to choose an assisted death in Switzerland) without resolving anything.

Judge: Let’s assume for the sake of argument that the presumption of capacity is rebutted. What declaration do you want then?

Brownhill:  I don’t seek a declaration. There is no available option for treatment to put before the court.

Judge: Given it’s clearly his expressed wishes to refuse food, you would not wish to impose force-feeding upon him?

Brownhill: If someone said they wanted PH to be held down and force-fed, I would take instruction from the Official Solicitor. But it’s not an available option.

Judge: I don’t think it’s an ethical option. He feels he has been a creature of the state, and there could be no more graphic example of that than being held down and force fed.

Brownhill: What was disturbing to us on Monday was the switch to a palliative care plan.

Judge: The word ‘palliative’ sometimes generates more heat than light. What it means is ‘pain relief’. If he’s going day after day after day without food, he’s going to need pain relief. So where, at what point then, are you separating from the Board in terms of a plan for PH?

Brownhill: One, we don’t think there should be a positive declaration that he has capacity. Two, we don’t think the Board should stop offering him the opportunity for re-feeding and continued nutrition and hydration.

Judge: I don’t think that’s a difficulty.

Brownhill: To put it in the vernacular, we don’t want people to give up on him.

Judge: I’m sorry to be pedantic, but recognising his wishes is not ‘giving up on him’.

The judge then turned to PH and his advocate-nurse, Nurse D, (who were together in the same room, and visible via video-link).  Nurse D said that PH did want to visit the proposed new home, but disagrees with the view that he should gain weight before doing so.  He wanted (she said) to reassure Ian Brownhill that he is being offered food, but he doesn’t believe it’s necessary for him to accept nutrition at the moment. 

The judge then offered PH a “private session with no members of the public present” which he accepted, and I left the courtroom, re-joining after the lunch break.

Viewing the property

After the lunch break, Nurse D, who’d not been able to send the video of the house over to Hayden J, played it to us on her mobile phone, holding it up to the screen and walking us through the outside parking space, the ramp to the front door, through to the kitchen, the bedrooms, the wet room, the rural view from the window.  After she’d shown it to the court, PH asked to see it as well.

Dr R then updated the court about his conversation with PH in the lunch break.  PH, he said, “refuses to eat before visiting the placement. He’s agreed he will eat after seeing it, if he likes it.  He walked the length of the corridor and back to prove his fitness: he believes he can survive for a further week without eating. He asked to go  to the property this afternoon – which is difficult because of organising the ambulance and so on.  I imagine he’s quite tired, although he says he’s not, and he’s becoming increasingly angry.”

The judge asked for confirmation on the last point: “Did you say increasingly angry?”  “Correct, My Lord”.

The judge then said that, although he didn’t want to find himself in a position where PH was “manipulating the situation”, he could understand why he would want to “flex his muscles”. “If the reality is that, come what may, if he doesn’t go to [the new property] that he will risk his health and ultimately his life, then the risk of taking him there has to be evaluated against the alternative even worse option”.  He asked Dr R, “Is it more reckless to take him to view the property, or to leave him in the hospital?”  Dr R said, “We can’t guarantee that it’s safe [to take him], but I did think last week we could persuade him to eat before taking him there, but that’s becoming less and less likely.”

Ian Brownhill then suggested consulting the Official Solicitor, Sarah Castle, about making a s. 48 order allowing PH to make the visit on the following day, and the court adjourned to allow this consultation to take place.

“Mr H,” said the judge, “you are making us all work very hard today, but I’m going to see if I can grant your wish to go tomorrow”.

PH did a thumbs up.

When we reconvened at 16.10 (having been in a different in-person hearing in the same courtroom in the interim), Ian Brownhill reported back:  “Considering what PH has said, and that he wants to visit the property and doesn’t want to die”, Sarah Castle as Official Solicitor supported the making of a s.48 order today, “allowing for him to visit as soon as is reasonably practical”.  “I don’t suppose anyone would disagree with that,” said the judge.  The order, said the judge, should say something like “it shall be lawful and in PH’s best interests, having regard to all the circumstances of the present situation and identifying and balancing the competing risks, for PH to be taken to view the property at….”.   It will have immediate effect, without endorsement.

The judge then said he was not going to make any determination of the capacity issue today – not least because the case would be heard again in just five days time, but also because “it would not be right for me to determine that today, given what’s going to happen tomorrow.  It would undermine PH’s sense of his own autonomy, without impacting on anything”. 

The judge closed the hearing by addressing PH:  “Tomorrow they are going to take you to [new property] to see if you like it.  I hope the message will come back to me that you like it, that you see it as a good stepping stone back to [where you want to live long-term] and that you decide to take some nutrition.  It is your decision, in your hands.  It is your life and I’m letting you be in the driving seat. I hope you’re a good driver. We’re all rooting for you.”

Postscript on observing in-person in a hybrid hearing  

As soon as the hearing opened, I realised that my view of the judge and the various parties was compromised in this in-person hearing compared with watching hearings remotely. 

The judge was a long way away even in this small courtroom, and my view of him was impeded both by the barrister seated in front of me (especially when he stood up to address the judge) and also by the judge’s own computer.  The judge spoke quietly and I often had to strain to hear him – if I’d been watching at home, I’d simply have turned up the volume on my laptop.

Since I was seated behind him, I only had a back view of the barrister in court.  I couldn’t see his face when he was speaking.

My view of the people attending remotely was also much less satisfactory than at home.  There were two screens on the right-hand side of the courtroom on which they appeared via video-link, but I had to rotate 90 degrees in my seat to see them, and it was challenging to watch them as well as simultaneously typing notes on what they were saying.  At home I have one laptop with the video-link open directly in front of me on a shelf raised about a foot above my desk and another laptop on my desk beneath it for typing my notes, so both the court participants and my own notes are easily visible.

I found a solution which I’m sharing here because it might help others.  Since I’d also been sent the link to watch the hearing remotely, I experimented with opening that on my laptop with the sound turned off.  Then I had a much better (close-up) view of the judge, and could see the faces of both counsel (instead of merely the back of the co-present barrister). It didn’t solve the problem of lack of volume control for the judge, but was otherwise fairly satisfactory.  Unlike at home, though, it meant having two windows open on the same (small) screen, which isn’t ideal.

One more point for court observers:  the desks were all supplied with sockets for plugging in laptops. Mine didn’t work.  Nor did the sockets at the adjoining desk, as I discovered in the afternoon hearing, when the instructing solicitor for one of the parties attempted to charge up her laptop.  Fortuitously, I had an extension lead with me, and she and I both plugged our laptops into that, and ran it to a socket in the wall.  I recommend coming to court prepared!

Finally, the court staff in the waiting area told me I should in future phone in advance to check whether or not there’s room in the court if I hope to observe in person. The Newcastle courtroom Hayden J sat in was suitable (under COVID measures) for only six people in addition to the judge and the court staff.  I was lucky with the hybrid hearing described here, since it was just Ian Brownhill and me in the physical courtroom, but the afternoon hearing on the same day didn’t have space for everyone, and some participants (including solicitors) took part via a video-link from an adjacent consultation room.  I don’t actually know whether court staff would be in a position to tell someone about seating availability (or ‘book’ them a seat) in advance of a hearing: if you try it, please send me some feedback on what happened!

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

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^[1] There are also what I call ‘semi-secret’ COP hearings.  These are actually listed in CourtServe, but not under the Court of Protection tab, so it’s not apparent to anyone looking for COP hearings that they’re happening. I find them by trawling through the lists of towns and cities, and then through sub-tabs which are usually lists of judges. It takes me more than an hour to do this each day, so it’s not something I do regularly – meaning that if hearings are not listed under the COP tab, we’re unlikely to publicise them via the Open Justice Court of Protection Project, and they’re highly unlikely to attract observers from amongst members of the public.  To give a sense of the scale of the problem, I’m writing this on Sunday 6^th February 2022, and there are no COP hearings listed under the Court of Protection tab for Chester, Mold, or Medway. I have just spent an hour scouring the listings and I found a COP hearing listed before The Honourable Sir Jonathan Cohen (no less!) not under the COP heading, but as as the fourth hearing if you scroll down under the “Daily Family” tab embedded beneath the “Chester’ tab. There’s also a COP hearings before HHJ Howells under the “Mold” tab, and before HHJ Cove under the “Medway” tab – neither of which is reproduced under the COP tab. Three ‘semi-secret’ hearings!

^[2] Only “more-or-less” because it omitted any information about whether the hearing was remote (e.g. via MS Teams), or hybrid, or whether the public could only observe if they attended in person.