By Sandra Preston and Amanda Hill, 15th September 2025
We observed this remote hearing (COP 13630253) before Senior Judge Hilder at First Avenue House in London on Wednesday 3rd September 2025.
It was Sandra’s first time observing a remote hearing, but Amanda has observed scores. We have divided this blog into two parts. First Sandra describes the hearing and highlights what she found most interesting, and then Amanda outlines the key points she took from it.
The protected party (P) is a woman with diagnoses of mild learning disability, emotionally unstable personality disorder, functional neurological disorder, dissociative disorder and elective mutism. She can communicate using Makaton. Amanda observed a previous hearing about this case on 25th July 2024. At that time, P had been in hospital for a long time and was awaiting discharge to a specially adapted bungalow. It became apparent during this hearing that care and residence have broken down. Now P is back in hospital and awaiting an urgent surgical procedure. The hearing became about authorising that. But where P should live and who should care for her after she left hospital is the long-term substantive matter before the court.
This was a fully remote hearing: the judge was in an empty courtroom. In all there were 15 people on the screen, which is a lot of people.
- The protected party was represented by Ian Brownhill (via the Official Solicitor, her litigation friend).
- Ulele Burnham represented the local authority, Suffolk County Council;
- Samantha Paxman (with two hats on) was representing both Norfolk and Suffolk NHS Foundation Trust and NHS Suffolk and North East Essex ICB; at times SJ Hilder asked Counsel which hat she had on when she was speaking and if the other hat agreed;
- Anna Bicarregui, was representing P’s sister and brother pro bono. (P’s sister and brother were also present in court.)
There were also solicitors and professionals representing the Trust, ICB and County Council on the link.
Summary of the hearing – By Sandra Preston
The real issues between the parties at this hearing, as I understood them, were what medical treatment P should receive, when and on what legal basis, and whether a suitable package of care and support could be provided for her in the community once she was fit for discharge from hospital.
After requesting and receiving the link and a copy of the Transparency Order from the Court staff, I also submitted requests to each of the four parties asking them to share their Position Statements. Three of my requests were granted: the notable exception was the Official Solicitor, from whom I received the standard template refusal. Following the guidance in Re AB (Poole J) I wrote to ask SJ Hilder to direct the Official Solicitor (OS) to disclose their PS, which the judge did in her no-nonsense way at the start of the hearing. Fifteen minutes later all the observers had the necessary Position Statements and the hearing got underway.
We learned that P had resided for some time in an acute hospital setting where previously there had been concerns about her capacity to make decisions about her hydration and nutrition. It appeared that her treating clinicians had now decided she had capacity in this regard and she was consenting to a nasogastric feeding regime. She required gallbladder surgery, having had a drain fitted as a temporary measure to ease her pain and to buy time while the various parties deliberated over the legal basis for the operation to go ahead. It was unclear whether this would necessitate an application to the court, or whether P was being treated as capacitous in this regard. Her family members were concerned that surgery, which had been planned for a specific date, and which was considered to be in P’s best interests, should not be delayed unnecessarily. They also wanted the surgery to proceed while P was still in a hospital setting.
The OS’s overriding concern appeared to be how this matter was being litigated. P was being deprived of her liberty in a hospital setting where, if she was not being treated as capacitous, she was effectively in hospital without a DoLS. It was a matter for the acute hospital Trust to decide under what legal basis they could proceed or whether they would need to apply to the court. But they had less than two weeks until the date planned for surgery.
SJ Hilder’s view was that it would be wrong for planned surgery to be delayed while legal framework issues were resolved. She instructed P’s representatives to make express representations to the acute hospital Trust seeking answers to the list of questions that had been drafted for the clinicians and warning them about the need for a proper legal framework. She also wanted confirmation as to whether the insertion of the nasogastric feeding tube had been a capacitous decision or a best interests one. She set out a clear timetable of the steps that needed to be taken and by when, so that the surgery could proceed as planned.
SJ Hilder then moved on to address the main issue which was what progress had been made in identifying a community setting to which P could be discharged following surgery. The primary position of all parties, including family members, was that if and when an appropriate care package could be identified, P’s needs would be better served in a community setting. The LA put forward their concerns about the identification of appropriately skilled carers, the absence of which could cause the community placement to fail. No options were immediately available but three potential care providers were currently under consideration. SJ Hilder set some firm deadlines for when these providers would need to put their cards on the table in terms of being able to meet P’s post-surgery assessed needs.
SJ Hilder set the date of the next two-hour hearing for 2pm on 14th November (coincidentally the date on which one of the family members was due to give birth) and again gave directions as to what she expected to happen in the interim. This included an update from the surgeon as soon as practicable after the operation had taken place, which she considered it was the responsibility of the parties to obtain. If P was considered clinically fit for discharge from hospital following the operation and if the parties could agree on a community care package/placement, she would accept a COP9 application from any of the parties to vacate the 14th November hearing. If she had not received this by 4pm on 29th October, the hearing would go ahead.
Reflections I – By Sandra Preston
For an observer coming to this case for the first time, it was no easy task to establish who everyone was on the screen and what their roles and issues were. The Position Statements helped greatly in this respect.
The judge ran this hearing with clinical precision, setting out clearly what her expectations were and fixing firm deadlines by which actions needed to have been completed, and making it evident to representatives when she was less than pleased with their response (eg “it’s not helpful to be told a party has not yet made its mind up”). It left me feeling confident that if the various representatives did what she required of them within the timescales set, progress would be made on the next occasion that would be beneficial for P.
One thing I noticed was that SJ Hilder sought permission from the representatives before addressing family members. The family members were clearly much more closely involved and better placed to answer her questions (which is more often than not the case) and it made sense to me for her to direct her questions to them rather than via their representatives.
It was disappointing that Counsel for the Local Authority did not know the name of one family member and had to be corrected after continued use of the name of a well-known actor rather than the person’s actual name. The eye-rolling of that family member concerned each time it happened suggested she felt the same way.
Reflections II – By Amanda Hill
I found it interesting reading Sandra’s reflections, as she picked up something that I had noticed too – the etiquette or unwritten rules of the courtroom and the impact this can have on family members and proceedings as a whole – particularly the matter of the judge speaking directly, or not, to family members.
Court etiquette is that a judge speaks to a party through their legal representatives. Represented parties do not normally get to speak (unless they do so as witnesses), only their barrister does. At this hearing, it was clear that P’s sister in particular had enormous knowledge to be able to help the judge make her decisions. To me it felt an unnecessary step for the judge repeatedly to ask Counsel for permission to speak to her clients. On at least three occasions that I noted, P’s sister put her ‘yellow hand’ up and the judge asked her Counsel if she could speak to her client directly (with ‘yes’ being the answer each time).
Would the ceiling of the court come crashing down if court etiquette was suspended with agreement at the start of a hearing, in suitable circumstances such as I think this one was? There have been previous hearings when these family members have been present and addressed the court, so it wasn’t the first time they were in court. It was already a bit of a strange hearing protocol-wise, as yellow ‘MS Teams’ hands were often popping up as the judge was speaking. Just as family members knew more about P than did Counsel, so too the professionals had more knowledge of what was happening on the ground than did their Counsel, as it was a fast-moving situation.
I understand that this etiquette has developed over time but nothing formal is written down. Reasons for organising speakership in this way are:
- A person has chosen to be represented, so it’s about protecting their rights – and they may not wish to speak in court
- A party may unintentionally mislead the court in what they say, which could get them into trouble
- The judge has to deal with both evidence and submissions, and contributions from an individual unaware of the distinction can cross that boundary
- It’s a hearing and not a meeting and so only one representative per party speaking prevents chaos.
These are of course valid reasons. But I just wonder whether the unwritten rules could be bent more when it makes sense.
Moving to the interventions by the family in this hearing, the family members were concerned that P needed the gallbladder surgery urgently, and after extensive discussions with the clinician, in P’s sister’s opinion, it was the right thing to do for her sister. (Her brother didn’t speak but I know from their position statement that he agreed). There was discussion during the hearing about whether a less drastic solution was possible. P’s sister asked to address the court (via putting her yellow hand up) and I’m reporting the gist of the conversation (I don’t touch type, so my notes won’t be completely verbatim).
P’s Sister: I am thinking that people are getting muddled …the drain was a short-term measure as surgery was not possible after infection …I went through the risks and benefits with (the senior surgeon) and he is happy that it is in her best interests to have surgery as soon as possible …. The only way he can stop the pain and infection is removing her gallbladder, and, like an appendix, we can live without it.
The Judge’s reply to her: Yes, the order reflects confusion….. So I want the order changed to say that P has not had surgery and you say that you support it. This is an area that lawyers get irate (about) as P has to give her own views. (They) are not trying to delay (surgery) but (we) are trying to ensure that there is a lawful framework for surgery.
I found the judge’s choice of words interesting: “lawyers get irate as P has to give her own views” (that is via her Litigation Friend, the Official Solicitor). This can be confusing to family members – many of whom don’t fully understand (or don’t accept) that it’s not them who represent a person who does not have capacity, but rather the Official Solicitor. However, it was clear in this case that P’s sister knew more than the Official Solicitor. This exchange reflects the in-depth knowledge of her sister and how she was trying to get the best treatment for P. She was worried that surgery would be delayed. But the procedure has to be properly authorised by the court – and P’s sister isn’t the one who can give approval, that’s the judge.
The judge was on top of things, listened to P’s sister, and recognised that the order needed to be changed. P had been asked herself but had said that the decision was “too big” for her. But she had not been assessed as lacking capacity. So, the use of the term ‘best interests’ by the surgeon to P’s sister was also problematic for the court.
I suspect that the outcome will be that the surgery does go ahead, once the court is satisfied as to the legal framework and has the appropriate answers from the surgeon.
There was a similar exchange towards the end of the hearing. Counsel for P (via her Litigation Friend the OS) was concerned about the nature of the surgery and whether it would be the least invasive option, and what that meant for recovery time. Again, P’s sister asked to intervene. She stated that the surgery would be keyhole and that the surgeon hadn’t done any other type of surgery for this issue in six years. At this point I saw Counsel for P do a physical ‘thumbs up’ (with his real hand) on screen.
The third intervention from P’s sister that I want to highlight was towards the end of the hearing. She is playing a vital role on the ground as she is effectively acting as interpreter for P, using Makaton (and having to fit this in with a full-time job). Hopefully the Trust can find personnel who know Makaton to reduce the reliance on P’s sister.
During the discussions about future hearing dates, it became apparent that Ian Brownhill had stepped in at fairly short notice for another barrister. He said that he would not be available for the November hearing. But the judge did ask if, for continuity, he could be available for an urgent hearing about the proposed medical treatment if one was needed. This exchange shows how much juggling legal teams and the court have to manage, and how family can provide some continuity.
At the time of publication, the surgery should be done and we wish P a good recovery. We hope to be able to report on how the case is progressing if the 14th November hearing goes ahead.
Sandra Preston is the daughter-in-law of a P who was involved in Court of Protection proceedings, as she describes in her earlier blog post, written jointly with her husband, P’s son, Joe Preston. You can read it here: A court hearing and 23 visits from 16 officials: Family doubt that ‘Deprivation of liberty’ is working in the public interest. Sandra can be contacted through the project email on openjustice@yahoo.com.
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 a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is on LinkedIn (here), and also on X as (@AmandaAPHill) and on Bluesky (@AmandaAPHill.bsky.social).
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