“I have to tell you something which may well come as a shock”, says Court of Protection judge

By Daniel Cloake, 12 October 2022

_{Editorial Note: The Open Justice Court of Protection Project has issued a formal Statement about the case described here. This is an observer’s account of the first day of that hearing. The judgment is publicly available: Re A [2022] EWCOP 44. 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) [2022] EWCOP 44. These concerns are also covered in the BBC4 radio programme, Law in Action, where Celia Kitzinger speaks to Joshua Rozenberg (25/10/22).}

“I have to tell you something which may well come as a shock” is a sentence that no mother would wish to hear, and certainly not from a judge when at a hearing in an imposing courtroom at the Royal Courts of Justice. 

What was revealed was a shock to me too. 

This Court of Protection hearing concerned her 23-year-old daughter (‘A’), whose identity is protected by court order. In 2019, A was removed from her mother’s care against the wishes of both of them, and now resides in a placement. The daughter has had only telephone contact with her mother ever since.

At this in-person hearing before Mr Justice Poole, held over three days (20^th– 23^rd September 2022),  we were helpfully told as background that the daughter has been diagnosed with mild learning disabilities along with Asperger’s syndrome, epilepsy, vitamin D deficiency, and primary ovarian failure (POF). 

It’s the POF that was a key consideration in 2019: the judge explained that the daughter had not received treatment for the condition, which meant she had remained prepubescent, even at the age of 20. Left untreated, her POF would “have had profound consequences for her physical and mental health“. 

Evidence given to the court three years ago by a Dr X in support of treatment was described in the June 2019 judgment of Her Honour Judge Moir: 

“Dr X became quite emotional when he was giving evidence before me. He told me that the likely success of the treatment was 100 percent. There is no failure rate. He told me it transforms a child into a woman. He said it is the basic human right of every girl to blossom into a woman and he found it inconceivable that it should be blocked. He said failure to treat it was unthinkable and it should have been done five years ago.“ (§79 Re A [2019] EWCOP 68)

The reason for the lack of treatment was said to be because the mother was exerting ‘undue influence’ upon her daughter. HHJ Moir said: 

“Sadly, I find that [Mother] has been so obsessed with her own wishes, views, and fears that she is being blinded to the obvious and risk-free advantages to her daughter of encouraging her to undergo the treatment and has, instead, failed to encourage her daughter to engage with the treatment or has actively dissuaded her daughter from doing so. Thus, the prospect that [Mother] will in the future support her daughter and positively encourage her to engage with the treatment must be extremely limited. Sadly, it is difficult to reach any conclusion other than [Mother] would prefer A not to “grow up” for want of a better description, that she would prefer A to remain the same, dependent upon her mother, and isolated within her mother’s sphere without any outside influence or interference.“  (§88 Re A [2019] EWCOP 68)

The judgment concluded with a number of orders and declarations as to the daughter’s best interests including that it was in her best interests “…to undergo treatment in accordance with the recommendations of her treating clinicians” and “…to continue to reside in residential care“ (§112 Re A [2019] EWCOP 68)

The mother subsequently issued an application for her daughter to be return home and/or for extended contact between them. This came to be considered in April 2022 before HHJ Moir sitting in open court. 

Dr Claire Martin covered these proceedings and contributed to ongoing coverage of this case on the Open Justice Court of Protection Project website (see: “Medical treatment, undue influence and delayed puberty: A baffling case“).

Dr Martin reported, no doubt fairly and accurately, submissions made on behalf of the mother that: “The basis on which the application is being brought to court again seems to be that P is still not being adequately cared for (she is not receiving the recommended endocrine treatment)”.

Dr Martin (quite rightly in the opinion of this humble mouse) criticised the Court of Protection by concluding that she was: “…quite baffled as to why it was two years later and P is still not receiving the treatment she needs for her primary ovarian failure.“

Indeed. Which brings us to 20th September 2022 and the first day of Poole J’s hearing of the mother’s application.

The mother was represented by Mr Mike O’Brien KC who, as subsequently described in the written judgment, “had understandably prepared written submissions on the issue of residence and contact“. 

No doubt a considerable amount of time and effort had gone into preparing for this hearing and much discussion and legal advice had surely been generated since the daughter had been removed from her mother’s care. One ponders the expense to the public of these proceedings. 

After Mr Justice Poole gave an introduction to the case came the words, “I have to tell you something which may well come as a shock“. 

It turns out that a parallel set of proceedings, held completely in private, had commenced over two years ago. Poole J had himself held one of these hearings the week before. The history of these closed proceedings is laid out in the now published judgment: 

On 25 September 2020, the 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 [Mother] or her legal representatives. [Mother] was not made a party to the application. At that hearing [HHJ Moir] approved a covert medication plan in respect of the hormone treatment. A had been refusing such medication. The Judge found, again, that A lacked capacity to make decisions about such treatment and remained very concerned that [Mother]’s influence was causing A to refuse the medication. [§4 Re A [2022] EWCOP 44]

Mr Justice Poole said of these closed proceedings in his written judgment: 

“It was very evident … that the most anxious consideration has been given to this very difficult and troubling case by all the parties to the closed proceedings and the Circuit Judge. At all times A’s best interests were the foremost consideration.“ [§10 Re A [2022] EWCOP 44]

When informing the mother that her daughter had been covertly medicated for the past two years, the court also made an injunction against her. This stated (amongst other things) that she “shall not by any means whatsoever… inform [daughter] she has been covertly medicated” or “discuss any aspect of puberty” with her (see §48(ii) Re A [2022] EWCOP 44]

The court was concerned that if the daughter were to find out about the covert medication there would be a “significant risk that [daughter] may reject food or drink, or the current placement would break down“.

The good news is that the covert medication plan has been deemed a success. Poole J summarised it in his judgment thus: 

“The evidence demonstrates that [the daughter] is clearly benefiting from her residence at Placement A, both as a result of the support and care she is receiving, and the medication administered to her. She is enjoying benefits for her physical and mental health. Dr X reports that her socialisation and behaviour have improved “gratifyingly”. Some of the benefits of the medication that has been covertly administered have already been achieved and could not be reversed“ ([§20 Re A [2022] EWCOP 44)

The reaction of the mother was relayed to the court after a two-hour adjournment. “If you need more time, of course I’ll be accommodating for that” the judge had reassured her, and her legal team.

Mr Mike O’Brien KC explained his “client’s reaction to what My Lord has been able to disclose today” was that she was “really happy” to hear the treatment had been a success, although a “completely reasonable” series of questions arose. 

“Is she totally well? Is she happy? Are there any side effects? What is she like after she receives the medication? Is she sleeping alright? Is there any effect on her cognitive thinking? How is it given? If she was at home, could it be given at home?“ 

“On the assumption that things have been going well”, Mr Mike O’Brien said, the mother does not object to the covert medication continuing. 

Mr Mike O’Brien also submitted that the mother was “unhappy with what she regards as some disrespect for herself” by “not being told what was going on for the past two years“. He said the mother “does not seek to tell” the daughter what has been going on, and ultimately does not wish to be the person to tell her either. We were told he had “clear instructions” on that point. 

Concerns were raised about the health of A’s grandparents. The Grandad, said to be nearly 90, “is in a very poor state” and the mother “doesn’t know how long he has left“. The Grandma “has very serious health problems as well” and the “time they have left [to see their Granddaughter] is a matter of great concern to the mother“.

The mother was said to be very keen to ensure a face-to-face visit could be arranged soon, and a date in October, holding a special significance to the family (A’s birthday), was conveyed to the court. “She doesn’t think it would be a problem in terms of the physical changes that have taken place” but “she doesn’t know if [daughter] would raise the matter with her. “ 

To allow time for the mother and her legal team to digest the documents from the closed hearings “our initial thought is we go over until tomorrow at 2pm“, said Mr Mike O’Brien.

Given that what was revealed in the hearing was contrary to what had been previously reported, I contacted the blog editor for the Open Justice Court of Protection Project, and made her aware that an issue of transparency had arisen. I am pleased that Project members were able to cover the subsequent days of the hearing and make their own representation. I don’t intend to duplicate their coverage of the remainder of the hearing, which will be posted shortly.

Thoughts on transparency 

The idea that a blogger was allowed to attend the hearing in April 2022, and seemingly not be discouraged from reporting on what ultimately was a sham hearing I find astonishing. 

The notion that an observer can be used as some kind of prop to add an air of legitimacy to an otherwise compromised application belongs in a TV drama. It does not belong in a court that is trying to shake a reputation of being ‘shadowy’ and ‘the most secretive court in Britain’ (The Telegraph, 16/10/2016) 

In 2013 the late Christopher Brooker wrote about “The sinister spread of justice behind closed doors” in “the mysterious and secretive Court of Protection“ (Daily Mail, 23/04/2013)

It’s a real shame to see the successes of recent years towards greater transparency and open justice in the Court of Protection tarnished in this way. 

Daniel Cloake is a blogger and news gatherer with a keen interest in Open Justice and the niche and the nuanced.  You can read his many other blog posts on his own site“The Mouse in the Court”.  He tweets @MouseInTheCourt