By Daniel Clark, 16th May 2025
This case concerns XY: an autistic man in his twenties who lived an active and sociable life until a decline in his mental health.
As described in an earlier blog post, he’s been failed by NHS South West London ICB and the London Borough of Wandsworth.
The issue before the court is whether the deprivation of liberty arising from his care and support arrangements is proportionate and in his best interests. With the exception of one element of this deprivation of liberty (up to 2:1 supervision), the judge has so far declined to authorise these arrangements.
I have observed four hearings in this case (COP 13261362): in October 2024 (“the October hearing”), December 2024 (“the December hearing), February 2025 (“the February hearing”), and one on Monday 31st March 2025 (“the March hearing”).
It is the March hearing that this blog concerns. As with the other hearings, it was before District Judge Clarke, who was sitting in person at First Avenue House.
The public bodies involved in this case are: the NHS South West London Integrated Care Board (represented by Ulele Burnham), the London Borough of Wandsworth (represented on this occasion by Peggy Etiebet), and the South West London and St George’s NHS Trust (represented on this occasion by Jake Thorold).
Eleanor Leydon represents XY via his litigation friend, the Official Solicitor. XY’s mum, dad, and two siblings are his court appointed deputies for health and welfare. XY’s mum is also a party to proceedings. She was unable to secure representation for this hearing, and therefore represented herself as a litigant in person. She was supported by a McKenzie friend.
Rather than set out the background of this case, which I have done elsewhere, I am going to make reference to my previous blog throughout this blog. That’s because there has been very little meaningful development. This blog is structured as follows:
(1) Issues about transparency: in particular, difficulties in identifying which barristers represented the parties in this hearing.
(2) Judicial directions in relation to placing restrictions on XY’s internet use
(3) Judicial concern about the exclusion of XY’s family (especially insofar as they are also his deputies)
4) Blood tests, and a reduction from 2:1 supervision – two other issues already repeatedly raised in this case
1. Transparency Matters: Secret barristers?
A few hours before the hearing in March, the Open Justice Court of Protection Project received an email from a lawyer representing the ICB asking us to correct “significant errors in the reporting of the case” in our reporting thus far (in this blog post).
There were two concerns raised. First was an erroneous attribution of the words “I can see the court’s concern” to Counsel for the ICB (it was actually said by Counsel for the local authority). Second was a potential for misunderstanding in a way that I’d presented some dialogue. The ICB was concerned that I might be read as implying that a social worker was employed by them when the social worker is in fact employed by the local authority. I was disappointed that I’d inadvertently made these mistakes, but I was glad to be able to correct them speedily.
For the March hearing, as I always do but with an eye on the fact that they are the best guarantee of fully understanding a party’s position, I asked (via email) if the judge could give permission for position statements to be shared. As with previous hearings, she did so but the choice of whether they are shared remains with the parties.
This hearing was in person, and the court had been able to establish a video link for remote observers (which is a positive for transparency). Less positively, however, the camera was fixed firmly on the judge (which couldn’t be corrected, despite the judge’s best efforts), and the sound from microphones in front of counsel was – at the beginning – weak.
This meant that none of us on the link could properly hear the introductions. We could hear enough to distinguish different voices but couldn’t be sure we had heard the right surname. As is usual in court proceedings, counsel was introduced as “Mr/Ms X” (i.e. surname and no first name) making it even harder to be able to identify exactly who was representing the parties. Since we could neither see the barristers, nor hear them clearly, we didn’t know who they were – except that I thought I recognised the voice of one of them (counsel for the ICB), who had acted at other hearings I’d observed. I sent her an email. I asked both for her position statement and to confirm the name of counsel for the local authority (I thought I knew counsel for the Trust but turned out to be mistaken).
She told me that she needed to take instructions about whether I could have the position statement (I never received it so I assume the answer was “no”) but did not acknowledge my question about other counsel. A follow-up email, in which I asked who represented the local authority and Trust, also went unanswered.
A paralegal sent me the position statement filed on behalf of the Official Solicitor, and I asked if he could confirm the names of other counsel. He was happy to do so – but only after he had confirmed that they were happy for this information to be shared. Of course, they did give that permission but it took until nearly the end of April before I received the names of both barristers.
I don’t want to be critical of the paralegal for taking this approach – he was more than happy to help – but I do wonder whether it was strictly necessary. This case was heard in open court, and it naturally follows that the names of counsel can therefore also be lawfully placed in the public domain.
I think I wouldn’t have had this problem if I’d asked the court. According to HMCTS guidance[i], “in line with Part 5 of the Civil Procedures Rules (CPR) […] journalists […] should be given factual information about cases such as […] the names of parties, the judges, barristers, solicitors’ full names”. Furthermore, “staff should treat the public the same as the press and give out details about cases as set out above”.
The Court of Protection can apply the Civil Procedure Rules where a situation is ‘not expressly provided for’ in the Court of Protection rules. (Rule 2.5). I see no reason why this particular rule would not carry across into the Court of Protection, notwithstanding the fact that there doesn’t appear to be a specific rule about this issue.
All of this could have been avoided if each of the parties’ representatives had introduced themselves (clearly and loudly) with their first and last name. As the Open Justice Court of Protection Project suggests in its transparency tips for judges, asking counsel to be introduced by their first and last name may not be court etiquette but it does ensure both accurate reporting and a guarantee that we will be able to find the right person online (so we can ask for position statements).
As it happens, knowing the name of counsel didn’t help me to get a copy of the public body’s position statements. In the end, I only ever received the position statement of XY’s mum and the Official Solicitor. As a result, I know neither the full position of the public bodies nor whether what was discussed in court was foreshadowed in their position statements.
2. Restrictions on internet use
In my previous blog, I explained that the parties agree both that XY lacks capacity to access the internet and that it is not in his best interests to have unrestricted and unmoderated access to the internet. At the December hearing, XY’s mum (represented by Oliver Lewis) wanted Cyber Spider to be commissioned in order to provide a report on possible interventions to restrict XY’s internet use in a “specific and autism informed way”.
The position of the local authority was that it had made a public law decision to not commission Cyber Spider, and therefore the Court of Protection had no jurisdiction to direct its commissioning. The judge agreed.
By the time of the February hearing, a best interests decision had been reached that XY’s internet access would be supervised but there was no clear plan for who was responsible for the implementation of that decision.
It was depressing, but also unsurprising, that there were further submissions around internet use in the March hearing. In order to respect XY’s privacy, and out of respect for the request from XY’s mum (made in open court) that certain information is not reported, I will not detail the specific risks that arise from XY’s internet usage. It suffices to say that, given the nature of these risks, I find it extremely worrying that appropriate restrictions are still not in place.
The Official Solicitor’s position statement sets out the restrictions as: XY agreeing to hand in his phone at 10pm, XY being encouraged to use his phone in communal areas, XY being provided with an education package, and support staff having access to free online resources.
A statement from the local authority, filed at the end of February 2025, notes this plan needs review due to issues in implementation. At a Round Table Meeting on 10th March 2025, it became clear that XY’s care co-ordinator and Care Provider had written to the local authority to set out that they think XY remains at risk because the interventions were not working.
The other parties requested that the plan was reviewed within 7-10 days but the Official Solicitor’s position statement goes on to note that, “It is disappointing that the review of this plan has not been completed in good time before the instant hearing [the March hearing], or the draft plan circulated to XY’s legal representatives (the Local Authority have not filed a version of the latest plan, although a version is appended to [XY’s mum’s] position statement).”
In many ways that updated version is a more rigorous version of the above. Now, support staff should: suggest alternative activities, remind XY to take a break from his phone after one hour, regularly discuss what XY is accessing on the internet, and ask XY how he feels about his internet use.
XY’s care provider had provided some evidence to suggest that XY would hand in his phone at 10pm. However, as the judge put it, “it clearly isn’t [happening] when he’s texting [family] at 4am…It seems to me that what you have in place at the moment isn’t being implemented.” Indeed, XY’s mum told the court that “he’s never handing in his phone – he hasn’t done that since May [2024] when the Trust removed restrictions”.
In the last blog, I wrote about the February hearing: “the judge’s patience in waiting for a decision had run short. It is quite unusual to observe a judge who appears angry but, on this issue, she clearly was.” If the judge’s patience had run short in February, it had all but expired by the March hearing.
The judge asked Counsel for the local authority what is being done to prevent him accessing certain material. Counsel told the court that, from looking at the Official Solicitor attendance notes, “[XY] is quite honest in relation to internet use” (which the updated plan is clearly contingent upon).
Judge: Well, how do you know that? How does the Official Solicitor know?
Counsel for local authority: [Care provider] provided that information.
Judge: But [Care Provider] told you he’s handing his phone in.
Counsel for the Official Solicitor: In respect of how [Care Provider] know, they watch…The Official Solicitor and [XY’s mum] share concerns about what websites are being accessed…That’s why the draft order provides for specific consideration of monitoring measures….
Judge: Forgive my naivety, but I find it incredible that, having assessed his capacity and found he can’t use the internet safely, and making a best interests decision there should be some restrictions, there seems to be nothing effective happening, and he continues to have unfettered access to the internet that is barely monitored.
A little later, the judge reiterated the point: “It’s all taking too long. It’s just taking too long. He’s still got unfettered access to the internet…with limited evidence to suggest that is not the case.”
It’s worth pointing out that, in the position statement that XY’s mum filed, she notes in relation to handing in his phone: “[XY] has, and continues to refuse to do this. Anyone who knows [XY] knows this.”
During the March hearing, XY’s mum once again raised the possibility of Cyber Spider being commissioned and after, a long pause, the judge said, “I can’t require them [the local authority] to get Cyber Spider to get involved as a service that they commission. But does anybody want to address me on whether I have the power to have Cyber Spider report to the court?”
This course of action was supported by both XY’s mum and Counsel for the Official Solicitor.
As has repeatedly been stated in previous hearings, and during this one, decisions about internet restrictions are within the purview of the local authority. Nevertheless, it was Counsel for the ICB that the judge turned to first.
Counsel for the ICB submitted that, while she understood the concerns of XY’s mum, she did not think it was necessary to instruct an expert. Rather, the court should direct the local authority to revise its best interests decision on the basis that it is inadequate. Counsel also submitted that she did not think it was appropriate for the ICB to fund a joint report on an issue that was not part of the ICB’s responsibilities.
The judge was not satisfied with this proposed approach. She pointed out that neither she, nor any of the parties, could properly explain what possible restrictions are available. It therefore seemed logical to direct “a section 49 report from a cyber expert – not necessarily Cyber Spider – so I can have the details in front of me”.
Counsel for the ICB resisted this approach, thinking this could be dealt with between the parties. In the words of the judge: “I think I understand your position quite clearly; you think there is a cheaper way and you shouldn’t pay for it. Unless there’s something I’ve got wrong in that summary, I’ll turn to the other two parties”. That summary was not corrected (at least not in a way that was audible to those of us on the remote link).
Counsel for the local authority put forth a similar position. She submitted that, “the local authority considers it would not be proportionate to instruct an expert”, that it could give consideration to further monitoring, and that commissioning a specialist “is outside the jurisdiction of the Court of Protection” due to the previous public law decision.
On behalf of the Trust, Counsel submitted simply that their position is similar to that of the ICB: internet use is not an issue that the Trust has been asked to give evidence on.
What followed was a complex discussion, that I struggled to follow, about Court of Protection rules. Rule15(12), it was submitted on behalf of the ICB and local authority, meant that only the instructing party should have to pay. The judge said that this was “not helpful” because the rule related to the instruction of a joint expert. Having researched the relevant rule for this blog, it’s quite clear that’s exactly what it was intended for. Here’s what it says:
The judge did not have in mind an expert instructed under this rule.
“The court has taken a cautious approach…and resisted, previously, attempts to obtain outside assistance. What is utterly clear is that those steps are not working and we are now months and months down the line. This vulnerable person lacks capacity to access the internet use but is effectively left to do so…The local authority have made best interests decisions about what they think is necessary but at no point is it clear to the court that I have been provided information with the range of options open to me to keep him safe….[and] how to restrict his internet access in the least restrictive way… I am content that we have reached the stage that some expert evidence outside of the parties should do so….The parties have had ample opportunity to do so and not done so in an adequate way… It is for me to identify what evidence may be required in order to resolve the issues in the proceedings, and the biggest issue I see is of the least restrictive way to access the internet to ensure XY’s safety. I can order a s49 report and it seems to me that may be the way to deal with it. Cyber Spider has been identified as a possible source but that isn’t the only possible source”.
With that the judge had clearly made her decision. An expert – perhaps Cyber Spider but perhaps somebody else – must provide a report on what restrictions are available. It falls on the local authority to make the necessary arrangements.
I’m glad that the court has now taken more assertive action in establishing how XY’s internet usage could be monitored and restricted. I’m just not sure why this required an assertive approach.
3. The continuing exclusion of XY’s family
XY’s mum, as well as his dad and two siblings, are his court appointed deputies for health and welfare. Despite this, and as I explained in my previous blogs, they’d repeatedly been left out of the loop, and have not always been involved in the making of best interests decision making.
At the February hearing, the judge said: “there appears to be a disconnect between various people taking decisions and the level of involvement of the deputies…so I will include a recital reminding the parties you [XY’s mum] are an unrepresented party [who is also a deputy] and they must comply with their obligations to consult on best interests decisions under s4 of the Mental Capacity Act, and they should do so with a sufficient time to consider and respond to anything before the deadline of any filing that they have to do”.
I hoped – apparently naively – that this would have sharpened the mind of the public bodies, and encouraged them to properly involve XY’s family. At the March hearing, it became clear that this was not the case.
During a discussion of appropriate restrictions on internet usage, XY’s mum pointed out that some of the proposals would not work: “[XY] does not spend time downstairs on his phone. He has a duvet over his head. He deletes his history…Like everything else, there is no collaboration with family”.
The judge was concerned to hear this, asking: “Why are the family and in particular people who hold deputyship not being asked, and who would be best in the sum of knowledge, not being engaged?”
No clear answer was forthcoming (perhaps somebody answered out of range of a microphone but the judge didn’t respond to it if they did).
This issue was revisited toward the end of the hearing. XY’s mum had said something that I didn’t quite catch but it was met with the judge saying, “Why is that? Is there a reason they’re [family] being excluded?”
Counsel for the Trust told the court that there was not and, once again, the judge had to remind them of their duties: “You have an obligation to consult them, and to do so in a meaningful way unless there is a reason why it’s not practicable. I’m not seeing any evidence that it isn’t practicable unless an urgent decision has to be reached. So is there any reason why you shouldn’t include her in all of these meetings?”
Counsel for the Trust pointed out that it would be disproportionate for XY’s mum to be invited to every meeting (such a Multi-Disciplinary Meetings where plans are formulated) but the judge was alive to the issue. She said she would include a recital in her order that XY’s deputies must be consulted every time a best interests decision is taken.
I found this really quite remarkable. As I said in my last blog, “The very fact that this recital had to be included demonstrates that the public bodies have utterly failed in their duties.”
It seems that little has changed.
4. Blood tests and transition plans
There were two other issues that the court had to deal with; issues that, it seems, really should have been resolved before.
One of these issues was the question of blood tests. Due to his restricted food intake (the position statement of XY’s mum explains that he is prescribed high protein supplements), he may need blood tests. However, there had been no assessment of XY’s capacity to consent to, or to refuse, blood tests and there was no apparent plan to conduct any such assessment. As the judge put it, “that’s an ongoing problem”.
The Official Solicitor’s position statement reveals a disturbing lack of action in this regard. It states that XY’s care-coordinator had said in December 2024 that he may accept blood tests with the right type of social story but (according to the Official Solicitor) “it is not clear whether this was ever progressed”.
In the early part of 2025, a dietician reportedly told the care provider’s staff that “XY’s weight was within an acceptable range” but there was no written evidence. Finally, 11 days before the March hearing, the Trust met with XY’s GP, and the public bodies had a meeting the day after. In the stark language of the Official Solicitor’s position statement: “no other progress has been made in respect of blood tests beyond a plan to review and assess the urgency of blood tests, and an agreement to agree a plan for arranging blood tests”.
This was another area in which the judge gave detailed directions for the filing of further evidence. She directed the following to be filed with the court: “a narrative on the work done in relation to blood tests”, including how urgent they are, as well as a capacity assessment (I think to be completed by XY’s GP).
At the February hearing, the judge had authorised the deprivation of XY’s liberty that arises from close supervision (either 2:1 or 1:1). XY’s mum told the court in March that it “would make a difference” for this level of supervision to be reduced and had sent the parties a proposal for its reduction.
While neither the ICB nor the Trust were able to take instructions on this specific point, Counsel for the ICB did flag that XY’s mum had raised concerns about the transition. The judge declined to get into this further, instead making it clear that she has authorised “up to 2:1 for the time being…and require everybody to put together a plan that doesn’t have to wait until the next hearing to be implemented if everybody is in agreement… I am not going to go into the ins and outs of the transition plan, that is micromanaging too far at this stage”.
This case will return to court at 11am on Monday 14th July 2025. I hope, by that time, the judge’s firm handling of this case has resulted in positive results for XY.
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.
[i] I’m grateful to the Mouse in The Court for alerting me to this guidance.
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