By Celia Kitzinger, 27th May 2024

The purpose of a  “directions” hearing is for the judge to narrow down the issues that are to be decided, and to give instructions (“directions”) on how the case will proceed.  The point is to sort out procedural and practical matters.  Directions hearings often cover actions that need to be taken (e.g., capacity assessments, disclosure of medical records, obtaining witness evidence and determining the availability of witnesses to come to court) and the dates by which those actions need to be done, so that everything is ready for a full hearing where a final decision can be made.  They’re a kind of ‘advance planning’.

Directions hearings are very important in ensuring that the case proceeds smoothly and in a timely fashion. If the parties don’t ask for something that they later think is needed, or if the judge does not direct something that one of the parties says is necessary, that matter is sometimes raised again at the next hearing and this can lead to concerns about whether substantive decisions should be put ‘on hold’ and await whatever it is that hasn’t been done – or whether, even in the absence of that information, the judge can go ahead and make an important decision.  

For example, I’ve seen lots of directions hearings where judges have declined a request to authorise an independent expert report – only to find at the next hearing that the s.49 report (from the NHS or social care staff caring for the protected party) has either not been submitted to the court, or that it displays insufficient expertise to form the basis for the decision that needs to be made.  

One important cause of delay in the Court of Protection is (in my view) inadequate directions hearings. But I can entirely see the difficulty for parties and for the judge in determining exactly what is needed in advance, without squandering public funds by putting everything conceivable in place from the outset. It’s obvious too that new issues arise in the course of following the directions from a first hearing – a report turns up a previously unanticipated disagreement about capacity, or a family member raises something that hadn’t been considered, or a placement that had been thought suitable turns out not to be, or becomes no longer available.  When this happens, then there’s another directions hearing, and (often) several more – sometimes called “case management hearings” – as everyone tries to get together the information and real-world options the judge needs to know to make substantive decisions.  See for example “Covid vaccination and T-cell immunity: A renewed application for expert evidence”, where not appointing an expert at the earlier directions hearing seems to have caused – by my reckoning – a 9-month delay in resolving the case.

This very short (20 minute) directions hearing (COP 14257278) was a hybrid hearing before Deputy High Court judge, Ms Victoria Butler-Cole KC, sitting in the Royal Courts of Justice in Court 42 on 24^th May 2024.

My aim in this blog post is to set out some of the information I gleaned from that hearing (and some of the gaps in that information) to assist people who might want to observe the final hearing which is listed for 10.30am on 30^th May 2024.

Transparency Matters

Joining

I observed the hearing remotely via what looked like a new (modified) version of cloud video platform (CVP).  I had no problems with it but one of the two observers planning to observe the hearing with me was unable to get sound and video working (so missed the hearing altogether, despite her name appearing in the sidebar as an observer). This is quite a common difficulty people experience with this platform.  If you are planning to watch an upcoming CVP hearing you might find it helpful to read this information: “How to join Cloud Video Platform (CVP) for a video hearing”.  That said, it wasn’t obvious to me from the link I was sent that this was cloud video platform: nothing in the email said so, and the link I was sent was hmcts2300@meet.video.justice.gov.uk.  But a google search on “meet.video.justice.gov.uk” throws up information about cloud video platform, so I figure they are probably the same thing, or versions of the same thing.  If someone with my experience of observing remote hearings (I’ve watched more than 500) is hazy on this point, it can be assumed that most other members of the public will struggle with this too.

Audio and video

I experienced issues with both audio and video in the course of this hearing.  

On audio: the very helpful court usher (Audrey) did a brief sound-check before the judge came in: “Can everyone hear me?”.  I confirmed that I could and nobody else on the platform said anything (I didn’t know at that point that one of the observers couldn’t hear anything from the court and obviously – as she couldn’t hear it – she couldn’t respond herself to the usher’s question).  I did take the opportunity to point out that it wasn’t possible to know from the fact that the usher was coming through loud and clear on whichever mike she was using (probably the judge’s) whether or not we would be able to hear the lawyers.  Sometimes the lawyers’ mikes aren’t switched on, or their mikes are too distant to pick up their voices.  This later turned out to be a problem in relation to Katie Gollop, the lawyer representing P via the Official Solicitor.  We missed several minutes at the beginning of her submission – though Audrey helpfully sorted it out (turning the mike on, then moving it closer) in response to my comments in the ‘chat box’.  

On video: There was no camera on the judge.  There’s something quite unsettling for those of us concerned with open justice for the judge to be nothing more than a disembodied voice in a video-hearing.  Just on principle, judges shouldn’t be invisible!  Also, I know from lawyers that they observe the judge closely during hearings to pick up cues about how the judge is responding to their submissions and where they can leave a point and move on, or where they might need to expand.  I want to be able to see what that too.  I’ve only observed one other hearing before Depty High Court Judge Butler-Cole KC in the RCJ but at that one, too, there was no camera on the judge – and these two have been the only (video-based) hearings with an invisible judge. Is this something to do with facilities in Courtroom 42 perhaps?

Who is in court?

As usual, the applicant lawyer provided an introduction – primarily for the judge but obviously really useful for observers – as to who was in court. He said he was representing the applicant Trust (along with his instructing solicitor); Ms Gollop was for the Official Solicitor, along with her instructing solicitor and – he was speaking quickly – some other people including, I think, a social worker.  Also, as usual, the applicant lawyer did not introduce himself.  I think there must be some court etiquette that means applicant lawyers never say “I am Mr/Ms Bloggs….” – the judge must be presumed already to know.  But observers don’t know, and so we have to work out who they are from what happens later.  Sometimes the judge helpfully responds “Thank you Mr/Ms Bloggs” (more of this please!) but often we have to wait until another lawyer says something along the lines of “as Mr/Ms Boggs said….” or for the judge to cue in Mr/Ms Bloggs to speak later in the proceedings.

I often recognise the lawyers – if not by sight (which can be hard when they’re be-wigged, though they weren’t in this case) by sound – but in this case I had no idea who the applicant lawyer was.  I eventually figured it out when the lawyer for the Official Solicitor said, about half way through the hearing “Mr Rylatt and I have had some discussion…” – and bingo! I recognised him as Jake Rylatt, a lawyer I’ve watched before (albeit infrequently) in several hearings.  I doubt those observers who hadn’t already come across Jake Rylatt would have picked this up.  

Fortunately, “Gollop” and “Rylatt” are uncommon names and typing them into google along with “lawyer” quickly yields information about who these two lawyers are, even if you don’t know their first names, (see Katie Gollop KC and  Jake Rylatt).  I am often left floundering when trying to identify lawyers with names like “Smith” or “Watson”.  Again, it’s clearly some antiquarian bit of court etiquette that unhelpfully dictates that first names aren’t used.  A recent exception was when there were two “Mr O’Brien”s in court and the judge resorted to referring to them as “Mr Joseph O’Brien” and “Mr Michael O’Brien” (though actually you can only find the latter if you know he’s on his barristers chambers webpage as “Mike O’Brien”).  Exceptionally, I also observed a hearing with two barristers both called “Francesca Gardener” see:  Francesca Gardener and Francesca Gardener!

My point is that observers should be able to know the name of the applicant lawyer from the start of the hearing (because everyone else in court does!) so if they can’t bring themselves to breach court etiquette by saying their own name in court, please could the judge thank them by name immediately after their opening introductions so that we know who they are.  

Transparency Order

The judge checked at the very beginning of the hearing that we knew the provisions of the Transparency Order, which she said had been previously made by another judge, Mrs Justice Theis (the Vice President of the Court of Protection).  

We were told that we cannot publish anything likely to identify the protected party and her family members, or where they live or are cared for.  We are also prohibited from publishing any material identifying the hospital, or the staff involved with her care and treatment.  

There was one further prohibition which, if I heard it correctly,  seemed unusual but which “is now moot”.  I’m not quite sure what this was and don’t want to report it incorrectly (if I’m even allowed to report it, which it seemed to me I might not be). This prohibition does not  (I believe) affect my freedom to report anything heard subsequently.  

The reason why I’m somewhat unclear about what the Transparency Order actually says is because I’m relying on an oral version of it and I have not yet received any written version of the Transparency Order relating to this hearing.  I assume this will be sent out to observers eventually – and I hope more promptly for the final hearing. 

Opening summary

Applicant counsel (the lawyer who I later learnt was Jake Rylatt) provided – with the judge’s approval – a useful opening summary.  I’ve reproduced it below.

What is the case about?

We learnt from the opening summary that the protected party (HW) is in her mid-thirties and she’s 37-weeks pregnant.  She’s detained under the Mental Health Act and it had been agreed that she lacks capacity to conduct these legal proceedings (hence the appointment of the Official Solicitor on her behalf), and also lacks to make decisions about care and treatment related to her pregnancy and delivery of her baby.   The Trust had made an application that it was lawful and in her best interests to carry out a Caesarean section – provisionally planned for 3^rd June 2024.  They’d hoped for final orders this morning, but there had been a change in HW’s presentation when she was assessed two days earlier and that had led the Official Solicitor to ask for a little more time to see whether it was possible that HW might regain capacity to make her own decision about a Caesarean in June.  (Hoping to learn more about the background to this case, I asked for Position Statements but were told none had been prepared for this hearing.)

The applicant Trust 

Counsel for the applicant Trust, Jake Rylatt explained that HW’s medication (olanzapine for her psychotic condition) has been “titrated upwards” (increased) with the result, it seems, that she is now acknowledging the views of other people that she is pregnant.  From this observation, I gathered that she previously has not. He added that there is a clinical view that she may being doing this as a means of securing her discharge.

More recently still, she has accepted she’s pregnant to the extent that she’s saying, “if nine people are saying I’m pregnant and only one (myself) holds out, then I must be pregnant”. She’s also reported as having said that if she is indeed pregnant then she’s content to go ahead with a c-section and is in the hands of the clinicians in terms of what they think best for anaesthesia.  

The implication, it seemed to me, from what counsel for the applicant Trust said, was that despite some improvement in her ability to understand information relevant to the decision that needs to be made (specifically, that she’s pregnant), HW lacks capacity to make that decision for herself and is unlikely to regain it by the time of the planned surgery.  He invited the judge to convene a final half-day hearing for 2pm on 30^th May 2024, saying that if all parties agreed by that point, then the hearing could be vacated.

The judge indicated a somewhat different approach: “Capacity is very definitely in question. The fundamental basis of the original application was that [HW] didn’t believe she was pregnant and that doesn’t now appear to be the case. One possibility is that the treatment has caused the change; another possibility is that it’s just taking her a bit of time to recognise the fact she’s pregnant and come to terms with it”. 

The judge asked Jake Rylatt which witnesses he proposed to call. It was agreed that the anaesthetist would not be needed, but the obstetrician would. The consultant psychiatrist treating HW was, said counsel “away today, but it is hoped he’d be available to step into the fray in future if necessary”. It didn’t seem particularly helpful to characterise the court hearing as a “fray” (“an energetic and often not well-organised effort, activity, fight, or disagreement”, Cambridge English Dictionary).  I noticed that the judge conspicuously avoided that that term in her response:  “It’s not going to be helpful to have someone else step in if they’re not familiar with HW and her situation”. The judge asked for steps to be taken to find out when HW’s own psychiatrist would be available to give evidence to the court. 

The Official Solicitor

I couldn’t hear the first few minutes of what Katie Gollop was saying.  First her mike wasn’t switched on and she was completely inaudible.  Then the usher responded immediately to my raising the matter in the chat by turning on the mike, but it was too far away to pick up more than the odd phrase.  For some time, I could see Katie Gollop, but not hear her, and I could hear the judge, but not see her!  The usher then did move the mike closer and the sound quality was then fine.

I heard the judge say that there was a midwife spending time with HW, that there had been mention of foetal movements (perhaps in relation to HW coming to believe that she is in fact pregnant?), and then a discussion about HW’s family, who I think haven’t been involved in this situation at all up to now.  The Official Solicitor made clear that she was not pursuing family members (I think she mentioned a restraining order?) but that the local authority might be so doing.

The judge directed the Official Solicitor to get HW’s medical records for the past couple of weeks.  I reflected at this point that I didn’t know (and still don’t know) why the Trust has taken the position that a Caesarean is in HW’s best interests.  I don’t know, for example, if this is for a physical reason that makes vaginal delivery potentially risky (e.g. a breech presentation) or whether it’s solely related to HW’s mental health issues (I can imagine that going into labour would be very frightening if you didn’t believe you were pregnant). Katie Gollop did refer to “potential risks to the baby [sic]” but without spelling out what those were.

Together, counsel and the judge worked out the schedule up to the next hearing: another visit to assess HW’s capacity on Tuesday afternoon next week (the hearing is listed for the Thursday), followed by an advocates’ meeting early Wednesday afternoon and the Position Statements to be submitted to the court late on Wednesday. 

The judge asked whether HW wanted to talk directly to the judge herself – concerned that she should have this opportunity and it should be included in the schedule. Nobody seemed to know the answer.  

Listing the final hearing

The judge pointed out that “the legal framework isn’t going to be contentious”, and then listed the hearing for the whole day on Thursday 30^th May 2024 (rather than the half-day requested by the Trust) “to give time for a remote visit [i.e. a  conversation with HW] and for the judgment, which you’re going to need as soon as possible”.

I have requested a copy of the approved Order (to which members of the public are entitled under COP rule 5.9) which will doubtless enable me to correct this blog post and to fill in some gaps.  When I receive it (I hope before the hearing on Thursday 30^th May 2024), I’ll update this blog post accordingly.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia