UPDATES: We subsequently raised concerns about the court’s decision to admit observers to the hearing that resulted in the misleading blog post: see Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings)  EWCOP 44. These concerns are also covered in the BBC4 radio programme, Law in Action, where Celia Kitzinger speaks to Joshua Rozenberg about “Secrecy in the Court of Protection” (25/10/22): see also Joshua Rozenberg’s blog, “Open justice at the Court of Protection?“. We have now blogged about a subsequent hearing in this case (on 14 November 2022): No ‘exit plan’: Re A (Covert medication: Closed Proceedings)  EWCOP 44.
The Open Justice Court of Protection Project very much regrets publication of a blog post which we fully accept was inaccurate and misleading.
The blog post by Celia Kitzinger and Claire Martin, Medical treatment, undue influence and delayed puberty: A baffling case, published on 2nd May 2022, reports on two hearings we observed before circuit judge HHJ Moir concerning a young woman with primary ovarian failure. We wrote that:
…. since the court authorised removing her to the care home more than three years ago, P has not been treated for her primary ovarian failure. It is entirely unclear to us why she has been left untreated, since this was a key justification for depriving her of her liberty in the care home (against her will, and that of her mother) and for restricting and then stopping contact between mother and daughter.”
We described ourselves as “surprised, and dismayed, by the apparent lack of progress over this 23-month period” and said we were “baffled as to why … P is still not receiving the treatment she needs”.
We accept that these statements (and similar statements made in promoting the blog on Twitter and Facebook) were incorrect.
We can now put on record that, at the time of the April 2022 hearing reported in the blog, the young woman at the centre of the case (now to be referred to as “A”) had been receiving medication to treat her primary ovarian failure for more than a year. This medication was administered covertly (via her food and drink), without her knowledge and without the knowledge of her mother, or her mother’s legal team. We did not know this.
The facts are as reported in the judgment by Mr Justice Poole: Re A  EWCOP 44. This judgment was handed down on 7 October 2022, but was not available on a publicly accessible website until today (11th October 2022).
In brief (from the judgment):
On 25 September 2020, HHJ Moir held a closed hearing on the Trust’s application for A to be covertly administered hormone treatment for her primary ovarian failure, no notice having been given to B [A’s mother] or her legal representatives. B was not made a party to the application. (§4 Re A)
“Under the covert medication plan A was to be offered her hormone treatment in tablet form each time a tablet was due, but if she refused it, it would be covertly administered. The plan would be known only to a limited number of healthcare professionals and carers. A did refuse to accept the hormone treatment and so covert medication began to be administered at the end of 2020. A has continued to refuse the treatment and so covert hormone treatment medication has continued since then… (§5 Re A)
“The Open Justice Court of Protection Project published an online blog about this case on 2 May 2022 entitled, “Medical treatment, undue influence and delayed puberty: A baffling case. One observer had seen the hearing on 26th May 2020, another the hearing on 25th and 29th April. When comparing the hearings, both observers were “dismayed” and “baffled” because over a two year period of separation from her home and her mother – a separation that appeared to be for the primary purpose of administering endocrine treatment that A was not likely to receive at home – A had still not received endocrine treatment and there was an application for her to return home ‘in the hope that (after all this!) her mother will then be able to persuade her to have it’. The observers were wrong – A had been covertly administered the medication – but they were not to know that having only observed the open hearings in this case and, like A and members of A’s family, being unaware that covert medication was being administered and that A was benefiting from it. (§9)Re A (Covert Medication: Closed Proceedings)  EWHC 2487 (COP)
In the judgment Poole J subsequently refers to our blog post as having conveyed “false information” (§73). It was “based on only partial information – through no fault of the authors” (§84). He says: “due to there having been open and closed proceedings running in parallel, the blog authors for Open Justice [sic] had inadvertently misled their readers” (§68)
We are grateful for Poole J’s observation that:
“… the Open Justice Court of Protection Project is an important project that makes a significant contribution to transparency and public understanding of the workings of the Court of Protection. They feel that the proceedings in this case have undermined their work.” (§68)Re A (Covert Medication: Closed Proceedings)  EWHC 2487 (COP)
This short statement is made as rapidly as possible after publication of the judgment in order to correct the false impression we conveyed in the blog post, and we will now also add a note to the original blog post (linking to this statement) to avoid readers being misled in future.
We first learnt the true facts of this case during the open hearing before Poole J of 20-22 September 2022, but have not been able to make corrections sooner because a Reporting Restriction Order prevented us from reporting on the covert medication until the judgment was published (for reasons given in §84 of the judgment).
We will now investigate how it came about that an observer was admitted to a public hearing in which a salient (‘magnetic’) fact of the case was meticulously concealed (by order of the court), leading – surely inevitably – to inaccurate reporting.
We believe (as Celia Kitzinger said to Poole J in court) that the conduct of proceedings in this case has undermined the work of open justice and transparency in the Court of Protection. We plan to blog about these concerns, and about the hearing before Poole J, at a future date.
Celia Kitzinger, Gill Loomes-Quinn, Claire Martin, and Kirsty Stuart are members of the Core Group of the Open Justice Court of Protection Project. For more information about the Project, and our individual contributions to it, see the “About Us” page on our website.