By Claire Martin, 30th November 2025
This case (COP 20000635) has been before Mr Justice McKendrick for a while, and we have blogged about it twice before: “An urgent case: Renal failure and an application for forced ‘extraction and conveyance’ to hospital”; and “A protracted hospital stay: A next hearing in the ‘renal failure’ case”.
DM is a man in his 40s, with Down Syndrome and learning disabilities. In 2022, he was diagnosed with ‘significant renal problems’. They’ve been difficult to monitor because DM’s father [referred to as MM in the court documents], with whom he lives, is said to believe that doctors intend to harm his son.
At the hearings we observed in 2024, the applicant Trust (the Royal Free NHS Trust in London) said that DM’s life might be in danger. The Trust was seeking authorisation to remove DM from his home (by force if necessary) to hospital so that further tests could be carried out and decisions made about treatment in his best interests.
After DM was assessed in hospital in October 2024, he was discharged home. A final court order of 24th November 2024 allowed DM to be discharged home on the condition that his father would take him for out-patient dialysis three times a week. Proceedings concluded at that point. There is no published judgment.
This blog reports on a hybrid (in person and remote) hearing before Mr Justice McKendrick at the Royal Courts of Justice on Wednesday 8th October 2025, which re-opened the proceedings. A new application had made on 1st October 2025 by the same NHS Trust (Royal Free London Hospital Trust) concerning the same patient. I attended the hearing in person.
In the blog I will detail the new application before the court, report on the hearing and in particular the judge’s frustration with Barnet’s non-compliance with previous court orders to commission and file a psychologist’s report, and end with some reflections on non-compliance in the Court of Protection.
New Application
The Trust says that, over the past year DM has increasingly been missing his dialysis sessions at hospital. In June 2025, DM was admitted to hospital for dialysis for three days, following some missed sessions. Since then (up to mid-September 2025) the Trust says that DM has missed 11 out of 40 dialysis sessions and has not stayed for the full 4 hours on more than half of the sessions, and that they could not persuade DM’s father to allow DM to stay for the full treatment period. Further concerns have been raised by the Trust that DM is not taking his medication as prescribed or eating the right diet (resulting in high phosphate levels). The position of the Trust (represented by Victoria Butler-Cole KC) is: “DM is at risk of very serious complications as a result of under-dialysis including sudden death from an electrolyte abnormality, fluid accumulation leading to difficulty breathing and pressure on the heart, chronic damage of blood vessels, and the development of calciphylaxis, a painful and sometimes fatal ulcerating skin condition.”
This application also asks the court to ‘fully investigate’ the option of removing DM from his father’s care. He has lived with his father all his life, so this would be a draconian step for the court to authorise.
The parties are:
- the applicant – Royal Free London Hospital Trust with counsel Victoria Butler-Cole KC (who was on a remote link)
- DM – via his Litigation Friend the Official Solicitor with counsel Sophia Roper KC (also on a remote link)
- DM’s father, MM – who is unrepresented at present (also on a remote link, accompanied by DM, from his hospital where he was having dialysis)
- the Local Authority (London Borough of Barnet) with counsel Kate Round (who was in court in person)
The Trust was asking the court to order (again) the appointment of an expert psychologist to consider the following (reproduced from the Position Statement of the applicant Trust):
- What further steps, if any, might be effective in persuading MM to take DM to dialysis for every session, and to stay there for the full 4 hours.
- What further steps, if any, could be taken to ensure that DM receives his prescribed medication while living with MM.
- What options the expert psychologist considers are in DM’s best interests.
- The impact on DM of moving to live apart from his father;
- The feasibility and impact of the imposition of any restrictions on contact between DM and his father;
- What steps, if any, could be taken to mitigate the negative impact of such arrangements;
The Trust also asked the court to ‘remind’ DM’s father of ‘the importance of full compliance with DM’s dialysis schedule’ and also to gather information (via witness evidence) from the Local Authority regarding compliance with allowing carers to see and work with DM, giving him his medication and the care he is said to need. And additional residence options from the LA ‘in the event he did not live with MM.’
The Hearing
The hearing was in Court 35 at the Royal Courts of Justice. The courtroom is large, and I was able to sit at the side of the court, in the press bench, rather than at the back where observers usually sit. This is because I (and my co-observer and OJCOP team member, Amanda Hill) asked the court usher if we could sit in the press bench to make the hearing more accessible: sitting at the side means that you can see everyone’s faces (the judge and counsel and people attending for parties, who face the judge). I have a hearing impairment and even with hearing aids, sitting behind people talking makes it tricky to understand what they are saying. So, this was a welcome permission from the court.
It was evident at the start of the hearing that DM and his father were behind a cubicle curtain on a hospital ward, and although DM’s father was wearing headphones (so the court was not audible to anyone else), anything DM’s father said would be heard by other people on the ward. The judge asked whether a private room in the hospital could be provided, and counsel for the Trust said “we did ask but there was not enough notice of the hearing date to arrange this: it could be possible in future”. So, the hearing went ahead on that basis, with DM and his father taking part from his hospital cubicle.
After introducing the new application and current situation, counsel for the Trust raised the further issue regarding a psychologist report which the judge had ordered (on 26th November 2024) that the Local Authority (London Borough of Barnet) must submit in the previous proceedings . The Local Authority had never submitted it.
The approved Order from this hearing (8th October 2025) states that the Local Authority had been: ‘… directed to file a report by a psychologist by 7 February 2025 which was not complied with, and no application was made to vary or discharge that order before the proceedings stood dismissed on 20 February 2025’.
It transpired that the psychologist’s report was intended to inform the court (amongst other things) about the potential impact on DM of being removed from living with his father. But the court did not have the advantage of this previously-ordered report at these new proceedings. The judge was not happy:
Counsel for the Trust: Given the risks this really needs to be looked at with the most careful scrutiny to decide what to do.
Judge: I am very much in agreement. That’s why the Local Authority was ORDERED to produce a report from a clinical psychologist so that what has come to pass [i.e. DM’s father not taking him for treatment] would not come to pass [in future]. Notwithstanding the careful orders made, we are in October 2025 with no identified expert until February 2026 and I am told he’s at risk of sudden death. I am struggling to understand why the Local Authority are not first of all apologising for ignoring an order of the court and, secondly, why a clinical psychologist [hasn’t been instructed]. I am struggling with why it’s necessary to make directions to follow an order already made – here we are almost a year down the line – to sanction a single joint expert. [judge’s emphasis]
And later:
Judge: Despite the father’s promises – which he made to me in court – none of that has come to pass. It was ordered that there would already be a clinical psychology report to assist me. I am not in that position and now we face significant delay which might put DM at risk.
It did sound (from what counsel for the Trust said) as though a psychologist had tried, earlier this year, to meet with DM, but “wasn’t able to engage his father or DM in a meeting” (counsel for the Trust). That psychologist had apparently been connected to the Local Authority and the parties were now proposing an independent psychologist in the hope that someone clearly independent might be more successful.
Counsel for the London Borough of Barnet (Kate Round) said: “My Lord, technically it would have been better if we had notified the court that we couldn’t get that report and why. It is with regret that we don’t have it. We had identified someone – at the moment it’s a perennial problem. Either we can’t identify anyone or it’s not good enough and then we have to go to an independent expert. We do apologise.“
The judge responded like this: “It’s no good apologising to me …. you’re putting DM at risk. I’ve got a bee in my bonnet this week. I have had cases with public bodies and the court makes orders and the public bodies don’t comply. If I did have that clinical psychology report I COULD have listed the hearing for a short hearing.”[judge’s emphasis]
The judge, understandably, was concerned about the urgency, given that he was being told that DM’s life was at risk. Counsel for the Trust said: “It’s not urgent, not the next fortnight. After the last hearing in November 2024 there was a period of full compliance for a number of months. We want an order to say that he [MM] must take DM every Monday, Wednesday and Friday and must stay for the four hours. We are hopeful that the court reminding MM of that might help, while we are gathering evidence. Previously, he said he hadn’t agreed that it was in DM’s best interests to receive dialysis. Certainly, if a psychology expert can be found to report in a shorter time-scale I don’t think I am instructed to ask the court to make provision more urgently than that.”
Then there was an interesting, brief exchange between the judge and counsel for the Trust, about penal notices:
Judge: The draft order doesn’t include any penal notices. Is that deliberate?
Counsel for the Trust: It is. The Trust recognises that DM’s father IS bringing him and he is attending to a degree. They are keen to encourage that to continue, and I have no instructions to attach a penal notice. [Counsel’s emphasis]
So, despite the fact that DM’s father was in breach of court orders in relation to facilitating and not impeding DM’s care and medical treatment, the Trust had decided not to seek to penalise him for this. The judge then spoke to DM’s father and DM:
Judge: I hope you have been able to follow. What I am going to do is list this matter for a hearing between now and December and I am going to have a clinical psychologist instructed to assess the impact on [DM] of living apart from you and that’s because, for a large part of this year, he’s not received the dialysis to keep him healthy. And that’s ONE option to live apart from you to be assisted by support workers. I am also being asked again to make an order on you to facilitate his dialysis: you take him, don’t interfere and call 999 if there are any significant difficulties and you follow advice from the dietician. We went through this in 2024 and you PROMISED me …. [judge’s emphasis]
MM (father): [interrupting] … which I did … 4 hours he is ill, all this has been happening …. [difficult to understand via video link] complicated …. So that’s the reason …. I am looking after my son for 44 years, I know what he’s able …. 4 hours is [missed] 3 hours is much better, he says he’s better. (I think DM’s father was saying that 4 hours of dialysis makes DM feel more ill and that he prefers 3 hours, but we didn’t hear from MM what DM says about his treatment or why his father believes this might be the case).
Judge: What I am going to do [MM] is to direct the public bodies to explain the reasons for DM to have dialysis [in the way they advise] and to find out what you think the impact on DM would be of living apart from you, and to explain [why you have been doing what you have been doing]. I’m going to direct you to file a detailed witness statement, saying if you believe in dialysis, what you think the impact on DM would be if he lived in supported living. You may need to give evidence at the hearing in December. In the meantime, I am going to make an order like the one in November….are you going to comply with it?
MM: Yes, I … accept anything …. [difficult to understand] the entire case …. I …
Judge: Yes well [MM] it’s very important that when you take DM to hospital you stay for 4 hours, and 3 hours is not enough.
MM: OK and if anything happens to my son after 3 hours, who is responsible?
Judge: I’m sure that he’s in the hands of experienced clinicians at the hospital.
MM: [talking loudly – but I can’t understand what he’s saying at this point]
Judge: Have you seen the Position Statements and the evidence for today’s hearing?
MM: [unclear answer] I call the 99 …
Judge: [MM] it’s very important you read the documents please. The evidence before me is that DM is at risk of serious complications and at risk of dying from electrolyte abnormalities. You’re his father and I am asking you to please comply.
MM: Can DM speak?
Judge: I will speak to DM. Good morning [DM], this is the judge. Do you remember speaking to me at the end of last year?
DM: I do
Judge: You were smartly dressed at that time. It’s important [DM] that you come to hospital for appointments.
DM: Which I do.
Judge: Sometimes it’s difficult and boring?
DM: It is
Judge: But you must keep coming to hospital
DM: [inaudible]
Judge: Okay, just keep coming to hospital with your father. Are you still going to football matches. Which team is yours?
DM: Yes …Arsenal.
Judge: I hope they are playing well.
DM: They are actually!
Sophia Roper KC, acting for DM on behalf of the Official Solicitor, addressed the question of who should be instructed to complete the psychological assessment and report to the court. She informed the judge that the proposed independent expert psychologist had been contacted the day before and “what we have NOW been told is that he will not be able to report until February 2026. Five other independent psychologists and psychiatrists have been contacted. It’s up to the LA to decide if they can provide an in-house psychologist. They would likely be more amenable to be directed to provide a report [earlier] than an independent expert.” [counsel’s emphasis]
The judge expressed his frustration again, at the predictable situation:
“I am going to adjourn for 30 minutes this morning to allow for discussion and phone calls to be made. Given what I have been told about the medical situation, it’s essential to have a report by the end of the day. The previous order entirely envisaged the situation in front of you.”
There was then a break of half an hour to allow counsel to establish the timescales within which a psychologist could report back to court.
Despite the earlier suggestion that a psychologist independent from the Local Authority would be preferable, in terms of DM and his father’s likely engagement, counsel for the LA said:
“If there were an independent expert available we would prefer that. However, we have got the lead clinical psychologist – [name] – she has confirmed she can do a report by the end of November 2025. […] We have flagged with her about working from [DM’s] home… she has said if clinically appropriate or she could see him at the hospital. We hope she would be able to see DM and his father at their home for the assessment. […] It’s important for the court to understand the potential damage to DM from taking him away from his father. The best way of getting to that is by way of this report, so we really hope the father will allow this work.”
The Local Authority also agreed to pay for the clinical psychology report, whether it ended up being an independent expert or not.
When the judge spoke to DM’s father to inform him of the plan for the psychologist assessment, his father said “I am happy to do so, for my son” and that he “is a human being with human rights”. DM’s father also said “it is very important to protect my son’s life from everyone, I lost my wife”. I wondered at this point whether DM’s father was fearful of healthcare professionals and of medical interventions, because he linked the conversation to the loss of his wife. When we first reported this case it was said that MM believed doctors were harming his son. It made me wonder about any experiences with doctors in his wife’s care.
The judge strongly encouraged MM to seek representation in time for the next hearing, warning, “I will not look favourably on an application to adjourn a final hearing on the basis that you can’t find a solicitor”. MM replied, “Okay, yes”.
My co-observer’s notes say (but I didn’t record this) that Sophia Roper KC then made a point about non-compliance with orders, to which the judge replied: “I’ve vented my spleen on non-compliance with orders and I won’t be reading any other correspondence (about that)”.
The next hearings are currently listed as Pre-trial review at 2pm on Thursday 4th December 2025 and a final hearing on Wednesday 17th and Thursday 18th December 2025 in person at the Royal Courts of Justice.
DM’s father has been ordered by the court to attend in person and to arrange for someone else to accompany DM to hospital if it is one of his dialysis days.
Reflections on non-compliance
I have observed many hearings where parties have not complied with orders of the court: sometimes public bodies and sometimes family members.
Two cases I’ve followed closely that involve family members’ non-compliance – Luba Macpherson and Caroline Grady – have had penalties attached to the court orders (in Luba’s case a prison sentence and in Caroline’s a fine) and we’ve blogged about them here: Serving a prison sentence for contempt of court: Luba Macpherson and Safeguarding Mum: The “vile” judgment and the daughter’s story.
In this case, there’s non-compliance with court orders from both a family member (the protected party’s father, MM) and from a public body (the London Borough of Barnet).
Non-compliance from the family member is currently being dealt with by education (the public bodies are to explain to MM why dialysis is so important for his son, and the judge asks MM to read the documentation about this) and “encouragement” (with an order, and with something that might be experienced by MM as a threat that the possible alternative to compliance might be removal of his son from the home). There is no penal notice attached to the order.
I have never observed a penalty of any kind, other than judicial reprimand, being directed at a public body for non-compliance (otherwise known as contempt of court). It’s made me wonder whether penalties for non-compliance are ever given to public bodies, and if so, what kinds of penalties are possible.
The case of JS (by his litigation friend) v Cardiff City Council [2022] EWHC 707 (Admin) (There’s a helpful summary of the case here: “Local Authority found to be in contempt of Court”) concerned an application by a young man with diagnoses including autistic spectrum disorder and ‘learning difficulties’ against Cardiff City Council for contempt of court on two grounds:
- “A failure to comply with the mandatory injunction set out at paragraph 5 of the order of his Honour Judge Keyser QC, on the basis that the Defendant did not as of 7 January 2022 and still has not completed future placement planning for the Claimant.”
- “The Defendant has also failed to comply with paragraph 6(a) of that order in that no sworn affidavit has been filed by the relevant director of the Defendant explaining the breach of the injunction.”
The judge was clear:
“Contempt proceedings may be brought against a public body for a failure to act in accordance with an order of the court. In proceedings in the Administrative Court, it is not the usual practice to include a penal notice on an order against a defendant public body. In R (JM) v Croydon London Borough Council [2009] EWHC 2474 (Admin), Collins J held that a penal notice is not necessary to enable the court to deal with public bodies by means of proceedings for contempt as public bodies would seldom find themselves in the position where committal would be contemplated. Collins J observed at [12]: “Accordingly, I do not think that a penal notice is necessary in orders made against a public body. A failure to comply with an order can be dealt with by an application to the court for a finding of contempt and, if necessary, a further mandatory order which may contain an indication of what might happen should there be any further failure to comply. Adverse findings coupled with what would probably be an order to pay indemnity costs should suffice since it is to be expected that a public body would not deliberately flout an order of the court. Were that to happen, the contemnor could be brought before the court and, were he to threaten to persist in his refusal, an order could be made which made it clear that if he did he would be liable to imprisonment or a fine.” ((§56, JS (by his litigation friend) v Cardiff City Council [2022] EWHC 707 (Admin))
This judgment states clearly that, should a public body ‘deliberately flout’ a court order, imprisonment (though ‘seldom’ used) or a fine are options for the court. But, I wonder, who would be imprisoned? And a fine would disadvantage further the citizens who rely on that public body (as Munby J says below).
The case against Cardiff City Council found the council to be in contempt of court but does not detail the penalty imposed. Instead, the judgment states:
‘I bear in mind that in R (Bempoa) v London Borough of Southwark [2002] EWHC 153 (Admin), Munby J concluded that the gravity of that local authority’s contempt could be adequately marked by the delivery of the court’s judgment in public. The “public humiliation” of a judgment the contents of which publicly shamed the local authority was a greater penalty than the exaction of a financial penalty which could only be to the financial disadvantage of the inhabitants of the local authority area, and those who rely upon the authority for the services it provides, without providing any corresponding financial benefit for the claimant.The contents of this judgment shame Cardiff City Council. Whether any further penalty is appropriate in this case is likely to depend, amongst other matters, on whether an apology is forthcoming and on the strenuousness of the efforts the Council now makes to comply with the mandatory order which remains in effect.’ (§94-95 JS (by his litigation friend) v Cardiff City Council [2022] EWHC 707 (Admin))
The case was reported in the national press (e.g. “Cardiff council committed ‘appalling’ breach of care of disabled man”): I hope the Council felt appropriately “shamed”.
I would be interested to know whether the penalty of ‘public humiliation’ is ever considered sufficient for family members who do not comply with court orders in the Court of Protection, as opposed to fines or prison sentences (or other sanctions). Although this is not (as far as I know) stated by the judge as an intended penalty in his decision to name Philip Esper (who was found to have committed contempt of court but given no penalty), it’s clear from the fact that Mr Esper appealed the decision to name him that he experienced simply being publicly named as a penalty in and of itself (Esper v NHS NW London ICB (Appeal: Anonymity in committal proceedings) [2023] EWCOP 29).
In the case I’m reporting on here, non-compliance from the public body was dealt with by judicial expressions of incomprehension (“I’m struggling to understand…”) about the Local Authority’s failure to act and about their failure to apologise for not doing so.
This led to an acknowledgement of (some) fault by Barnet (they admitted that “technically” they should have let the court know about the difficulties they were having), and to an expression of regret and an apology – which was not really accepted by the judge (“It’s no good apologising to me…”).
It was notable that, given a half hour break in proceedings to focus on dealing with the issue, it seems they were able to solve the problem and work out how to commission a psychologist’s report (albeit not an independent one) by the end of November. Court proceedings do seem to focus minds and galvanise action. A court hearing is, however, rather an expensive and unwieldy method for prompting actions that should properly have taken place in any event. It’s very common though – due here to what counsel described as the “perennial problem” of getting adequate reports on time .
As described in an earlier blog post (Non-compliance: What happens when public bodies don’t obey court orders?): ‘There’s a lot of non-compliance from public bodies evident in Court of Protection hearings every day. It’s routine to hear apologies tendered to the judge for not having submitted reports in time or complied with other directions and orders – pleading staff sickness, failures to respond to an enquiry further down the line, and administrative errors. Mostly judges seem resigned to it. It’s no secret that health and social services (like HMCTS) is underfunded, under-resourced and struggling to deliver basic services.’
Senior Judge Hilder sets aside one day each month for hearings to deal with non-compliant public bodies – but if they then comply not less than seven days before the date of the listed non-compliance hearing, it’s vacated. Celia Kitzinger reflects that, in five years of observing Court of Protection hearings, she has never before observed a ‘non-compliance’ hearing and, as the blog notes: ‘Apparently this is because the effect of listing them is rapid compliance, meaning that case never appears in the public listings’.
I find this quite astonishing – either something can be done or it can’t. Public bodies shouldn’t need to wait for the equivalent of a ticking off by the headteacher to do what they should (and can) be doing. Hearings in court cost (a lot) of money and, I would argue, shouldn’t be used for this purpose.
Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin, on LinkedIn and on BlueSky as @doccmartin.bsky.social
Promoting Open Justice in the Court of Protection 
I wouldn’t want to be the psychologist…
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