Still no exit plan and “we are some way away from the ideal scenario”: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44

By Celia Kitzinger, 12th November 2023

Update: On 20th March 2024, the judge declared that it was in A’s best interests to return home, whether or not she voluntarily agreed to take the medications prescribed for her (hormone treatment for her Primary Ovarian Insufficiency). See A, Re (Covert Medication: Residence) [2024] EWCOP 19. This judgment is being appealed by the Trust and the Official Solicitor and will be heard in the Court of Appeal on 30th April 2024. It will be live-streamed (no need to ask for the link) and recorded. Here’s where you can watch it: https://www.judiciary.uk/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/

At the centre of this case is a very unhappy, vulnerable young woman, diagnosed with “mild learning disability” and “Asperger’s Syndrome”.  She has been deprived of her liberty for four years. She’s been unhappy in the care home, which she recently described as “this hellhole”.  From the outset, and repeatedly over the last four years, she’s been asking to return home and live with her mother.

She was taken into care  – and contact with her mother restricted – largely to ensure that she received medication for her Primary Ovarian Insufficiency. Her mother, the court found, was discouraging her from accepting medication.

But four years later, she’s still refusing medication, despite daily requests from staff and repeated attempts to ‘educate’ her and convince her to take it.  She doesn’t trust her treating clinician, Dr X, and continues to say, as she’s said for years, that she would like an independent second opinion. Her mother has also consistently  asked for this – she says it’s the only thing that would convince her daughter to take the medication.  Up until this hearing, the court has refused a second opinion on the grounds that it’s not “necessary” (the legal test for appointing an independent expert) because the existing evidence that the medication is in A’s best interests is overwhelming and uncontroversial.

What this young woman (referred to as “A” in the court documents) doesn’t know is that she’s being covertly medicated.  Every day, tablets are ground up and put in her food.  That’s how it’s been possible for her to achieve puberty, which would not otherwise have happened. Ironically, the fact that she’s achieved puberty, without medication as far as she knows, has also led her to insist that she doesn’t have Primary Ovarian Insufficiency, and so doesn’t need the tablets they are trying to persuade her to take. 

The judge has repeatedly asked for a move from involuntary to voluntary medication, i.e., someone should explain to her what’s been happening and persuade her to take the tablets voluntarily in future.  

She’s going to need endocrine medication, doctors say, for around the next 30 years. 

It’s not practical, reasonable or proportionate to detain A against her will for decades, simply in order to supply her with covert medication.

Now that she’s achieved puberty, there’s also a question about A’s capacity to make her own decisions about where to live, and what medications to take.  The capacity assessments are now quite old, and the court has ordered new ones.  If she does have capacity to make her own decisions in these domains, the court cannot continue to deprive her of her liberty or to covertly medicate her.  If she doesn’t have the relevant capacity, then the court has to make best interests decisions on her behalf.

This is a report of the latest hearing in this long-running and very worrying case.  We’ve been observing hearings since 26^th May 2020 – originally before HHJ Moir and more recently before a more senior judge, Mr Justice Poole (HHJ Moir is now retired). There’s a list of our previous blogs about this case at the end of this post.

The case has raised major issues about covert medication, the right to family relationships, law, practice and ethics relating to closed hearings, and open justice.  It also prompted major new Guidance on closed hearings from the former Vice President of the Court of Protection.

First, I’ll provide a summary of the case so far, highlighting the reasons why I’m so concerned about it, particularly in relation to the closed hearings.

Second,  I’ll report (as promised in my last blog post) on Mr Justice Poole’s reasons for refusing the mother permission to appeal against HHJ Moir’s decision to hold closed hearings. I’ve already reported in the last blog post that he refused her permission at the hearing on 13th March 2023, but I didn’t attempt to summarise his reasons then, because he said he would provide a transcript of them, which obviously helps with accurate reporting.  I’ve only recently received that transcript.

Third, I’ll update the case with an account of the hearing I observed on 9^th October 2023, again highlighting why I remain concerned about this case, as it moves towards the final hearing at the end of January 2024.

1. Summary of the case so far

A woman in her twenties, A, diagnosed with “mild learning disability and Asperger’s Syndrome”, has been covertly medicated (contrary to her expressed wishes) for more than two years.  

In order to accomplish this, she was removed from her mother’s care in April 2019 and placed in a care home – because the court came to the view that her mother was influencing A to refuse treatment (something the mother has always denied). 

The hope was that with education about her medical condition (Primary Ovarian Insufficiency) and support to take the medication, she would agree voluntarily to treatment.  

She did not agree to take the medication.  The court attributed this to the control and undue influence exerted over her by her mother – so the judge restricted and then suspended contact with her mother.  She still refused to take the medication.

Then, on 25^th September 2020, at a secret ‘closed’ hearing from which the mother and her legal team were excluded (and which they didn’t even know was happening), the judge, HHJ Moir, authorised covert medication for A.  She would be given the treatment by having the tablets crushed up and put in her food. This order was reviewed (in further closed hearings) on 20 May 2021 and 4 March 2022.

The hearing at which HHJ Moir made the order for covert medication was in private, but publication of the judgment was later arranged by Mr Justice Poole: A local authority v A & Ors [2020] EWCOP 76.  In that judgment, HHJ Moir says she is “uncomfortable” (§10) about considering covert medication in the absence of A’s mother, but considers that if A’s mother knew about it, “she would seek to warn, by whatever means, A about the proposed plan” (§9) and “seek to subvert the medical treatment” (§11).   Given that the judge found it “unarguable, unassailable” (§20) (on the basis of medical evidence) that receiving the treatment was in A’s best interests, she considered the matter of covert medication in private, without A’s mother knowing about or being involved in the hearing (hence a “closed” hearing) and she approved the plan for administering the medication covertly.

Mr Justice Poole (the judge who took over the case when HHJ Moir retired) points out in a subsequent judgment (§13, Re A (Covert Medication: Closed Proceedings) [2023] EWCOP 48), that HHJ Moir did not expressly consider in September 2020:

 “… the impact of her decision to hold closed proceedings on further case management issues, including the conduct of open proceedings whilst the closed proceedings were ongoing in parallel. She did not make a plan as to when circumstances might arise for [A’s mother] to be told of the use of covert medication, or how the open proceedings could continue without all parties knowing about the medication, for example”. 

In my view, the impact of HHJ Moir’s decision to hold closed proceedings was disastrous for further case management issues, and for open justice.  I don’t know that it need have been, if the parties and the judge had properly considered the issues and planned ahead.  But they didn’t.  There was no ‘exit plan’ for informing A and/or her mother about what had been done, and although nobody can have imagined that A could be detained, deprived of her liberty and covertly medicated for the next 30 years, nobody seems to have planned for any alternative. The judgment from Moir is silent on these matters.

There were no plans about how to manage open justice either. The judge should really (in my view) have been alert to this, as I’d already watched one of the public hearings in this case, on 26th May 2020, a few months before this secret ‘closed’ hearing about covert medication.  And I’d described what I’d seen in a blog post (here). Then, almost two years later, on 25^th and 29^th April 2022, HHJ Moir admitted another member of the public, Claire Martin, to observe what was listed as the “final” hearing in the case. How did the judge (or counsel, for that matter) imagine we would make sense of what we were hearing as public observers, and what implications did they think it would have for transparency in the Court of Protection?  I can only assume it wasn’t considered at all at the time. 

When Claire and I discussed the April 2022 hearing in conjunction with my notes from the May 2020 hearing, we were completely baffled.

“We are ‘baffled’ … because it was absolutely clear at the hearing in May 2020 that the local authority, P’s social worker and P’s endocrinologist were strongly committed to ensuring that P should receive endocrine treatment, and this was endorsed by the Trust and by the Official Solicitor. Although we haven’t seen the judgment, we’re almost certain that this must also have been the conclusion reached by the judge. […] But nearly two years later, it seems that endocrine treatment has not been given, and there is discussion of P returning to her family home …. in the hope that (after all this!) her mother will then be able to persuade her to have it.” (“Medical treatment, undue influence and delayed puberty, 2^nd May 2022)

In retrospect, we now know that our understanding as expressed in that extract – that endocrine treatment had not been given – was wrong, and so of course we were baffled.  We were wrong about the facts because there had been a deliberate attempt on the part of the judge – and so also by the barristers representing the Official Solicitor and the Trust –  to disguise and obscure the true facts of the case, in particular, that A had been receiving covert medication.  We misled our readers. In a subsequent judgment Poole J refers to that blog post as having conveyed “false information” (§73): it was  “based on only partial information – through no fault of the authors” (§84). This was very disappointing for us at the Open Justice Court of Protection Project – but more than that, the conduct of proceedings in this case undermined the Court of Protection’s own stated commitment to open justice and transparency. As I wrote to Mr Justice Poole, “It makes a mockery of transparency if members of the public are admitted to hearings in which information is deliberately withheld from us such that we then publish information that is not accurate or true” (Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44). 

The court’s main intention at the May 2022 hearing was not to deceive us (we were collateral damage) but rather to withhold the information about covert medication from A’s  mother.  At that hearing, A’s mother was advancing an argument that her daughter should be allowed home because then she’d be able to persuade A to take the medication,  but what A’s mother didn’t know (because it was withheld from her) was that A was already taking the medication. This seems very unfair on A’s mother, since she was clearly not on an  “equal footing” (rule 1.1(3)(d) COPR 2017) with the parties who knew what was going on.  Her arguments were bound to be ineffective under the circumstances. One legal commentator pointed out:  “The party excluded from the closed proceedings litigated from a place of ignorance *engineered by the Court*”: another described the mother as “set up for failure here by not being privy to covert treatment” (Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44). 

It was HHJ Moir’s decision to hold the covert medication hearing without her knowledge and involvement, as a ‘closed’ hearing, that the mother sought permission to appeal at the hearing in March 2023.

2. Refusing permission to appeal against decisions made at the closed hearing – Poole J

At the last hearing I observed (on 13^th March 2023), Poole J refused the mother permission to appeal against the decision made by HHJ Moir to hold a closed hearing on 25^th September 2020, excluding the mother and her legal team from the application about covert medication. 

I completely understand why the mother would want to appeal this decision, and I would too in her situation. It feels unjust and unfair, both to exclude her (and not even to let her know she was being excluded) from a key decision about her daughter, and then to involve her in a ‘fake hearing’, making arguments in court about bringing her daughter home that were doomed from the start because the relevant facts had been concealed from her.  From my perspective, the mother (and her legal team, and the public observers) were deceived by the court. When the lawyers and the judge denied that they had “misled” A’s mother, I experienced what they said as disingenuous, equivocation and ‘bad faith’.  It opened up for me a moral chasm between my own perspective on truth-telling and the rather more flexible approach displayed  by the court on this occasion.  (I’ve spelt this out in more detail in §6 in my Submission to the Rules Committee.) In the mother’s position, I’d feel furious, upset and betrayed.

I also understand why Poole J refused the mother permission to appeal against what had been done to her. I’ve delayed writing about it until I had a copy of the judge’s decision in writing. I received this, after chasing it, on 10^th November 2023 but it’s not I think yet available on BAILII or The National Archive.  It’s Re A [2023] EWCOP 48.

First, there’s a 21-day time limit for appealing court decisions, and the decision to exclude the mother from the closed hearings was made around two years ago. But obviously the mother couldn’t have made an application appealing the closed hearing until she knew about what had happened, which wasn’t until Poole J told her about it in September 2022, two years later.  So, it would be totally unreasonable  to deny her permission to make an appeal on the grounds that she was out of time – and that wasn’t the reason Poole J gave.  Instead, he considered the merits of the appeal.

The mother was not seeking to appeal against the decision to covertly medicate her daughter, but rather against the decision to exclude her from the hearing at which that was decided, and to run parallel open hearings at which she was clearly disadvantaged by not knowing about the administration of covert medication. 

But all that is in the past.  It ended very soon after Poole J took over the case. The mother is no longer excluded from decision-making about her daughter: “I took the decision in September 2022 to open up the closed proceedings to [the mother]… Insofar as [she] seeks to appeal the decision to allow open proceedings to run in parallel with closed proceedings, the effect of that ended six months ago when I brought an end to the closed proceedings” (§14, Re A [2023] EWCOP 48).

So, what difference would an appeal – even a successful appeal – make to the situation of the mother and daughter in this case?

The judge took the position that “the purpose of any appeal against the decision to exclude [the mother] from the application regarding covert medication would not be to make any change to A’s treatment or circumstances. It would not re-set the case. It would not enhance, now, [the mother’s] rights, nor would it make any difference to A’s circumstances or best interests determinations” (§16, Re A [2023] EWCOP 48).

There is of course the fundamental principle at stake about excluding the mother and the resulting ‘fake hearings’.  But those principles have been addressed by the then Vice President of the Court of Protection, who – prompted by this very case – set up a subcommittee of the Court of Protection Rules Committee and then issued guidance on closed hearings and closed material hearings.  On that basis, Poole J rejected the suggestion that it was necessary for the appeal to be heard in order to give or confirm guidance since “without false humility” (§24 Re A [2023] EWCOP 48), the opinion of an appeal judge would carry no more weight, and probably less weight, than the guidance already published.

Moreover, having read HHJ Moir’s judgment of 25 September 2020, Poole J considered that the judge had properly considered the mother’s rights, and had good reason to exclude her from the decision-making about covert medication because -at that time – there was a real risk that she would subvert the decision by telling A about the medication.  “Judge Moir clearly considered, as set out in her judgment, that A’s best interests justified, in the particular circumstances, the sacrifice of openness at that time, and the Courts have recognised in rare circumstances that may be a justified position for the Court to adopt” (§20, Re A [2023] EWCOP 48).  Based on the facts insofar as I know them, I cannot say that HHJ Moir or Poole J are wrong about that.

I think in the mother’s position what I would want is some acknowledgement that I was deceived by the court, and some expression of regret that deception was considered necessary.  I am not arguing that it was the wrong decision to exclude the mother from the covert medication application.  I am arguing that even if it was the right decision, it had moral costs, and caused harm to the mother. People who feel they have been wronged quite reasonably look for some way of righting that wrong – and in courts of law an appeal against a decision you consider unjust is the rather blunt instrument available. 

I hope the mother in this case knows that the members of the public who observed this hearing recognise the harm caused to her, and that this was part of my motivation for writing about the case and for making a submission to the Rules Committee, in which I explicitly raised the problem of moral injury caused to excluded parties (and to their legal teams) in closed hearings.  I’m only sorry that there’s no reference to or discussion of that issue in the Guidance.

3.  Hearing of 9^th October 2023:  “We are some way away from the ideal scenario”

The case was heard, remotely, at 10.30am on 9^th October 2023 before Mr Justice Poole, sitting in Leeds. It was focused on preparation for the final hearing, which is planned for late January 2024.

In terms of transparency, things got off to a bad start because the hearing had been incorrectly listed – as is often the case when Tier 3 judges (who normally sit in the Royal Courts of Justice) hear cases while ‘on circuit’ in the regional courts. The case wasn’t listed in the Court of Protection list on Courtel/CourtServe, and when looking through the listings on Friday evening to decide which hearings I might want to watch on Monday, I’d missed it.  I only learnt about it later over the weekend when someone involved in the hearing told me that “the covert meds case” was back in court – and even then, it took me ages to locate it, hidden deep in the Leeds daily cause list.  I’m sure this was cock-up and not conspiracy, but it’s particularly ironic that this case – of all cases – should be incorrectly listed. I was later told by HMCTS staff that “unfortunately it was an oversight of a relatively new staff member that the list wasn’t published correctly”, and as usual there was a promise to address the training need identified.  That didn’t work.  The same thing happened on 9^th October in relation to another of Poole J’s hearings in Leeds, and then just a couple of weeks later (23 October 2023), Poole J was again hearing a COP case in Leeds, which was again incorrectly listed in exactly the same way. (And the same listing error also arose when another Tier 3 judge, Mrs Justice Lieven, was hearing a case in Worcester on 20th October 2023.) I understand that the Court and HMCTS are working to solve this problem. I was disproportionately thrilled to see Poole J’s hearing in Sheffield correctly listed on 2^nd November 2023.

At this hearing, the applicant local authority was represented by Katie Gollop KC.  As previously, the young woman at the centre of this case, A, was represented, via her litigation friend the Official Solicitor, by Sam Karim KC, and her mother (who was also in court) was represented by Mike O’Brien.  The NHS Trust is usually represented by Joseph O’Brien KC, and it was he who had prepared the Trust’s Position Statement, but he was unavailable today and his place was taken by Lorraine Cavanagh KC.  

The opening summary went something like this. (As usual, we are not allowed to audio-record hearings, so this is based on contemporaneous touch-typed notes and is unlikely to be entirely verbatim but is as accurate as I could manage.)

“The case concerns a young woman, A, who on current evidence lacks capacity to make decisions about where to live, who to have contact with, and to make decisions about medical treatment for an endocrinological condition.  Her body doesn’t produce various hormones as a result of which, without medical intervention, she wouldn’t have achieved puberty.  The case relies on a previous fact-finding hearing before HHJ Moir.  For two years before June 2019, Mum was provided with many opportunities to engage with health and social care professionals while A was in her care, and living with her, in connection with the fact that she’d not achieved puberty.  That engagement did not materialise.  There followed a set of legal proceedings and court involvement.  The court declared it was in A’s best interests to be removed from Mum’s care, with restrictions on contact.  Since contact was reintroduced in May 2022, the mother’s relations with health and social care agencies has been mediated and managed by the team to an extent very unusual in the local authority’s experience. Even with that mediation, A’s mother engages only because of the legal proceedings. A difficult and rare decision was made to covertly medicate A, and that has been happening for some time, and A has now achieved puberty.  In an ideal world, A would be told that she has this endocrinological condition and that puberty has happened as a result of being given medication secretly.  But that information hasn’t been provided to her.  There has been a considerable amount of health education work done – not weekly, but there have been meetings – but it has not had the desired effect.  A is still resistant to believing that she has the condition she has, and resistant to believing there are important benefits to her in taking the medication in the long-term.  We are some way away from the ideal scenario.  We are now looking to the future.  A is living in a residential placement and sees her mother once a week.  She would like to see her mother more.  She would like to go home.  She is not in the least restrictive environment, and so where she lives and who she has contact with is likely to be before the court, once we have updating on capacity.  Where she lives is also bound up with the care she receives,  which includes one medication tablet every day.  The court is not well-placed to make a final decision about residence at the moment. There are three options: (1) She could return to her mother’s home and care, and receive no more medication and that would be the price of having her home; (2) Her mother could deliver covert medication at home, but her mother is refusing to have anything to do with that; (3) Carers could deliver covert medication at home – which would be unusual; this normally only happens in highly regulated environments such as care homes or hospitals.”

For me, there were several surprises here – and in other information that emerged during the course of the hearing.  I have done my best to capture the key issues that were raised and discussed and to report them accurately, but given the wide-ranging nature of the issues raised, the shared knowledge of the parties – from an earlier advocates meeting – that may not have been made explicit in court, and the manifest disagreements between the parties about matters of fact, it’s quite likely that one or more (or all) parties may find things they consider inaccurate or misleading in this report – or that they will fundamentally disagree with the way I’ve presented the facts, or my opinions about them. I think, in this case, that comes with the territory – and of course am willing to consider corrections if they are proffered.

Covert medication is continuing

A is still being covertly medicated, despite the judge having made clear in October 2022 – a year ago! –  that “long term continuation of covert medication is unsustainable” and that “A’s best interests are served by exploring the most effective way of transitioning from covert to open medication and/or ending covert medication in a way that is likely to cause the least harm to A” (§38, Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44).

In response to the news that medication is still covert, the judge stated (as he has done before) his “overall anxiety” with the situation – that “the risk I identified some time ago seems to me to persist, and indeed even become more acute – the risk of inadvertent disclosure or awareness on the part of A, leading to the loss of any residual trust she does have in professionals, and – in the worst case scenario – leading to her refusing food, which I know she has done on one occasion… Covert medication shouldn’t continue a day longer than it’s necessary”.

According to Katie Gollop, “no party contends that A should be told she’s been receiving covert medication at present”.  I’m not sure what the plans are to stop covert medication, now or ever.  There was some discussion about the fact that if A returns home without having been told about the covert medication, the risks and benefits of informing her may be different from the risks and benefits of telling her while she’s in the care home. That issue was shelved for the final hearing.

No expert capacity assessment

I was surprised to hear that there was still no expert (re)assessment of A’s capacity in the relevant domains.  At the last hearing, in March 2023, the Official Solicitor had recommended this because there was a possibility that A might have gained capacity. Back in 2018, an independent expert had expressed the view that “A may gain capacity having regard to her young age, and if a range of support structures are in place to empower A, including increasing her skill-base and knowledge”. The expert also said that “achieving puberty may improve cognitive maturation and help her to gain capacity”. At the last hearing,  the judge accepted that it was “necessary” to appoint an independent expert on capacity, and  decided to appoint the one who assessed her previously – despite the mother’s view that A would not cooperate with the previous expert and that “a new set of eyes” were more likely to elicit her cooperation.  There’s now no capacity assessment because A had refused to see the expert she’d taken a dislike to.  I think the proposal was to try again with the previously-appointed expert, but if that didn’t work out, counsel for the mother was seeking permission to appoint someone else so as to ensure that there would be capacity evidence before the court in January.

No weekly meetings for health education purposes

It had been agreed (and recorded as a recital in a court  order) that there would be “weekly face to face sessions” involving A, her mother and two nurses “over a period of 6-8 weeks” with the aim of “persuading” A to take the medication.  Only one such meeting has taken place.  

The problem seems to be that the mother is being instructed to use a particular form of words to communicate with her daughter during these meetings, including (and this may be the sticking point) apologising to her daughter for having been wrong about her daughter not needing medication (something the mother has consistently said was never, in fact, her position).  The treating clinician, Dr X, has demanded that the mother “has to unequivocally apologise to her daughter and clearly admit that she got it wrong”, and this view is supported by the MDT, who proposed a form of wording which the mother did not accept. The mother then proposed an alternative form of words that wasn’t acceptable to the MDT. They finally reached a compromise form. 

Counsel for the mother describes a “humiliating” process whereby, in preparation for these weekly meetings,  A’s mother was:

 “ …. given lessons about POI [Primary Ovarian Insufficiency] and then the nurses insisted on testing how much she remembered, as if she were at school… The nurses were also very anxious to control precisely what she said to A, so she was asked to recite her lines as though an actress.  This behaviour was unexpected and demeaning.  [She] was concerned that during the meeting she would be unable to react normally to her daughter and her daughter would suspect that she was merely reciting lines given by the authorities.  [She] nevertheless cooperated.  All this took months.  Then the nurses required her to attend further education sessions with specialist endocrine nurses before a meeting with A. She refused because this would just be another delay to starting the weekly meetings.  At this stage she still believed there would be weekly meetings” (from the mother’s Position Statement). 

When the one-and-only meeting did take place (on 25^th July 2023), the mother apparently deviated from the prescribed wording.  I don’t know what that wording was, but what she actually said (as quoted in the Trust’s Position Statement) was “… you were just a child back then, in any case I should have done more to encourage you and I’m sorry that I didn’t. I’m sorry darling I apologise”. She also said that she wanted A to be in the best health, which is why she should take her medication, including the endocrine medication to help ensure that A would have a healthy heart and bones as she grew older.  The mother also attempted to remind A about the diagnosis of Primary Ovarian Syndrome but A indicated a couple of times, as she has many times before, that she wanted a second opinion before accepting her diagnosis and the need for medication. The Trust reports that Dr X noted that although the mother didn’t always stick to the agreed narrative, “her involvement in the joint health promotion meeting was felt to be positive overall”. 

But, according to the local authority, the multidisciplinary team is “still not convinced about [the mother’s] reliability and ability to constructively discuss these issues with A in future, without supervision and clear direction from others”.  They say, “the health education sessions with A that [her mother] has attended have been sufficient for the MDT to reach the conclusion that [the mother’s] continued attendance is not going to help A”.

They say there will be further health promotion sessions for A, but without the mother’s attendance. 

Proposal for a second independent clinical opinion

The local authority is now proposing a second independent clinical opinion from an endocrinologist, in the hope of convincing A to take the medication  – and the NHS Trust and Official Solicitor support this. 

This was the proposal rejected in 2019 when A’s mother raised it. I heard her raise it, and heard it dismissed, at several earlier hearings.  She now made clear (via her counsel) that she is pleased that “four and a half years later, there is now some serious consideration being given to a second opinion in order to convince A.  She acknowledges that her daughter is stubborn and a second opinion might help change her mind”. According to the mother, it should involve an in-person meeting (not a paper-based exercise) with someone completely independent of Dr X, the treating clinician A does not trust.

The local authority view is: “The chances of this being effective may be slim. However, the applicant’s view is that there is little harm in trying… It is, perhaps, the only thing that has not been tried that could be tried. And it is what A wants”. 

The judge made clear that this second opinion was “not necessary as further evidence for the court, to be honest, but it is a means by which it may be possible to unlock the resistance A has to taking medication.  It’s important she feels some agency in the selection of that individual”. 

Increased contact between mother and daughter

The current contact arrangements are two supervised telephone calls a week of half an hour each, and a supervised weekly visit in person (which mother and daughter usually use for walking into town and having a meal out).   The mother asked for more contact so that she could take her daughter to indoor bowling sessions and to take part in dances that A had enjoyed before being deprived of her liberty.  She also wants carers to ‘back off’ during supervised contact.  “They stand within the body space of mother and daughter and make notes about what is said. It’s intimidating… the invasion of personal space is concerning her. Is there some way in which those who carry out supervision can do so in a way that is less intrusive?” (counsel for the mother). 

The judge said he was minded to approve some extension of contact with a second face-to-face weekly contact, but without being prescriptive about what happens in that contact.  It seemed the local authority needed more time to consider this, and the judge asked for a response within 14 days. ( I don’t know what happened subsequent to the hearing and whether extension of contact was approved or not.)

Orders and declarations

The judge was satisfied, he said, that it was necessary and in A’s best interests to continue with endocrine medication and for this to be administered covertly.  This was an interim measure, to be revisited at the hearing in January.  Contact will continue as before, with the possibility of extension on receipt of further representation from the local authority.  A request from the mother to be included in MDT meetings was refused, but there should continue to be engagement with the mother in terms of A’s health education – although he appreciated there were “some difficulties”.  A’s deprivation of liberty at the care home is also necessary, proportionate, and in her best interests. 

Issues for the final hearing: A ‘precarious’ application

As the mother’s counsel said, “in reality, little has changed in the last year” since Poole J broke the news to the mother that her daughter was being given covert medication.  

The young woman at the centre of the case still doesn’t know she’s achieved puberty as a result of covert medication, still doesn’t believe her diagnosis, still refuses to take the relevant medication, and still wants to return home to her mother.  All the health education, charts, cards, and pedagogic aids developed by care home staff, learning disability nurse and paediatric endocrine specialist nurses over the last four years  have “brought her no closer in accepting her diagnosis or the necessary treatment” (treating doctor, quoted in position statement by Counsel for A).

Counsel representing A via the Official Solicitor considers it unlikely that A will ever accept the diagnosis and need for medication, or that her mother will ever help to shift A’s thinking by clearly communicating to A that her historic position on diagnosis and medication (as determined by the judge) was wrong.  Accordingly, he says, “this application is in a precarious position, and a decision is needed as a matter of urgency” (Position Statement – emphasis in original).

Given how things stand now, the reality is that, in preparing for the final hearing, the court will need to consider the possibility that it may not be possible to administer medication at all if A is discharged (as she wishes) back home, since the mother refuses to give covert medication herself, citing issues of “trust” in her relationship with her daughter. The court may have to balance up whether the benefits of maintenance medication are outweighed by the current restrictions to which A is subject; or, whether a move to a less restrictive  placement (including returning to live with her mother, as she wishes), outweighs the benefits of maintenance medication if that can only be delivered covertly and in such a placement. The judge raised questions that would need to be addressed such as: how might cessation of medication be managed (sudden or gradual)? Is there any possibility of administering medication in some other manner (e.g. patches rather than tablets). Would it be possible for carers to visit daily and administer medication covertly (which the mother is content to permit) and how would that work? Counsel for A raised the possibility of a ‘trial period’ at home.

These are all issues that will be addressed at the final hearing.

This has been a challenging case to witness and to communicate about.  I think it’s been a challenging case, too, for A, for her mother, and for the health and social care professionals.  Counsel’s view that “we are some way away from the ideal scenario” is something of an understatement. People’s lives and relationships are messy and complicated, and it’s not always possible to achieve an “ideal scenario”, but I very much doubt that the professionals involved in this case from the beginning would have wanted, or anticipated, being in a situation like this, four years on. Hindsight is a wonderful thing, of course, but I suspect that there might be  “lessons to be learnt” from a serious case review. 

I can imagine an ”ideal scenario” in which A has received an independent expert report, discussed it with her mother, accepted her diagnosis and the need for medication and says she’ll voluntarily take it from now on, expressing gratitude to the health care staff who inform her that they’ve been delivering it covertly until now.  It seems vanishingly unlikely that anything like that “ideal scenario” will come to pass. I hope I am wrong.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 490 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

Appendix: Previous blog posts about this case

In reverse chronological order – start with the blog at the bottom to read ‘from the beginning’

• Unplanned disclosure and (still) no agreed ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44 continues 
• New Guidance on Closed Hearings from the Vice President of the Court of Protection
• No ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44 
• Covert medication of persons lacking capacity: What guidance is there?
• Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44
• “I have to tell you something which may well come as a shock”, says Court of Protection judge 
• Statement from the Open Justice Court of Protection Project concerning an inaccurate and misleading blog post
• Medical treatment, undue influence and delayed puberty