By Pippa Arnold, 1 August 2023
I am an aspiring barrister with an interest in the Court of Protection (COP), particularly cases relating to medical treatment. My interest stems from a medical law module I studied at university, which led me to undertaking a Masters at the end of the Bar Course. For this, I chose to analyse the COP’s decision making in cases relating to the administration of the Covid vaccine. I considered 3 cases – E v Hammersmith and Fulham LBC, SS v Richmond Upon Thames LBC and NHS Tameside & Glossop CCG v CR – and looked at how much weight was attached to P’s wishes and feelings, as required by the best interests test under s.4 of the Mental Capacity Act 2005[1].
I was keen to observe a case first-hand and so I contacted the Open Justice COP Project. With their help, I watched a case (COP 14107225) listed before Mr Justice Moor sitting at the Royal Courts of Justice (RCJ) at 10.30am on Friday 14th July. I first saw this listed on Open Justice COP Project’s featured hearings page and twitter feed, but it was also listed on the RCJ’s website as follows:
As the hearing was conducted by MS Teams, I emailed the Family Division at the Royal Courts of Justice the evening before to ask for the link to join. At 10am on the day of the hearing, I had not received the link so, I called the court (using the number provided on Open Justice COP Project’s website). Shortly after speaking with a member of the team, I was emailed the link.
I joined the hearing without issue, and I was surprised that I was not asked to identify myself. I had provided my name and labelled myself as an ‘observer’, but my camera and microphone were both off. It was not until Counsel for the Applicant gave her opening that she drew the court’s attention to members of the public who were attending (I was not the only one) and referred to a Transparency Order that was in place. I had not been sent this prior to the hearing but Counsel stated that observers should request this from the court after the hearing. I was later sent this by Celia Kitzinger. The order prevents anyone from publishing or communicating anything that identifies, or is likely to identify P, referred to as ‘GB’, who is the subject of these proceedings, or her family members.
The parties
Counsel for the Applicant, Ms Bridget Dolan KC, gave an opening summary (as advised by the former Vice President of the Court of Protection here) which I found very helpful.
From this, I understood that the Applicant was an NHS Trust (Hertfordshire Community NHS Trust) which has tried to provide medical care to GB at her home.
The first respondent, GB, was a lady in her 80s who has dementia and lives with her son who is her full-time carer. Ms Katie Gollop KC acted for GB via the Official Solicitor.
GB’s son was the second respondent and a litigant in person.
In her opening, Ms Dolan KC stated that she would refer to GB by her name (knowing that observers are prevented from reporting GB’s name by the Transparency Order) in order to not dehumanise her in the proceedings. I thought this demonstrated respect for GB and acknowledged that she was at the heart of the matter.
Ms Dolan KC stated that there was no question that GB lacks capacity to make decisions about her health, welfare and care and so, she did not go into detail about this. She did note however, the mental and physical impact that GB’s dementia had had on her as she was now non-verbal, bed-bound, and near the end of her life.
Ms Dolan KC then turned to the issues and the order that was being sought.
The issues and order sought
It was explained that health and social care staff, referred to as ‘nurses’ throughout the hearing, had struggled to gain access to P at home as her son often prevents them from entering. On previous occasions, nurses had gained access by attending with the police.
Ms Dolan KC said that although GB’s son cares for her with “love, care and devotion”, the problem is that “her needs are such that what she needs to keep her safe and comfortable goes beyond what can be provided by a family member”. This had become a particular concern when GB was at risk of sepsis after a pressure sore had become infected.
Consequently, the Applicant made a short notice application for an injunction requiring GB’s son to allow the health and social care staff access to the house. To facilitate GB’s compliance with this, it was accepted by the Applicant that they should provide GB’s son with as much notice as possible via email. GB’s son also has to allow the staff to provide care and treatment to GB without obstruction, and he is not permitted to film those attending to provide care or take other action designed to intimidate them.
This injunction had first been granted by Mrs Justice Morgan in a hearing on Wednesday 5th July 2022. The court had returned on Friday 14th July 2023 for a full hearing to determine if the injunction should continue and if so, for how long. The Applicant wanted the injunction to continue for 8 weeks, and it was hoped that in that time, GB’s son and the nurses could reach an agreement and rebuild a relationship of trust so that they did not have to resort to relying on the injunction and/or the police to provide care to GB.
After Ms Dolan KC’s opening, the judge invited GB’s son to address the court. GB’s son said that he did not oppose the injunction, but “sometimes the nurses just turn up willy-nilly and it’s not appropriate”. GB’s son explained that this was an issue as the nurses did not provide him with any notice that they were attending which was inconvenient for him, and also interfered with his mother’s routine which was very important given her dementia.
The son also did not see the need for the nurses to attend every day. He explained that he was able to provide a good level of care to his mother and so, it would be more appropriate for them to come on a weekly basis.
The judge then turned to Ms Gollop KC, who stated that it was clear that GB is highly vulnerable but there was no doubt that her son does his best to support her. She said that when GB was able to verbalise her wishes and feelings, it was her wish to stay at home.
Ms Gollop KC further stated that GB’s son “loves her very much and doesn’t want to be without her, but the best way for her to live as long and as well as possible is if he can accommodate the visitors to his home who can provide the care for her”.
Judgment
The judge gave a background to the application, noting that unfortunately, “considerable friction” had emerged between P’s son and the employees of the NHS Trust whose duty it is to oversee her care.
The judge stated that GB “no doubt receives the best possible care [her son] can give her” and “there is no doubt that he loves her, and she loves him. He keeps her clean, changes her, moves her and she is lucky to have him to do that,” but there were elements to GB’s care which extended beyond the skills of a layman and so, it was important that the nurses could enter the property to treat GB.
The judge said that it was undoubtedly in GB’s best interests for medical staff to have easy access to her, without interference, whenever needed. Consequently, he was “absolutely clear” that the injunction should continue. However, the judge noted the importance of the nurses giving GB’s son notice wherever possible before attending.
Unfortunately, I lost signal for 30 seconds or so, but was quickly reconnected. The judge had moved on to explain that the injunction also forbid the son from intimidating the nurses in any way, including filming them giving care. The judge said that he was not saying this behaviour had already happened, but it must not happen in the future.
The judge concluded by stating, “a High Court injunction is an extremely serious matter. It is an Order that must be obeyed. If not, it could be brought back to this court and [GB’s son] could be sent to prison for up to two years. That would be exceptionally serious for his mother because he would not then be able to care for her”.
Post-judgment
Once the judge had concluded his judgment, another participant on the call started speaking. She did not have her camera on at first, and her name did not appear, but she introduced herself as GB’s granddaughter. I am unsure whether the court knew that she was in attendance, but I understand that she was not a party to the proceedings which may explain why she had not been spoken to earlier.
The granddaughter asked if the court had read her witness statement. The judge said that he had not received or read this. The granddaughter went on to try to justify why it was important that they were able to film the nurses when they were treating GB (“for their safety and our safety given the allegations made”). The judge, however, interrupted her and stated that he had made an injunction forbidding recording as it was for the medical staff to determine what care GB required and it was highly inappropriate for anyone to film them giving such care.
GB’s son then stated that he had sent the court a witness statement with some exhibits. I did not have access to the bundle, but I understood that some of the exhibits were videos he had taken of the nurses. GB’s son asked the judge to confirm that he had read / viewed these.
At this point, the judge’s tone changed and sounded very stern. He said, “it is not for you to require a judge of the High Court to confirm anything one way or the other”. The judge then confirmed that he had read sufficient information to enable him to make his decision. GB’s son apologised for asking this question but rephrased it in an effort to understand what evidence the judge had considered. The judge said, “I have not been able to read or view everything that has been sent to me because there are only so many hours in the day”.
The judge then concluded the hearing by saying “thank you very much indeed. That is the order of the court”, before leaving the call. As the parties were leaving, both Counsel thanked the judge, however GB’s son said, “he’s not getting a thank you from me!”.
Reflections
Despite having to chase the court for the Teams link, I thought that it was straightforward to attend the hearing and the court were happy to accommodate me.
Throughout the hearing, it seemed as though the court took a more collaborative approach which tried to accommodate each parties’ concerns, rather than the typical adversarial style of litigation. For example, the judge asked the nurses to provide notice wherever possible to GB’s son when attending.
I thought that all parties were focusing on GB’s best interests, but this case was a clear example of how best interests can be assessed differently. For instance, GB’s son thought that it was not in GB’s best interests to have her routine disrupted by daily visits from nurses, but the Applicant deemed it necessary to treat GB as and when required in order to uphold her best interests. Despite this, the son did not oppose the injunction and so, the court did not need to go into a detailed analysis of the issues between the parties. Furthermore, for this reason, it made sense for the judge to continue the injunction.
Unfortunately, the hearing ended on a less positive note. It seemed as though GB’s son was frustrated that not all of his evidence had been considered, which was understandable given the matter concerned his mother who he loves very much. However, I can also understand the court’s position as the son had raised these issues but not opposed the injunction. Nonetheless, perhaps this could have been handled differently, especially as GB’s son was a litigant in person who was not familiar with the court process and consequently, may have questioned the fairness of the hearing.
Overall, I enjoyed observing as I was able to see first-hand how the court arrives at their decision, as opposed to simply reading the judgments. I would be keen to observe more hearings, especially those where the parties are not in agreement, as I would see the court analyse what is in P’s best interests in more detail. This experience, however, allowed me to see a different type of advocacy and understand some daily issues being brought before the COP.
Pippa Arnold is currently working as a County Court Advocate and hopes to become a barrister and develop a practice in the Court of Protection having developed an interest in this area from her studies and work experience to date.
[1] One of these cases was also covered in a blog post here: Why covid vaccination is NOT in this care home resident’s best interests by Astral Heaven
Note: All quotes purporting to be direct quotations from the hearing are as accurate as possible, based on contemporaneous notes – but are unlikely to be 100% verbatim since we are not allowed to audio-record hearings.
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