Bournemouth, Christchurch and Poole Council named as “secret” body in restraint case

By Celia Kitzinger, 6^th November 2023

I reported recently on a case in which both the judge and the family expressed concerns about the physical and chemical restraint of a learning-disabled autistic man (“Judge concerned about ‘restraint regime’ for learning-disabled man prohibits naming public body”).  But I wasn’t allowed to name the responsible local authority. 

I am now allowed to name them.  

It’s Bournemouth, Christchurch and Poole Council (BCPC).

It’s important to name the responsible local authority because restraint of learning disabled and autistic people is a legitimate issue of public concern.  The BBC File on 4 programme in 2018 first uncovered the fact that reported restraint had risen by 50% between 2016 and 2017 (“‘Inhuman’ use of restraint on disabled patients“). Then just last year (2022), the CQC said there was still “a continued over-reliance on restrictive interventions” and that people “were too frequently subjected to practices that are about containment and are not therapeutic” (“Restraint and seclusion ‘still too common’ warns CQC”).  

Moreover, there was press interest in the restraint of learning-disabled and autistic people specifically in the Bournemouth, Christchurch and Poole area.  The Bournemouth Daily Echo reported just under two years ago that “restrictive interventions were used roughly 805 times on around 120 Bournemouth Christchurch and Poole patients with learning disabilities, autism or in secondary mental health services in 2020-21.  Of these, 20 instances saw patients put in the prone position, where they are physically pinned face-down against the floor or another surface – a practice which is said to carry a serious risk of death” (“Mental health patients subject to ‘traumatising’ restraints” Bournemouth Daily Echo, 30 December 2021)

So, when I heard the concerns expressed in this hearing, I was keen to be able to name the responsible Council.

Here’s what the father told the judge about a recent episode of restraint:

“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”.

Given the subject matter raised in the hearing, and the extent of public interest in the topic, I was surprised and dismayed to be sent a Transparency Order (on 11 October 2023) that prohibited me from naming the local authority responsible for this man’s care.  The Transparency Order explicitly said that amongst the information I was forbidden to report was the fact that “BCPC is a party to these proceedings”.  

The Transparency Order

I’ve now received THREE different versions of the Transparency Order for this case.  

The first two Transparency Orders (11 October 2023 and 16 October 2023) were injunctions explicitly preventing me from naming the Council.  They had identical wording saying that I was forbidden to report that “BCPC is a party to these proceedings” – and that if I did so, I may be found guilty of contempt of court and may be sent to prison, fined, or have my assets seized.

The third Transparency Order (issued on 3 November 2023) doesn’t say I’m forbidden to report that BCPC is a party to these proceedings. That paragraph has been deleted.  And there’s a new paragraph that explicitly says (under the heading “What the Injunction does not prevent people from doing and does not apply to”) that nothing in the injunction prevents me from naming Bournemouth Christchurch and Poole Council as applicant (§8(i)(f)).

What changed?

I wish I could say that it was my fearless advocacy in defence of the public’s Article 10 rights to freedom of information that resulted in permission to name the Council. 

But it wasn’t.  

I did try – up to a limit.  I did what I usually do when there’s an order that (inexplicably) forbids naming a public body: I ask the judge why that prohibition is in place, and suggest that it might need (re)consideration in light of the public’s Article 10 rights to freedom of information. The Transparency Order says we “have the right to ask the court to vary or discharge the order”, so that’s what I do.

The most efficient way to ask the judge about varying the Transparency Order is to do so during the course of the hearing, while all the parties are there and can express their views to help the judge make a decision.  But on this occasion, I found it hard to “interrupt” the hearing and missed the opportunity to intervene, so I wrote to the judge (DJ OmoRegie) afterwards.  That’s what I usually do if I’ve not been able to raise it in court.

But on this occasion, I was told by the court staff, and then by the Lead Judge for the Reading Hub (HHJ Owens), that I would need to make a formal application “following the procedure set out in Part 10 of the COPR and under PD10A”.  I looked at what this entailed and realised it would take me ages to figure out how to do this – and I honestly couldn’t see why it should be necessary.  

As I wrote to the HMCTS administrator: “ 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 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.  Requiring me to follow what I experience as a burdensome procedure before considering my  – as it turned out, entirely reasonable – concerns has a chilling effect on open justice.  After various communications with  DJ OmoRegie, HHJ Owens and Senior Judge Hilder – none of which solved the problem and all documented in my previous blog post – I simply gave up.

The judge sent me an injunction forbidding me from naming BCPC not once (which might have been “inadvertent” apparently, according to HHJ Owens), but twice.  After which it felt impossible, really, to get back to him and say, “Are you sure?  Do you really mean I can’t name BCPC?”.  I felt I had to assume the judge knew what he was doing, and meant what he said in his Order.

I gave up hope of getting permission to name the Council.  

I published a blog about the case without naming BCPC.  

I conceded defeat: “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 Bournemouth, Christchurch and Poole Council application

But then, after the blog was published,  a couple of lawyers contacted me (independently) to suggest that I might get in touch with the lawyer for the Council, Peggy Etiebet of Cornerstones, suggesting that she should be offered the opportunity to contact her client in relation to this issue. So, I sent an email to Peggy Etiebet, saying “I don’t know if you are aware that the TO prevents me from naming your client?” and providing a link to the published blog post. 

Peggy Etiebet responded promptly to say that she would seek instructions from her client (BCP Council). Later the same day, she told me that BCPC do not think it likely that publication of the identity of the local authority would lead to identification of the protected party and that they would make an application “… to assist the Court of Protection to support open justice”. 

The following day the judge ordered that a fresh Transparency Order should be made.  The paragraph saying I was forbidden to name BCPC must be deleted.  A new paragraph must be added saying that I am not forbidden to name BCPC.

Success!

Well, success of a sort.  We got the right result in the end.  

But why, oh why, was it so difficult to correct what I now believe to have been an “error” in both the first and the second version of this Transparency Order.  

It’s depressingly common for Transparency Orders to say that we can’t name public bodies.  Almost always, that turns out to be “inadvertent” (to use HHJ Owens’ terminology), or an “error” (as in the case before Theis J).

The upshot is repeated instances of “inadvertent” and “erroneous” failures of transparency.

This case illustrates, yet again, cock-up and muddle, not deliberate secrecy. But for a court that repeatedly states its commitment to transparency, it’s really not good enough.  

I’m hoping that the recommendations of the Rules Committee working party on Transparency Orders, likely to report early in 2024, will go some way to sorting out the mess.

Meanwhile, a big thank you to Bournemouth, Christchurch and Poole Council, and to their barrister Peggy Etiebet,  for their commitment to transparency in this case.

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