By Celia Kitzinger, 15th October 2022
Editorial Note: The Open Justice Court of Protection Project has issued a formal Statement about the case described here, and has also published an observer’s account of the first day of that hearing. The judgment is publicly available: Re A [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).
“It makes a mockery of transparency if members of the public are admitted to hearings in which information is deliberately withheld from us such that we then publish information that is not accurate or true. […] As a supporter and proponent of the judicial commitment to transparency and open justice, I am very disappointed that the decision of the court to conduct the proceedings in this manner has put the Open Justice Court of Protection Project in such an invidious position.”
This is an extract from an email I sent to Mr Justice Poole on 21st September 2022, during the course of a hearing in the Royal Courts of Justice. The hearing concerned a mother’s application for her daughter, a young woman with Primary Ovarian Failure, to return home and the judgment has subsequently been published: Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44).
We have described what happened in detail in a Statement from the Open Justice Court of Protection Project.
In summary, earlier this year, Dr Claire Martin and I co-authored a blog combining our observations of two earlier hearings in this same case (in May 2020 and April 2022), before Circuit Judge HHJ Moir. The case was subsequently referred to the more senior high court judge, Poole J, and it was the first public hearing before him that we observed in September 2022.
At that hearing, Poole J revealed the truth behind the story we had reported – in good faith but, it turned out, with devastating inaccuracy.
We had reported that the young woman at the centre of the case (A) had not received medical treatment for her Primary Ovarian Failure (POF). We learnt in the September 2022 hearing that she had, in fact, been receiving medication for nearly two years.
The fact that A was receiving medication for her POF was meticulously concealed (by order of the court) in the April 2022 hearing – because it had been decided that A’s mother and her legal team should not know of it. This meant the observer was also left unaware that the treatment was being administered.
Decisions about A’s medication were made in a series of ‘closed’ and private hearings held in parallel with open hearings (including the April 2022 hearing we blogged about). Observers were unaware of the existence of these closed hearings – as was A’s mother and her legal team.
I have organised my reflections under four headings.
1. Closed proceedings, in which I report on what I have found out about closed proceedings and their use;
2. Open hearings in Re A under the shadow of ‘closed’ proceedings, in which I consider how the April 2022 hearing we reported on was shaped by, and ‘under the shadow of’, the closed hearings of which we were unaware;
3. Transparency, in which I reflect on the implications of the decision to admit an observer to the April 2022 hearing (and its aftermath) for transparency in the Court of Protection.
4. Moving forward – next steps in Re A: this is a note about the September 2022 hearing and the relevance of this case for open justice and transparency, moving forward.
1. Closed proceedings
Until the end of last month, I did not really understand that there were ‘closed’ proceedings (as distinct from merely ‘private’ ones) in the Court of Protection. I think this is because ‘closed’ hearings are typically held in private, and listed as such (or not listed at all) so I have not had the opportunity to observe them and understand the distinction.
Earlier this month, I made a public appeal via social media to Court of Protection lawyers with expertise in this area, and I also contacted several lawyers individually, asking whether they were willing to write a piece for the Project about ‘closed proceedings’ in general terms, so that what happened in this particular case could be understood in a broader context. Nobody volunteered, and so I am attempting this myself. If this effort from a non-lawyer inspires someone with the appropriate expertise to volunteer a better contribution, we will receive it gratefully (as I will corrections to what I have written here).
“Closed proceedings” is the term Poole J used in the hearing, in his judgment and in the name of this case (and he used the same term previously, in Hull City Council v A & Ors [2021] EWCOP 60).
The components of ‘closed proceedings’ (as exemplified by this case) include features of some other cases reported from the Court of Protection. These are:
- ‘without notice’ or ‘ex parte’ hearings ( the terms are used interchangeably) i.e. a person affected or bound by an order that is made in the course of a hearing is not informed about the proceedings, and so is unable to attend the hearing. These are often ‘removal’ cases, i.e. where P is removed from the home of the person excluded from the hearing – because if they knew about the order they would, the court believes, frustrate it: see for example a description of one such case, and analysis of the ruling, by Alex Ruck Keene. There is some 2017 guidance on ‘without notice’ hearings from 39 Essex Chambers, which states that it is an “exceptional” remedy.
- denial of party status, where family members have had notice of the proceedings, and have been discharged from party status (e.g. a case before Hayden J for which I think there is no published judgment, but which was heard by the Court of Appeal, In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512); or where they have applied for party status and been refused it (e.g. Re KK [2020] EWCOP 64)
- ‘closed material hearings’ i.e. sensitive but relevant information is withheld from a party – or someone who would like to become a party. This was also a feature of In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512. The terminology seems to originate from the Justice and Security Act 2013, in the context of which the ‘closed material procedure’ refers to material which, if disclosed publicly, would risk harming national security: these hearings exclude even the claimant, who is represented instead by a Special Advocate.
- The excluded (aspirant) party is not represented I haven’t located a Court of Protection case at which something like a Special Advocate was instructed to act in the interests of the excluded person – although one was used last year, apparently for the first time, in a Court of Appeal hearing referred from the Court of Protection. There’s been no mention of anyone having represented the mother’s interests in the closed hearings in Re A.
- Private hearings – i.e. members of the public and journalists cannot attend. In the Court of Protection, this is most often the outcome of a balancing exercise between the protected party’s right to privacy and the public’s right to freedom of information. In hearings I’ve observed, I’ve also seen counsel argue, and judges accept, that best interests considerations can play a part.
In addition, in this case, but not in others I’ve found (which may just mean I’ve overlooked some):
- Withholding facts of magnetic importance to ongoing ‘open’ proceedings – in this case about court orders and directions; their implementation; and their outcome for the mother in making her application to get her daughter back home and/or for increased contact with her.
These features can all involve, to a greater or lesser extent, derogations from the ordinary principles of judicial inquiry.
In researching this case, I have learnt that, according to Lord Devlin (quoted below) these ordinary principles must be dismissed when they do not serve the ends of justice. What a weighty responsibility for judges that must be.
In Official Solicitor v K [1965] AC 201 (at pages 237-238), Lord Devlin stated (at p. 238) that “the ordinary principles of a judicial inquiry” include the rules that:
“… all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially, whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those … But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed: otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded.”
The case of Re A heard by Circuit Judge HHJ Moir does have “extraordinary” features and there may well be arguments for suspending ordinary rules. However, they seem to have been more comprehensively suspended in Re A than in other comparable cases.
I have not been able to find a case as extensively ‘closed’ as Re A – in which for more than two years a party to an ongoing case conducted in the ordinary way was ‘without notice’ of ongoing private proceedings, not joined as a party to, or represented in, them; not informed about orders and directions from those closed proceedings; and in which sensitive but relevant information directly pertinent to her application (to get her daughter back home) was withheld from her.
In the case before Hayden (In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512), the mother knew that there were closed proceedings, and so was able to appeal against her denial of party status. By contrast, A’s mother knew nothing about the closed proceedings.
In the ‘without notice’ case before Poole J (Hull City Council v A & Ors [2021] EWCOP 60), the protected party’s son was informed of some of the orders the court had made against him within a few days of the judge making them. Another order was acted upon without his knowing about the hearing – his mother was transferred from the home where she lived with him to a care home – but obviously he became aware of that as soon as it was effected. By contrast, and in part due to the nature of the case itself, the covert medication order from the closed court was kept from A’s mother for two years (until after her daughter had achieved puberty).
In the judgment from the Court of Appeal In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512, Lord Justice Baker (who wrote the main judgment) says that “The approach to be adopted to applications for closed hearings in the Court of Protection was the subject of a decision by Cobb J in KK v Leeds City Council [2020] EWCOP 64” – although actually when I look at that judgment, the points that Cobb J says need to be considered relate specifically to party status and not to the broader issue of “closed hearings” as exemplified by Re A. They are:
“i) The general obligation of open justice applies in the Court of Protection as in other jurisdictions …;
ii) A judge faced with a request to withhold relevant but sensitive information/evidence from an aspirant for party status, must satisfy him/herself that the request is validly made …;
iii) The best interests of P, alternatively the “interests and position” of P, should occupy a central place in any decision to provide or withhold sensitive information/evidence to an applicant (section 4 MCA 2005when read with rule 1.1(3)(b) COPR 2017); the greater the risk of harm or adverse consequences to P (and/or the legal process, and specifically P’s participation in that process) by disclosure of the sensitive information, the stronger the imperative for withholding the same …;
iv) The expectation of an “equal footing” (rule 1.1(3)(d) COPR 2017) for the parties should be considered as one of the factors …;
v) While the principles of natural justice are always engaged, the obligation to give full disclosure of all information (including sensitive information) to someone who is not a party is unlikely to be as great as it would be to an existing party …;
vi) Any decision to withhold information from an aspirant for party status can only be justified on the grounds of necessity …;
vii) In such a situation the Article 6 and Article 8 rights of P and the aspirant for party status are engaged; where they conflict, the rights of P must prevail …;
viii) The judge should always consider whether a step can be taken … to acquaint the aspirant with the essence of sensitive/withheld material; by providing a ‘gist’ of the material, or disclosing it to the applicant’s lawyers; I suggest that a closed material hearing would rarely be appropriate in these circumstances.”
I do not know whether or not the Circuit Judge considered all these points because her judgment with the order for covert medication has not been published.
In Hull City Council v A & Ors [2021] EWCOP 60, Poole J considered the importance of laying open the court’s processes and reasoning in making ‘without notice’ orders.
“Without notice orders of the kind I have made in this application are exceptional and I consider [it] necessary to set out the reasons for making them in a published judgment, suitably anonymised to protect A’s identity. By previous orders the proceedings have been conducted in private therefore they were not open to members of the public. Nor did any journalist or blogger attend. It is important that when the workings of the Court of Protection are carried out in such circumstances and powers are exercised of the kind I have exercised in this case, the court’s processes and reasoning are at least subsequently laid open in a published judgment.” (§2 In Hull City Council v A & Ors [2021] EWCOP 60)
The barristers at the September 2022 hearing in Re A told the judge that they had subjected all of these issues to the most “anxious scrutiny”, keeping their focus at all times on the best interests of the young woman at the centre of the case. That may be so – and Poole J says he found this to be the case on reading the documents in the closed hearing bundle (§10 Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44). If and when the judgment from the closed ‘covert medication’ hearing is published, we will be able to assess that for ourselves.
I am left with a lot of questions about ‘closed’ hearings and about the various derogations from the ordinary principles of judicial inquiry of which they are composed.
- I would like to know whether and how ‘closed proceedings’ are provided for in statute (other than via the ‘closed material procedure’ in the Justice and Security Act 2013, cited above).
- Are there rules or practice directions relating to decisions about ‘without notice’ hearings, or private material procedures, or denying party status to an aspiring party, or about running both open and closed hearings in parallel? I have not been able to find any. Some Court of Protection lawyers (who’ve read the judgment) tell me they are concerned about this case. Formal guidance and/or practice directions in this area would be helpful.
- When the Court of Protection Transparency Pilot was launched, giving observers access to the courts to observe hearings (and when the Pilot was subsequently integrated into the normal practice of the Court), was consideration given to how transparency would be managed in relation to derogations from ordinary principles of judicial inquiry? It seems entirely possible that this was not considered because it was assumed that (as in Re A) closed hearings would be conducted in private (and that judgments would subsequently be published). My guess is that it was never envisaged that the public would be admitted to an ‘open’ hearing under the shadow of parallel ‘closed’ hearings, such as the one before the Circuit Judge in Re A in April 2022.
- Is there any systematic oversight and monitoring of the various elements of ‘closed’ hearings? Is it possible to find out how many hearings are held ‘without notice’ or with ‘closed materials’ and so on? What proportion of the judgments from such hearings are published and publicly available? Can we obtain information from the court that will enable us to understand how, in practice, judges balance Article 6, Article 8, Article 10 rights and the best interests of the protected party when they make the challenging decision to depart from ordinary principles of judicial inquiry?
2. Open hearings in Re A under the shadow of ‘closed’ proceedings
It is an unusual – possibly unique – feature of this case that both closed and open proceedings ran in parallel over about a two-year period.
I am using the phrase “under the shadow of” to try to capture the effect of the closed proceedings (to which the mother was not a party) on the open proceedings in which she was involved.
One effect of the closed proceedings was to render the open proceedings of lesser importance in terms of the outcome of the case, ‘overshadowed’ by the serious orders about covert medication in the closed hearings.
The April 2022 hearing was made in the shadow of the closed hearing of 25 September 2020 when the covert medication order was made.
The process of conducting closed and open hearings in parallel obviously posed additional challenges.
As counsel for A’s mother said in court, it wasn’t just that the mother was excluded from closed proceedings and not told about orders and directions.
“… it went further than that. It wasn’t just that there were closed proceedings – it was the nature of the proceedings where [Mother] did participate. Representations were made, and advocates were operating and giving advice on the basis of information which was wrong. And that raises, in my submission, quite serious public interest issues in proceedings where Mother was involved. She did not know what was going on; her legal representatives did not know what was going on, so the advice given was wrong.” (counsel for mother)
As a result of the facts finally shared with the mother and her legal team at the September 2022 hearing, it was obvious that the mother had come ill-prepared to the court with her application for her daughter to return home. She was not on an equal footing with the other parties.
The mother’s application was prepared (both in April 2022 and again in September 2022) on a misconceived basis. It was never going to be effective. Upon learning the true facts, the mother reluctantly – after some delay – withdrew her application.
Counsel for the mother described the position statement he had prepared for the hearing before Poole J as “otiose” (i.e. as serving no practical purpose, lacking effect, pointless, useless, futile). I haven’t seen this Position Statement, but it was clear from what was said in court that the problem was that it was based on a misapprehension about the true facts of the case. Part of the mother’s argument for the return of her daughter was the claim that if A were to come home, she (the mother) could persuade her to take the medication she (falsely) believed her daughter was not receiving.
One legal commentator pointed out: “The party excluded from the closed proceedings litigated from a place of ignorance *engineered by the Court*.” Another described the mother as “set up for failure here by not being privy to covert treatment”.
Counsel for the mother made some reference to the wasted costs of preparation. His client’s “complaint” he said, was that she had gone to “a whole series of meetings, spent money on lawyers, public money has been involved, and the result of those proceedings was – not a charade, perhaps, but certainly of very limited impact on the progress of the case.”
It’s a disturbing and disorienting experience to read Claire Martin’s account of the hearing back in April 2022, given what we now know were the true facts of the case.
The hearing listed for 4 days in April 2022 was adjourned as ineffective – a situation which Claire Martin considered (without knowing the true facts at the time) “scandalous”, in part because of the costs involved.
She records that the Circuit Judge heard the case for two hours on 25th April 2022 and determined that the hearing could not go ahead, ostensibly because Local Authority evidence was not yet available concerning A’s potential housing options, including the mother’s preferred option to have her daughter returned home – either to live with her, or to live in the house with a package of care and with specified contact arrangements. Counsel for P’s mother was critical of the Local Authority for not having visited the mother’s house to assess viable options “It’s unsatisfactory, unhelpful but there we are”. What was needed, it seemed, was a witness statement from the Local Authority detailing their recommendations, and the mother’s counsel advanced the case that “the best option to get [A] to take her medications is at home with Mum”.
The judge heard the case again for about 15 minutes on 28th April 2022 simply to address re-listing the case. At that hearing, counsel for the Local Authority spelled out the ostensible reason for the adjournment and what needed to be done before the next hearing, as detailed in the order:
“Information needs to be sought from [the Mother’s] landlord. The Local Authority needs to look at potential commissioning and whether option B [i.e. A living in the family home without her mother living there] is viable. […] It effectively maintains the status quo [in relation to] residence and care. There is provision for additional 1:1 24hr support for A. … There is provision for [Mother] to set out her discussions with the landlord, and the usual permission for the Trust and Local Authority to provide evidence. Then relisting. All parties have agreed it, subject to your approval.” (quoted from Claire Martin’s section of our joint blog post, Medical treatment, undue influence and delayed puberty: A baffling case)
During the September 2022 hearing before Poole J, counsel for the mother compared his experience of this case with Franz Kafka’s The Trial “about someone who participates in a legal process, not knowing the nature of the legal case. That’s the position that [Mother] has been put in for the past two-and-a-half years.”
In my email to the judge, I wrote that the observers “… (like the mother’s lawyers and mother) were misled by the court into believing that P was not receiving treatment.” When counsel for A’s mother (briefly) adopted the wording of my email, the judge made the (to me) unconvincing argument that the verb “to mislead” implies saying things that are untrue. Those who wrongly believed that A was not receiving treatment were simply “under a misapprehension”, said the judge. (Most dictionaries include in their definitions of “mislead” omissions designed to create a false impression.)
Observers and commentators on social media have used terms like ‘charade’, ‘sham hearing’, ‘fake hearing’, ‘mock hearing’, ‘masquerade’, ‘show trial’ and ‘smoke and mirrors’ in relation to the hearings the mother was involved in, conducted under the shadow of the closed proceedings from which she was excluded.
In the hearing, Mr Justice Poole clearly recognised (without expressing a view about what had happened previously) the difficult position the mother and her legal team would face if parallel closed and open hearings were to continue.
“I made the decision these closed proceedings should come to an end, and one of my reasons was anticipating this hearing, and your client’s Article 6 rights in this hearing. It is not for me to say whether what was done previously was right or wrong. The public interest in the issues you’ve touched upon are obviously significant. […] What’s very clear is, no doubt because of the court’s and the parties’ anxieties not to disclose the covert medication, the impression – both to observers who blogged about the case and (I can see from your Position Statement) to counsel – was that no medication had been given, raising the legitimate question: why is A in this placement if she’s not benefitting from medication? There was more than one reason for A to be in the placement, but medication was a key issue. So, there was a misapprehension, because there could be no mention of the covert medication in the open proceedings. I am not an appellate court, nor am I enjoined to hold an enquiry into what has happened.”
3. Transparency
What happened in this case strikes at the heart of the work of the Open Justice Court of Protection Project.
It’s very unfortunate that the manner in which this case became public knowledge was via a blog post based on a misapprehension of the facts – necessitating a Statement correcting those facts.
It was, as Mark Neary tweeted, in response to our Statement, “a bad day for transparency in the Court of Protection”.
The Vice President has said that “[t]ransparency is central to the philosophy of the Court of Protection” and – in setting up our Project with the aim of “supporting the judicial commitment to transparency” – we have taken him at his word. Despite the challenges of translating that philosophy into practical on-the-ground reality (particularly in relation to listings and access), we believe that overwhelming majority of judges do support transparency.
It’s been said that the presence of observers at public hearings “maintains the public confidence in the administration of justice” (Lord Diplock in Attorney-General v Leveller Magazine Ltd: HL 1 Feb 1979). But there are obviously challenges in maintaining public confidence when the ordinary principles of judicial enquiry are discarded (to use Devlin’s terminology) and when – as in Re A before HHJ Moir – observers can watch only open hearings without any knowledge of the closed hearings running in parallel.
In this case, neither public confidence in justice, nor transparency, has been served by admitting an observer to the hearing. Rather the reverse.
My view, and that of Claire Martin, is that no observer should have been admitted to the April 2022 hearing. It must have been obvious to counsel and to the judge (if they had given it a moment’s consideration) that the observer would not be able to write an accurate account of the case. In the alternative, if the court was of the view that there would be value to a subsequent report from a public observer, admission should have been contingent on full disclosure of the facts from the court, along with the issuing of a Reporting Restrictions Order preventing the observer from publishing anything about covert medication, and perhaps a publication embargo on publishing anything at all. (I’ve experienced similar reporting restrictions and embargos myself in other hearings.)
Insofar as the best interests of the protected party collided with the principle of transparency, and were irreconcilable with it, it seems obvious to me that transparency should have given way – as it has in other cases.
This view is shared by many others who have blogged for the Project (e.g. “I’m confused as to how the decision was made to hold a public hearing when certain (very important) facts were known to a few people. It was inevitable that any report would be misleading – as those who had all the facts must have known” Daniel Clark).
The suggestion has been made that excluding an observer might have alerted counsel for the mother that something was awry: “… if I was acting for a party and the judge specifically determined that a hearing take place in private, and then excluded observers… then I’d probably wonder why – which might have led me or my client to wonder if there were things happening we were not told of… not easy” (Ben McCormack)
If the observer was in fact admitted for that reason, she became (as Daniel Cloake suggests in his blog post covering the first day of the hearing), “some kind of prop to add an air of legitimacy to an otherwise compromised application“.
However, I’m not sure that this was the case. An earlier hearing in Re A before HHJ Moir (in which the mother was a party) indicates on the first page of the judgment that it was held “in private”, so I can’t see that holding a subsequent hearing also in private would have raised any particular suspicion. I don’t know why an observer was admitted, but I suspect it may have been done without much consideration of the implications. I wonder whether more thought might have been given, and a different decision made, if a journalist had applied to observe the hearing.
The reverberations of admitting an observer to this hearing (without properly briefing her and serving a Reporting Restrictions Order) are far-reaching and deeply unhelpful both to us as members of the public and to the Court of Protection itself.
It’s caused those of us actively running the Open Justice Court of Protection Project to doubt the value of our work. Not only did we publish a misleading account of a case but also it was an account which promoted the version of events the court wanted the mother to believe – thereby making us complicit in the court’s act of omission without our knowledge or consent (which is part of what I meant by referring, in my email to the judge, to the “invidious” position we’d been placed in).
Our blog post could also have (inadvertently) jeopardised the whole endeavour in which the court was engaged in pursuit of A’s best interests, because it raises the matter of covert medication. Claire Martin wrote: “ I don’t know whether or not the options of covert medication (or restraint to ensure treatment) have been considered. (They may have been considered in one or more hearings that we missed).” There is no evidence that the mother in this case read our blog post – but had she done so, this could surely have alerted her to a possible scenario in her own case. The court should never have created a situation in which this could arise.
This whole episode has led to scepticism, from journalists and from the public, about the court’s professed commitment to transparency:
“When details are hidden rather than being subject to reporting restrictions, it shakes the confidence of observers and reporters in the whole system” (Tristan Kirk, journalist)
“How can I trust that any hearing I attend isn’t tainted by having secret, covert hearings going on ‘underneath’ the ones I observe?’ (Louise Tickle, journalist)
Since publishing our Statement (four days ago at the time of writing), we’ve received emails and direct messages from more than a dozen members of the public recounting what they say are very similar ‘deceptions’ in Court of Protection (and Family) cases involving their own family members. Whether or not their accounts are accurate, our report has obviously tapped into some deeply seated fears and anguish about what has happened in other litigation. One solicitor said of the Re A judgment “I hope it doesn’t lead to additional litigation in other cases trying to flush out closed proceedings/covert medication – this is I fear a very real risk”.
Family members involved in Court of Protection proceedings often tell us that they believe that having an observer present will ensure that the judge “behaves himself” and “doesn’t do anything wrong – because you’ll be watching!” We know they have found some comfort from having someone independent and impartial as a witness to their story. They’ve reported that the judge was “fairer” to them because observers were there and commented that, without observers, judicial unfairness is “unlikely to be found out”. (see How being watched changes how justice is done: ‘Insider’ Perspectives). And in writing about our Project, we have often quoted Bentham” “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial”.
In future, we will have to tell P and their family, when they approach us asking for someone to observe their hearings, about our experience in this case.
In my view, in this particular case, the court made a mockery of transparency by placing an observer in a situation where information was deliberately withheld such that it was entirely predictable that anything we published would be inaccurate and misleading. That is why I wrote to the judge in the terms that I did. That is why, when I was invited to speak to the judge after counsel for the Trust vigorously disagreed with the content of my email (“Nobody was misled”; “There was no mockery”) and expressed “disappointment” with its “tone”, I told the judge that I wanted to reassert rather than retract those statements. I’m dismayed that our time and (unpaid) labour in support of the judicial aspiration to transparency was so little valued, and that our commitment to accuracy and fairness in reporting was so casually sabotaged.
Poole J said (in response to concerns expressed by counsel for P’s mother): “I am not an appellate court, nor am I enjoined to hold an enquiry into what has happened”. My own view is that there should certainly be “an enquiry” and some guidance should be created (in consultation with journalists and members of the public) to ensure that these damaging events are never repeated.
The issue relating to transparency as it arose in this case is very specific. It does not reflect a wholesale problem with having public observers in court, and I would be sorry to see the judiciary interpret it in that way. It’s about the need to ensure that on the (exceptional) occasions when the ordinary principles of judicial enquiry are discarded, considerations of how transparency should be managed are properly addressed. It may often be most appropriate, in these cases, to hold hearings in private.
From the case law I have read, it’s clear that closed hearings (or the constituents thereof) are exceptional and the subject of anxious consideration. Other options are explored first. ‘Without notice’ hearings are a course of last resort. I am broadly reassured to read the judgments about these cases (including appeals against them).
I am also reassured that Court of Protection lawyers (some of whom are as disturbed as I am by what’s happened) tell me that they’ve never come across a case like this before – which I take to be a good thing. Nobody has volunteered information about other cases involving ongoing parallel open and closed hearings over years (or even months).
4. Moving forward – Next steps in Re A
Overall, my experience of the September 2022 hearing was positive. In my view, Poole J conducted a challenging hearing with grace, skill and acuity.
The judge’s decision to end the closed hearings, to make public that A has been and is continuing to be, covertly medicated, to publish a judgment, and to arrange for publication of (so far, one) of the Circuit Judge’s judgments is a positive step for transparency in the Court of Protection. The judge also alerted journalists to the September 2022 hearing (though none came) and he actively supported my request, and a later request from Claire Martin, to observe the hearing (after we’d been alert to its importance by Daniel Cloake) – including by moving proceedings from one court room to another (thereby slightly delaying the start of the second day of the hearing) so that I could attend via video-link.
In the face of the damage caused by this whole episode, Poole J’s conduct of the hearing gives me some confidence that it is possible to repair the harm, and to move forward positively.
There are very serious issues of public concern arising from the decisions of the Circuit Judge who oversaw this case for more than two years before it reached Poole J in September 2022. They include: deprivation of liberty; administering medication contrary to a person’s wishes and without their knowledge; draconian restrictions on contact between family members; and the right to a hearing at which all parties are provided with the same information. The human rights protections of Article 5 (right to liberty), Article 6 (right to a fair trial), and Article 8 (right to respect for private and family life) are all engaged. Publication of the judgments from the closed hearings (specifically those relating to covert medication) is now essential for public confidence in the court.
At the end of the September hearing, Poole J authorised continuing covert medication as “justified, necessary and proportionate at present”, but wanted to establish an “exit strategy” and a move towards a situation in which the young woman (“A”) voluntarily takes the medication she’ll need for many years to come.
He left open the question of whether or not she should be told (and if so, by whom) that she’s been covertly medicated to achieve puberty (“remarkably, she’s not asked questions about her bodily changes”). He also gave some directions about contact between A and her family members, with a proposal for gradually increasing the mother’s contact with her daughter, and re-introducing face-to-face contact, subject to ongoing monitoring and review.
These plans will be reviewed at a hearing (in open court) on 15th November 2022.
For an update on what happened on 15th November 2022 see: No ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44
For Celia Kitzinger’s submission to the Court of Protection Rules Committee dealing with lessons to be learnt from this case, see: Closed Hearings: Submission to the Rules Committee
Celia Kitzinger is co-founder and co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has observed more than 360 hearings since 1st May 2020. She tweets @kitzingercelia
Promoting Open Justice in the Court of Protection 
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