By Celia Kitzinger, 7th January 2025
(This blog was written in December 2024 and set up for automated release in January in advance of the next listed hearing in this case on 10th January 2025. Note that the Open Justice Court of Protection Project is currently closed and will be reopening on 1st February 2025.)
The protected party was in court from her hospital bed on Christmas Eve. She’s been in hospital since 10th December 2024 with pneumonia and empyema. She’s also HIV-positive and “significantly immunosuppressed” (she’s not been taking her anti-viral medications). She’s inconsistent as to whether or not she agrees to accept investigations and treatment.
The case (COP 20008509) was before Mr Justice Cusworth, with Adam Fullwood as counsel for both the applicant and respondent Trusts (Barts Health NHS Trust and East London NHS Foundation Trust), and Ian Brownhill representing P via the Official Solicitor.
The applicant Trust was asking for declarations that P lacks capacity to conduct proceedings and to make decisions about her medical treatment pursuant to s.15 Mental Capacity Act 2005. She has a diagnosis of “active psychotic disorder” which manifests in “delusions, erratic thought processes and behaviours that have been challenging”, for which she is detained under the Mental Health Act 1983 and receiving psychotropic medications. The Trust also wants the judge to order that it is in P’s best interests to receive the medical treatment identified in a care plan made the day before the hearing, which includes intravenous antibiotics (which I think were already being administered when she agrees to them) and a chest drain to be inserted under general anaesthetic as she shows “resistance and non-compliance”: GA will also enable other investigations to take place. Without the treatment, her doctors say there is a risk of life-threatening septicaemia.
This case was heard on 24th December 2024, four days after the end of the court term. It’s listed to return to court on 10th January 2025, three days before term starts. According to the judiciary.uk website, the legal year for the High Court (so COP cases at the Royal Courts of Justice) is divided into four terms: Hilary, Easter, Trinity and Michaelmas[1]. Last year’s Michaelmas term ran from Tuesday 1 October to Friday 20 December 2024. The first new term of 2025 starts on 13th January 2025. The Court of Protection doesn’t really close over the “vacation” periods. Certainly not for urgent medical cases in the High Court[2].
Counsel for the Trusts gave a helpful opening summary, as invited by the judge (who also authorised the release of Position Statements). He described P as “a 31-year-old transgender woman from [a South East Asian country] who was trafficked in 2013 and has been forced into sex work”. He said she’d been moved across different countries, and within England has been known to different local authorities. At some point she was moved to a place of safety and supported by the charity, Women’s Aid. At some point there was apparently a husband in the picture but “they parted in 2021, he in effect kicked her out of their home and she became street-homeless”. Counsel described her medical condition and the fact that oral antibiotics are not proving effective. Her inflammatory markers are worsening. In pre-hearing discussion, it had been agreed that a s.48 (i.e. interim) declaration that P lacks capacity to make her own medical decisions was appropriate and that the treatment proposed by the Trust was in P’s best interests and ought to take place quickly. It had already been organised that treatment could take place that afternoon if approved by the court. Additionally, questions about an IMCA[3] report, locating P’s husband, and the need for a further roundtable meeting were all raised.
I was in little doubt, after hearing the summary and the outcome of the pre-hearing discussions, that the Trust’s medical treatment plan would be approved. The judge wanted to know P’s views. He had already greeted P over the link and asked if she wanted to talk to him and learnt that her lawyer, Ian Brownhill, had never met her (he introduced himself to her at that point), nor had the OS agent, who had attempted to do so but P was asleep at the time. The judge said it was “appropriate that she gets to talk to Mr Brownhill and expresses her views” and called a 15-minute adjournment so that could take place.
When the hearing re-started 20 minutes later, it turned out that both counsel and the judge had (separately) consulted with P about her wishes. To Ian Brownhill she’d indicated support for the proposed treatment but said she wanted to go home, see her husband, and indicated that she doesn’t have access to her phone. The judge said “P was more limited in terms of what she said to me, which was she wanted to go home, and I didn’t hear from her that she was consenting to the proposed course of treatment. If that’s what she told her advisers, and she is consenting to stay in hospital for the next few days while the treatment is undertaken, that is something I’m willing to sanction. I’m concerned though if the hospital is not proposing to let her go for two weeks or more”.
It turned out there had been at least two recent occasions on which P had expressed support for the treatment plan: to her IMCA yesterday, and to Ian Brownhill today. As to “going home” and “seeing her husband” that may not be practicable if she doesn’t currently have any home, if in fact her relationship with her husband broke down three years ago (and/or may possibly raise safeguarding issues in this very complex situation). In any event going home is “outwith the court’s jurisdiction as she’s under the Mental Health Act and this is not an option available to her”. When her s.2 Mental Health Act detention comes to an end, either she will be detained under s.3 or it may be that she’s no longer under its remit “in which case everything goes back to the Mental Capacity Act at which stage, My Lord, you have the full jurisdiction to determine where she lives and receives care and support, depending on the situation with regard to mental capacity”.
Counsel acknowledged there were gaps in the evidence, particularly since Tower Hamlets, the local authority and primary safeguarding authority, had not been involved in the case. There’s an order against the local authority to provide information, a third-party disclosure order against the police, and an order to get information from the Home Office since P is a victim of human trafficking. But what was needed today was an urgent medical decision dealing with P’s immediate needs now. Other issues can be dealt with later when there is a better view of the bigger picture.
The judge approved the medical treatment plan and closed the hearing by saying that he hoped progress could be made so that information is in place by the time of the next hearing to make decisions “with a deal more confidence that what we are doing is right by P”. He ended by thanking P for her participation and saying, “I hope what we’ve done ultimately works out for the best for you”.
The next hearing is provisionally listed for two hours on 10th January 2025 before the same judge in the Royal Courts of Justice to cover welfare questions including ongoing HIV treatment and P’s care and support arrangements upon discharge. It may be, though, that matters will be dealt with under the Mental Health Act rather than the Mental Capacity Act, or that proceedings will need to be adjourned depending on P’s medical condition and the availability of the requisite evidence.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 590 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)
[1] “Michaelmas” is a Christian festival celebrating St Michael, observed in many Western Christian liturgical calendars on 29thSeptember (see: https://www.historic-uk.com/CultureUK/Michaelmas/) It’s long been one of the four quarter days of the English, Welsh and Irish financial, judicial and academic year. Because it falls near the equinox, it’s associated with the beginning of Autumn. The High Court term names parallel those of Oxford University, where students are taught in three eight-week terms: Michaelmas (October – December), Hilary (February – March) and Trinity (May-June). At Cambridge, they’re called Michaelmas, Lent and Easter. Durham has Michaelmas, Epiphany and Easter. Most English universities call similar blocks of time the Autumn, Spring and Summer terms, and many have now moved from “terms” to “semesters”. It’s common, worldwide, to find blocks of teaching time organised with reference to religious festivals (e.g. Diwali in India, Sukkot, Hannukah and Passover in Israel, the Prophet Mohammed’s birthday in Oman, the Chuseok Festival in Korea and the Qingming Festival in Taiwan. The traditional divisions of the Scottish legal year are organised with reference to Candlemas, Whitsunday, Lammas Day and Martinmas (also used by St Andrew’s University).
[2] There was also an urgent medical treatment hearing on 23rd December 2024 (Daniel Clark will be blogging about it) – and I think it very likely that there are others over this period we won’t get to know about, because office staff are not available to put up listings and they are being organised at very short notice (within a matter of a few hours).
[3] An IMCA is an “Independent Mental Capacity Advocate”, a role created by the Mental Capacity Act 2005 (§§35-41).
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