By Celia Kitzinger, 17 November 2022
This was a thoroughly dispiriting hearing to watch.
It was difficult to detect much concrete progress, despite clear directions from the judge at the previous two hearings.
The case concerns a woman in her early twenties (A) who is deprived of her liberty in a residential placement (against her wishes and those of her mother) and has been refusing treatment for primary ovarian failure.
Every day for two years she’s been offered the prescribed hormone treatment tablet and every day so far, she has declined to take it. That’s more than 700 treatment refusals. Each day, she is then given the tablet covertly via her food. This course of action was authorised in a ‘closed’ hearing (from which her mother was excluded) before circuit judge HHJ Moir back in September 2020.
Covert medication has been successful in bringing about puberty (and that can’t be reversed). But medical expert, Dr X, recommends ‘maintenance’ medication for the rest of A’s life – to avert risks of fractures and cardio-vascular events. This is the treatment she’s now receiving (also covertly).
Mr Justice Poole first heard the case at a closed hearing on 15th September 2022, which I didn’t attend, and the existence of which was deliberately concealed from the Open Justice Court of Protection Project. He then heard it again at an open hearing on 20th-22nd September 2022, which three observers attended, resulting in two blog posts: “I have to tell you something which may well come as a shock”, says Court of Protection judge and Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44). The judgments for the two September hearings are published jointly as: Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44 .
In his judgment, Poole J said that covert medication was “unsustainable in the long run”. He directed that:
“… a treatment plan should be devised, for review by the court, for how to exit the covert medication regime with the least possible harm being caused to A. The plan will cover the question of imparting information to A about the past use of covert medication – should that be done and if so, when, where and by whom….” (§48(iv) Judgment Part A, 15 September 2022)
The Judge explained his concerns with continued covert medication like this:
“On the one hand, covert administration of hormone treatment appears to be the only way in which such treatment, which it is in A’s best interests for her to receive, can be given. She continues to refuse the treatment when offered to her. On the other hand, the continued implementation of the covert medication plan is fraught with risk. My concerns are (i) that A will discover the fact that she has been and/or continues to be medicated covertly; and (ii) that the discovery will have harmful repercussions in that she will lose trust in those caring for and treating her, perhaps even to the extent of losing trust in all professional carers and healthcare professionals, refusing food prepared for her at her current or other residential homes, and suffering physical and mental harm as a consequence.” (§29 Judgment)
Poole J laid out detailed directions as to the work that needed to be done by way of consideration of the ‘exit plan’ in preparation for today’s hearing.
A medication plan should be drawn up by the Local Authority and the Trust, having liaised with [A’s mother], to address:
a) The transition to open medication with A’s consent and how that can be most effectively and safely achieved.
b) The imparting of information to A about her pubertal development.
c) The imparting of information to A about the risks and benefits of maintenance hormone treatment.
d) The imparting of information to A about the use of covert medication.
The plan will include consideration of whether, when, where and by whom any such information should be given to A, and the involvement of [A’s mother] in the implementation of the plan …. By directing that the issues set out above should be addressed I am not, at this stage, directing what the contents of the plan should be.
…. I shall review the plan and hear and consider further directions on 15 November 2022…
Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44, §63(iii) + (iv)
So, my expectation for the hearing was that a Medication Plan would be put forward dealing with these issues outlined by the Judge and that there would be a productive and sustained focus on how A’s best interests in relation to medication could best be managed going forward.
That didn’t happen.
I haven’t seen the plan presented to the court, but according to the position statement of A’s mother, it was initially of very “limited scope”. It proposed only:
“… continuing to covertly medicate A for a further six months unless a new nurse could convince A to take her medication voluntarily. [A’s mother] had expected it to address fundamental issues such as when and how to tell A that she was now a woman and no longer required the endocrine medication, that the new medication was for a different purpose and what to say to A if the issue of covert medication arose”. (§5, Position statement for A’s mother).
I got the impression that some more work had been done on the plan since 13th November 2022 (the date of the position statement), but clearly not enough to meet the judge’s expectations.
The Judge expressed ”some regret that more detailed planning in relation to … imparting of information to A about her pubertal development, and contingency planning in event of questions from A…. has not already been done”.
A miasma of discontent pervaded the proceedings.
It seemed to me as though all the parties felt backed into a corner by intractable difficulties not of their own making – and various attributions were made (more or less explicitly) regarding the contributions of other parties to the troubles they faced.
The hearing on 14th November 2022
The hearing was supposed to start at 10.30 but was delayed for nearly two hours. We were told first that there had been “traffic problems” and then that the parties were “having productive talks” and the judge had allowed them time for that.
It was finally called on at 12.24pm, by which time the advocates had managed to produce a (largely agreed) draft order and sent it through to the judge.
The main area of dispute was whether the case should come back for review in 6 months’ time (the position of the Local Authority) or in 3 months’ time (the mother’s position).
The Local Authority said the Trust agreed with their own position (6 months) but the Trust said it actually didn’t (maintaining a position that somewhere between 3 and 6 months would be appropriate). The Official Solicitor was initially said, by the Local Authority, to support the mother’s position (of 3 months), but this was disputed by the Trust – and then the Official Solicitor produced a version of their postion that was distinct both from the mother’s position, and from the Trust’s version of the OS position. It was that sort of hearing – none of the parties seemed content with the characterisation of their position volunteered by any of the other parties.
I’ll present the position of each of the parties in turn, in the order in which they addressed the judge.
Local authority
Counsel for the applicant local authority, Jodie James-Stadden of Dere Street Barristers began with a long and very granular account of what had been done in an effort to produce a Treatment Plan – the main purpose of which seemed to be to highlight the non-involvement of A’s mother.
There was “no input received” from A’s mother before the multi-disciplinary team [MDT] meeting on 18th October 2022, despite the fact she’d been sent the date and agenda. Following the meeting, a first draft plan was produced and sent to A’s mother on 20th October 2022 – and she didn’t respond to that either. A final version was produced following input from Dr X and was sent to A’s mother on 26th October, and “again there was no response received”.
The finalised version was then filed with the court on 2nd November and “no comment was received from [A’s mother] until she filed a witness statement on 11thNovember, last Friday, during the course of the afternoon”. According to counsel, “that witness statement raised a number of issues including: ‘should A be told she’s achieved puberty?’; ‘should she be told how she’s achieved puberty?’; ‘what should she be told about the maintenance treatment?’; ‘what should be said to A if she questions whether she’s being covertly medicated?’”.
These all seem very sensible questions to me, and they are in fact questions which I thought had already been raised by the judge. I deduce, from the fact that A’s mother was raising them after having received the finalised Treatment Plan, that they had somehow – unaccountably! – not been addressed therein.
There had then been an advocates’ meeting late on Friday afternoon, said counsel, at which the mother’s questions had been discussed by legal representatives “at considerable length”.
There’s now a “Part B” to the plan headed “The imparting of information to A regarding risks and benefits of receiving hormone treatment”. New promotional health materials are to be prepared for A, and a specialist endocrine nurse will visit A, potentially with her mother’s involvement. “That part of the plan is agreed by [A’s mother]”, said counsel.
“But [A’s mother] still has- I shouldn’t say ‘still’, sorry. She has issues of complexity with other parts of the plan, and we agree the MDT needs to explore this.”
Counsel ran briefly through issues of contact between A and her family (it seems this is going okay and can be gradually increased), and made clear that A’s mother is not currently pursuing A’s return home. She also characterised A’s mother as agreeing that continuing covert medication was in A’s best interests, but counsel for A’s mother corrected that later: “She is neutral on the issue of covert medication. She is not supportive”.
Counsel ended by highlighting the Local Authority position that “the work to be undertaken with A is very complex work… it cannot be rushed because A will not always engage with the plans or the professionals. Also the fact that the plan as currently proposed involves a change of focus – that there be a new narrative effectively. In the past the focus has been on achieving puberty. Now the plan is that the narrative to A would be focused on maintenance treatment. So the dynamic of this plan is very different from what’s gone before. It involves liaison with lots of different professionals. So our position is that 6 months is appropriate time for sufficient work to be undertaken and for evidence to be collated in the form of statements the court is going to need to properly review this.”
The Judge responded: “I understand the position that [A’s mother] didn’t involve herself in discussions at the MDT as had been hoped, but the order that I made previously…. The issues you are setting out are those that ought to have been addressed already, it seems to me…. My complaint is that this could have been addressed by now.”
Well, quite!
A’s mother
Counsel for A’s mother, Mike O’Brien KC, agreed that the key dispute between the parties was the length of time that should be allowed to see if the Local Authority could successfully get A to take her medication voluntarily. Six months is “much too long”. If it can’t be achieved within 3 months, then A’s mother wants to be fully involved and take the lead.
For A’s mother there’s a crucial distinction between the old medication (to bring about puberty) and the new medication (for maintenance of A’s long-term health now that puberty has been achieved). She thinks A will understand and appreciate that distinction, and will agree to the current medication on that basis.
But that proposal requires that someone tells A that she’s gone through puberty – and that (for A’s mother) is one of the key shortcomings of the current plan.
“There are no clear proposals to tell A that she is even an adult. This has never been discussed with her. It’s extraordinary that we’ve got to this stage where no one has engaged her in that conversation, and explained to her that the new medication has a different purpose. The conversations have always been about puberty. [The mother’s] view has always been that A will accept the explanation that the medication is for her bones and her health. What the medication plan also failed to address was what was going to be said to A about how she became an adult, or how questions would be responded to about whether there had been any covert medication. [A’s mother] has not suggested that A needs to be told about the covert medication – that may not arise, but there needs to be contingency planning to deal with it if it does, and there hasn’t been any.”
A’s mother is worried (given past conflicts with professionals) that she would be blamed for any leak of information to A about covert medication or her daughter’s pubertal development. This makes her especially worried that the Medication Plan sidesteps these issues.
The mother’s counsel also addressed the Local Authority’s characterisation of A’s mother as not having engaged in a consultation about the Medication Plan. She doesn’t use email. She wanted to speak to counsel (i.e. him) and he was in Egypt until last Wednesday. She doesn’t want to attend an MDT meeting “unless she’s got somebody with her. There have been difficulties with relationships in the past. [A’s mother] would feel uncomfortable going into a room full of professionals by herself”. (As someone who’s been characterised as a ‘difficult family member’, oh yes, I resonate with that!). Later, the judge said he recognised that MDT meetings were “potentially rather intimidating events for [A’s mother] to attend, particularly given the history of the case” and so he was “content to approve expenditure on a solicitor to accompany her, and for that to be covered by the [legal aid] certificate”.
Finally, it seems that A’s mother has filed an appeal application against HHJ Moir’s decision, made in a closed hearing, to covertly medicate A. Counsel referred to the Court of Protection Rules Part 13 (“Setting aside or varying default judgment”). There was some discussion about whether this would be heard by a Tier 3 judge (such as Poole J) or by the Court of Appeal, and whether it would actually make any different to A or to her mother. “We are where we are,” said the Judge, “but it may be of broader interest.” He also drew attention to the fact that the Court of Protection Rules Committee is considering closed hearings. In any case, that appeal application was not considered today.
Trust
Counsel for the Trust, Joseph O’Brien KC of St Johns Buildings Barristers’ Chambers said his submissions would be brief (it was nearly 1.30 and the judge had enquired about the need for a lunch break). He would confine himself to some observations about the Treatment Plan and then address the matter of whether the case should come back for review in 3 months or 6 months or somewhere in between.
But first he indicated his objection to the version of events concerning the mother as presented by her counsel: “I don’t want and am resistant to responding in detail to some of the submissions that Mr Mike O’Brien has made, by drawing down on past history. I don’t want to do that because I think it’s not absolutely necessary, but some of the narrative before the court is of course not accepted”. Then he moved on. For anyone interested in rhetoric at the Bar, the device of saying something by stating that you’re not going to be talking about it is a figure of speech known as ‘apophasis’ (e.g. to use a Shakespearean example, “I shall not mention Caesar’s avarice, nor his cunning, nor his morality”. (Donald Trump uses it a lot too. For information about apophasis, see Merriam-Webster on ‘apophasis’; and for a broader look at the language of legal advocacy see: “Advocacy in the William Verden hearing” and “Cross-examining a GP in a COVID-vaccination hearing“.)
Counsel referred in passing to the findings of HHJ Moir’s closed hearing (the one on 25th September 2020, at which she authorised covert medication) and this reminded the judge that there was in fact no transcript, and he said that he would direct that one should be prepared – later adding that he intended that it should be made publicly available via the National Archives. This is really important (in my view) because at present there is no public record of how the decision to covertly medicate A for such a long period of time, and to withhold that information from her mother, was made.
After a 30-minute lunch break, counsel returned with two points. (1) on the issue of A having gone through puberty, “there’s never been a determination by the court that imparting that information is in her best interests”, so – insofar as that matter has not been addressed in the Treatment Plan, there has been no “rowing back from an order”; and (2) on the issue of when the case should come back for review, he disputed the alignment (previously claimed by counsel for the Local Authority) between A’s mother and the Official Solicitor on the matter of a 3-month return date, pointing out that while counsel for A’s mother “demands a hearing three months almost precisely from today”, the Official Solicitor wants a full 3-month trial, and then an MDT meeting, after which parties would “pull everything together” and then return to court. Expert opinion, he said, is that the relevant plan and assessment of it “cannot and should not be done within 3 months”: “In my respectful submission, that is almost magnetic as to where you should go in respect of case management”.
Official Solicitor
Counsel for A via her litigation friend the Official Solicitor was Sam Karim KC of Gatehouse Chambers. He’s played a relatively low-key role in this case, at least in terms of his contributions in court. He made three observations.
(1) He supported the continuation of covert medication as necessary, proportionate and justified under these “exceptional” circumstances.
(2) He said 3 months was the right time scale for running the trial to see whether the Local Authority can persuade A voluntarily to take the medication – and that the case should return to court after a subsequent MDT.
(3) He raised the question about whether an independent expert psychologist or psychiatrist would be of benefit to ascertain whether there are other ways to engage with A. (I don’t think this went anywhere – which is a pity, in my view.)
Judgment
In summary, the Judge accepted that A continues to lack capacity to make her own decisions in the relevant domains (including medication, residence, care, contact).
The Judge authorised continuation of covert medication – pointing out that everyone but her mother considers this to be in her best interests, and that her mother does not oppose it. He said that A had taken an “intransigent position” on medication, and that her opposition is rooted in a lack of trust of professionals “borne from her relationship with her mother. It is illogical and doesn’t have a rational basis”. Covert medication is an exceptional course to take but it will bring A significant benefits with negligible (if any) risks.
Discovering, in an unplanned way, that she has been treated without her knowledge and after explicitly refusing treatment could, said the judge, be harmful to her, and the longer covert medication continues, the longer that risk continues.
The judge set out three options: (1) Continue covert medication for the forseeble future; (2) Make the transition to overt medication; and (3) Cessation of treatment. “There may be circumstances in which cessation might be in A’s best interests, especially compared with covert medication, but the second option is the preferred target: to end covert medication on the basis that she voluntarily accepts it.”
The Judge expressed ”some regret that more detailed planning in relation to … imparting of information to A about her pubertal development, and contingency planning in event of questions from A…. has not already been done”.
He will list the next hearing for a date in mid-March 2023 – probably as remote hearing, since he’ll be in Leeds hearing a long case then. The court will then “review the updated medication plan, its implementation, issues of contact and whether there’s a need for any directions in relation to the residence application”.
In the meantime:
“I am concerned about contingency planning in the event – that could happen at any time – that A raises questions about her own pubertal development. It seems to me this ought to be addressed as soon as possible. I urge those who are caring for and treating A to address their minds as soon as possible to what responses would be given were A to ask the sorts of questions we’re been discussing: “why have I changed?”; “why have I developed breasts; “have I been given treatment I didn’t know about”. I’d hoped that would be in place by now.” (Mr Justice Poole)
Concluding observations
This was an uncharacteristically lack-lustre hearing.
From my perspective as an observer, there was a rather sullen, sour, and fractious tone to the proceedings, which contrasts with the collaborative (‘inquisitorial’) commitment to P’s best interests which I usually see in the Court of Protection. The Judge – always courteous and rather more patient than I might have been in his position – had to do a lot of the ‘heavy lifting’ throughout this hearing.
The stultifying lack of progress is really worrying – not least because the Local Authority and the Trust have had years to prepare for this.
At any point in the last two years of treatment, A might have discovered the medication in her food, or been alerted to the medication by a carer. At any point her grandparents (who visited her in person) could have commented on her pubertal development and raised suspicions. Or she herself could have questioned her breast development, her hair growth or changing body shape. Was there really no contingency plan in place to deal with this? It’s extraordinary to me that the deception has lasted so long, and apparently so effectively (if it has). Or perhaps – as sometimes happens in other fraught and difficult situations (when a loved one is dying, for example) – A is simply colluding with the conspiracy of silence in which she’s enmeshed: at some level “knowing” and at another level avoiding knowing what’s been going on.
When the closed proceedings before HHJ Moir are finally made public, it should be possible to understand how the court had intended this should all be managed, and how it might end.
It’s hard to believe that there was no planning for the possibility that A might uncover the covert medication or that a shift to voluntary medication might not have been envisaged at some future point. And yet, from the difficulties the Local Authority and the Trust seem to be experiencing with the judicial direction to address these contingencies, it comes across as if this kind of advance planning for an ‘exit strategy’ from covert medication is a wholly new idea.
I look forward to seeing how things have developed for A by the next hearing – and hope for a more engaged and collaborative approach from the parties to addressing her best interests.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia
Note: We are not allowed to audio-record hearings. All material quoted from the hearing is as accurate as I can make it, based on contemporaneous touch-typed notes, but it is unlikely to be 100% verbatim.
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