By Celia Kitzinger, 22 November 2022
Preamble
There’s a sub-committee of the Court of Protection Rules Committee looking at the matter of closed hearings. ‘Closed hearings’ means hearings where one party (and their legal representatives) is excluded by order of the court and may not be told the hearing is even taking place – as happened to the mother in the ‘covert medication’ case we’ve blogged earlier (e.g. Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44). There are also ‘closed material’ hearings where some of the evidence before the court is withheld from one party (and/or their legal representatives).
The sub-committee is composed of four barristers who do a lot of work in the Court of Protection: Alex Ruck-Keene KC (Hon), Fiona Paterson, Joseph O’Brien KC and Michael Mylonas KC. Joseph O’Brien was also involved in Re A (the closed hearing case we blogged about earlier) as the legal representative for the Trust.
The subcommittee is preparing a report so as to enable the Vice-President to issue Practice Guidance about what must be taken into account when closed hearings are considered. I was invited to make a submission. What follows is that submission, as sent to the committee on 21st November 2022.
Submission on Closed Hearings by Celia Kitzinger
I am writing this submission in a personal capacity as a member of the public. I draw on my experience of observing 370 Court of Protection hearings as a public observer, and most particularly on my experience of the case of Re. A (Covert Medication and Closed Hearings) [2022] EWCOP 44 (henceforth Re A) – of necessity, because that is my most extensive (and concerning) experience of observing proceedings of which I know closed hearings to have been a part. Although I draw also on my experience as co-director of two groups (the ‘Open Justice Court of Protection Project’ and the ‘Coma and Disorders of Consciousness Research Centre’), the views expressed here are my own, except when otherwise attributed.
In the aftermath of Poole J’s decision to reveal the fact of the closed hearings in Re A, I have done some research on closed proceedings and ‘closed material’ hearings. I have read relevant case law[1] and also the guidance from 39 Essex Chambers relating to “Without notice hearings before the Court of Protection” (November 2017). I have raised concerns about the role of observers in relation to closed proceedings in four different regional Court of Protection User Group meetings and I’ve benefitted from the responses from lawyers and judges. I have also discussed closed hearings with around two dozen Court of Protection lawyers and with family members of people involved in Court of Protection proceedings. In trying to get to grips with the ethics of closed hearings – and specifically the ethics of what happened in Re A – I’ve also read some moral philosophy on truth-telling and deception.
Obviously, what I’ve written here may reflect errors in my understanding of law and practice in the Court of Protection. This is an opinion from an informed ‘outsider’ (not a lawyer) and should be read with that in mind. I apologise for anything that sounds naïve or insulting or just plain wrong. I’ve done my best to be a ‘critical friend’ to the Court.
The key points of my submission (explicated below) are as follows:
1. Reactions to Re A (both from lawyers and from the public) clearly demonstrate the need for guidance on closed hearings– and it needs to be outward-facing.
2. Guidance needs to explain the exceptional circumstances under which judges can discard the ordinary rules of judicial enquiry – with concrete examples drawn from case law, and illustrating ‘good’ and ‘bad’ practice in decision-making about closed hearings.
3. There should be reporting and monitoring of closed proceedings and closed material hearings.
4. Closed hearings should be listed as such and open, in principle, to observers.
5. The Guidance should say that judgments from closed hearings should normally be published on publicly available sites (e.g., National Archives).
6. Guidance needs to deal with how to manage open hearings running in parallel with closed hearings – ideally by stating that this shouldn’t happen (certainly not over periods of months or years).
7. The Guidance should address (and encourage lawyers and judges to address) moral complexity – in particular, the moral costs associated with making the right decision.
8. The Guidance should state that observers must not be admitted to ‘fake’ hearings (if they continue to happen) without proper briefing.
9. The Guidance should emphasise the need to inform the excluded party about closed proceedings as soon as possible (not least, to enable an appeal).
10. Some remaining issues….
1. Reactions to Re A (both from lawyers and from the public) clearly demonstrate the need for guidance on closed hearings– and it needs to be outward-facing
Before my involvement in Re. A, I did not really understand – and nor, it seems did some COP lawyers – that there were ‘closed’ proceedings (as distinct from merely ‘private’ ones) in the Court of Protection. It had not occurred to me that parties might be deliberately excluded from hearings by court order, or that it could ever be fair and just to do this. The events of Re A therefore came as a shock – and as a learning experience. In retrospect, it seems as though I should have known about closed hearings, since there is case law publicly available – but I had not stumbled upon it, nor had I fully appreciated the import of some judicial comments to which I’d been exposed which (now) I recognise as referring to closed hearings. The different terminologies used (‘without notice’, ex parte, closed material proceedings, etc) has acted as a barrier for me in making sense of it all. Since some lawyers, as well as members of the public, tell me they were unaware of closed hearings (in the sense intended by this subcommittee), it would be helpful for Guidance to flag up that closed proceedings (as defined in the subcommittee’s terms of reference) are a part, albeit an exceptional part, of Court of Protection practice.
The polarised reactions from lawyers to the events revealed in Poole J’s judgment in Re A also clearly demonstrate the need for Guidance. Some lawyers – those not previously aware of closed hearings – saw the closed hearings as unethical, insupportable and even unlawful. One COP lawyer described the events in Re A as “breath-taking“: “Managing a case in this way,” he wrote, “requires either total ignorance or total disregard for our most basic constitutional principles”. Another lawyer wrote: “Serious questions raised about open justice, of course. But this is surely an Article 6 violation. The party excluded from the closed proceedings litigated from *a place of ignorance engineered by the court*”.
Other lawyers appeared to minimise what had happened. Some compared the exclusion of A’s mother from the closed hearings to s.49 orders or to disclosure orders against GPs (the relevant comparison being that those organisations/people are also often not in court when orders are made against them). Some pointed to the ‘successful outcome’ of the proceedings as offering total justification for everything that was done along the way.
Others spoke of “discomfort” and feeling “uneasy” or “queasy” about events in Re A without being able fully to articulate why – in one case, despite the experience of having been involved in what the lawyer described as a “wholly justified”decision to hold a closed hearing enabling P to be transferred from an abusive partner to a place of safety.
Formal Guidance would provide lawyers (and judges) with a scaffolding of facts, law and relevant considerations to take into account when engaging with closed hearings in future. It would enable them to: identify the conditions under which closed hearings are lawful and necessary; prevent too easy an acceptance of the need for closed hearings; and encourage reflection on the challenges presented by closed hearings and how to manage them.
There is also a clear need for the Guidance to address the concerns of members of the public (including people involved in COP proceedings).
There are two broad aspects to public concern with closed hearings: (1) the procedural irregularity involved in excluding a party (often a family member) from the proceedings; and (2) the substantive outcome of the hearing in terms of declarations and orders made, which can be perceived as unfair or even as human rights violations.
These two concerns are inter-related because there can be a perception that an outcome perceived as unjust has come about as a consequence of closed proceedings, i.e. that if there had been a ‘fair’ hearing at which the excluded party had been able to participate (tell their ‘side of the story’, cross-examine witnesses etc) the judge would have made a different decision.
In addition, the Re A case in particular has raised (or underscored) public concerns about practices seen as involving ‘deception’ – both by lawyers and by the judiciary. This arises in particular from the fact that, in April 2022, there was an open hearing before HHJ Moir (with a public observer) at which A’s mother was left in ignorance of highly salient decisions made in an earlier closed hearing – decisions which impacted upon her application in the open hearing.
The mother applied for her daughter to return home in part on the grounds that professionals had failed to get A to agree to hormone medication and that she (the mother) would be more likely to be able to do so in the home environment[2]. This was also the gist of her application in the hearing before Poole J. Both applications were based on false premises. Having been told that her daughter was still refusing hormone treatment, she assumed (as I believe she was meant to assume, and as her legal team and the public observer also assumed) that her daughter was not receiving hormone treatment. Her position statement claims for example that “at 23 years old, [A] has not attained puberty” (§4) and that “[A] is not taking her endocrine medication, her future remains at risk…” (§12) (Position statement for A’s mother dated 16 September 2022).
At the April 2022 hearing, all other parties, and the judge, knew that the mother’s assumptions that her daughter had not received hormone medication and had not gone through puberty were not true. They did not correct her.
The mother and her legal team were not told that A had been covertly medicated, or that she had gone through puberty, until the first day of the open hearing in September 2022.
As a result of learning the true facts at the beginning of the September 2022 hearing, counsel for the mother described the mother’s position statement as “otiose” (i.e., as serving no practical purpose, lacking effect, pointless, useless, futile) and the mother reluctantly withdrew her application for her daughter to return home.
Up until that point, information had been kept from her such that she participated in an open hearing not knowing about the closed hearings from which she’d been excluded and not knowing material facts about the case.
Learning about this episode is very disturbing for family members currently involved in Court of Protection cases. It raises the question “could something like this be happening to us?”.
It would be helpful for the Guidance to consider ways in which the taint of deception could be removed, as far as possible, from cases involving closed hearings and to recognise and seek to minimise the moral injury they can cause. By ‘moral injury’ I mean the experience of “perpetrating, failing to prevent, or bearing witness to acts that transgress deeply held moral beliefs and expectations” and “may be deleterious in the long-term, emotionally, psychologically, behaviorally, spiritually, and socially”[3].
I hope those who produce the Guidance will – in selecting its language and content – take account of the fact that members of the public are likely to read it. While not addressed to us, it should be written in the knowledge that we are part of its audience, and that our understanding of what it says is likely to influence our confidence in the Court going forward.
2. Guidance needs to explain the exceptional circumstances under which judges can discard the ordinary rules of judicial enquiry – with concrete examples drawn from case law, and illustrating ‘good’ and ‘bad’ practice in decision-making about closed hearings
The Guidance should reiterate that the fundamental principles of judicial inquiry ordinarily demand that all parties are able to participate in proceedings, and that justice should be done openly at a fair hearing, on the basis of evidence made known to all parties.
This will reassure the public.
It will also serve as a useful alert to some lawyers. I’ve been alarmed by the apparent readiness of some of those with whom I’ve discussed Re A to advocate for departure from the ordinary principles of judicial inquiry in order to achieve the ‘right’ outcome without (in my view) sufficient consideration of alternative courses of action or of the moral costs associated with closed hearings.
The Guidance needs to reference the Court of Protection rules that permit the court to exclude parties from hearings, and to withhold evidence from parties – highlighting that this can only be done where it serves the overriding objective of promoting P’s best interests in circumstances where “justice would be defeated if notice were given” (§5 COP PD 10B).
The Guidance should explain the sorts of circumstances under which closed hearings are permitted (or required), making clear the burden of justification lies with those who claim that these ordinary principles of judicial enquiry do not, in the particular circumstances of the case, serve the ends of justice and should be discarded (paraphrased from Lord Devlin in Official Solicitor v K [1965] AC 201 (p. 238)).
Concrete case studies should be included in the Guidance. It would be helpful to include cases where closed hearings were considered and rejected, as well as those where closed hearings went ahead. It should also include those where closed hearings resulted in bad decisions (e.g. the case of Aamir Mazhar[4]) as well as those where closed hearings were clearly the right thing to do and led to positive outcomes.
3. There should be reporting and monitoring of closed proceedings and closed material hearings
The Vice President has said that closed hearings are “extraordinarily rare”[5], but nobody seems able to provide information about exactly how many there are, or the circumstances leading to them.
Here’s my attempt to come up with some rough idea of how rare, or frequent, closed hearings might be. In the course of observing 370 hearings, across approximately 300 different cases in the Court of Protection, and requesting without success access to around 700 more, I’ve become personally aware of four closed hearing cases. In two of these cases, I observed a hearing at which the judge said explicitly that the case had also involved an earlier closed hearing: one was the open hearing in Re A, the other was an open hearing that followed a closed hearing in Hull City Council v A & Ors[2021] EWCOP 60. I sought access to, but was not admitted to the other two hearings. One was the hearing before Hayden J that was subsequently appealed (In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512): in that case I was admitted to the video-platform only for the 5-10 mins it took for counsel to make their arguments (accepted by the judge) that the hearing should be held in private, and then I was asked to leave. The fourth closed hearing is one I only became aware of much later. I was refused permission to observe a hearing (randomly selected from the listings) before HHJ Haynes on 16 June 2020 in Leeds County Court: I subsequently identified it as the hearing that became the subject of an appeal about closed materials in KK v Leeds City Council [2020] EWCOP 64.[6] So my own experience gives me a ballpark figure of maybe 4/1000 or 0.4%. This is likely to be an under-estimate[7]. In any case, 0.4% is rare, but not (in my view) “extraordinarily” so, especially given the large number of cases heard in the Court of Protection.
It would be helpful (and reassuring for family members of P) for the Guidance to ask that closed hearings, and closed material hearings, should be formally logged as such with some responsible administrative body within the Court of Protection so that their frequency can be known and reported annually (e.g., in the form of “there were X hearings in the COP during 2023 concerning Y cases, of which Z were closed proceedings or closed material hearings….. etcetera”, plus some summary detail about the features of the case that resulted in the closed hearings, and their outcome).
4. Closed hearings should be listed as such and open, in principle, to observers
It seems that some closed hearings are not in fact listed. In his judgment in Re A, Poole J reports his decision not to list the first closed hearing before him, and he acknowledges that:
“In retrospect it might have been possible to list the case without a case number or with a new case number created for the specific hearing, without any identifying names or initials to enable the listing to be linked to any previous open proceedings, and to make a reporting restrictions order at the hearing to prevent any communication or publication about the hearing (at least not until further order)” (§9 Re A).
I support Poole J’s suggestion. I recommend creating a new case number for a (first) closed hearing in a case which avoids linking the listing to previous open proceedings, and using the same closed case number for all closed hearings in the same case (thereby enabling identification of subsequent closed hearings in the same case). I recommend clearly identifying the hearing as a ‘closed’ hearing in the listing (e.g. by stating “Closed Hearing” in the listing), thereby supporting the reporting and monitoring exercise advised above, and enabling journalists and the public to identify closed hearings as such.
Closed hearings should not normally be held in private. There would be huge benefits in permitting observation of closed hearings by journalists and members of the public, subject to appropriate reporting restrictions and publication embargos. One reason for having observers in court is to ensure that justice is seen to be done, to “keep the judge, while judging, under trial” and to “guard against improbity”. This is arguably more important in closed hearings than in ordinary hearings attended by all parties.
Obviously, the benefits of transparency would need to be considered on a case-by-case basis and balanced against the risks attached to having observers in court. I am simply suggesting that there should be no ‘in principle’ exclusion of observers from closed hearings. And for those undertaking this balancing exercise, I draw attention to the fact that breaches of transparency orders, reporting restrictions and publication embargos have been very rare over the course of the last two and a half years, despite the huge increase in the numbers of observers in the Court of Protection, and that compliance with reporting restrictions has been maintained by both journalists and members of the public over long periods in other cases (e.g. more than 2 years in Hinduja [2022] EWCA Civ 1492)
5. The Guidance should say that judgments from closed hearings should normally be published on publicly available sites (e.g. National Archives)
It is very important, in my view, that when judges discard the ordinary principles of judicial enquiry, that they publish judgments explaining why they have done so, and give a full account of the substantive issues in the case, the decisions they made, and reasoning behind those decisions.
This should be the norm for all closed hearings – but of course it is especially important when closed hearings are conducted in private. As Poole J said in relation to the closed hearing in the Hull City Council case:
“Without notice orders of the kind I have made in this application are exceptional and I consider 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 Hull City Council v A & Ors[2021] EWCOP 60, Poole J)
The fact that some judgments from closed hearings are published means they can be evaluated to assess the extent to which it was necessary conduct closed proceeding (to protect P from harm and ensure P’s best interests). Those I’ve read do support the need for closed proceedings: they’ve been concerned, for example, with physical, psychological or sexual abuse from the excluded party, or the risk of P’s removal to a foreign country in a forced marriage case. In addressing these concerns, judges act in accordance with Articles 16 and 19 of the Convention on the Rights of Persons with Disabilities – the duty upon States to protect those with disabilities from exploitation, violence and abuse, and to secure their right to independent living, respectively.
These bases for “discarding” ordinary principles of judicial enquiry have been set out clearly in two judgments in particular:
(i) In Hull City Council v A & Ors [2021] EWCOP 60 (before Poole J), the protected party (A’s) son (her main carer) was excluded from a hearing at which an order was made to remove his mother from his home and transfer her to residential care. Her son has a long history of criminal activity including multiple convictions for supplying drugs and for assault. He had obstructed all attempts by social workers and others to check on his mother’s safety, health and welfare by refusing access to the home. He was preventing any meaningful contact with A inside or outside her home by the other parties to the case. The judge ruled: “I am satisfied following the hearing on 2 November 2021 that if he were to have notice there would be a substantial risk that he would use the time afforded to him to obstruct A’s planned removal and conveyance. He would be likely to take steps to frustrate the purpose of the order. Those steps could put A at risk of harm. I am satisfied that the exceptional course of proceeding without notice to him is required in this case.”
(ii) In KK v Leeds City Council [2020] EWCOP 64 (an appeal heard by Cobb J against a decision by HHJ Hayes QC), the protected party (DK)’s maternal aunt (KK, formerly her main carer and the person she calls “Mum”) applied to be joined to proceedings and was refused party status by the judge at first instance, and then at appeal. As a teenager, DK had been a victim of child sexual exploitation and made allegations against KK’s husband and son of sexual abuse; these were investigated by the police over a period of 18 months (during which time KK and DK had no contact) before the police decided to take no further action. She has ongoing exposure to sexual exploitation and trafficking. The local authority alleged that KK’s relationship with DK exhibits elements of control and said that “KK having party status would perpetuate and facilitate this control”. Some of the evidence for this was in ‘closed materials’ which neither KK nor her legal team were allowed to see. Revealing these materials or joining KK to the proceedings would prevent her from “expressing her true wishes and feelings”, “undermine the process of ensuring her effective participation in these proceedings” and “interfere with DK’s right to respect for her private life”.
These judgments provide evidence of the need for closed hearings and address the basis on which decisions to conduct them were made. This is essential for public confidence in the law. They also set out the decisions made and the reasoning behind them.
There is no published judgment in Re A concerning the decisions made by HHJ Moir, at a closed and private hearing on 25 September 2020, to hold closed hearings and to initiate covert medication without the mother’s knowledge.
I asked for the judgment from this hearing, or a transcript of it, to be published when I attended the hearing before Poole J as an observer on 21st-22nd September 2022. Although Poole J arranged for publication of another of HHJ Moir’s judgments in this case (from an earlier hearing at which she had declared hormone treatment to be in A’s best interests), his judgment made no reference to the crucial ‘closed’ hearing at which the decision was made that this medication should be given covertly and concealed from A’s mother. I emailed Poole J (via his clerk) on 12th November 2022 reiterating my request:
“Given the draconian nature of this decision, made without the mother’s knowledge, and given the human rights implications that flow from it, it seems only right and proper that it should now be published so that the public (whose confidence in the COP’s judicial process may have been shaken by this episode) can understand the basis on which this decision was made…. If there are difficulties with publishing it as a formal judgment now that the judge involved has retired, can a transcript of the recording of the hearing be made public please?”.
In his judgment at a subsequent hearing (on 14th November 2022) the judge authorised a transcript of this hearing and said that it should be made publicly available on the National Archives. This all took considerable persistence on my part and I’m not at all sure that concrete plans would ever have been made to publish this judgment without my involvement.
My involvement in getting this transcript on the road to publication (it’s not there yet, and I will pursue it) shouldn’t have been necessary. The Guidance should say that all judgments from closed hearings (or in cases like this one, the transcript of the closed hearing) should normally be published – with redactions if necessary – unless there is some compelling reason why they cannot be.
Leaving aside, for a moment, concerns about the procedural issues associated with closed hearings, there is also the issue of the substantive decisions made by the court: to deprive P of her liberty contrary to the wishes of both P and her mother; to use covert medication over (so far) a two-year period; to impose draconian restrictions on contact between mother and daughter. Whether or not closed proceedings had been involved, this is the sort of case that raises fundamental issues of human rights, and I would want to see it published.
In discussion with lawyers and others, there has been a tendency to conflate the question of whether or not it was right to conduct closed proceedings with the question of whether or not it was right to authorise covert medication etc. These matters are clearly connected, but also distinct.
Since the transcript of HHJ Moir’s hearing of 25th September 2020 is not yet available, I am not currently in a position to consider what can be learnt about closed hearings from the way in which HHJ Moir conducted the proceedings. Without access to the facts at the time, and the reasoning of the judge, I cannot assess whether or not (in my view) the decisions she made were appropriate, proportionate and justified in the circumstances of the case. Or alternatively whether there might have been alternative (less coercive) means of pursuing the best interests of the protected party. I have been somewhat surprised at how rapidly others (also without benefit of the 25th September 2020 transcript) have felt able to make a judgment one way or the other.
I hope that the Guidance that eventually materialises as a result of the work of the subcommittee will consider lessons that can be learnt from the hearing of 25th September 2020, once the transcript is available.
6. Guidance needs to deal with how to manage open hearings running in parallel with closed hearings – ideally by stating that this shouldn’t happen (certainly not over periods of months or years)
Poole J states the facts of what happened in Re A in his judgment (§86): “Open proceedings have been held in parallel with closed proceedings but information and material which was highly relevant in open proceedings was withheld from a party, B, and her legal representatives, who did not know that any information or material had been withheld”.
These ‘open’ proceedings have been widely understood by members of the public to have been ‘fake’ hearings, whose only purpose was to disguise from the mother what was going on. This has led to concerns about deception in the Court of Protection. My exposure to a ‘fake’ hearing (attended by Claire Martin as a public observer) has led me reluctantly to conclude that members of the Bar and the judiciary have a more flexible approach to truth-telling than I had previously believed.
From my reading of case law, it seems that running open hearings in parallel with closed hearings as was done in Re A is rare (perhaps unique to this case) – especially over such a long time-span (two years). But I don’t know this for sure, since I don’t know whether other cases have simply not been published.
In my view, the Guidance should explicitly advise against running open and closed hearings in parallel. This is because when closed hearings concern matters of central significance to the open hearings, and their existence and/or subject matter are not revealed in the course of the open hearings, this is very likely to result in a perception of ‘bad faith’ from the court – both from those excluded from the closed hearings, and from public observers.
One deeply regrettable outcome of Re A has been the opening up of a gulf between the legal view (or a legal view) and the public view of what happened in the open hearing (before HHJ Moir) in April 2022, attended by an observer from the Open Justice Court of Protection Project, Consultant Clinical Psychologist, Claire Martin.
From the legal perspective (at least as articulated in court in the September 2022 hearing) nothing took place that should lead us in any way to doubt the court’s commitment to truthfulness. In the course of Poole J’s hearing, my own dismay that public observers were (in my words) “misled” by the court was either denied outright (“nobody was misled”, counsel for the Trust) or reformulated to avoid any implication of deception: we were simply “under a misapprehension”, said the judge, claiming that the verb “to mislead” implies saying things that are untrue, as opposed to omitting to speak of things that are true. I found this disingenuous. Most dictionaries include in their definitions of “mislead” omissions designed to create a false impression.
There is – as my subsequent research has revealed – a debate in moral philosophy as to whether creating and maintaining a false impression (without explicitly speaking untruths) constitutes “lying” or not, and about the circumstances under which this behaviour might be justified, and the morality of equivocation. On the basis of that literature, I am confident in asserting that it is a defensible proposition to say that the court “misled” A’s mother, her legal team, and the public observer in the open hearing – and that this was less than honest, less than truthful. This is also the view of many members of the public who’ve used terms like “charade”, “sham hearing”, “fake hearing”, “mock hearing”, “show trial” and “smoke and mirrors” in relation to the open hearings the mother was involved in, conducted under the shadow of the closed proceedings from which she was excluded. The member of the public who attended the April 2022 hearing expresses it this way:
“One key concern I have is the parallel mock hearings. I don’t see how this can ever be defended. It’s duplicitous as well as wasteful. It sets up a situation where you have to lie more and more to cover the original tracks. If closed hearings are allowed, I think the system has to work out a way of handling additional applications from parties who have been excluded – in this case it seems they decided that they had to go ahead otherwise their cover was blown. This just does not seem befitting of a serious judicial system to me! I think my view would be that if an excluded party makes a subsequent application, then they have to be treated fairly and if the hidden information is material to the hearing for that application, they must then be informed about and included in closed hearings.” (Claire Martin, public observer at the April 2022 hearing in Re A)
Deception may sometimes be a necessary moral cost of acting in the best interests of the protected party (see below), but this doesn’t change its status as deception.
It’s not simply my perception that the court has misled us, but also its denial that it has done so, that constitutes the moral chasm I now experience between my position and that of the court. It may be that there is an unbridgeable difference between us in relation to the ethics of truth-telling, but that difference could at least be acknowledged and some attempt made to deal with its consequences.
7. The Guidance should address (and encourage lawyers and judges to address) moral complexity – in particular, the moral costs associated with making the right decision
Many people in England and Wales share the court’s commitment to justice being done and being seen to be done: to fair and open hearings, with all parties on an equal footing and decisions based on evidence made known to all parties. This seems to accord with a widespread view of ‘natural justice’. When courts depart from these fundamental principles of judicial enquiry, people can feel angry and dismayed at what they experience as potential injustice and abuse of power. This is a good thing. It would be far more troubling if nobody cared when the court discards fundamental principles of judicial enquiry.
When courts discard the fundamental principles of judicial enquiry they do so because they believe that, in the individual facts of a case, those principles impede justice. This is a weighty and challenging decision to make: there is a cost either to the procedures understood to constitute justice, or to a just outcome. This places the court in a moral dilemma such that whatever course of action the judge decides upon has moral costs. The fact that a decision may be the right one (or the ‘least bad’ under the circumstances) does not obviate the harm that may also be caused. It is in the nature of moral dilemmas that there are moral costs to making good decisions, and those who bear the burden of those costs can justly claim that they have been wronged.
In the case of closed hearings (even when this is the right thing to do), there is harm done to the excluded party. Judges have recognised this, for example by highlighting the importance of considering – before granting a ‘without notice’ hearing – the impact it has on “… the rights, life, and emotions of the person against whom it is granted” (§41 B Borough Council v S & Anor | [2006] EWHC 2584 (Fam). I can only imagine the sense of moral outrage, violation, and fury that being excluded from a closed hearing about a loved one would engender in me.
When a party’s legal team is excluded from closed hearings and not informed about their existence (as in Re A), they too can feel wronged. They may feel victims of some version of ‘justice’ quite unlike the ideal they signed up to when they chose to become lawyers. It can be corrosive of their professional identity and sense of their own professional efficacy. One lawyer who’d been refused permission to view ‘closed materials’ told me how frustrated he felt about this, saying he still couldn’t understand (some years later) why this refusal had been necessary. A couple of other lawyers with whom I discussed the Re A case told me that they would not expect ever to be placed in the position of counsel for A’s mother because their reputation means ‘nobody would dare’ to (as one put it) ‘pull the wool over my eyes – and anyway I’m sure I’d see through it’. What does this perspective mean for those lawyers who have been excluded from hearings or from closed materials, and (if this has been kept secret from them) who have not divined what has been going on? The implication seems to be (and these lawyers may feel) that they have failed in their duty to their clients, that they lack professional acumen or expertise, that they forfeit the respect of colleagues – not just those who excluded them from a closed hearing, but those in the wider community of the Bar. In Re A I saw in the reaction of counsel for A’s mother (in court in September 2022) some indication of the moral injury he felt had been done to him as a professional[8].
I think there is also a moral cost to the lawyers included in closed hearings and to the judges who hear them – especially when (as in Re A) there is secrecy about those proceedings. They may well believe that they are doing the right thing, and that their course of action is the only way P’s best interests can be secured, but it’s possible at the same time to feel regret that secrecy and deception are the price to be paid for doing the right thing in these circumstances. Avoidance of truth-telling can harm the person doing it even when they are acting for benevolent reasons (e.g. studies of moral stress experienced by caregivers who validate a dementia patient’s reality at the cost of truth, e.g. that her spouse is dead and won’t be coming home for tea[9]). Empirical research finds a range of morally self-reassuring strategies people use to disregard or minimise the moral costs of engaging in the right action – including, in the case of dementia carers, adopting a consequentialist position (‘the end justifies the means’) – a moral-cost-evasive approach that can function to avoid moral ambiguity – and characterising their actions relatively benignly as “white lies” or “colouring the truth”, “manoeuvring around the truth”, “not out-and-out lying”. Practitioners have produced guidance for lying to dementia patients[10]. Lawyers and judges are heavily invested, of course, in a professional identity involving honesty and rigorous regard for the truth: I suspect that explicit acknowledgement that they are less than honest on occasion is challenging.
Some theorists have drawn on philosopher Bernard Williams’ analysis[11] of what he calls the ‘moral remainder’ in considering judicial approaches to complex moral decisions. It’s based on the observation that even right decisions can cause harm (albeit less harm than the wrong decision). To take the famous ‘trolley problem’[12] example, if I divert a runaway tram or trolley that is on course to collide with and kill five people down the track, so that instead it kills just one person on a different track, this may well be the right decision (I’ve saved four lives), but one person who would otherwise have been alive is now dead because of my decision. Bernard Williams uses the phrase ‘agent regret’ to describe the emotion that gives expression to the fact that one has committed a wrong despite the fact that one’s actions were overall not mistaken. “Shame, regret, guilt, remorse for those wrongs can be felt by people who did the right thing – and can be appropriate responses to the moral harm caused in pursuit of the right thing”[13].
The Guidance should support moral literacy by addressing the fact that in complex moral dilemmas it may be necessary to recognise that acting for the best does not always yield a morally clean result. It’s appropriate, then, to discuss how to manage the moral harms that result from good decisions.
8. The Guidance should state that observers must not be admitted to ‘fake’ hearings (if they continue to happen) without proper briefing.
My strong view is that hearings like the April 2022 hearing (widely described as a ‘fake’ or ‘mock’ hearing) should not be part of Court of Protection practice. As one case manager (also a COP observer) said, this kind of “masquerade” is “degrading to those involved”. If, in future, these kinds of hearings are avoided, then there is no risk of public observers finding ourselves in the invidious position we experienced in Re A.
If they are to be accepted as part of Court of Protection practice, then admission for public observers should be contingent on full disclosure of the facts from the court, along with the issuing of a Reporting Restrictions Order and/or publication embargo.
I struggle to find any justification for admitting an observer, without any briefing, to the April 2022 hearing before HHJ Moir. 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. It made a mockery of transparency to admit her.
This is how the observer concerned expresses her view:
“Allowing a public hearing to proceed under these circumstances and admitting me as a public observer makes chumps of me, the mother and her legal team (and the public reading the reports) really – and apart from the serious consequence of loss of trust in the system, I’d also say that the cost and utter waste of time for everyone involved is indefensible.” (Claire Martin, observer April 2022 hearing)
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” (COP lawyer). If the observer was in fact admitted for that reason, she was being used (as Daniel Cloake suggests in his blog post covering the first day of the hearing before Poole J), as “some kind of prop to add an air of legitimacy to an otherwise compromised application”.
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 to us as observers, to journalists, to members of the public more broadly, and to the Court of Protection itself.
It’s caused harm to those of us actively running the Open Justice Court of Protection Project, leading us 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 deception without our knowledge or consent.
Moreover, 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. In our blog post 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 – 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)
From the perspective of transparency, admitting us to a hearing at which salient facts are concealed from one of the parties and from us, such that we will inevitably form a false impression of the case, is far worse than not admitting us to the hearing at all. It’s a form of ‘double-crossing’. The presence of the observer in court – the very thing that is supposed to guarantee transparency – becomes instead a source of misinformation and false news. It runs directly counter to the purpose of having observers in court in the first place.
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”[14]. 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.
When members of the public come to believe that people in positions of power are not dealing honestly with us, we become disaffected not only with those individuals (judges and lawyers) but also alienated from the institution they represent. The way this hearing was managed was an own-goal for the Court of Protection.
The Court of Protection needs to take steps to ensure that nothing like this ever happens again.
9. The Guidance should emphasise the need to inform the excluded party about closed proceedings as soon as possible (not least, to enable an appeal)
The Guidance needs explicitly to address the importance of determining, before or during the course of a closed hearing, when and how someone (who?) is going to inform the excluded party that the closed hearing has taken place and its outcome.
In Re A, the excluded party and her legal team had not been informed two years later, and it took the intervention of a new (Tier 3) judge to ensure that she was so informed – apparently (as I understand it) without this having been a position put forward by any of the other parties.
Re A is an unusual case on its facts. In much of the case law, the excluded party seems to have been informed very quickly (within hours or days of the hearing) – not least because the most common reason for closed proceedings seems to be the removal of P from the excluded party’s home, meaning that they discover the existence of the court order quite promptly in any case.
Earlier guidance (from 39 Essex Chambers) specifies that: “Those who obtain ex parte relief are under an obligation to bring to the attention of the respondent at the earliest practicable opportunity the materials on the basis of which the ex parte injunction was granted… The obligation involves giving proper information about what happened at the hearing. Representatives should respond forthwith to any reasonable request for information about what took place.”
It’s not clear to me what “the earliest practicable opportunity” might have been for informing the excluded party in Re A. It would be helpful for that to be considered and addressed in order that any future cases with similar features can benefit from lessons learnt.
One consequence of not informing an excluded party about decisions made in closed proceedings is that they are not able to appeal the judgment in a timely manner. This seems fundamentally unjust. It distinguishes this case from other cases (e.g. In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512) which is an appeal consequent upon a first instance judge having informed a party of her exclusion from a hearing, thereby enabling an appeal against it).
10. Additional issues to consider
10.1 A Tier 3 judge? Would it have helped if Re A had been referred to a Tier 3 judge sooner? Should the guidelines indicate the level of complexity at which such referral is required? (In this case the fact that it concerns what used to be labelled ‘serious medical treatment’ seems on its own, to merit a Tier 3 judge.)
10.2. Would it help to have some kind of ‘Special Advocate’ (s.9 Justice and Security Act 2013) to represent the interests of the excluded party? I recognise that existing guidance from 39 Essex Chambers suggests that the judge should be provided with “a brief account of what the applicant thinks the respondent’s case is, or is likely to be” (X Council v B (EPO) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, [53], Charles J). Based on my experience of Re A, however, I have little confidence that this would work, or that the excluded party would feel that her interests were protected by this. This opinion is based on the way in which the excluded party was addressed in court in an earlier hearing (“You are making up all of this in order to support a return home…. This is a ploy by you… You’re making this up aren’t you… You are fabricating a story…This shows a level of deviousness that you cannot be trusted in terms of contact…” Hearing of 26 May 2020, Re A).
10.3 What should people do if they think they may have been excluded from closed hearings but nobody has so informed them? I did not receive any communications from family members of Ps who were able to report having been excluded from proceedings or denied access to closed materials. Some speculated that there might have been hearings of which they were unaware and pointed out that I was asking an impossible question when seeking information about hearings from which they’d been excluded and the existence of which had been kept secret from them. They asked what they should do to find out if secret hearings had occurred. (I suggested asking the judge a direct question: “were there hearings I was excluded from?” – I don’t know if that was a good suggestion or not?)
10.4 Excluding P: The terms of reference for this subcommittee specifically exclude consideration of “hearings which take place without the knowledge of P, but with the knowledge of P’s litigation friend”. Although I circulated the terms of reference with my call for feedback, the single most frequent response from family members concerned exactly this scenario. Family members were concerned when P wasn’t told about hearings: “She is totally unaware of hearings and what is being said about her” (Mother of P). “She’s supposedly the applicant in this case, but nobody has even told her the hearings are taking place” (Daughter of P). It was reported that P’s legal representation was inadequate or misleading. “The lawyer supposedly representing her hasn’t even met her, and has no idea what her views are” (Daughter of P); “Her Barrister has no thoughts other than backing the Local Authority, even regarding serious impositions such as deprivation of liberty” (Mother of P). “She is saying repeatedly that she doesn’t want this, but her own lawyer argued in court that she should have it. Surely this can’t be right? She must be entitled to a lawyer who will argue her corner?” (Sister of P). One family member told me that P was unhappy with her representation and had asked for a change of solicitor, which had been refused. In addition to these family reports, I have personally observed several hearings (usually ‘urgent’ ones convened at short notice) at which the Official Solicitor stated explicitly in court that they had not been able to contact P before the hearing and had no direct information as to P’s wishes or feelings. The role of the litigation friend in this situation seemed largely symbolic. Nonetheless, major decisions (including serious medical treatment) were made at some of these hearings. I raise these concerns here since it seems probable that members of the public may expect this matter to be covered in the Guidance (albeit that I recognise that it raises very different concerns).
Celia Kitzinger
[1] Some of the case law comes from cases concerning children, but Sir James Munby P in RC v CC [2013] EWHC (COP) 1424 (‘C v C‘) confirmed that the well-established (albeit exceptional) jurisdiction to refuse disclosure of materials to the parties in children cases is of equal application in the Court of Protection (at §20). Additionally, some of the Family cases concern adults without capacity predating implementation of the Mental Capacity Act 2005 (e.g. B Borough Council v S & Anor | [2006] EWHC 2584 (Fam). In the Family Division: In re S (A Child) (Family Division: Without Notice Orders) [2001] 1 WLR 211, Munby J; W v H (Family Division: Without Notice Orders) [2001] 1 All ER 300, Munby J. In the Court of Protection: Hull City Council v A & Ors [2021] EWCOP 60, KK v Leeds City Council [2020] EWCOP 64. In the Court of Appeal (concerning a COP case): In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512
[2] That hearing was ‘ineffective’ (i.e. did not actually go ahead as planned, although it took up more than two hours of court time), ostensibly because the Local Authority had failed to visit the mother’s house to assess the viability of a return home. (See Claire Martin’s account of this hearing: Medical treatment, undue influence and delayed puberty: A baffling case.)
[3] Litz BT, Stein N, Delaney E, Lebowitz L, Nash WP, Silva C, Maguen S. Moral injury and moral repair in war veterans: a preliminary model and intervention strategy. Clin Psychol Rev. 2009 Dec;29(8):695-706. doi: 10.1016/j.cpr.2009.07.003. Epub 2009 Jul 29. PMID: 19683376.
[4] This concerned a ‘without notice’ application to deprive a vulnerable adult of his liberty under the inherent jurisdiction rather than the Court of Protection. The judge (Mostyn J) did not make any enquiries as to whether the appellant or his solicitor could be contacted in order to make representation. The appeal was allowed and Lord Justice Baker (with whom the other two judges agreed) ruled that “In my judgment, the Trust’s application for, and the granting of, the order for which there was no proper evidence and without giving Mr Mazhar the opportunity to be heard amounts to a clear breach of his article 6 rights and was a flagrant denial of justice.” Mazhar v. Birmingham Community Healthcare NHS Foundation Trust & Ors. [2020] EWCA Civ 1377.
[5] Hayden J, quoted in Joshua Rozenberg’s blog post, “Open Justice at the Court of Protection”, 25th October 2022.
[6] My request to observe that hearing was not motivated by my knowledge of the issues before the court – I’d simply selected a random hearing at a convenient time, and received a reply telling me “The Judge has now been is touch and has stated that you will not be able to join the hearing due to highly sensitive nature of the material being considered.” (email from listings clerk at Leeds County Court).
[7] I don’t have much confidence in this statistic since (a) there may be other hearings I attended at which judges did not reveal the existence of previous closed hearings; (b) some of the hearings to which I was refused access may have been closed hearings, the existence of which has not subsequently come to light through published judgments; (c) Many of the hearings to which I was not admitted were vacated, so shouldn’t really be included in the total (d) It seems that some closed hearings aren’t ever listed, so I could never stumble over them in making random observation requests. All these factors work in the same direction – to increase the number and percentage of closed hearings in the Court of Protection to something rather higher than my 0.4% estimate.
[8] I found it quite painful to watch this lawyer step out of his advocacy role for A’s mother (she was not at that point raising concerns about the closed hearings) to speak on his own behalf about his experience of the proceedings as Kafka-esque, and about not having been able to advocate effectively for his client. I hope his concerns were managed better outside court than they were during the course of the hearing (where he was simply dismissed as ‘grandstanding’ and corrected for using the word ‘mislead’ – it all felt quite brutal).
[9] Tuckett, A.G., 2012. The experience of lying in dementia care: A qualitative study. Nursing Ethics, 19(1), pp.7-20. Elvish R, James I, Milne D. Lying in dementia care: an example of a culture that deceives in people’s best interests. Aging Ment Health. 2010 Apr;14(3):255-62. doi: 10.1080/13607861003587610. PMID: 7140,E., 2009. Withholding truth from patients. Nursing Standard, 23(48). McCabe, M.S., Wood, W.A. and Goldberg, R.M., 2010. When the family requests withholding the diagnosis: who owns the truth?. Journal of Oncology Practice, 6(2), p.94. Sarafis, P., Tsounis, A., Malliarou, M. and Lahana, E., 2014. Disclosing the truth: a dilemma between instilling hope and respecting patient autonomy in everyday clinical practice. Global journal of health science, 6(2), p.128.
[10] https://ugc.futurelearn.com/uploads/files/57/ec/57ecfe86-1a98-4540-b009-bb73660e0883/Guidelines_on_therapeutic_lying.pdf
[11] Bernard Williams, ‘Conflicts of Values’, Moral Luck: Philosophical Papers 1973–1980 (Cambridge University Press 1981.
[12] https://en.wikipedia.org/wiki/Trolley_problem
[13] For applications of the concept of ‘moral remainders’ to legal practice see: Iris van Domselaar (2022) Law’s regret: on moral remainders, (in)commensurability and a virtue-ethical approach to legal decision-making, Jurisprudence, 13:2, 220-239, DOI: 10.1080/20403313.2021.2014709. and van Domselaar, Iris, The Fragility of Legal Ethics: On the Role of Theory, Lawyerly Virtues, and Moral Remainders in the Life of a Good Lawyer (October 27, 2022). Available at SSRN: https://ssrn.com/abstract=4260601 or http://dx.doi.org/10.2139/ssrn.4260601. The concept is also used in theorizing about public policy e.g. Arguelles A & McCaskill J (2018) Minimizing the moral remainder, Journal of Public Administration and Governance 8(3): ISSN 2161-7104.
[14] See How being watched changes how justice is done: ‘Insider’ Perspectives.
Promoting Open Justice in the Court of Protection 
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