By Celia Kitzinger, Gill Loomes-Quinn, Claire Martin and Kirsty Stuart, 15th June 2022
It’s two years ago today since two of us (Celia and Gill) launched the Open Justice Court of Protection Project, at the beginning of the pandemic.
It was born of our passionate belief that “publicity is the very soul of justice” at a time when it seemed that the public health emergency was closing down the opportunity for people to observe the court in action.
We didn’t expect to be still going strong (with now two more core group members, Claire and Kirsty) two years later.
Launching the Project
When the COVID-19 public health emergency first began (in March 2020), Court of Protection hearings moved from physical courtrooms to ‘remote’ hearings via telephone and video-platforms. For months, Celia had been supporting someone through the best interests decision-making process about whether life-sustaining treatment was in her father’s (P’s) best interests. It had just reached court – and it turned out to be the first all-remote hearing of the pandemic. It was a brutal experience for P’s daughter, as Celia describe here: Two years on: A postscript to remote justice. Seriously concerned that all remote hearings would be equally alienating for P and their family, Celia decided to watch other remote hearings, tweeted about her experience, and found others were interested. Gill spotted the opportunity for a wider project and created the website, and we launched the project, on 15th June 2020. We said:
A key aim of the project is to raise awareness of the work of the Court, and its social impact. Blog posts covering observations by Public Observers, analyses of published judgments, and other social and legal commentary will be at the heart of how we go about achieving this aim. (Welcome Page 15 June 2020)
We had no funding, and no institutional backing (then or now). We were just people who cared passionately about open justice in a court which makes draconian decisions in relation to the human rights of some of the most vulnerable people in society.
It didn’t occur to us to “ask permission” of anyone to set up the Project (which we imagined would be something of a niche interest). If hearings were open to the public then we would go along, and encourage others to attend, and we’d write about them -subject to reporting restrictions. We couldn’t have anticipated the extent to which simply doing something that seemed to us quite basic and straightforward would have such a ripple effect throughout the Court of Protection and beyond.
What’s been achieved?
Over the last two years, our website has attracted nearly 260,000 views from more than 134,000 unique visitors, from up to 151 countries. The majority of our hits – not surprisingly since we cover a court with jurisdiction over England and Wales – are from within the UK (131,895 hits so far in 2022, and 233,958 hits in all-time). This looks like more than a ‘niche’ interest!
We’ve supported thousands to people to observe Court of Protection hearings – many health and social care professionals but also, crucially, family members of people who are, or might be, Ps in the future. For a recent example, see: A section 21A hearing: Impressions from a veteran observer and the daughter of (a different) P in a s.21A case).
We’ve published 264 blog posts in two years – that’s about one every three days! They’re written by social workers, best interests assessors, case managers, psychologists, nurses, doctors, midwives, medical ethicists, policy officers, academics, journalists, people working in advance care planning, law students, paralegals, lawyers, a birth rights activist, a care worker, a speech and language therapist, a court interpreter, an intermediary, a police officer, school students wanting work experience in relation to medicine and law, and family members of potential or actual “P”s. They’ve opened up public awareness of the Court of Protection as never before.
We know that our blog posts attract a similarly broad readership. Family members of P read them to learn about “their” judge, or to better understand how a decision might be made. People working in health and social care see them as contributing to their professional development. Lawyers (including those we write about) have told us they support reflective practice.
We’re increasingly asked to contribute to training and speak at conferences, drawing on our experience of open justice in the Court of Protection: you can check out our slides and resources on the PAST EVENTS tab of our website and see future events on our FORTHCOMING EVENTS page.
Through watching hearings and blogging about them, we’ve highlighted concerns about the way disabled people are treated in health and social care. Delay is recurrent theme: cases are getting to court too late – predictable applications for caesareans in the ninth month of pregnancy, when it’s clear that the applications could have been made sooner (here); applications for decisions about whether continuing life-sustaining treatment is in the best interests of people in prolonged disorders of consciousness, many years after family members have raised doubts that continuing is in the person’s best interests (e.g. here). And what we hear in court about the background to the case reveals delays in all sorts of other areas – from criminal charging decisions (here), to delays in treatment for people with disabilities (here), delays in determining whether or not a person has capacity – leading to their continued deprivation of liberty against their will (here), and repeated delays in finding suitable places for people to live (e.g. here, here, here, and here),
There’s often a belief that as long as the courts are open to journalists, that’s sufficient for open justice: they can act as the ‘eyes and ears of the public’. But the information flow has been from us to journalists in some cases. One of our stories (Secure Accommodation for Young People: “A well-known scandal”) was picked up by the Guardian national newspaper (Council paid £60k a week for ‘wholly unsuitable’ place for vulnerable girl, 27th April 2022) and a story about Open Justice in The Times drew on an interview with Celia (Fair Trials at risk with online courts). We attend hearings in county courts that never see journalists. In fact, we rarely encounter journalists – except Brian Farmer from the Press Association – even in the Royal Courts of Justice.
We’ve covered really important hearings that journalists don’t seem to know about: for example Mr Justice Hayden’s criticism of the Royal Hospital for Neuro-disability in Putney, London for adopting an institutional “ethos” of care that appeared (in the hospital’s view) to trump the law, resulting in decision-making processes that were “both poor practice and ethically misconceived.” (“’Burdensome and futile’ treatment and dignity compromised: Poor practice at a leading UK hospital”)
Even when journalists do cover the same hearings that we do, the way we see them and write about them can be very different. Partly that’s because we often write about the process of decision-making, rather than simply the outcome. But it’s also because of the range of expertise that public observers bring to watching hearings. Take for example a hearing that attracted a lot of media attention: was it in the best interests of William Verden, a teenager with a learning disability, autism and ADHD, to have a kidney transplant. Media reports (e.g. here) were short, pithy, factual, and aimed at a general readership. But members of the public who observed the hearing and blogged about it did so from specific professional and personal viewpoints and presented sustained and in-depth examination of the issues involved: from the perspective of a medical ethicist and mother of an autistic child (Imogen Gould); as an academic researcher on kidney donation (Bonnie Venter); and as a trainee barrister focusing on advocacy in the court (Jordan Briggs).
We know, because barristers tell us, that open justice means improved practice in the Court of Protection (How being watched changes how justice is done), and overall we find much to admire about the dedication and hard work of the lawyers and judges in the court. When we have concerns about what we see, we publish those too (e.g “Conditions on contact between mother and son: Missing P’s voice ”; A man with a diagnosis of schizophrenia can be conveyed to hospital against his wishes for assessment of his ulcerated legs).
We’re proud of what we’ve achieved. We even won an award – the 2020 ‘Mobilising Research into Action’ category of the Real Impact Awards (Emerald Publishing)!
The biggest ongoing challenge is listings. We can’t observe hearings if we don’t know they’re happening because they’re not in the Court of Protection lists – or, sometimes, not listed at all, anywhere (A ‘secret’ hearing on life-sustaining treatment). It’s also difficult to encourage people to observe hearings when (a) they are labelled PRIVATE despite the fact that the public are welcome to attend; and (b) we have no information as to what they’re about because the lists don’t say. We’ve written (and tweeted) extensively about these problems and raised concerns at Court of Protection User Group meetings. There have been some positive developments (#BeMoreLikeNewcastle) and some meetings with senior managers, which we hope will bear fruit. (For details about the listing problems see: When family members apply to become parties: A hidden and “private” (but not sinister and secret) hearing and Why are so many Court of Protection hearings labelled “PRIVATE”?)
Over the course of the last year there have (still) been problems with busy staff not responding to email requests to observe, and links being sent after the hearing is finished. There have been issues with transparency orders – often we don’t get them, occasionally they render “private” information we think should be public (e.g. at one hearing this included the nature of P’s impairment; at another we were initially prevented from naming a putative ‘expert’) and there was one (abandoned) attempt at a ‘retrospective’ transparency order. We imagine that things like this will continue to crop up and we will need to keep challenging them. The price of open justice is constant vigilance.
The core group of the Project – Celia, Gill, Clare and Kirsty – is composed of four very different people, each contributing to and benefitting from the project in different ways.
We close with our own individual voices.
When Gill and I set up the Open Justice Court of Protection Project, we did so independently of either of the two universities we are associated with. It’s not an ‘academic’ project, and after four decades as an academic, I am overjoyed to be free of the institutional restraints of academia and to be able to organise my own scholarly research, writing and political activism without reference to it.
The Project was launched in a fit of enthusiasm – without ‘permission’, without funding, without institutional approval: on a wing and prayer! It’s developed organically to become what it is today. We’ve done very little advance planning. We’ve never laid out our aims and objectives for assessment against SMART (Specific, Measurable, Achievable, Relevant and Time-Bound). We’ve never had to justify and explain what we’re doing to senior managers determined to slot our work into their “Vision” or “Ten Year Strategic Plan”. I’m no longer chafing against institutional demands to publish in prestigious academic journals with high citation indices; or compelled to demonstrate how my work complies with the requirements of the Research Excellence Framework.
The skills I developed as an academic – researching, writing, editing, mentoring, supervising, lecturing, public speaking – are all relevant to this Project, and it’s joyful and liberating to be able to use these skills in the service of something I really care about. The Project has become a labour of love – an expression of some of my deepest values about justice, fairness and human rights. I feel incredibly privileged to be able to do it.
Thank you to everyone who is part of it: Gill, Claire and Kirsty (obviously!); all the observers and bloggers; the lawyers who support open justice and help with transparency; the judges who ensure we can come into their courts and make real efforts to help us to follow what’s going on; the court staff whose administrative burden I know that we add to; the managers and administrators who are liaising to sort out the listing problems; and the families whose lives we encroach on.
I am entering the third year of this Project with optimism and undiminished commitment to open justice.
Disabled feminist activist, Jenny Morris, describes the injustice of the political invisibility of disabled people’s experiences in her foundational text ‘Pride Against Prejudice’, where she writes:
Disabled people – men and women – have little opportunity to portray our own experiences within the general culture, or within radical political movements. Our experience is isolated, individualised; the definitions which society places on us centre on judgements of individual capacities and personalities (Morris, 1991: 10)
I see the work of the Open Justice Court of Protection Project as contributing to and continuing the political work of making the experiences of disabled people – the good, the bad, and the ugly – visible within more mainstream cultures, especially those with power in our lives.
It is very often the case that the court is one place where ‘P’ (the disabled person at the heart of a case) is able to “portray [their] own experience” on a public platform (as we covered here). Indeed, this is one function of the court that is not available when best interests decisions are made about disabled people’s lives ‘behind closed doors’ – in Local Authority offices or care home meeting rooms. And when ‘P’ is not afforded a ‘voice’ in court, the public nature of the proceedings means we can observe and comment on this (as here). It is for these reasons that I am so pleased with the number of people with professional backgrounds in health and social care, law, and the family members and other advocates of vulnerable people we have supported to observe and write about their observations of the Court of Protection in action.
There is so much more to be seen and understood in observing the court in action than one can access by reading a published judgment – the relationality, the emotion, the humanity of a case. And this matters for multiple reasons. First, and most fundamentally, disabled people have a right to be visible within society – to be seen and recognised as part of society. But further, I believe that social change to improve the circumstances of disabled people – especially those of us who depend on social care and the support of our non-disabled advocates and allies – depends on those outside ‘the movement’ grasping the nature of the issues we face. I don’t pretend this is all that is required. But I see it as an essential component of such change.
You can read more of Gill’s thoughts on the project’s contribution to disability politics in this blog (of which the above is an extract).
Thinking back over the past year, since Kirsty Stuart and I joined the OJCOP project as core team members, I realise that, unconsciously and on a very personal level, being part of this has helped me to feel connected to others during the lockdowns of the pandemic.
Observing hearings, writing for the blog and the thrill of going through the editing process and final publication, meeting and sharing thoughts with other observers, getting feedback and having dialogue and challenge, has been an enriching and grounding experience.
Looking back, deliberately going beyond my immediate experiences, at a time where everything felt to be closing in, was sustaining. Scary (especially having to speak on camera in court) but sustaining. The bonus has been vastly improving my knowledge of the values, principles and application of the Mental Capacity Act 2005!
I work in a mental health service for older people in the NHS and consider myself a jobbing clinician – so was pretty surprised when Celia and Gill invited me to join the core team of the project. It started, as for others who have become regular observers with seeing a call to arms on Twitter, and observing a few hearings. I thought I’d just like to see what happens in the Court of Protection, go to a couple of hearings and then get on with daily life. The first two hearings I attended were by telephone and were really hard to follow. There was no summary of the case, by phone you obviously can’t see who is who, and I was pretty lost. What I noticed though, was that on the whole everyone involved was trying their best in the challenging and unexpected circumstances of remote ways of working. I saw (and heard) that the person at the centre of the hearings was genuinely attended to in terms of who they were as a human being. It made me reflect on how services – ‘care’ services in health and social settings – can often be so bound up in their own systems, sense of duty, worry about risk and repercussion, that the person ‘P’ as an individual can, and often does, get lost amongst people’s and services’ attempts to do what they think is right. I realised that learning more about contested capacity and best interests’ situations would be very helpful for me in my work and that I could share that knowledge and have discussions with the people I work with. I am hooked by the court’s endeavour to be fair – a value that has always been so important to me.
Being able to do that remotely from my own home makes it possible, alongside the day job. I have now observed around 40 hearings and written and contributed to many blogs and it has been so exciting to do so. As things change again, and we return to more in-person hearings, it makes me wonder about the effect on Ps and their families in the CoP – what would they want? Is it helpful to have hearings remotely or to have the option of a hybrid hearing? The feedback that we have had is that some people value being able to attend remotely – and for some it simply makes attending possible. I have observed several hearings where people have attended from abroad. I hope that this accessibility is not lost – and of course it makes open justice more achievable, as observers (many of whom would not be able to be released from their jobs for days at a time to visit court) can spend an hour or two of CPD time watching from work or home.
My colleagues on the project are brilliant – even though we have not met in person as a group, and actually don’t meet very frequently at all, the collegial spirit is huge. The project remains unfunded – it is quite an undertaking, managing the website, compiling the listings every evening, editing and publishing blogs, attending to emails. Celia and Gill do most of the hard work. It’s clearly a ‘labour of love’, as Celia describes earlier, and I share that enthusiasm. The courts are here for all of us – they need to be seen, discussed, talked about, reflected upon, commented upon by critical friends and, more than anything else, known about. How better to do that than be part of observing and telling people about it?
Birthdays always seem like a good time to reflect on how things have been and the last year of the OJCOP project is no different.
I was so honoured to be approached a year ago to join the core group of the Project and wanted to use it as an opportunity to develop my skills as a lawyer working in this area.
I am an associate solicitor working in the public law and human rights team at Irwin Mitchell and a lot of my work involves representing families and those at the centre of Court proceedings to ensure their voices are heard and represent them.
Pre-COVID, I recall going to an in-person hearing and being shocked if an observer was present. It only ever happened in the Royal Courts of Justice in London and was usually a journalist following a case. Although I knew the hearings were public, this seemed more of a formality and not the reality. Fast forward to the pandemic, and all hearings becoming remote and the creation of this amazing Project, and I see observers on a regular basis.
For me, I am interested to see from the lawyer’s perspective how it changes things to have observers in court. As others have said (How being watched changes how justice is done), there are a lot more introduction and opening summaries by barristers. Also, I find I check CourtServe a lot more to see how hearings are listed.
And the opportunities for learning and development for more junior colleagues to observe and write blog posts has been great. I am always keen to develop others and encourage them to shine and writing a blog and ‘getting your name out there’ is a wonderful way to do this. I have and continue to encourage any law students or those who want Training Contracts to do the same. I have spoken to those who have observed to help with their understanding of the issues and am more conscious of Transparency Orders and what they mean for observers. Of course, it isn’t to say that I wasn’t before, but from helping others to write blogs, I see them in action and how they affect what can be said.
I love that the Project shows that the Court of Protection is not a secret court and that anyone can come and observe a hearing and really start to understand decision-making in the Court of Protection and see behind the headlines.
I am so grateful to Gill and Celia for co-founding this and have loved watching it grow from strength to strength and cannot wait to see what the next year has in store.
Celia Kitzinger, Gill Loomes-Quinn, Claire Martin and Kirsty Stuart are the Core Group members of the Open Justice Court of Protection Project, which tweets @OpenJusticeCOP