Treatment for Anorexia Nervosa: A brief directions hearing (with a new postscript on transparency)

By Daniel Clark, 28th October 2024

It was a first hearing for this case (COP 20003709) on 4^th October 2024  and it was brief – about 25 minutes according to my notes. 

It was heard before Mr Justice Poole, who was sitting in-person at the Royal Courts of Justice. 

This was the first time I’ve seen a hearing in person. I arrived at the Royal Courts of Justice in plenty of time but it is worth stressing that when the Open Justice Court of Protection Project tells you to leave plenty of time to get through airport-style security and find the courtroom – believe them! Your belongings go through a scanner and you have to take a drink of any fluids that you have. 

I couldn’t see any obvious signs for the courtroom but I was assisted by a very helpful man at an enquiries desk, who gave me clear and precise instructions on how to find Court 39. After a pit stop at the café (conveniently in the direction I was heading) all I could do was wait outside the courtroom. 

This turned out to be an instructive experience. I didn’t know what type of case I was about to observe (I’d picked one at random). However, I deduced it must be a Serious Medical Treatment case because the waiting barristers were in ‘wigs and gowns’ compared to the less formal business attire that they usually wear for Court of Protection hearings. 

I also knew that the hearing was delayed because the one prior was overrunning – something I probably wouldn’t have known if I’d been on a video link but did know because one of the barristers was kind enough to tell me. After a long delay (over an hour after the listed start time) I got to see inside a courtroom that I have only ever seen via a video link. It was smaller than I expected but, in contrast to some reports of in-person hearings, I could hear clearly. 

Present at the hearing were two barristers. Adam Fullwood, of 39 Essex Chambers, was representing the applicant Trust – Barnet Enfield and Haringey Mental Health Trust. Fiona Paterson KC, also of 39 Essex Chambers, was representing CC via her litigation friend, the Official Solicitor. 

There was also a video link, on which was the Trust’s instructing solicitor (I didn’t catch her name) and one of CC’s treating clinicians. 

In a very helpful opening summary, counsel for the Trust explained that at the centre of this case is CC, ‘a 21-year-old woman who comes from a large Jewish family’. She has diagnoses of anorexia nervosa and (as I learnt from the Trust’s position statement) a major depressive disorder and autism. 

At the start of October, ‘there was an attempt at ligature [details redacted in line with Samaritans’ reporting guidance] […] It appears this time of year […] has been very stressful, and it may have been triggering. We’re going to look into that’. 

CC has restricted almost all nutritional intake and, as a result, ‘she is at risk of collapse’. CC has experienced numerous hospital admissions for the treatment of her anorexia, some of which included the use of restraint and force for ‘feeding’. Understandably, she has found these experiences incredibly traumatic, which is compounded by some previous traumatic experience(s) (I got the impression that everybody was trying their best to not say what this was). 

She has made it clear that she will ‘purge’ any ‘feeding’ given under restraint. 

The Trust was now seeking declarations that it is lawful, and in CC’s best interests, to not receive ‘feeding’ (or any other treatment for her anorexia) with the use of force, and that it is in her best interests too only receive the treatment (including ‘feeding’) that she consents to. 

The case came before the court as an urgent application at the end of September, and it was listed for the following week. This allowed time for the Official Solicitor to be formally instructed.          

The hearing was intended to be a full day, final, hearing. However, there were two pivotal reasons why this could not happen. 

First, CC and her parents could not be in attendance. This is because it was Rosh Hashanah, which is the Jewish New Year. As a result of their observance of this festival, they could not travel to the court and nor could they use electronic devices (so could not join via video link). CC’s parents, who want CC to make a recovery but also oppose the use of restraint, wanted to be added as parties and secure legal representation. 

Second, the Official Solicitor had not yet met with CC in order to ascertain her wishes and feelings. CC’s wishes and feelings appear to be ambiguous because sometimes she expresses views that indicate a wish for continued life. The Trust’s position statement stated that the meeting with CC needed to be in person because (according to her clinicians) she prefers face-to-face meetings and consultations.  

Both Counsel were seeking an adjournment, and the judge gave some case management directions. 

First, in light of the evidence currently before the court, he made interim declarations that CC lacked capacity to conduct litigation, and to make decisions concerning her care and treatment. 

Second, the judge considered when the case should be heard next. The Official Solicitor was seeking to instruct Dr Cahill but he had not yet been instructed, and it was possible it would take until November for him to file his evidence. Given the fact that the expert wasn’t yet instructed, I was a little confused as to how this could have ever been a final hearing. 

The judge would not be available in November, and so the case would need to be re-allocated to another judge. Despite making enquiries, he knew neither a date nor a judge for the final hearing. However, he was clear that he felt the case needed to be heard before an experienced Court of Protection judge – that is, not a deputy or new full-time judge. This was, he said, because of the complexity and sensitivity of the issues in the case, and not out of any disrespect for those other judges. 

Counsel for the Trust acknowledged that, now proceedings were live, the case could be listed for an urgent hearing if anything changed. 

This also meant that the judge could not give a personal commitment to meeting with CC if that’s what she wanted. However, he was “sure whichever colleague hears this case will be happy for that to be arranged”.

Third, the judge addressed the fact that the Order explicitly stated CC’s sisters could be joined as parties. Counsel for CC explained that this was “because it may be that her sisters have a different view about what should happen from that of her parents”.

The judge was concerned that “if it’s in the order, they might think I expect that” and he didn’t “want to signal that they should feel obliged to join”. Instead, the judge said they should be “told of their entitlement to being joined as a party” but that this needn’t be in the Order.

Finally, the judge asked whether CC already knew about the application. When he was assured that she did, he said this: “it might be important for her to know that the court is endorsing that she makes the decisions for now…and nothing will be done without her consent”.

Update: The next two hearings in this case were observed and blogged by Sydney White: Respecting autonomy in treating Anorexia Nervosa and “An in-person hearing on anorexia (Re CC): Observer’s rollercoaster and the role of ‘hope’)“. The judgment is published here: Barnet, Enfield and Haringey Mental Health NHS Trust v CC & Ors [2024] EWCOP 65 (T3) (31 October 2024)

Postscript re. the Transparency Order (21st November 2024)

On 7th October 2024 (the Monday after the Friday hearing), I looked over the Transparency Order again because I wanted to make sure that I hadn’t missed anything before writing this blog post. At that point, I noticed that on the face of the Order was CC’s full name and date of birth. 

When I realised this, I sent an email to one of the lawyers involved in the case, saying:

“I have read the Transparency Order, and also have a copy of it. I feel it’s important to point out that the protected party’s forename and surname, and date of birth, is on the face of the Order, though the Order is anonymised throughout [it later came to my attention this is incorrect – see below]. My understanding is that, as a general rule, Transparency Orders should be anonymous throughout. 

More specifically I am concerned that, if there are numerous people who observe the next hearing, the court office providing a copy of this form of the Transparency Order would de facto broadcast the protected party’s full name and date of birth to multiple members of the public. I wonder whether this ought to be amended in order to further safeguard CC’s Article 8 rights.”

I received a response from counsel on 9th October 2024 that said this: “I didn’t realise the TO [Transparency Order] you were given was not anonymised but I will raise this with the OS [Official Solicitor] and the court.” It was my assumption that, by the time of the next hearing, nearly two weeks later, the matter would have been resolved.

I was unable to observe that next hearing (on 22nd October 2024) but Celia Kitzinger and Sydney White did (see Sydney’s blog post about it here: Respecting autonomy in treating Anorexia Nervosa). On receipt of the Transparency Order, Celia noted that it still had not been anonymised. She also noticed (which I had missed) that the second page of the Order contained the name of two witnesses who were covered by the prohibited “Information” (the things we cannot publish). Celia immediately sent an email for the attention of Mr Justice Hayden, who was now hearing the case. She said: “I appreciate that the people who receive the TO will – in all likelihood – learn of these names anyway, and that §6 prevents us from reporting them, but it is unusual, and not recommended practice […] to name the people whose identities we cannot publish on a public document”.

Once the hearing started, the judge raised the issue in open court. He was also of the view that the Order ought to be anonymised. Despite my email earlier in the month, I understand that counsel did not display any evidence that this matter had previously been brought to their attention.   

I’m told that counsel then indicated that the names would be removed from a revised TO but as of today (21 November 2024) neither Celia nor Sydney has received a revised Transparency Order. 

It is not uncommon for members of the public to receive Transparency Orders that have not been appropriately anonymised. Sometimes (not in this case) P’s address is also not anonymised.

It is one thing to hear P’s name mentioned during a hearing. It is quite another to see it written down in a public document. In fact, a Transparency Order is rather self-defeating if it broadcasts prohibited Information. 

I am well aware that some lawyers do not think that this is a problem – we are, after all, bound by an Order once we receive it (as Celia acknowledged in her email to Hayden J).  However, as I discovered during research over the summer, it has been the intention since at least 2017 that a Transparency Order should be anonymised: see, “A review of transparency and open justice in the Court of Protection”, particularly s2 (“Not a best interests decision: Private hearings, closed hearings, and closed hearings”) and s6 (“When P’s privacy is not protected”).

Finally, it is clear from a subsequent blog post by Sydney White that insufficient thought had been given to the wishes of the young woman at the centre of this case with regard to anonymisation, and this caused distress to her, and anxiety to the observer on the occasion of the final hearing (see: “An in-person hearing on anorexia (Re CC): Observer’s rollercoaster and the role of ‘hope’)“).

Protecting P’s privacy is an important element of the Court of Protection being able to sit in public. More care needs to be taken that mistakes such as this don’t happen. 

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132  and Bluesky @clarkdaniel.bsky.social.