Prohibition on identifying Public Guardian is “mistake not conspiracy”, says Judge

By Celia Kitzinger and Georgina Baidoun, 21st August 2024 (Updated 9th November after receiving response from HMCTS)

On 1^st February 2024 a member of the public, Georgina Baidoun, observed a hearing concerning an application by the Public Guardian to discharge an attorney.  She was sent a Transparency Order prohibiting her from identifying “the OPG” (the Office of the Public Guardian) – represented in the hearing by Mark Calway.

No such Transparency Order should ever have been made.  It was, as the judge who made it said later, “mistake, not conspiracy”. 

But this “mistake” was not fixed for four months, despite the best efforts of both Georgina Baidoun and Celia Kitzinger, the latter of whom picked this up in her role with the Open Justice Court of Protection Project.

The mistake with the Transparency Order meant that we couldn’t publish Georgina’s blog post about the hearing – because it was simply impossible to write about it if she couldn’t say that the Public Guardian was the applicant and they were seeking discharge of an attorney.

We detail what happened below.  We still don’t have an adequate explanation of how things went so badly wrong (despite delaying this blog post in the hope that HMCTS would investigate and report back, but after several chases this hasn’t happened) (See Update added at the end of this blog post, 9th November 2024).

As far as we can determine, someone – we think the judge must be the person to bear responsibility for it since it was her order –  simply made an error by including the OPG in the Transparency Order.  That error should have been fixed as soon as it was pointed out (on 1st February 2024). Instead, we were forced into a long drawn-out process involving unanswered correspondence, a formal COP 9 application, and the stress and time (for Celia) of preparing a Position Statement and then appearing as an applicant in court, seeking a variation to the judge’s order.  This delayed open justice, and it cannot possibly be a good use of the court’s time or the public’s money.

Open justice and transparency are not served by this protracted and unnecessary procedure.  Open justice delayed is open justice denied.

In the first section (“The court’s ‘mistake’”) we describe what happened in relation to the Transparency Order. The second section is Georgina’s (delayed) description of the hearing to which the Transparency Order was erroneously applied. 

The court’s “mistake”

February: The hearing and Georgina’s request to the judge to amend the Order

Immediately after the hearing (COP 14123571 on 1^st February 2024, the experienced public observer, Georgina Baidoun, sent an email to the judge (via the court email) asking the judge (HHJ Sullivan) to amend the Order.  She said: “it currently says that the OPG cannot be named. This doesn’t make sense because the OPG was named in the court listing […].  The way the transparency order reads at present prevents reporting … It is an opaque enough institution without this extra hindrance”.  

In response, on 6^th February, she was told her email had been sent to the Office of the Public Guardian for comment. Then, despite subsequently chasing it, she heard nothing more.

March/April: Celia’s request to the judge to amend the Order – followed by a formal COP 9 application

So, on 27th March, Celia Kitzinger wrote to the judge responsible for the Transparency Order (HHJ Sullivan) copying in the lead judge for the regional hub (HHJ Eleanor Owens) saying: “I cannot envisage any circumstances under which it would be in accordance with the principle of open justice to prevent the public from knowing that the Office of the Public Guardian (OPG) was involved as a party in the Court of Protection” and pointing out that the prohibition has the effect of banning Georgina Baidoun “from writing anything reporting on the case, and it prevents the Project from publishing a blog about it too”.  The email asked the judge to vary the TO so we could report on the case. 

Three weeks later Celia got an acknowledgment of her request saying that the judge hoped to respond by 22^ndApril 2024.  She didn’t.  

After chasing on 23^rd April, Celia got a response on 25^th April saying: “Please advise Professor Kitzinger that I will require a formal application to amend the order from the observer who has raised this issue”.  Celia cut and pasted the information from her original email of 24^th March on to a “formal” COP 9 form and sent it back the same day. (There is no reason why it had to be the observer who made the application, since Celia (as blog editor) was affected by the order and hence was entitled to ask for a variation.)

May: A hearing to amend the Order

We expected the application to be dealt with on the papers.  But no. The judge then listed a one-hour (remote) hearing for 30^th May 2024 solely to deal with the matter of the Transparency Order. 

We hoped that the Public Guardian would indicate in the interim that they did not oppose Celia’s application to name them. If they did, said the judge, the hearing could be vacated.  But neither Georgina nor (we understand) the judge heard anything from them.

So, Celia (who is not a lawyer) consulted with some busy lawyers who were willing to help her think what she needed to say, wrote her Position Statement, and chose to publish it in advance of the hearing in a blog post:  Challenging a Transparency Order prohibiting identification of the Public Guardian as a party.  

No Position Statement was received in advance of the hearing from the Public Guardian.

So, on 30^th May 2024, Celia was in court (remotely) in Maidstone as the applicant in COP 14123571 before HHJ Sullivan. Georgina came too as an observer. 

Once we were both on the video-platform and before the judge appeared, a member of the court staff asked whether we were expecting anyone from the OPG and Celia said “I hope so – they’re the first respondent”.  We all waited five minutes in the hope that the PG would turn up. They didn’t. 

The judge appeared and said: “Good morning. I’m afraid we don’t have anybody from the Office of the Public Guardian. They were made aware of this hearing at the same time as yourselves, and I think, Professor Kitzinger,  you will recall the email that came out from the hub, 2^nd May, saying that if they didn’t object then I’d be very happy to have a consent order so I could vacate the hearing. So, as far as I’m aware, they’re not objecting to the proposed amendment. […] I’ve looked at the proposed amendment. It seems perfectly fine to me. The reason I did want to have a hearing was I did want to hear from the OPG if they had any points they wanted to raise.  … I didn’t think there was going to be an issue, but I thought it was appropriate for them just to have 5 minutes to tell me if there was.  So I’ll make that amendment and get that through the hub today.”

She added that the protected party has since died, and made some polite and interested enquiries of us both as to how many hearings we managed to get to and our geographical scope.  

Celia was so cross by the length of time this had all taken, and the amount of work it had involved her in that she didn’t trust herself to say very much by this point.  Having imagined (reasonably enough) that there would only be a hearing because of some kind of objection or difficulty raised by the OPG, she had researched a range of possible concerns and arguments relating to them and consulted several helpful senior barristers about ways of managing what she imagined might be a complex situation.  But it had all disappeared in a puff of smoke.

Fortunately, Georgina was able to be warm and friendly and to engage with the judge. She explained her own interest in observing:  “I do appreciate it when I can watch cases involving the OPG because there are so many people now involved with Lasting Powers of Attorney in this country. Either holding them and not realising what they’re going to entail, or finding themselves acting as attorney and not really knowing what the constraints are… For me it’s the issues that get raised through the LPA or sometimes the Deputyship, which it’s very hard for a layperson to imagine.  I’ve been a Deputy myself and when I’m writing a blog it’s with the purpose of alerting people really to issues they might not otherwise think about.”  Georgina and the judge then had a conversation about some of the problems that arise with Lasting Powers of Attorney and the judge made reference to “the one that David Hodge did, the Chanel handbag, the watches”. We looked it up afterwards and it was this one: “Judge names and shames women who spent £230,000 of elderly relative’s savings on cars, designer handbags and jewellery” (it was Mulberry and Vivienne Westwood handbags). 

The judge’s only explanation for why the OPG had been included in the transparency order in the first place was: “it can be a bit pressured and perhaps that can be attributed to what’s happened with this. But in any event, I’ll get that amendment done. And I’ll look at them perhaps a bit more carefully in future, even when we’re a bit pressed.” It was, she said, “mistake not conspiracy”.

And a sting in the tail: after the hearing, the Order revising the Transparency Order was sent promptly to Celia and to the Public Guardian – who responded the very next day (31^st May) to say that the Public Guardian “does not object to the order made but requires an amendment to the recitals”.  They submitted a  COP 9 formal application  (more admin, more work, more cost to the public purse).

The Office of the Public Guardian says they were not issued with the notice of hearing that took place on 30^thMay and so were unable to attend.  They say furthermore that they had not made an application to be anonymised in this case, and in any event, that as far as they were aware proceedings had concluded back in April (we think this will have been when P died) and at that point there was no order to anonymise the Public Guardian.

We don’t know if these amendments to the Order were ever made. Celia has never received a revised version of the Order, so maybe not.  

We honestly don’t know how it’s possible that the Office of the Public Guardian were not issued with the notice of the hearing.  We asked HMCTS to investigate whether or not there’s any evidence that the COP sent the notice that the OPG says it didn’t receive – but we’ve not received a substantive response.  Given that the OPG didn’t respond to either of us attempting to assess their position in advance of the hearing, we are willing to consider the possibility that notice was sent to them, and ignored or mislaid.  Georgina has noticed that the OPG often say (in hearings that she’s observed) that they haven’t received documents which family members say they’ve sent.

In our view, this whole episode is a shameful waste of public money. It’s depressing that the mistake (anonymising the OPG) should have been made in the first place – but the solution should simply have been to fix it as soon as Georgina pointed it out, back in the first week of February. All those emails from both of us, the COP 9, the formal Position Statement, the hearing itself – none of those should have been necessary.  We note, further, that the judge is a Tier 2 judge (so not the most ‘junior’ of judges) and that correspondence was copied to HHJ Owens, the Lead Judge for the South East Region, who might have been expected to provide any necessary support in sorting out this problem.  It shouldn’t be necessary for members of the public to jump through all these hoops in order to support the judicial aspiration for transparency in the Court of Protection.

The hearing on 1^st February 2024, by Georgina Baidoun

This is my belated account of what happened in the hearing I was banned from reporting on for so long.

The protected party had given Lasting Power of Attorney (LPA) for both ‘property and financial affairs’ and ‘health and welfare’ to Mrs A, her daughter (and, I think, also to Mrs A’s husband given the way he was mentioned later). 

The Office of the Public Guardian sought to permanently remove Mrs A’s power of attorney because they were concerned that an equity release had been arranged on P’s home and it seemed that not all of the money had been accounted for. 

There was no hint as to who had raised this issue with the OPG but I assume someone did because people with power of attorney do not normally have to report to the OPG. A good guess would be someone concerned to recuperate care costs. The power of attorney had already been temporarily suspended and someone was acting as a professional deputy pending the outcome of this hearing.

Mrs A’s position was that the equity release on P’s home had been arranged when P still had capacity and before the LPA took effect. The OPG said they had yet to see evidence of this, despite Mrs A saying that she had already sent it through her solicitor, when she had one; she was now representing herself due to cost. (This wasn’t the first time I had heard a respondent claim she had sent information to the OPG which they said they didn’t have.)

The big issue arising from this state of affairs concerned the selling of P’s house, the money from which was needed to pay debts – probably care home fees, although no details were given. Mrs A had instructed two estate agents and the house had had some viewings. The Judge made it clear that she did not have the authority to do this, given that an interim deputy was now acting for P. The Judge pointed out that even the interim deputy would not be able to sell the house without making an application to the court. Mrs A said that she had acted on the advice of her solicitor at the time and produced an email confirming this. The Judge seemed surprised by this advice but I thought it was probably sensible. The solicitor would know that there could be no contract until there was proper authority, but selling houses takes time and he or she probably thought (over optimistically no doubt) that the authority would be obtained by the time it was needed. 

At this point, there was a dramatic turn of events. I can’t remember exactly what was said but Mrs A realized for the first time that the application was not only to discharge the power of attorney for property and financial affairs but also the one for health and welfare. She was clearly very upset by this. It was indeed hard to see the logic.

The Judge suggested that the way forward would be for an order to be issued to the effect that Mrs A should respond to the issues raised by the OPG by way of a witness statement to which she should attach any receipts she had for contested expenditure and also documentary evidence of when the equity release had been agreed.

I was disconnected from the hearing at this point (there had been technical difficulties both for me and for Mrs A) but I think it was more or less over anyway. I did not try to reconnect. 

Immediately after the hearing I wrote to the court asking for the Transparency Order to be varied.  I’m dismayed that it took four months before this could be achieved.

Update: 9th November 2024

At a meeting on 17th June 2024 I made a verbal request to two senior HMCTS staff to investigate what went wrong in this case leading up to the hearing a little more than a couple of weeks before, on 30th May 2024

I followed up on 26th June with a reminder: “When we spoke I asked you to find out, if you could, whether the COP had followed the correct procedure and informed the OPG about this hearing before HHJ Sullivan. It concerned my application to vary the TO to permit identification of the PG as a party in the case.  The OPG did not turn up to the hearing and subsequently said they’d not been informed about it. I would like to know if in fact they were so informed.”

Having received no response, I wrote again on 19th August 2024.

Again I received no response.

On 21st August 2024, I published this blog post and sent a link to my two HMCTS contacts. No response.

On 29th October 2024 I chased again, in an email which was also raising a separate problem: “I also asked you to investigate (and have not heard back from you) why the Office of the Public Guardian said they had not received notice for the hearing at which I was applicant back in May (as blogged here ).  This resulted in a massive waste of everyone’s time since they did not oppose my application and if they had received notice would have said so and avoided the need for an attended hearing.“

I finally got a response on 4th November 2024, i.e. 5 months since the court hearing about which I was expressing concern.

It seems that the Public Guardian may not have responded to mails about whether they objected to our request to vary the Transparency Order because the emails concerning this matter were sent to the wrong address: “the court hadn’t updated the email details at that time so the usual OPG email address was still being used rather than the counsel’s as instructed“

As to why the Public Guardian didn’t turn up to the court hearing: “I can confirm that the OPG were served with the documentation in this matter to their usual email address, an email was sent to them at the same time it was sent to you about your application on 2^nd May 2024 to notify them of the hearing on 30^th May. That said as noted, an error has been made as the notification should have gone to the counsel on record instead of their usual email address which most likely led to the non attendance/no response at that time. […] Unfortunately an error is at fault in missing the update of the service email address in this matter and some process delays potentially that impacted the application you made“.

So it seems that at the root of the problem was likely an error in emailing the usual OPG address instead of counsel representing the OPG in this case.  And the cost was many months delay for transparency, and an actual attended hearing (with all the cost of that for the Court) for which I spent hours writing a Position Statement (and wasted time consulting legal friends about it).

I think the moral for me is that next time I hear nothing back I shall ask about the email address someone has used and query whether there is another or someone specific to which it should be sent.

I’m told that since July 2024 a new system has been in place which “enables us to record who acts for who on a case and shows those party links to make it clear on the digital file who is to be contacted“.

Uhm, well, that’s good. Why on earth wasn’t that in place before?

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 560 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X  (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)

Georgina Baidoun was the lay Court of Protection Deputy for her mother’s Property and Financial Affairs until her mother died in 2021. Because of the difficulties she experienced with several applications to the Court, and with the Office of the Public Guardian in connection with her annual report, she has retained an interest in these areas, including attending Court of Protection Users Group meetings. She is keen to share her experiences in the hope that she can help others who have to engage with these institutions with very little help or guidance. She is on X (@GeorgeMKeynes) and Bluesky (@georgemkeynes.bsky.social)

_{Note: All quotations from the hearings are based on contemporaneous notes and are as accurate as we can make them, but given that we’re not allowed to audio record proceedings are unlikely to be 100% verbatim.}