By Amanda Hill, 24th September 2024
I’ve now been sent the (as yet unpublished) judgment in the case of “London Borough of Lambeth v CT & North Central London ICB” (issued 21 August 2024, additions made on 4 September 2024). This is the case I observed and blogged about last month: “A “Catch 22” situation for P or Hobson’s Choice? Disagreement among professionals as to whether P has capacity and a finely balanced decision for the judge”
The hearing I described in that blog post (COP 14251478, 20th August 2024) was about the finely balanced decision HHJ Beckley had to make as to whether P, to whom I shall now refer using the pseudonym ‘Georgio’, had the capacity to make decisions about his residence and care. Both Georgio’s Litigation Friend, the Official Solicitor, and the Local Authority argued that he did. The NHS Trust disagreed. The hearing ended without a judgment. The judge said he would let the parties know his decision the next day.
At the end of the blog, I wrote that I’d asked for a copy of the approved order and that I hoped I would receive it as I was really interested in what HHJ Beckley decided.
I have since received the approved order (sent to me on 10th September) and on top of that, unsolicited, on 4th September I also received a copy of the judgment (not yet published) from HHJ Beckley. I’ve also been sent a copy of the position statement from P’s litigation friend, the Official Solicitor, via her representative (received 6th September, after I requested it from the Official Solicitor). These documents have been enormously valuable as they enable me to make transparent what I’ve learnt from them, which is much more than from simply observing the hearing. The position statement in particular provides more information about Georgio. They show how important it is to have court documents in making sense of what happens in court.
Most importantly, the judgment reveals that HHJ Beckley decided that Georgio did not have the capacity to make decisions about his care and residence.
The judgment made reference to a possible appeal against that decision and the approved order included a listing for another hearing on 17th September 2024 – but this hearing did not take place, and I’m not sure whether or not an appeal has been made. In this update I will explain what I learned about Georgio from the position statement, in order to provide more context for the reasons the judge gave for his decision. I will then outline other aspects of the judgment that I found interesting, as well as confirming who the parties were and which counsel represented them, as was clarified by both the judgment and the approved order. I will then outline the process of the judgment being issued, as I think it gives an insight into what can happen ‘behind the scenes’.
More about Georgio
The judge referred to Georgio by his real name throughout the judgment, saying that “the use of initials can be de-personalising”. I am still bound by the Transparency Order of course, which forbids me from identifying P. But I will take a leaf out of the judge’s book and so I am using a pseudonym here (rather than initials or the generic “P”) to refer to him. The following information was provided in the position statement I received.
In the original blog, I wrote that Georgio was “a man who looks to be in his late 60s or early 70s.” I read in the position statement that he was in fact much younger – 55 years old. He was born in London and has lived there his whole life. He suffered a head injury when he was 12 and has had epilepsy ever since. Following the death of his mother, he started drinking alcohol and using drugs, lost his business and eventually lost his home as well. The position statement makes no reference to any other family members. He now suffers from ill health, recently acutely. His physical illnesses and health problems include Chronic Obstructive Pulmonary Disease (COPD), Polysubstance and opioid dependency, epilepsy, chronic back pain, arthritis, and osteoporosis. He is partially sighted due to vitamin B12 deficiency, and has a “mixed type” cognitive impairment. The position statement reports that Georgio uses a wheelchair but is unable to use his arms to move, due to pain. He only has the use of one leg and uses that to move himself backwards in the chair. He has said that he would not use a wheelchair if he moved back onto the streets. He also says that he is in constant pain. Psychiatrically, he has suffered from Post-Traumatic Stress Disorder, has suspected antisocial personality disorder or emotionally unstable personality disorder, a history of psychotic depression and Dysexecutive Syndrome and polysubstance use, with alcohol and opiate dependence, for which he has been intermittently prescribed methadone. Learning this about Georgio laid bare in very stark terms the poor state of his health.
The judge’s principle reasons for deciding that Georgio did not have capacity to make decisions about his residence and care
The judgment goes into a lot of detail about the judge’s reasoning. But the key points that I took from it related to the relevant information. Everyone has to agree on what the information is that Georgio needs to be able to understand, retain and weigh, and then they have to determine if he does in fact understand, retain and weigh it, in order to determine his capacity. In this case the judge says that one thing that hadn’t been included in the “information”, which he thinks should have been, is that Georgio has mental impairments that create care needs and affect his decision-making ability. He then goes on to say that this in particular is something P can’t currently weigh. Paragraph 24 of the judgment spells this out:
“Ms Bicarregui (Counsel for the OS, representing Georgio) submitted that a pretty good list of the relevant information that [Georgio] needs to understand, retain, use or weigh and communicate is set out (in the) completed DOLS Form 3. I agree, but I consider it misses an important piece of relevant information, namely that [Georgio] has a number of mental impairments (which are listed in the judgment) and that those impairments lead to specific care needs and affect [Georgio’s] decision making ability in relation to physical care needs and residence.”
The relevant information that the judge doesn’t consider Georgio is able to use or weigh is set out in paragraphs 33 and 34 of the judgment. Specifically, he doesn’t consider that Georgio “is able to use or weigh the fact that he has mental impairments and that these lead to specific care needs and impact on his wider decision-making ability.” Further, he considers that Georgio’s “lack of awareness of his mental impairments means that he is unable to weigh his own impulsivity, lack of planning ability and lack of foresight when he is making decisions about his care needs. If he had such awareness, he could make further attempts to consider the likely outcome of a decision or seek the assistance of another to look at what the likely outcome might be.”
The judge also made clear the fact that capacity is time-specific and that with greater support Georgio could recover capacity and the judge feels that work “should be prioritized”. He also wants a less restrictive placement to be sought.
Other interesting aspects of the judgment
Reading the judgment, although much of it is standard legal explanation, I felt that HHJ Beckley made quite an effort to take Georgio as a person into consideration. From the start, at paragraph 2, some of the contents seem to be specifically aimed at Georgio. This started with the judge stating that he would refer to ‘Georgio’ by name. In paragraph 3 the judge confirmed that he wanted to issue a judgment as soon as possible because it would be “unfair to [Georgio] to have to wait longer for his decision”.
Paragraph 12 outlines the judge’s decision and he reveals it using plain and simple language, and acknowledging how Georgio is likely to feel about the decision: “For the particular benefit of [Georgio], I give my decision now so that he doesn’t have to wade through the remainder of this document. I acknowledge that it will be both disappointing and irritating to him, but I conclude that [Georgio] lacks capacity to make decisions about residence and care and will make a section 15 declaration to that effect. I will explain why.”
The rest of the judgment follows a more typical format, explaining the legal basis for the decision, including “Formulation of the matter”, “The relevant information”, “Using or weighing the relevant information”, “Relevant information that I don’t consider [Georgio] is able to use or weigh”, and “Next steps”. There was a specific discussion about “The fire setting” (Georgio had set fire to a previous placement).
I find that grasping the importance of the ‘relevant information’ when making capacity assessments and decisions is a concept that is hard to understand for lay people such as myself. Despite the judge’s best efforts to make the judgment accessible to Georgio, I imagine that his legal team will have to work hard to try and explain it to him.
Information to supplement the original blog
During the initial hearing, I couldn’t identify who counsel were ,but the judgment and approved order clarifies that. Tony Harrop-Griffiths was counsel acting on behalf of the applicant, the London Borough of Lambeth. Anna Bicarregui was counsel acting on behalf of Georgio, instructed by the Official Solicitor and Mungo Wenban-Smith was acting for the South London and Maudsley NHS Foundation Trust (a non-party).
The documents also clarified the situation with regards to who the parties were and were not. The Transparency Order I had been sent was issued on 14th May 2024 and listed King’s College Hospital NHS Foundation Trust as the applicant and ‘Georgio’ as the respondent. But the judgment listed the parties as London Borough of Lambeth (applicant), Georgio as 1st respondent and North Central London ICB as 2nd respondent. Paragraphs 7 and 8 of the judgment shed light on the situation:
§7: “The proceedings commenced due to a disagreement between Kings College Hospital NHS Trust (“Kings”) and the London Borough of Lambeth (“Lambeth”) as to whether [Georgio] had capacity to decide where he should be discharged from hospital. Kings were removed as a party after [Georgio] was discharged to XX care home.”
§8. “The South London and Maudsley NHS Trust (“SLAM”) have never been a party to proceedings, but capacity assessments were provided by SLAM psychiatrists. SLAM was represented at the hearing and I allowed (with the agreement of the parties) SLAM to question witnesses and make submissions.”
The approved order clarified that the attendance of North Central London ICB had been “excused by order of the Court” which was why there was no legal representation for them.
Once again, having access to the court documents greatly enhanced my understanding of the hearing and shows the value of them being made available to observers and helping proceedings to be transparent. This was also illustrated by the judgment making clear how the final document came to be issued.
The process of the judgment being finalised and issued
The judgment makes clear the process by which it was finalized. The judge emailed his decision to the parties the day after the hearing of 20th August 2024, as he said he would. When the judgment was emailed to the parties, the judge asked the parties to let him know if there was “anything that doesn’t make sense or needs greater explanation”. Following that, the Applicant and Official Solicitor filed a joint ‘request for further detail following the note or judgment”. Subsequently, the judgment included additional information which was distinguished from the original judgment by the use of italics. The additions were made on 4th September 2024 (as noted on the judgment) and the revised judgment was then sent to the parties. I received a copy on 4th September, the same day. With this process highlighted in the final judgment, I was able to follow what was in the original judgment and what had been added as a result of the further information which had been requested by the legal teams. This gave added insight into what can happen in finalizing judgments. I haven’t seen anything like this before, as usually I only see published judgments on Bailli. This is the first time I have received an unpublished judgment. I hope that the judgment is published eventually, so that everyone can see the process of decision making in action.
This hearing has opened my eyes even further as to the difficult decisions that the Court of Protection faces. I feel that HHJ Beckley placed Georgio at the forefront of the case, something that was possibly helped by the fact that Georgio was fully present and engaged in this hearing. The dearth of suitable supported care placements, as well as the basic principles of capacity, including the possibility of making unwise decisions, were also highlighted.
I will keep an eye on the listings for any future hearings in this case.
Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and Bluesky (@AmandaAPHill.bsky.social)
Promoting Open Justice in the Court of Protection 
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