Judge concerned about “restraint regime” for learning-disabled man prohibits naming public body

By Celia Kitzinger, 29th October 2023

This is yet another case where a judge has signed off on reporting restrictions that prevent the naming of a public body, for reasons that are wholly unclear to me. 

Neither counsel nor the judge has – to my knowledge – suggested that identification of the local authority involved could lead to identification of the protected party, which is the only basis on which such prohibitions are regularly made. 

Generally, there is no prohibition on naming public bodies when we report on Court of Protection hearings.This is because the Court accepts that it’s in the public interest for us to know what public bodies are doing with our taxes and in our name. It’s a part of open justice.

And when – as in this case – both the judge and the family express concerns about the physical and chemical restraint of a learning-disabled autistic man, it is normally the case that the public has a right to know the name of the public body in relation to which those concerns are being expressed.

During the course of the hearing,  an obviously distressed mother prompted her husband (both were visible on screen) to raise, in his formal role as their son’s representative, the issue of physical restraint – which, she said, had left their son “traumatised”.  

The father then described an incident of physical restraint which he’d personally witnessed, and indeed participated in.  He said: “The restraint used was not in accordance with the processes described in the plan… It seemed to be rather ad hoc…. [Our son] was extremely traumatised in this period.  There were three adults, including myself, trying to control him.  I don’t have any training and at least one of the carers had no training. It was all rather difficult… It didn’t seem to conform to any plan”^[i].  The incident had left their son “upset” and refusing to see his mother. 

The judge, too, had earlier (in an Order of 2nd October 2023) expressed his concern that there was no adequate consideration of threshold or staged escalation in relation to either physical or chemical restraint, and no adequate consideration of “how often the chemical restraint is reviewed in the support plan filed”^[ii]. 

In the approved Order that resulted from this hearing, the judge decided:

• If a change or changes to the care and support plan and positive behaviour support report [which] render them more restrictive, has or have as a matter of urgent necessity been implemented the applicant must apply to the court for an urgent review of this order on the first available date after the implementation of such changes. 
• If a change or changes to the care and support plan and positive behaviour support report which render them more restrictive are proposed (but are not required as a matter of urgent necessity) the applicant must apply to the court for review of this order before any such changes are made.                                                                  ^[iii]

The use of restraint on people with learning disabilities and autism is an ongoing issue of public concern, especially following the BBC 2018 File on 4 programme that first uncovered the fact that numbers of reported restraint had risen by 50% between 2016 and 2017 (see “‘Inhuman’ use of restraint on disabled patients“). Updating that report just last year (2022), the CQC said there was still “a continued over-reliance on restrictive interventions” and it found that people “were too frequently subjected to practices that are about containment and are not therapeutic” (“Restraint and seclusion ‘still too common’ warns CQC”).  When I googled the local authority’s name, I turned up a couple of disturbing press reports relating to restraint and safeguarding in their area.

I’m concerned that the Court of Protection has issued an injunction that prevents all of us – but especially people who live in the geographical area covered by this local authority – from learning about this case.  People living in this region of the country have the right to know there are (new) concerns about the way this local authority is managing restraint in relation to a man with learning disabilities and autism. 

They may also be reassured that a judge in the Court of Protection has taken measures to consider the matter of restraint in a hearing (as opposed to simply endorsing it on paper), has raised questions about restraint and listened to family concerns, and has made clear in his Order that more restrictions beyond those approved in a care plan and positive behaviour support plan, cannot be imposed (as the family say they have) without review by the court. This might encourage more families to come forward and express concerns about restraint in the expectation that the Court would be responsive to them.

I was also worried about the Transparency Order preventing me from naming the public body because I thought (probably wrongly, as it turns out) that this may have have been an “error”, as was the case in a previous hearing before Mrs Justice Theis, which I blogged here: Varying reporting restrictions to name Kent County Council in “shocking” delay case”.

Here’s what happened.

The hearing

This case (COP 13960342) was heard by District Judge OmoRegie, sitting at Dartford County and Family Court on 11th October 2023.  The hearing was listed for 3pm as below. 

I sent my request to observe at 12.31pm on the day of the hearing.  The link was sent to me at 2.07pm and the Transparency Order (in a separate email from HMCTS) shortly thereafter, at 2.10pm – which meant that I had time to read it before the hearing.  

As soon as I received the Transparency Order I checked the reporting restrictions and found this:

(5) The material and information (the Information) covered by this Injunction is:

(i) any material or information that identifies or is likely to identify that: 

(a) AN is the subject of these proceedings (and therefore a P as defined in the Court of Protection Rules 2017), or that 

(b) any person is a member of the family of the subject of these proceedings (namely AN), or that

(c) [XYZC] is a party to these proceedings; and

 
(ii) any material or information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details.

Transparency Order, 11th October 2023 COP 13960342, DJ OmoRegie (subsequently revised on 16th October 2023 to put the name of the XYZ Council spelled out in full on the face of the Order – with the wording here left unchanged.

It’s a ‘standard’ Transparency Order that protects the identity of the person at the centre of the case (5(i) (a)) and their family (5(i)(b)) – albeit without specifically listing the latter, as is common. But 5(i)(c) was unusual in seeking – I assumed – to prevent me from publishing anything identifying a public body. I took it that the initials I have pseudonymized above as “XYZC” were the initials of the applicant council, where the final ‘C’ stands for ‘Council’  – although this wasn’t 100% clear, since on the front of the transparency order the applicant’s initials were given as “XYYZC “(note the extra repeated letter). 

Once the hearing got going, the applicant counsel introduced herself as representing [X—-, Y—- and Z—–] Council”, giving its name in full – so at that point I was fairly confident that, yes, despite the typo, the Transparency Order did have the effect of preventing me from naming the council concerned.

Peggy Etiebet of Cornerstones was counsel for the applicant local authority whose name I am not allowed to reveal. When invited by the judge to do so, she provided a clear and succinct summary of the issues (and she also sent me her Position Statement on request, which was very helpful) – but at no point did she offer an explanation as to why her client’s name should be kept secret.

The case concerns a man (AN) who is in his thirties and has long-standing diagnoses of learning disability and autism, plus a recent diagnosis of Post-Traumatic Stress Disorder (PTSD).  He’s been living at a supported living placement for some years – originally (but no longer) run by the Royal Institute for the Deaf, and (according to AN’s father), “the service provider is no longer capable of meeting AN’s needs”. In any case, the parents have recently moved about 200 miles away and they (and AN) would like AN to live closer to them.

There was an agreed position between the parties today.  

They agree that it’s in AN’s best interests to move to be closer to his parents – and things seem to be progressing to make that happen.  The local authority has been looking for suitable placements in the new locality over the course of the last six months.  They’ve found one that has recently assessed AN and confirmed they can meet his needs, and they’re planning to support AN to visit the placement within the next month.  

It’s very common for hearings to be vacated when, as here,  all parties agree the draft order. At the beginning of the hearing, the judge acknowledged that it may have “taken the parties by surprise” to find themselves in court today, “but I wanted more information about the restraint regime, as opposed to authorising it on paper”.  

At the request of the judge, counsel for the applicant then summarised the position on restraint, and detailed the evidence they had already provided, or would shortly provide, to the court. The local authority has now filed their positive behaviour support report.  Methods of restraint in AN’s house and in the community are different, she said: in the house it’s a “hands-off” policy and distraction techniques are always used first. Most of the sedating medications are part of AN’s “normal everyday meds” to deal with his anxiety and PTSD.  The only “chemical restraint” as such is Promethazine used as a PRN (an initialisation for the Latin phrase ‘pro re nata’, meaning ‘when required’).  This is administered when AN is in “a heightened emotional state” or “dysregulated”, and he’s been given it on 12 occasions in the last six months. It relaxes him and he often goes to sleep an hour or so after it’s been administered.

The local authority sought a declaration that it was in AN’s best interests to remain at the current placement and to receive care in accordance with the current support plan and positive behaviour support plan.  There was also some mention of an application for Continuing Health Care Funding and for a deputyship for the parents (not opposed by the local authority).  None of this seemed contentious.

The proceedings seemed to be winding down and about to end when the mother prompted the father (their son’s Rule 1.2 representative) to raise the issue of physical restraint (as described above) – to which the judge listened carefully.  It was clear that both parents were dismayed by what had happened, and by what seemed to them to be the unplanned and unauthorised restraint of their son by untrained personnel.  The effect of this incident on their son worried them greatly. They both used the word “traumatised”.  I don’t know whether the recent diagnosis of PTSD relates to this incident. It seems possible that it does.

At the time, the judge said only that there was provision for a Round Table Meeting at which the parents could raise their concerns about this incident, leaving me wondering whether or not he was going to address it in his Order (which is why I asked for the Order – and he does).  

After the hearing

There was no opportunity for me, as a member of the public, to raise the question of why the Transparency Order prohibited me from naming the local authority. I wasn’t addressed by the judge on the matter of the TO and I especially didn’t want to cause any further distress to AN’s mother by derailing the proceedings into a discussion about open justice.  I did turn on my camera and my audio at the end of the hearing hoping to attract the judge’s attention  – but too late, the judge had left.  

So, I wrote to Deputy Judge OmoRegie (via the hub email address) later the same day.

3:47pm, 11th October 2023: Email to DJ OmoRegie

Dear Judge

Re COP 13960342

I observed this hearing before you today, and received the Transparency Order shortly before the hearing began.  

The TO wasn’t mentioned during the course of the hearing so there was no opportunity for me to raise my concern which is that it includes in §5 (“The subject matter of the Injunction”) a prohibition on identifying “[INITIALS]” which I think is [NAME OF COUNCIL]? 

It’s unusual for there to be a prohibition on naming public bodies – except in unusual circumstances where, for example, naming the public body risks identifying P, which I don’t think applies here. 

I note that §9 permits “any person affected by this order” to ask for it to be varied, and so that’s what I’d like to do with reference (only) to naming the public body – which is paid for out of the public purse and which I would expect to be accountable as such.

Of course, I will comply with the TO until I am notified of any variation, but I hope that this might be possible with the agreement of the parties before the next hearing.

Thank you for your support of open justice.

Celia Kitzinger

4:38pm, 11th October 2023: Response from HMCTS administrator

In response to my email, an HMCTS “administration officer” sent me an email explaining: “You need to make an application to vary the existing transparency order.  You need to follow the procedure set out in Part 10 of the COPR and under PD10A which includes applications normally being served upon the respondents”.

I googled “Part 10 of the COPR”, which I know stands for “Court of Protection Rules”, and “PD10A”, which I know means “Practice Direction” 10A (how many members of the public would know that?!) but the legalese defeated me.  I wrote back to the administration officer:

“Gosh – I’ve never done this before and I’ve asked for dozens of TOs to be varied.  It looks very complicated and time-consuming for a non-lawyer so I doubt that my commitment to transparency will extend to following through on this.”

If a Transparency Order says that a public body cannot be publicly identified, my hope is that the judge will draw attention to that prohibition at the beginning of the hearing, nd explain why they’ve made that decision in balancing the public’s right to freedom of information against the protected party’s right to privacy.

 If they don’t offer that explanation, I try to ask – either by raising it during the hearing (which is often challenging) or via an email subsequently.  This usually leads (as in cases reported here and here) to the judge changing the Transparency Order. I’ve adopted this approach under the mentorship of PA journalist Brian Farmer, who is the only journalist – and often the only other observer – in most Court of Protection hearings.  It’s what he does too.

I understand that, technically, the advice I was given by the administrator is correct – because the Order has been made, and usually an application has to be made to vary it. But in fact I’ve never had to make a formal application following the procedure set out under PD10A before. What judges have been doing in practice, I think, is simply to dispense with all the requirements – as they are allowed to do under the broad case management powers that they have – and to treat my emails as though they were an application under Part 10 CPR. That makes sense – in a court committed to open justice and transparency, why would you put unnecessary barriers in the way? So I was taken by surprise to receive the formal, technically correct, response in this case.

I wrote to HHJ Hilder, who is the Senior Judge of the Court of Protection, based at First Avenue House in London.   (I meant to copy in the administrator who had advised me to make the formal application, but I forgot and sent it off without cc.-ing her. I forwarded it to  her just a few minutes later – at 5.20pm – apologising for not having copied her in.)

5.17pm, 11th October 2023: Email to the Senior Judge of the Court of Protection

Dear HHJ Hilder

Re: Anonymising of public bodies in TOs: COP 13960342

I’m finding that a significant minority of Transparency Orders include in the paragraph headed “the subject matter of the injunction” the names of public bodies – and do so apparently without any reason being provided to the judge as to why this is necessary.  Often the judge seems to be unaware of this aspect of the TO until I point it out.

Almost always when I raise this, the injunction against naming the public body is removed.  I’ve blogged about this several times e.g.

 Is he deprived of his liberty? (Plus a request to vary the reporting restrictions – again) 

Varying reporting restrictions to name Kent County Council in “shocking” delay case

I am happy to contribute to open justice and transparency in the Court of Protection to the extent of writing a reasoned letter to the judge pointing out my concerns with the TO, and did so today in an email for the attention of DJ OmoRegie (below).  The TO was not raised at any point during today’s hearing and no justification or explanation was provided for why the TO prohibits identification of the public body.  Based on what I observed, I cannot imagine a legitimate reason for this.

I’ve just received a response from staff at Reading (also email below) suggesting that I should make a formal application to vary the TO by  following “the procedure set out in Part 10 of the COPR and under PD10A”.

I’ve never done this before. I’ve had a look at it and it strikes me as rather complicated for non-lawyers, and way more than I have time to figure out at the moment given the various commitments I have to other open justice issues in the court. I experience the request that I do this as onerous and burdensome. I doubt very much that any other member of the public would be able to follow through on this either – so requiring us to do as suggested in the email below has a chilling effect on open justice.  

I remain of the view that the TO in this case should not have required anonymisation of the public body – but I’m not going to pursue it through the formal route suggested to me. I think that will mean that a prohibition remains in place on naming a public body when there should be no such prohibition if Art 8/Art 10 matters were properly considered. It seems that there has been a decision not to properly consider Art 8/Art 10 unless I engage in a burdensome activity to effectively compel the court to do so. This is very disappointing.

If the judiciary is truly concerned to ensure open justice and transparency, I would hope that they might be willing (as I have previously found that they are) to address concerns about the anonymising of public bodies however those concerns are brought to their attention.  

I do hope the response in this case isn’t indicative of a change of policy or practice such that more draconian TOs will remain in place simply because members of the public like me cannot face engaging with onerous requirements for raising our concerns.

Thank you for your support of open justice.

Celia

10:00am, 12th October 2023: Response from Lead Judge of the South-East Regional Hub

I received a response via the administrator who’d recommended following “the procedure set out in Part 10 of the COPR and under PD10A“. She’d referred the email I’d written to HHJ Hilder (which I’d belatedly forwarded to her) to the lead judge for the Court of Protection “hub” to which Dartford County Court belongs, the South-East Regional Hub based in Reading. The lead judge for this hub is HHJ Owens.  (For more information about Court of Protection hubs, you can see a list of all seven of them, with contact addresses here.)

What I was sent reads more like an internal memo than a message directly for me and I experienced it as rather dismissive.  HHJ Owens said she had already referred my concerns to Senior Judge Hilder – and also to the judge whose hearing I had observed, District Judge OmoRegie, to find out whether the prohibition on naming the public authority was “deliberate or inadvertent” (which does at least acknowledge the possibility that the judge might have made an error).  She made two points which did not help me (numbered §3 and §4 in the original email):

(3) She said that if I wanted to vary a Transparency Order I needed to follow the same procedure as everyone else (lawyer or not)  – i.e. the formal application process via Part 10 of the COPR and under PD10A – and that to treat me differently would not be fair.

(4) She said that if I had concerns about the “accuracy” (her word) of a Transparency Order at any future hearings I “must” (again, her word) raise it during the course of the hearing.  

Since it seemed likely that HHJ Owens had also made these points to Senior Judge Hilder, I sent a further email to the latter, responding to those two points in particular.

9.12am, 13th October 2023: Second email to the Senior Judge of the Court of Protection

Dear HHJ Hilder

I’m not sure that it was the intention of HHJ Owens that I should be sent the message below in the (third-person) terms in which she wrote the memo to court staff, but just to reiterate, since I gather that she has also brought this matter to your attention:

1. With reference to §3 I am not aware of seeking any “special treatment”.  I don’t think there is any other member of the public who asks for TOs to be varied so the nearest comparator is with journalist Brian Farmer (who has kindly acted as my unofficial mentor for the last 3 years) and he confirms that when he’s been unable to raise concerns about a TO during the hearing, he regularly sends emails for the attention of the judge subsequent to the hearing, and that he’s never been asked to follow the process recommended to me by HHJ Owens (and that it frequently results in a change to the TO). 

2. With reference to §4, both Brian Farmer and I experience difficulties in raising concerns with TOs during hearings.  In this particular case I turned on my camera and mike at the end of the hearing to try to attract the judge’s attention but I was too late and he left the hearing.  I’ve seen the same happen to Brian!  The difficulty arises when the judge doesn’t create a “slot” for an observer to speak  (e.g. by asking “have you received the TO”).  Unlike the parties we don’t have a speaking slot pre-assigned to us by the court turn-taking system and I am very aware of not wanting to interrupt sensitive proceedings, especially when (as in this case) family members are in court (and the mother seemed quite distressed).  Perhaps I should have been more forceful, but I hope you can understand why I was not.

I understand (I think) the pressures the judiciary are under, and that transparency necessarily takes second place to the substantive business of the hearing.  That only makes it more imperative for observers to pursue transparency – including any “inadvertent” breaches of it – since the judiciary is unlikely to have the time to do so without prompting.  I appreciate that this can be irritating and frustrating for some judges.  It is not my intention to cause extra work and hassle, although I know that is outcome of my pursuit of open justice, and I’m sorry when it’s experienced this way. 

Thank you for your support of open justice.

I received a response later the same day (4.45pm) from an administrator, to the effect that the Senior Judge is unable to intervene in any particular case before another judge, but that she will continue to consider how best to support open justice, and thanking me for my continued involvement.

4.32pm, 16^th October 2023: A revised Transparency Order from DJ OmoRegie

The next working day, I received a revised Transparency Order.

The wording is identical to the wording of the earlier Transparency Order except that the initials on the face of the original order have been replaced with the full name of the local authority I am forbidden to name.  

It still says, at §5(i)(c) that I am not allowed to identify that “[XYZC] is a party to these proceedings”.  

The reason for revising the Transparency Order is that the judge says (the administrator told me) that it was “a typo in the original transparency order to have initials for the applicant”.

This is really bizarre.  The judge fixed the “typo”, but didn’t engage at all with my concern about identification of the public body.

I’m still prohibited from identifying the local authority – but now that prohibition is contained in a document that names the local authority on its face – which is counter to Court of Protection practice, since Transparency Orders are public documents.  It’s true that I can now match the initials in §5 of the Transparency Order against the name of the local authority provided in full on its face, and so I am now absolutely sure that the Order prevents me from naming it, whereas the former discrepancy caused me a niggling doubt. I suppose that qualifies as an improvement of sorts.

I have received no reply to my subsequent, frustrated, one-line response:  “Thank you – so that confirms that the intention is to anonymise the public body. My question is whether it is necessary to do so.”

Reflections

This has been a bruising experience. 

It’s taken up a great deal of time for me and several other very busy people for something which should surely have been – as it has been in other cases – a relatively simple matter.

And all to no useful purpose it seems. I still don’t know whether, or why, it is necessary to keep the identity of the public body a secret. The outcome of all this correspondence is that identification of the local authority is still prohibited – as confirmed (I have to assume now “deliberately not inadvertently”) by DJ OmoRegie in his most recent communication – and I still don’t know why.

Nobody has sought to explain or justify why it is necessary to keep the name of this public body a secret – and it was very far from apparent in the hearing. I can’t believe that knowing the name of the local authority would enable anyone to identify the person at the centre of this case.

But the only route I’m permitted (in this case) to further understanding why this restriction is in place, or to challenging it, is to make a time-consuming and expensive application – at the cost (I think) of £234.  That’s a very effective barrier to open justice. I’m not going to make that formal application.  So, probably nobody except the people involved, and me, will ever know the name of the public body involved.

The hearing I observed indisputably raises matters of public interest.  

People are concerned about the use of restraint – especially if it is happening in their area.

Residents in the region covered by this local authority already know that many hundreds of learning-disabled and autistic people were subject to restraint in their geographical area just a few years ago (2020-2021) – because the local newspaper reported it, following the publication of NHS Digital statistics nationwide. They have the right to know that it’s still continuing in their area, and to learn something about the reasons for, and conditions placed on, its use – as revealed in this particular case.  

It’s important for people to know that Court of Protection judges are concerned about the use of restraint too – and that they will call in a hearing and interrogate the use of restraint, even when it appears there is agreement between the parties. And they will listen to families and – as I saw from the Order require reviews. 

Of course, I can write about all of this in a generic sense, without naming the local authority – but it’s a public body with public accountability, and the story has a potential for local journalism, and (the point I keep returning to) there seems to be no Article 8 (privacy) reason to set in the balance against the Article 10 (freedom of information) right.

It’s a disappointing outcome – and I have to say it’s quite unlike all my previous experiences of querying or asking for variations of Transparency Orders.

If I didn’t know better, I might almost believe – on the basis of this experience alone – that the Court of Protection didn’t aspire to open justice.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 480 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

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^[i] _{Unless otherwise indicated, quotations are based on my contemporaneous touch-typed notes of what was said during the hearing. They are unlikely to be entirely verbatim, as we are not allowed to audio-record hearings, but they are as accurate as I can make them.} 

^[ii] _{I am grateful to counsel for the applicant, Peggy Etiebet, who sent me her Position Statement from which this quotation is taken. At §12, she attributes these words to Paragraph 3 of the order of 2 October 2023.} 

^[iii] _{Quoted from §3 & §4, Order of 12 October 2023. When I requested this Order I was told I would need to pay £5 to receive it.  The requirement to pay for a court Order is unprecedented in my experience before and since (and also in the experience of journalists I’ve discussed this with). I was sufficiently concerned about this case to get my credit card out and pay over the phone (the alternative was payment by check and snail mail) because I wanted to find out what the judge had ordered with respect to restraint. But the matter of being required to pay for sight of an Order is something I will address in a later blog post.}