By Cliodhna Carroll, 8th May 2024
Editor’s note: You too can watch this hearing – it’s recorded and available on YouTube here: https://www.judiciary.uk/live-hearings/re-a-by-her-litigation-friend-the-official-solicitor/
On 30th April 2024, having cancelled my day due to a bad cold and looking like Rudolph the reindeer, I reached for my iPad to find something to entertain me and remembered that the Open Justice Court of Protection Project had tweeted about an appeal hearing which was being held that day following the Court of Protection decision in Re A before Mr Justice Poole. I knew it concerned a young woman who was deprived of her liberty in a care home (against her own wishes and those of her mother) in order to ensure she received medication (covertly).
I have wanted to attend a Court hearing for many years, but never seemed to be able to prioritise this, and on the one previous time I tried to join a hearing, the case did not go ahead. So, this seemed a perfect way to spend my ‘sick day’.
The post on X from the Open Justice Court of Protection Project provided clear instructions on how to join the hearing. Two clicks later and I was on the judiciary YouTube channel watching the live-streamed hearing in the Court of Appeal.
On first impressions, I appreciated that there were two camera angles, one towards the three judges and one towards the open courtroom where the solicitors and legal representatives were seated, and possibly family members or other members of the public, though this was not clear. Having read a number of previous blog posts about attending Court remotely in the Court of Protection (via MS Teams or cloud video platform), I was glad to be able to hear all speakers and appreciated the anonymity of my attendance (e.g that I did not have to introduce myself nor state why I was present)
I had read previous blog posts about this case which I had received as I am on the mailing list from the Open Justice Court of Protection Project, so I was aware of the background to the case, which meant that it was relatively easy for me to follow along. You can find the previous blogs here[1]:
P’s case has been before the Court of Protection for a number of years. She is a woman in her 20s who has diagnoses of “mild learning disability”, “Asperger’s”, epilepsy and a medical condition affecting her ovaries which impacted on her reaching puberty. She has been living ‘temporarily’ in a care home for a number of years where she has received medication to induce puberty, which (since she repeatedly refused it) was given covertly. Reading previous blog posts, it seems that A’s mother was not aware for a number of years that A had been given medication covertly. It was not clear from what I heard, though I may have missed it, what had prompted the move to a care home, though I gathered that there was a belief that P’s mother had influenced A to refuse medication.
A has consistently expressed a wish to return home to live with her mother. There are a number of concerns regarding her mother’s ability to care for A including the ongoing provision of medication. There were a number of references to there being an “enmeshed relationship” between P and her mother. There were discussions about P’s mother being the person she trusts most in the world and that her mother is best placed to support her with agreeing to take medication, which she needs to take for life. There were discussions about telling P about receiving medication covertly and if she is told that she was covertly given medication this may lead to a distrust in professionals, which could impact future treatment, care and support.
Further details of the background to this case are available in Mr Poole’s judgment from 20 March 2024 A, Re (Covert Medication: Residence) [2024] EWCOP 19 – which is the judgment being appealed. It makes for quite sad reading.
I gather from previous blog posts and from my observations that Katie Gollop KC represented the local authority and Sam Karim KC acted for the Official Solicitor representing A. Joseph O Brien KC represented the NHS Trust. A’s mother was represented by Michael O Brien KC.
The local authority and the Official Solicitor were both appealing Mr Justice Poole’s decision that it was in A’s best interest to return home whether or not she independently agreed to take medication. From the current hearing I gathered that there was a directive within Mr Poole’s judgement for parties involved to develop a plan to consider how to support P with accepting medication, with the assistance of her mother. I gathered that part of the appeal was the Local Authority’s claim that this plan was simply not feasible and was associated with both short-term and longer-term risks to A.
I was struck by the compassion and consideration shown to A throughout the discussions. The legal representatives all indicated a long relationship with A’s case and demonstrated their knowledge of her journey over the past few years, particularly in relation to her health, treatment, relationships and social / community life, along with a reflection on her level of cognitive functioning and ability to make decisions.
I was touched by the thoughtful reflections to aid the understanding of A’s mother’s perspective, provided by Michael O Brien KC within the hearing. Whilst we did not hear directly from A’s mother in the appeal hearing, Michael O Brien certainly brought parts of her story to the proceedings, which felt very important given that there could be a tendency to judge some of her behaviours, particularly regarding choices she has made for her daughter. This understanding of A’s mother felt crucial in many ways. As a clinical psychologist / neuropsychologist, thinking systemically is key to working with families and the wider systems around A, and having an understanding of all parties within a system is essential, particularly in the event that there is a need for things to change (e.g. understanding a medical condition, ensuring appropriate treatment).
It was reassuring to hear repeated discussions about the legal framework and the mental capacity assessments at the heart of this matter. Whilst there are limitations to the Mental Capacity Act (not least related to the frontal lobe paradox), it does provide a relatively clear legal frame (at least from a clinician’s perspective). The process of best interests decision-making was returned to a number of times within this hearing, and it certainly felt that A was being held at the centre of things.
I am curious as to where this case will go; and appreciate the need for Judges to hold on to multiple perspectives to aid with decision-making, and to support with guiding best interests decisions for A.
Reflections
There were a number of things which stood out to me during this hearing. Firstly, was my feeling of discomfort and anxiety. I work as an expert witness in clinical neuropsychology and have completed assessments of capacity with people regarding a number of decisions and provide neuropsychological opinion to inform the Court regarding people’s neuropsychological functioning and rehabilitation needs in personal injury claims. To date, I have never had to attend Court, so I was definitely noticing the worrying thoughts and stomach flips when thinking about what it might feel like to be speaking in a courtroom to provide evidence. This certainly made me appreciate the thought, skill and composure of the legal professionals and the judges in considering all that was shared and heard in the room, without looking nervous. My mind tells me that they are human and that they too must experience some nerves in this scenario!
One of the things which really stood out for me was the rhythmic movements from considering the big picture to the details and vice versa, and the considerations given to a number of options in the hope of finding a workable solution for all involved. I enjoyed, despite the aforementioned nervous feelings, hearing the questions, discussions and debates between the judges and the solicitors providing evidence.
One other thing which stood out to me was that there were four barristers, each making their client’s case to the judges, and that there was little interaction between them in the courtroom, except via the judges. I’m not sure why this stood out as I have seen enough courtroom dramas to know that this is how it works, but I guess as a clinical psychologist I am more used to sitting in a circle with people and sharing viewpoints together to mediate towards change, and instigating change felt like it was central to this case.
This was a long (at least to me, as a new observer) hearing, running from 10am – 1pm and from 2pm – 5pm. I was incredibly impressed, particularly as a clinical neuropsychologist, by the attention, focus, working memory, memory and executive skills (reasoning, organisation and co-ordination) demonstrated by all involved over a prolonged period. It certainly provided me with enhanced respect for legal professionals.
Dr Cliodhna Carroll is a Consultant Clinical Neuropsychologist working with Allied Neuro Therapy Ltd providing community-based neurorehabilitation following acquired brain injuries. She has an interest in mental capacity, particularly related to the frontal lobe paradox. Her current NHS post is as a Specialist Paediatric Clinical Psychologist at Great Ormond Street Hospital, providing psychological interventions with young people with neurological conditions and their families.
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