Observing a remote hearing in court with the judge

By Celia Kitzinger, 7th December 2022

It was listed as an in-person hearing (COP 13641809) at First Avenue House in London on 28th November 2022.

I was in London for a conference and had the afternoon free, so I thought I would take advantage of the (for me, rare) opportunity to observe an in-person hearing. 

On arrival at First Avenue House (after putting my backpack through the X-ray scanner, phone and lap top out, emptying my pockets and taking a sip from my water bottle), I took the lift up to the 5th floor where the Court of Protection sits.

Court staff greeted me and said the hearing had been “rejigged as a Teams meeting”.  I asked how this would work: should I go away again and find somewhere quiet to sit and watch it via the Teams link?  No.  I would be shown into the courtroom, where Her Honour Judge Hilder would be sitting, and watch her interacting with the lawyers, who would all be attending online, visible on a big screen.

And that’s what happened.

There was a bit of a delay starting, which I think was occasioned by the need to produce a Transparency Order. 

It later transpired that the hearing had originally been expected to be “private” (in which case it had been incorrectly listed).  

We are sitting in private”, said Nicola Kohn, counsel for the local authority. (I wasn’t sure, during the hearing,  who was counsel for which party because, although the judge did a generally very helpful opening summary, it didn’t include which barrister was acting for which party. I’ve subsequently received a copy of Nicola Kohn’s position statement  – thank you! –  which is enormously helpful.)

Since Professor Kitzinger has taken the trouble to come to court,” said HHJ Hilder, “I made a Transparency Order and we are sitting in public”.  And, “just to clarify,” added the judge (turning to address me) “you would have been welcome to attend if it had been a private hearing”. 

It was a slightly surreal experience to be the only person in an otherwise almost empty courtroom, seated opposite the judge and a member of the court staff (an usher? a clerk?).

Normally, observers sit at the back of the court, and even though I knew there wouldn’t be any lawyers in the courtroom today, I somehow couldn’t bring myself to sit on the front benches, in the seats they would normally occupy.  Sitting several rows back was a mistake though – I couldn’t see the screen very well, or read the names of the lawyers on screen. Ironically, I’d have had better access to the hearing if I’d attended remotely like everyone else. With hindsight, I should have asked for the link and could have had it open on my laptop on silent: I’ve done that before – and since! – in hybrid hearings when I’ve been attending in person, and it massively improves the experience.

My engagement with the judge felt slightly awkward too.  Although there was no instruction to “All rise!” as is usual in in-person hearings, I did what the lawyers do in courtrooms and stood up when she entered at the beginning of the hearing – and again at the end when she left.  (This standing-up thing is not practised in remote hearings.)  

I expect the experience of having me in court was slightly odd for the judge too!

The judge introduced the hearing by explaining that KD (the person at the centre of the case) is 18, autistic, and has severe learning disabilities. He does not communicate verbally. He has previously been found to lack capacity to make all relevant decisions.  He lived with his parents until their relationship broke down, and then with his grandmother until being the subject of a care order.  He’s been living in a registered children’s home  – but he’s no longer a child and the focus of the proceedings has been to identify a suitable adult placement for him.  

The last hearing was on 20th October 2022 at which concerns were expressed about the lack of progress and non-compliance with orders.  

The judge had ordered that the next hearing should be listed as “in person”, meaning the legal team from the Bolton area would need to travel to London for the hearing,  “unless the parties could agree that progress had been made and non-compliance issues sorted so as to make attendance in person not necessary”.  And that, said the judge “was only confirmed this morning”.  

Nicola Kohn said there had been “a good deal of cooperation between the applicant and those instructed on [KD’s] behalf”, including a Round Table Meeting “as a result of which the Official Solicitor was satisfied that issues of non-compliance were resolved” – and a subsequent meeting had led to an agreed draft order that was now before the court. 

The judge said she was “fundamentally concerned with the lack of progress in finding KD an adult placement”, since it looked as though nothing would be available until he turned 20.

That was still the case, but the current placement was apparently content to keep him until then – although the judge asked for confirmation of this in writing.

This matter has remained before the court (rather than progressed as part of the streamlined process) owing to the court’s concerns as to KD’s vulnerability and the need for careful planning of his transition to adult care. 

I’m not satisfied it’s appropriate for an adult to remain in a children’s home,” she said, as she tried to explore what was being done to locate an alternative placement – checking whether all placement options, including single tenancy (something that had caused concern previously because of the risk of social isolation), were being checked out. 

There was also some overview of arrangements for KD to go to his grandparents for (unsupervised) overnight visits. They needed appropriate training and to learn about KD’s routines. 

The grandmother wanted to be joined as a party, but the judge asked: “would the needs of the proceedings be better met by inviting [the grandparents] to attend and share documents, without formally joining them as parties, with the risks as to costs” – and that’s what was decided. (It appears they had been joined previously and were discharged, due to lack of engagement.)

The judge also raised questions about the use of a harness – which the grandparents say they never use, but it may be that the placement uses it (that was unclear) and the judge asked for “specific dates as to if and when it has been used since 1st July 2022” and “the learning disability nurse’s view as to its future use”.  

The next hearing will be remote at 11am on 7th March 2022.

This turned out to be a salutary opportunity for me to experience a “judge’s eye view” of a remote hearing.  I can now better appreciate the somewhat isolating and disjointed experience it creates for the decision-maker sitting in the nearly empty courtroom. My thanks to HHJ Hilder for admitting me.

Celia Kitzinger is co-director (with Gillian Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

“It will all work out”: The limits of a positive attitude in the Court of Protection

By Upeka de Silva and Jemma Woodley, 6th December 2022

We work with Compassion in Dying, a national charity that supports people to make their own decisions about end-of-life care in line with the Mental Capacity Act 2005. 

We promote the rights of capacitous people to document their care preferences using Advance Statements, Advance Decisions to Refuse Treatment and/or Lasting Powers of Attorney for Health and Welfare. 

Recently, we launched a call for guidance on voluntarily stopping eating and drinking at the end of life and so we were keen to observe a case that would potentially address this theme.

Celia Kitzinger alerted me to the case (COP 14017521 Re: EJ, 1st December 2022, Before Sir Jonathan Cohen in the Royal Courts of Justice), having observed the directions hearing last week. Without this, based simply on the Court Listings, I would not have been aware that this matter was before the Court. 

The hearing concerned EJ, a 27-year-old woman who has been diagnosed with rapidly deteriorating Functional Neurological Disorder, which has resulted in her currently suffering from functional quadriplegia and an inability to swallow food and drink. EJ has had contact with psychiatric services since (at least) 2018.  She has a working diagnosis of “Mixed Personality Disorder”, has auditory hallucinations, and her mood dysregulation has raised suspicions of complex Post Traumatic Stress Disorder. She’s been an inpatient in hospital since April 2022, having walked into A&E on crutches, complaining of weakness in her limbs. 

In August 2022, EJ lost the ability to swallow and has been receiving nutrition, hydration and medication through a Naso-Gastric tube (“NG tube”) and/or hydration and (some) medications via a PICC line (an intravenous line).  

Since the end of October, EJ has consistently objected to the NG tube and regularly chews through them or dislodges them by violently shaking her head. 

The Trust has applied for a declaration that it is in EJ’s best interests to have a PEG ( a percutaneous gastrostomy) placed under general anaesthetic, to deliver nutrition and hydration (and medications) directly into her stomach.

The judge, Sir Jonathan Cohen, had to consider the following:

  • Capacity: Whether EJ had capacity to conduct these proceedings and to consent to the provision of treatment including clinically assisted hydration, nutrition and medication
  • Best interests: Whether it is in EJ’s best interests to receive clinically assisted nutrition and hydration, and if so whether this should be via NG tubes (as before) or whether she should have surgery to insert a PEG.

Our first experience of being in the presence of P

EJ appeared in Court, from hospital, by video link. We were pleased that she was part of the proceedings but were soon disappointed to realise that other than her own statement, the only witnesses were clinicians. No family members or friends were called. While we have no doubt that the clinicians sought to keep EJ at the heart of their deliberations, we felt anxious about the potential power imbalance.

While it was useful that the cross examinations were undertaken, not just for the benefit of the judge but for EJ too, on many occasions we felt uncomfortable about EJ hearing fairly blunt descriptions of her behaviour (calling a doctor a “robot”) and making claims relevant to her mental capacity to make treatment decisions (e.g. not understanding that she will die).

We don’t know much about P

Ironically, while it was the first time we had observed a case with P directly involved in court proceedings, it was also the first time that we left feeling we knew very little about who she was and what mattered to her. We learned a lot about the pros and cons of various mechanisms for artificial nutrition and hydration but we don’t know what quality of life means to EJ, or what her wishes, feelings, values and beliefs are.

What we do know is based on what she said, quite forthrightly after all the other witnesses had spoken:

“This whole thing is just bullshit. People don’t listen. Surely, I should get to choose happens to me.”

“I want to represent myself. Even Ted Bundy got to represent himself in court and he was a serial killer.”

“I am articulate and I have capacity spilling out of me. 

Yes, I did call that woman a robot. I’m sorry about that. (To the consultant) You  just spoke a bit robotically at the time. This is a waste of everyone’s time. Everyone has made up their minds already.”

“I don’t want a PEG. I don’t want an NG tube, thank you. Or a PICC line. I want to go home, ideally today. It will all work out – its about a positive attitude – fake it till you make it.”[1]

When EJ spoke, via video link, she clearly expressed a wish to go home and it left us wondering if more could have been done to explore and/or accommodate this wish. At Compassion in Dying we have become very familiar with the desires of individuals to remain in their own homes and avoid going into hospital. While this is not always possible, an honest conversation around this is always appreciated by the people we support. So while the issue for the court was centred around the insertion of a tube, we couldn’t help but feel great frustration for EJ as this strong desire to go home seemed to be overlooked in the deliberations. 

The judgment

As EJ had been unable to demonstrate that she understood the consequences of refusing treatment (that it would lead to her death) and as she also has impairments in the functioning of her mind or brain, she was found not to have capacity to refuse the NG tube or PEG or other medical treatments.

Sir Jonathan Cohen considered carefully that the PEG may lead to short term trauma and a further erosion of EJ’s trust of professionals, but the alternative is death and EJ does not want to die. Rather she remains positive that “things will work out” and so the presumption in favour of life-sustaining treatment weighed heavily in the judge’s considerations.  He found insertion of a PEG to be in her best interests. 

During the judgment, the main screen visible to me as a remote observer was EJ’s. For this, I was grateful, because seeing how she felt mattered to me greatly. I watched EJ nodding approvingly as she listened to the judge repeat her words in his judgment. However, as soon as he authorised the insertion of the PEG, she asked the nurses with her to help her leave the room.

Although deeply apologetic once it was brought to his attention by one of the barristers, the judge misstated EJ’s name multiple times during the judgment which (the barrister reported) caused her much distress. We fear this only added to EJ’s distrust of professionals involved and her belief that the outcome had already been decided before the hearing began. 

On the other hand, we felt optimistic about EJ’s future when the judge ordered that the case should be back in court (before him) for a review in a few months time. He said, given that EJ is “strongly opposed” to the course of action he has ordered, “I think the court owes it to P to consider the matter”. Will EJ have adapted to her life with a PEG? Will the medications she’ll be receiving through it help with her psychiatric illness? Will she be retraumatised and feeling defeated? We worry about counting on resilience and psychiatric medication to make up for the loss of autonomy.

Reflections

At Compassion in Dying, we support thousands of people to complete Advance Decisions to Refuse Treatment. The people we support tell us how relieved they feel knowing that these documented wishes matter, clinically and legally. In this way, the Mental Capacity Act 2005 is incredibly empowering. 

When we support people to plan for their end-of-life care, we strongly recommend that they spend time explaining who they are as individuals and what quality of life means to them. Observing cases in the Court of Protection has reinforced how important this is for ensuring that decisions are truly person-centred. 

So, we both struggled today. We didn’t know what truly mattered to EJ.  We heard her objecting in no uncertain terms to the treatment being proposed but we don’t know why she felt this way. We understood that the risk of withholding artificial nutrition and hydration could be death, but hearing from the Consultant Neurologist that another person in a similar situation didn’t need a PEG made us question whether there was no other way to more closely align treatment with EJ’s preferences. 

We appreciate that it would be very difficult for clinicians and judges to take a path that would put EJ’s life at risk. Yet, the trauma of her autonomy being overruled, and the loss of trust in professionals and in her own agency are not insignificant considerations. 

The complexity of decision-making in this case reminded us of how important it is to never over-simplify matters relating to treatment and care, life and death. 

Upeka de Silva is the Policy and Advocacy Officer at Compassion in Dying and tweets @de_upeka

Jemma Woodley is Information Support Officer at Compassion in Dying and tweets @JemmaWoodley2

Compassion in Dying tweets @AGoodDeath


[1] Quotes based on contemporaneous notes as recording is not allowed. They are as accurate as I could make them but unlikely to be 100% verbatim.

Hoarding disorder, dementia and a wish to return home

Celia Kitzinger, 5th December 2022

This is the fifth Court of Protection case I’ve observed about someone with hoarding disorder. (Take a look at my previous blog post: “A case of hoarding” which describes plans to return a person home with safeguards in place to keep her safe.)

The woman at the centre of the case I’m reporting on today is 82 years old, with both dementia and a hoarding disorder,

She’s now in a care home under an urgent order which expires in two days’ time, and she wants to return home.

The case (COP 14017786) was heard remotely before Mrs Justice Morgan, sitting in the Royal Courts of Justice on 22nd November 2022.

Until October 2022 she’d lived in a care home, but then decided to return to her home – which was “dilapidated and in a dangerous state”. 

She was thought to have the capacity to make this (clearly unwise) decision, and the local authority worked with her to try to keep her as safe as possible.

Everything came to a crescendo last Thursday with a (third) forced entry into her home, due to a smell of gas.  She’s been using a butane gas cylinder to cook on.

She was admitted to hospital to be assessed for gas poisoning and made it clear that when she was discharged she would return home.

The local authority made an urgent out-of-hours application to convey her to a care home on discharge. That was approved and she was discharged from hospital last Friday to a care home where she is reported to be “relatively settled, but is clear that she would like to return home”.  It turns out that’s not going to happen (if it happens at all) before the end of January 2023.

Both lawyers (one for the protected party, one for the local authority) emphasised that she is “very articulate” and that “the capacity issue is not straightforward”.  

What’s needed now is a capacity assessment from an independent expert to determine whether or not she has capacity to make this decision for herself.  Counsel had hoped to appoint Professor Paul Salkovskis from Oxford Health NHS Foundation Trust who runs a national specialist clinic for hoarding and had been instructed in another case of hoarding earlier this year, Re: AC and GC (Capacity: Hoarding: Best Interests[2022] EWCOP 39. But it seems as though he’s not available and they hadn’t yet located another expert

The case in which Professor Salkovskis was instructed earlier this year had some very similar features. it concerned a 92-year-old woman referred to as “AC”, also with both dementia and hoarding disorder.  She had been moved to a respite placement whilst the poor sanitary conditions and other hazards identified by professionals (including electricians and the fire services) were dealt with and she clearly and consistently expressed the wish to return home.  The judge in that case authorised a trial for AC to try living at home.  I don’t know how it worked out – but it was clear from the agreed statement of legal principles in that case law is very much on the side of honouring, where possible, a protected party’s wishes to live at home.  This extract is from Appendix 3 of Re AC)

In Re GC [2008] EWHC 3402 (Fam), Hedley J considered whether it was in the best interests of an elderly man to be discharged from hospital to the home where he had lived for many years and commented at para 21: 

‘GC is a man in the 83rd year of his life and my concern is to ask myself: how will he most comfortably and happily spend the last years that are available to him?…. Next it seems to me that for the elderly there is often an importance in place which is not generally recognised by others; not only the physical place but also the relational structure that is associated with a place …’

In connection with the issue of a ‘trial’ placement, Hedley J commented at para 24:

‘It seems to me that it would be wrong not to try, even with a degree of pessimism, a placement with a package of support’

The decision of District Judge Eldergill in Westminster City Council v Manuela Sykes [2014] EWCOP B9 is of relevance:

‘several last months of freedom in one’s own home at the end of one’s life is worth having for many people with serious progressive illnesses, even if it comes at a cost of some distress. If a trial is not attempted now the reality is that she will never again have the opportunity to live in her own home’

and that

‘although there is a significant risk that a home care package at home will ‘fail’, there is also a significant risk that institutional care will ‘fail’ in this sense (that is, produce an outcome that is less than ideal and does not resolve all significant existing concerns)’

Mr Justice Hedley held in P v M (Vulnerable Adult) [2011] 2 F.L.R. 1375, at para [34]:

“I am very influenced, rightly or wrongly, but it is only right everyone should know it, by the timescales in the case. I am very influenced by the desire to allow people where it is at all possible to spend their end time within the family rather than in an institution, even if there are shortcomings in terms of care which an institution could address.” 

Where (as here) there are serious risks attached to returning home, the court has:

“…confirmed that its function in challenges such as this can be to take decisions on behalf of P that public authorities feel are too risky for them properly to be able to take themselves, and that it is perfectly appropriate that responsibility for the outcome should fall on the shoulders of the court (Re M (Best Interests: Deprivation of Liberty) [2013] EWCOP 3456, Peter Jackson J (as he was then) at para 41)”. (Appendix 3, Agreed Statement of Legal Principles, Re. AC & GC)

I hope the 82-year-old in this case will have the opportunity to try living at home again, with the right support in place.  It may be, of course, that she has capacity to make that decision for herself. 

The next hearing – at which these matters will be decided –  will be on (or around) 30th January 2023 at First Avenue House, London.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project.  She tweets @kitzingercelia

Note: The facts of this case are as accurate as I could make them on the basis of the hearing (which included a helpful opening summary). However I have not received Position Statements from either party, nor have I received a Transparency Order, despite my requests.

“I don’t want to be here… I want to go home”

By Catalia Griffiths, 2nd December 2022

I am an assistant psychologist working with Older People at Bensham hospital in Gateshead. Claire Martin is my line manager. On my first induction day with Claire, she mentioned that, outside of work, she is a member of the core group of the Open Justice Court of Protection Project. I remember being amazed, thinking about how passionate she must be about promoting open justice in the Court of Protection to carve out time on her days off for it.

Since our first chat about the project, I had been looking forward to observing my first Court of Protection case. I finally got the opportunity on Monday 7th November 2022 at 10:30am – a remote hearing before DDJ Reeder (COP 1399280T) sitting at First Avenue House.

I remember the rush of emotions waiting to receive an invitational link to the virtual courtroom. I was simultaneously nervous and excited, unable to sit still at my desk. 

The email arrived, and attached to the link was a ‘Transparency Order’ document. Unsure of what it was, I clicked the file and my stomach sunk as the realisation set in. It was a document with a set of rules that must be obeyed around observing the Court of Protection case. Any defiance meant that you may be “sent to prison, fined” or have your “assets seized”. Although I was not planning on disobeying any of the rules, the formality and the authority of the document invoked a sense of fear in me. It reminded me a lot like being in the presence of a police officer. Although you know that you are not doing anything wrong, you cannot help but feel a little bit nervous around them. 

When Claire and I were let into the virtual courtroom, we were asked to turn on our cameras and to state who we were. Judge Reeder was happy for us to sit and observe the case: he even offered us 5 minutes of his time at the end to answer any questions (which is an extremely rare occasion). 

As soon as the case began, I remember feeling overwhelmed. As there was no round of introductions. I was trying to work out who was who, whilst also listening to Judge Reeder giving a brief summary of the case. It felt like I was trying to jump onto a fast-moving train. 

From the summary given by the judge, I gathered that P was an inpatient with Huntington’s disease. P’s case was brought to the Court of Protection because her wishes are to be discharged from the hospital and go back into the comfort of her own home. 

The case first came to court on 24th October 2022. At that point, the judge said that “[P] awaited the consideration of a litigation friend. I reviewed that she lacked capacity to conduct litigation, based on [treating doctor’s] report.” The COP3 form from the Social Worker supported this view. 

The judge went on to set the context further: 

JudgeBy that time an authorisation had happened regarding residence on the ward until 16th January 2023. We then constituted proceedings on the basis of Section 21a challenge – P said cogently “I don’t want to be here.” So, if so, when and to where? P said “I want to go home”. The Local Authority took the view that this wasn’t suitable, and …. discharge planning hadn’t reached a conclusion. We moved to highlighting two things – my concern that what was being talked about was a refusal by P to acknowledge her Huntington’s disease and a refusal to acknowledge the need for care. I asked [whether it was] lack of capacity or an unwise decision wanting to go home and look after herself. The other thing is [the] transition. I highlighted that for authority for chemical or physical restraint – I would expect the plan to detail clearly levels of escalation, triggers and the contents of each level, and the personnel involved at each level. [Then it was] relisted urgently for this hearing. 

I thought this was an important question from the judge: is P’s wish to move back home evidence of her making capacious ‘unwise’ decisions or does she lack the capacity to understand, retain, weigh and communicate the relevant information about her needs when at home? The judge has requested a section 49 report from the Trust, hoping that this question will be answered. A future hearing has been arranged for the 29th January 2022 to address the issue. 

Judge Reeder also pointed out that although the option of P moving back home is not yet closed off, her services do not seem to be doing everything in their power to make it a more feasible option. For instance, making sure that her home is habitable, since it has been reported that the home is “significantly hoarded” and “not safe to get into”. They are also unaware of what kind of tenancy it is or what bills need to be paid in order for P to move back in. Judge Reeder mentioned that it would be pointless to send P home for it to be repossessed within a few months. I agreed with his point, and wondered why her team was not doing everything they could to explore whether they could honour her wishes. 

Whilst the possibility of P moving back home is properly explored, there is the possibility that P might be discharged to an interim placement. The judge spent time questioning the draft order which outlined a transition plan, should P need to move somewhere in the meantime. He was especially concerned about the triggers for escalation to different levels, given that the draft order is requesting authorisation for physical and medical restraint. 

Judge: The thing I can’t see very clearly is the triggers to move between the levels of escalation. It starts with encouragement. I am reading for the first time … it’s written in a narrative. You’ll appreciate I understand that this is on the basis that restriction is necessary but it helps me to understand how those involved with P would move between these levels of escalation. 

Louise Thomson (counsel for the Local Authority): They don’t want to use any kind of restraint. It’s hoped that verbal encouragement and reassurance will reduce the need … if she actively resists then minimum restraint will be used on her limbs and a belt in the chair. I can’t see how it will be escalated further.

Judge: I can see one starts with verbal encouragement, then escalates to ‘physical assistance’ and then it reads that this may then be followed by physical restraint. I have to say it could still be a little bit clearer. The different trigger points for escalation. I can see work has been done to address the levels – I can see the contents of each level to a degree but I can’t see the trigger points. I appreciate it’s a difficult situation but for the court to authorise it I need to see the triggers to escalate the levels. It’s where we get to ‘restraint’ or ‘further restraint’. Please give it a bit more thought to make it clear. The reason I say this is because if it’s not clear to me, it may not be clear to others on the ground. 

Coming from a support worker background, where I have had to use physical and mechanical restraints on patients, I thought this was a necessary request from the judge. Using restraint is a serious process that can have a significant impact on patients and, in some cases, can result in re-traumatisation. Due to this, it is crucial to have a clear explanation of what the draft order refers as “triggers” to escalate the levels from “encouragement and reassurance” to “physical assistance” to “further restraint”. An unclear care plan can lead to unnecessary or unsuccessful use of restraint. A clear care plan will help “others on the ground” i.e. support workers or nursing staff, to work collaboratively and efficiently, minimising inappropriate use of restraint and therefore minimising distress and injuries to both P and staff during the transition.

As the hearing went on, I remember shifting my attention to P. She lay there quietly on her hospital bed, and you could tell that she was listening intently to everything that was being said. I remember thinking about how she might feel about being discussed in great detail in front of numerous professionals as well as two observers that she had never set eyes on. At that moment, I felt a sense of guilt; I wondered if she was informed beforehand that we would be there, and if not, should she have been asked if she was happy with it before the hearing began. I felt like I would have been more comfortable in knowing that she was comfortable with us observing. 

Judge Reeder concluded that P should be discharged to a place where she can “live with comfort and where her needs can be met”. Before the final decision can be made, as well as detailed escalation triggers for physical restraint, Judge Reeder has requested that P’s services explore what needs to be done to consider the option of P moving back home, including contacting P’s wider family members to see if they are “willing to help with property clearance”. 

Although very patient, Judge Reeder was clear that more efforts were needed: 

Judge: It would be unfortunate that if nothing has been done, it was repossessed. What I am trying to say is that you need to tweak the order – urgent effort needs to go into contacting the landlord, finding out about the tenancy, finding out about arrears and the basis on which landlord has sought possession and whether they intend to proceed with that. It would be unfortunate if it [P’s home] disappears by default whilst we are dealing with case management. Please give that some thought. [Judge’s emphasis]

Judge Reeder asked to speak directly to P herself. 

Judge: There’s a suggestion P, that you and I speak in due course, prior to me making any decisions about where you should live in the longer term. Is there anything you want to say now to me now? 

P mentioned that she does not know what people were referring to by the condition of her flat, and that any issues with the flat was supposed to be sorted by the property owner. 

Judge: We will have a really good look at your home to see if it’s okay to go back there. This is a temporary move whilst we make decisions about going forward. 

Although it was brief, I was glad that the judge spoke directly to P, asking if she had anything to say to him. At first it made me wonder, with Huntington’s disease having an impact on cognitive skills, how well she was able to understand and follow the entire hearing. However, from P’s question about the condition of her flat, it was clear that she was at least able to grasp a rough idea of what was being discussed. I was relieved by this as I could not imagine what it would feel like to hear your name being brought up but not understand the details that were being discussed. 

Although it was a shame that we did not get to hear more about P as a person, I did find the case extremely interesting and exhilarating. Having worked in inpatient services, I enjoyed looking at mental capacity from another perspective. It sparked my interest in a person’s mental capacity and how such a complex concept can be assessed. It made me query the reliability of mental capacity assessments. I aim to further my knowledge on the area, and hope to observe a mental capacity assessment being completed.

Catalia Griffiths is an Assistant Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust. She is based with Claire Martin in the Older People’s Clinical Psychology Department, Gateshead.

Note: Quotations are based on contemporaneous notes and are as accurate as possible but unlikely to be completely verbatim, as audio-recording is not permitted.

Coercive and controlling behaviour continuing after brain injury: Matters of finance and contact

By Joanna Booth, 30th November 2022

The person at the centre of this case (PB) is a 65-old woman who had a brain haemorrhage in 2018. This was so severe that it left her with a lasting brain injury and significantly impaired cognitive functions and since leaving hospital she’s been looked after in a specialist care home. She’s been found to lack capacity to determine her own residence, care, and contact, and to conduct proceedings.

 At an earlier hearing, her husband (MB) had been found to exhibit a pattern of controlling and coercive behaviour towards her. This had been a pattern of their marriage before her brain injury, and continued after she was admitted to full-time care – along with his overbearing and aggressive behaviour towards the care home staff.

The hearing I observed (via MS Team) on Wednesday 23rd November 2022 (COP 13615665) before Sir Jonathan Cohen sitting in the Royal Courts of Justice was to consider (again) matters of contact between husband and wife, and also how her financial affairs should be managed.

PB was represented in this hearing (via the Official Solicitor) by Mary-Rachel McCabe of Doughty Street Chambers. The Health Board was represented by Benjamin Tankel of 39 Essex Chambers. The local authority was represented by Rebecca Jayne Blackwood and MB (PB’s husband) was represented by James Holmes of Garden Court Chambers. 

Background to the hearing

Since April 2019, when PB was discharged from hospital, she has lived in a specialist care home where she receives a significant package of care that she is likely to require for the rest of her life. She is subject to a standard authorisation depriving her of her liberty at the care home.

From the early days of P’s admission to hospital in 2018, safeguarding concerns have been raised in respect of her husband (MB’s) conduct towards her and there have been, throughout, significant concerns about his “combative approach” to the medical professionals involved in P’s care. 

On 5 February 2020 it was alleged that MB had inappropriately touched PB in a sexual manner.  Soon afterwards COVID-19 restrictions were imposed on contact with care home residents and from 3 April 2020 the decision was taken to restrict MB’s contact with PB to 2 video calls per week.

In June 2020 MB commenced proceedings seeking an order that it was in the best interests of his wife to return to the family home and reside with him and that the contact restrictions were not in her best interests.

There have been several hearings already in this case.  In April 2021, Francis J made an order that contact between  PB and her husband (MB) should be severely restricted.  He made an injunction prohibiting MB from having direct contact with P and from entering or approaching the care home and severely restricting communication with any care home staff.

The last hearing was in February 2022 before Sir Jonathan Cohen, and the judgment was published on 15 March 2022, as MB v PB & Ors [2022] EWCOP 14.

His judgment covers both the ‘fact finding’ element of the proceedings and also his decisions on best interests.

He found (§61 of the judgment)

i)                   That there was a pattern of controlling and coercive behaviour before P’s admission into full-time care.

ii)                 That there was a pattern of coercive and controlling behaviour that continued after her admission into full-time care.

iii)               That MB has a controlling and overbearing attitude towards the care staff. 

iv)               That MB has sought to interfere in the provision of care by his refusal to accept what professionals tell him and his insistence that he knows best about what care P should be receiving.

v)                  That MB has sought to limit and control the contact that P has had with other members of the family particularly her children and her sister.

vi)               That at times P has found contact with MB to be upsetting and unwelcome.  Equally at other times she has derived pleasure from it.

The judge found that “the single most important factor in this case is to maintain P’s position in the care home.  There is no other venue in Wales that is felt able to meet her needs. Nothing would be worse for her than for the home to feel that it could no longer keep her because of the pressures and disruption created by MB.  If the choice is between MB’s contact with P and the maintenance of the home, the latter must prevail” (§66).  

But he was “concerned that the loss or cessation of all contact between P and MB may not be in her best interests” (§67) and asked the parties to consider “a trial period of contact over a number of visits whereby P’s reaction to the resumption of contact could be assessed, along with MB’s ability to comply with the restrictions required and the contract of expectations which he must sign up to”.  (§69)

The judge said he would “hold a further hearing when the parties have had the opportunity to consider this judgment”.

That was the hearing I observed.

Hearing on 23rd November 2022

The Health Board’s position was that  two  key issues needed to be determined: (1) Property and Financial Affairs Does PB have  capacity to manage her own financial affairs? If not, what steps should be taken in respect of the management of PB’s finances; and (2) Contact between PB and her husband MB. I’ll address each in turn.

Issue 1: Property and financial affairs

PB’s husband believes that she has capacity to make her own decisions about property and finance.  The Health Board’s position is that she does not have capacity to do so. Due to this disagreement, the court directed the Health Board to obtain an independent assessment, which was now before the court. 

It was reported in court that the finding was that PB has limited abilities in relation to communication.  She can utter single words but not always in an understandable order. She has severe word-finding issues. 

She has trouble understanding where in time or place she is. She struggles with complex information. She can understand basic information about food choices or what clothes to wear. 

During her assessment she struggled with recall. She has severe memory problems. 

The clinical psychiatrist tried to discuss house and property issues with her. 

She couldn’t tell him why she was at the care home or how long she had been there. She was asked about when she’d last been to her home and she said four months ago. It had actually been four years previously. She was unable to say where she was or why she was there. She did not know how her care was paid for. 

The MCA sets out a 2-stage test of capacity: 

First: 

….  a person is unable to make a decision for himself if he is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his decision (whether by talking, using sign language or any other means).

(s. 3(1) MCA)

Second: A person can only be found to lack  capacity to make a decision if their inability to do so is “because of an impairment of, or a disturbance in the functioning of, the mind or brain” ( s.2(1) MCA)

The Health Board’s position is that PB is unable to make her own financial decisions .Due to her brain injury, she cannot understand or retain, use, and weigh the information she is given. She can communicate but her answers are so variable that they cannot be relied upon. 

Therefore, the Health Board’s position is that a deputy be assigned to PB, to manage her financial matters. 

Counsel for PB’s husband argued that a deputy is unnecessary because her husband is already her DWP-appointed appointee. The Mental Capacity Act code of practice, s.8.36 specified that when a person has benefits but no property or assets, then an appointee can be assigned to them, which is within the remit of the DWP.

The local authority lawyer, Rebecca Blackwood, stated that PB does have property. It was also relevant that in the Judge’s previous hearing, reported in March, MB was found to be coercive and controlling. It would therefore be entirely inappropriate for MB to be kept or put in control of PB’s finances, in line with that ruling. 

The judge went on to state that it was plain that MB would not be an appropriate deputy for a wide number of reasons. There is also a conflict of interest: the funds that PB receives for her PIP are mixed in with MB’s finances and used to pay for utilities and the mortgage for the house they jointly own. 

Also, said the judge, the court does not have the power to appoint appointees; that is only for the DWP. The court only has power to determine the appointment of deputies. 

There were also issues with MB’s current control of PB’s finances. At the previous hearing, in February 2022, the court ordered MB to provide some money (a ‘fund’ or ‘float’ of £200 for PB so that additional items could be provided without having to rely on communicating with him. This system of having to ask MB for every payment required for PB was seen to be at one extreme a continuation of the coercive and controlling behaviour towards his wife, and at the other, unwieldy. He did not provide this fund until October of this year, seven months later. 

Issue 2: Contact

PB has been in the nursing home for four years. While indirect contact (video-calls) had been organised with the nursing home, there was no direct contact face-to-face after an injunction had been issued against MB. 

The indirect contact between the couple was to be facilitated once a week by a nursing assessor provided by the Health Board. 

The nursing or caring staff at the nursing home could not be used to facilitate contact because the home had refused contact with MB after his abusive behaviour. 

MB also requested through his team that when virtual meeting could not be held, that they were rearranged so they could still happen. 

The Health Board said they would look into it but could not guarantee it.

The court was looking at facilitating direct contact in other ways. MB had requested a list of conditions to be met and if he could meet them, then he requested direct contact. The conditions included finding a suitable care agency that would be able, with Health board approval, to facilitate a meeting. 

The judge felt it was important to at least attempt direct face-to-face contact. He suggested it was very worrying that a wife and husband had been separated for a long time and could not see each other.

It doesn’t seem right that contact is forbidden if a suitable nurse can be found,” said Sir Jonathan Cohen.

The Health Board representative pointed out that there were huge obstacles in the way and they were mostly due to MB. 

He said, if conditions can be met, there would still be residual concerns as to whether direct contact would be in PB’s best interests. 

The meeting would be better in the garden of the nursing home where if she is fatigued or if there are concerns, she can leave quickly. In the community, where MB wants the meeting to be held, this would not be as easy. 

Also, in the seven months since MB proposed the conditions to be met, he has not found or looked for a suitable care agency, and the Health Board have not been able to find one either. 

There would be lots of stresses for this type of package, which would consist of an hour or half an hour a month. The carer would not have the knowledge of PB to understand, perhaps, when she was showing signs of distress and needed to be removed from the meeting. 

The judge stated that he did not underestimate the difficulties to surmount the hurdles. But if the conditions can be met then some dates in March or later in the spring should be provided, where PB could be wrapped up in the garden on a sunny, dry day, for a meeting. 

If a deputy is appointed, and the thresholds are met, then the care agency costs would be decided by the deputy. 

A best interest declaration by the deputy would be required, claimed the Health Board.

The judge stated that contact would be a good use of funds. 

The Health Board stated that the nurse assessor used for the virtual meetings would be available indefinitely subject to resource. 

The judge asked whether the nurse assessor could be used for the direct contact.

The Health Board replied that they were not willing to make the nurse assessor available for direct contact. MB had been found to target members of staff with hostile behaviour. MB does not accept the findings of the previous hearing and insists that everyone is out to get him. The Health Board is not willing to expose the nurse assessor to his behaviour. 

Judgment

The judge found that PB does not have capacity to manage her own financial affairs and ordered that the local authority should appoint a panel deputy 

In relation to contact, if  MB can identify a suitable care agency, with Health Board approval, and if MB pays for it, then arrangements for contact will be made and a date found in spring, when there’s better weather, so that PB could meet with her husband MB in the garden of the nursing home. 

For indirect contact, if virtual meetings can’t take place at the assigned time, then the meeting will be reorganised for another possible time. 

There are no orders for these matters to come back to court unless circumstances change.

Joanna Booth is a freelance journalist who writes at joannab.substack.com. She studied law, politics, and social research methods, and worked for years as a social researcher in higher education organisations. She works as a journalist, and is studying towards a PhD by publication on local media and political participation. She tweets as @stillawake.

Decision-making with clarity and compassion: Validity of LPAs and appointment of Deputy

By Clare Fuller, 28th November 2022

As a consultant for Lasting Power of Attorney and an advocate for Advance Care Planning, learning more about the Court of Protection work and processes is important to me. I have attended previous hearings and found the experiences invaluable[i].

This hearing concerned whether the person at the centre of the case had validly appointed his sister and her husband with Power of Attorney. 

Lasting Power of Attorney (LPA) is a legal document that enables a someone to nominate a trusted person to speak for them if they ever lose capacity due to ill health or a sudden accident. There are two different LPAs, one for Health and Welfare and one for Property and Finance.

The key questions in this hearing were: (a) were the LPAs valid and (b) if not should a Financial Deputy be appointed and if so who?

I’ve written previously about “Capacity to make a Lasting Power of Attorney”.  In essence, an LPA is only valid if it is made when a person has capacity:

“To work out whether someone lacks the mental capacity to make a decision, you need to answer ‘yes’ to these two questions: Do they have a mental or brain problem that stops their brain or mind from working properly? Is that problem causing them such difficulty now that they are unable to make this particular decision at the time it needs to be made? Being ‘unable to make this particular decision’ means that the person can’t: understand relevant information about the decision that needs making; keep that information in their mind long enough to make the decision; weigh up the information in order to make the decision; or  communicate their decision – this could be by talking, using sign language, pictures or even just squeezing a hand or blinking.”
LP12 Make and register your lasting power of attorney: a guide

In a key case earlier this year concerning capacity to make an LPA (The Public Guardian v RI & Ors [2022] EWCOP 22 ), the judge helpfully laid out the relevant information that a person needs to be able to understand, retain and weigh if they have capacity.  This information is:

a. The effect of the LPA.

b. Who the attorneys are.

c. The scope of the attorneys’ powers and that the MCA 2005 restricts the exercise of their powers.

d. When the attorneys can exercise those powers, including the need for the LPA to be executed before it is effective.

e. The scope of the assets the attorneys can deal with under the LPA.

f. The power of the donor to revoke the LPA when he has capacity to do so.

g. The pros and cons of executing the particular LPA and of not doing so.

There are two parts to this blog. I’ll first consider issues of access and transparency as they impacted on me as a member of the public seeking to observe a COP hearing, and then (in the second part) I’ll consider the substantive issues before the court.

1. Transparency

On this occasion I was also mindful of the Open Justice Court of Protection work on assessing the performance of the Court of Protection which you can see listed below and read more about here

Before I describe the hearing and what I understood and learned from attending, I will briefly reflect on the ten KPIs identified and can report:

  1. The hearing was listed on @CourtServe.
  2. It was not clear the public could observe.
  3. Partially met, the hearing was remote but the information did not clarify it was by telephone not video link.
  4. Correct contact information supplied on CourtServe and on the First Avenue House websites (and reproduced by the Open Justice Court of Protection Project).
  5. Fully met, I understood the hearing was about decisions relating to Lasting Power of Attorney (see listing below). 
  6. Fully met, it was listed as a “Directions” hearing (see listing below).
  7. Fully met – I received a link to join the meeting via telephone.
  8. Not met.  I did not receive a Transparency Order.  I am basing this blog on my understanding of the ‘standard’ transparency order from previous experience at the Court of Protection hearings.
  9. Fully met, the opening statement by the judge provide clarity on the case, introduced the parties and identified who was representing whom. 
  10. I requested but did not receive a Position Statement (i.e. a statement from the parties which setting out their argument and what they want the judge to do).

I’ll now describe what happened before and during the hearing and what I learned from being present. I’m including the “before” to show how straight forward it can be to attend and what to do – things I wasn’t aware of before my first experiences as an observer.

Before the hearing

I was made aware of the hearing the night before and was able to access the following information from Open Justice Court of Protection Twitter; knowing I had an interest I was lucky enough to receive a direct message alerting me to the hearing, and pasting in the entry from the Daily Cause List for First Avenue House.

Using wording from a previous template I applied via email; I am including the email which can be used and adapted for anyone wishing to attend a hearing.  It’s important to put the words “Observer Request” and the case number and judge’s name in the subject header of the email.  This is because staff are busy and it’s helpful to make it as clear as possible what you are asking for.

At 09:38 I received an email informing me of the dial-in details to attend the telephone hearing. I had previously joined by video conference before, so joining by telephone was new to me; I read that the landline was free to use – however there could be charges associated with using my mobile phone. 

2. The Hearing

Opening 

The hearing began at 10:34 with a welcome from Deputy District Judge Whitfield. There were two other people in attendance (aside from the judge and me):  these were the applicant from East Riding Council (who I will anonymise as Mr Jones), and the respondent who I will anonymise as Mrs Lucy Smith. 

Mrs Smith’s husband (anonymised as Thomas Smith) was noted by the judge to be a co-respondent but currently in hospital and therefore unable to attend.   Judge Whitefield commented that information had been jointly received from Mr and Mrs Smith and confirmed it was acceptable to continue in his absence. Judge Whitfield explained that Lucy and Thomas were attorneys for Steven (the person at the centre of the case, Lucy’s brother)  both for Health and Welfare and for Property and Finance.

The judge proceeded to explain the formalities of the hearing –  namely that it was being recorded and that each of us could state we were in a private location and could not be overheard or disturbed. He asked if it would be acceptable to use first names in his discussions with Mrs Smith, to which she agreed; I will therefore continue in the blog with first names for Lucy and Thomas. The judge suggested it helped to reduce the formality which I understood, however I also felt it could have been appropriate to use first names for everyone rather than the respondents only for greater equality. Neither Mr Jones from East Riding Council nor I were referred to in first name terms, maybe a discussion on this potential power in balance is material for another blog?

Before formally embarking on the hearing, Deputy District Judge Whitfield asked how Thomas was and said that he hoped Thomas continued to make good progress in hospital. I had the impression this was valued by Lucy and it certainly helped create a compassionate atmosphere. 

The questions to answer

The key questions in this hearing were: (a) were the LPAs valid? and (b) if not should a Financial Deputy be appointed and, if so, who?

Deputy District Judge Whitfield proceeded to lay out a summary of the issues at the heart of the hearing.  (Providing this kind of summary meets KPI 8.) I found this helpful and appreciated having the background explained in such a clear manner. He explained that the hearing concerned the “validity of various LPAs and whether a deputyship should be appointed”. He outlined Steven’s history describing him as “approaching sixty, living in rented accommodation and as a person who has experienced lifelong physical and learning disabilities”. 

The judge continued to explain that Steven has made two Lasting Power of Attorney documents (one for Health and Welfare, one for Property and Finance) which were signed in May 2022 but not yet registered due to objections raised by East Riding Council. 

Following a capacity assessment made last year, Steven was identified as having a “basic idea of money”, but no ability to weigh up decisions or communicate with insight. 

Both East Riding Council, represented by Mr Jones, and the two prospective attorneys had previously believed they should act for Steven and indeed that he wished them to.  Deputy District Judge Whitfield noted that Steven is reported to have tendencies leading him to be “easily led” and to provide the answers that he believed to be wanted.

A previous dispute resolution meeting had been held and the judge stated he understood that Lucy and Thomas no longer objected to East Riding Council’s application.

In summary (said the judge):

  • Were the Lasting Power of Attorney documents valid when they were signed?
  • Would an investigation be required? (This would “fall away” if there were no longer objections)
  • Does Steven have capacity to make a Lasting Power of Attorney?

Lucy and Thomas’s historical “lack of confidence” for the Council’s management of Steven’s financial affairs was identified, followed by a hope they were now satisfied “it is appropriate, and in Steven’s best interests, that East Riding take over financial affairs”.

The judge explained there was nothing to preclude “all parties discussing affairs” and suggested “establishing a baseline for discussing Steven’s needs, for example, Christmas presents and winter clothing”. 

Having established that Steven does not have capacity to make an LPA, deputyship was described as a way of protect Steven and anybody else from misunderstandings. I have written in detail about the differences between an attorney and a deputy in an earlier blog and summarise briefly below:

  • CAPACITY: An LPA is made when a person has capacity, a deputyship is made if a person has lost capacity
  • CHOICE: Making an LPA gives a person choice in who can speak for them, a deputy is appointed by a court
  • PROCESS: It is more complex to apply for a deputyship than an LPA
  • TIME: It takes around twenty weeks to set up an LPA; a deputyship takes considerably longer
  • COST: It is more expensive to set up a deputyship compared to an LPA
  • ONGOING COST: There is an ongoing annual cost associated with a deputyship whereas an LPA has a one-off registration cost.

At this point, the judge asked Lucy if she and Thomas would be content that East Riding looked after Steven’s affairs to which Lucy agreed saying, “I only want what’s best for Steven”.

I noted that Deputy District Judge Whitfield stressed there was no “suggestion of impropriety”, and stated to Lucy “I suspect you have a lot on your hands”. This continued to demonstrate compassion that had been displayed earlier in the hearing. 

The formal outcome

The judge summarised the proceedings stating “I formally record the LPAs are invalid and should not be registered, and the application for deputyship for property and affairs is approved”. 

The LPAs were invalid was because Stephen lacked capacity at the time of signing the documents. 

The unexpected outcome

In opening the hearing,  Deputy District Judge Whitfield set out the relevant details. It appeared clear that the issue of Steven’s lack of capacity had already been agreed, this meant that Stephen would require a person (or persons) to manage his financial affairs.  As Steven is unable to make an LPA, a deputyship is required for him; once again this was agreed by all parties at the outset. Following initial disagreement between East Riding Council and Lucy and Thomas, I understood in the opening statement that this had been resolved:  both the respondents were now happy for East Riding Council to act for Steven.

At the outset the hearing appeared straightforward, and whilst the formal outcome was no surprise to me, what I had not expected was to see a Judge checking on a respondent’s welfare. 

I have referred twice already to the compassion shown by Judge Whitfield and this continued to the end of the hearing.

Judge Whitfield gently and sensitively asked Lucy about how she was coping and what support she was receiving.  On hearing that Lucy was coping without help he stated, “you might be entitled to some help and support yourself as his (Thomas’s) carer. Can you signpost Mr Jones?”   To which Mr Jones stated, “I am happy to talk to Lucy after this call.”

What I learned from observing

This was the fifth time I have attended a hearing through the Open Justice Court of Protection project and built on the previous knowledge and confidence I have gained. I know that both information received beforehand and the application process can vary and fully appreciate the drive to set KPIs as minimum standards. As a new observer it can be easy to believe that you somehow “don’t know” how to navigate the system when instead the system is not clear enough to navigate. This is sad because any barriers to attending could dissuade people from attending and work against the judicial aspiration of transparency.

I left the hearing with greater confidence in how to navigate the system, but more importantly, with great respect for seeing compassion in action.

Clare Fuller RGN MSc is a registered nurse with a career dedicated to Palliative and End of Life Care. She is an advocate for proactive Advance Care Planning and provides  EoLC Service Analysis and bespoke EoLC Education. Clare hosts Conversations About Advance Care Planning. She is also a  Lasting Power of Attorney Consultant and director of Speak for Me LPA. Connect with Clare on Twitter @ClareFuller17


[i] Previous hearings I’ve blogged about are: 

Bearing Witness: Anorexia Nervosa and NG Feeding

Lasting Power of Attorney: Across Borders

Capacity to make a Lasting Power of Attorney

Reflecting on Re MW and Advance Planning: Legal frameworks and why they matter  

What happens when Lasting Power of Attorney goes wrong?

Closed Hearings: Submission to the Rules Committee

By Celia Kitzinger, 22 November 2022

Preamble

There’s a sub-committee of the Court of Protection Rules Committee looking at the matter of closed hearings. ‘Closed hearings’ means hearings where one party (and their legal representatives) is excluded by order of the court and may not be told the hearing is even taking place – as happened to the mother in the ‘covert medication’ case we’ve blogged earlier (e.g. Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44). There are also ‘closed material’ hearings where some of the evidence before the court is withheld from one party (and/or their legal representatives).

The sub-committee is composed of four barristers who do a lot of work in the Court of Protection: Alex Ruck-Keene KC (Hon), Fiona Paterson, Joseph O’Brien KC and Michael Mylonas KC. Joseph O’Brien was also involved in Re A (the closed hearing case we blogged about earlier) as the legal representative for the Trust.

The subcommittee is preparing a report so as to enable the Vice-President to issue Practice Guidance about what must be taken into account when closed hearings are considered. I was invited to make a submission. What follows is that submission, as sent to the committee on 21st November 2022.

Submission on Closed Hearings by Celia Kitzinger

I am writing this submission in a personal capacity as a member of the public. I draw on my experience of observing 370 Court of Protection hearings as a public observer, and most particularly on my experience of the case of Re. A (Covert Medication and Closed Hearings) [2022] EWCOP 44  (henceforth Re A) – of necessity, because that is my most extensive (and concerning) experience of observing proceedings of which I know closed hearings to have been a part.  Although I draw also on my experience as co-director of two groups (the ‘Open Justice Court of Protection Project’ and the ‘Coma and Disorders of Consciousness Research Centre’), the views expressed here are my own, except when otherwise attributed.

In the aftermath of Poole J’s decision to reveal the fact of the closed hearings in Re A, I have done some research on closed proceedings and ‘closed material’ hearings. I have read relevant case law[1] and also the guidance from 39 Essex Chambers relating to “Without notice hearings before the Court of Protection” (November 2017). I have raised concerns about the role of observers in relation to closed proceedings in four different regional Court of Protection User Group meetings and I’ve benefitted from the responses from lawyers and judges. I have also discussed closed hearings with around two dozen Court of Protection lawyers and with family members of people involved in Court of Protection proceedings.  In trying to get to grips with the ethics of closed hearings – and specifically the ethics of what happened in Re A – I’ve also read some moral philosophy on truth-telling and deception. 

Obviously, what I’ve written here may reflect errors in my understanding of law and practice in the Court of Protection. This is an opinion from an informed ‘outsider’ (not a lawyer) and should be read with that in mind.  I apologise for anything that sounds naïve or insulting or just plain wrong. I’ve done my best to be a ‘critical friend’ to the Court.

The key points of my submission (explicated below) are as follows:

1. Reactions to Re A (both from lawyers and from the public) clearly demonstrate the need for guidance on closed hearings– and it needs to be outward-facing.

2. Guidance needs to explain the exceptional circumstances under which judges can discard the ordinary rules of judicial enquiry – with concrete examples drawn from case law, and illustrating ‘good’ and ‘bad’ practice in decision-making about closed hearings.

3.  There should be reporting and monitoring of closed proceedings and closed material hearings.

4. Closed hearings should be listed as such and open, in principle, to observers.

5.  The Guidance should say that judgments from closed hearings should normally be published on publicly available sites (e.g., National Archives).

6.  Guidance needs to deal with how to manage open hearings running in parallel with closed hearings – ideally by stating that this shouldn’t happen (certainly not over periods of months or years).

7.  The Guidance should address (and encourage lawyers and judges to address) moral complexity – in particular, the moral costs associated with making the right decision. 

8.  The Guidance should state that observers must not be admitted to ‘fake’ hearings (if they continue to happen) without proper briefing.

9. The Guidance should emphasise the need to inform the excluded party about closed proceedings as soon as possible (not least, to enable an appeal).

10.  Some remaining issues….

1. Reactions to Re A (both from lawyers and from the public) clearly demonstrate the need for guidance on closed hearings– and it needs to be outward-facing

Before my involvement in Re. A, I did not really understand  – and nor, it seems did some COP lawyers – that there were ‘closed’ proceedings (as distinct from merely ‘private’ ones) in the Court of Protection.  It had not occurred to me that parties might be deliberately excluded from hearings by court order, or that it could ever be fair and just to do this. The events of Re A therefore came as a shock – and as a learning experience. In retrospect, it seems as though I should have known about closed hearings, since there is case law publicly available – but I had not stumbled upon it, nor had I fully appreciated the import of some judicial comments to which I’d been exposed which (now) I recognise as referring to closed hearings.  The different terminologies used (‘without notice’, ex parte, closed material proceedings, etc) has acted as a barrier for me in making sense of it all.  Since some lawyers, as well as members of the public, tell me they were unaware of closed hearings (in the sense intended by this subcommittee),  it would be helpful for Guidance to flag up that closed proceedings (as defined in the subcommittee’s terms of reference) are a part, albeit an exceptional part, of Court of Protection practice.

The polarised reactions from lawyers to the events revealed in Poole J’s judgment in Re A also clearly demonstrate the need for Guidance. Some lawyers  – those not previously aware of closed hearings – saw the closed hearings as unethical, insupportable and even unlawful. One COP lawyer described the events in Re A as “breath-taking“: “Managing a case in this way,” he wrote, “requires either total ignorance or total disregard for our most basic constitutional principles”.  Another lawyer wrote: “Serious questions raised about open justice, of course. But this is surely an Article 6 violation. The party excluded from the closed proceedings litigated from *a place of ignorance engineered by the court*”.  

Other lawyers appeared to minimise what had happened.  Some compared the exclusion of A’s mother from the closed hearings to s.49 orders or to disclosure orders against GPs (the relevant comparison being that those organisations/people are also often not in court when orders are made against them). Some pointed to the ‘successful outcome’ of the proceedings as offering total justification for everything that was done along the way.  

Others spoke of “discomfort” and feeling “uneasy” or “queasy” about events in Re A without being able fully to articulate why – in one case, despite the experience of having been involved in what the lawyer described as a “wholly justified”decision to hold a closed hearing enabling P to be transferred from an abusive partner to a place of safety.  

Formal Guidance would provide lawyers (and judges) with a scaffolding of facts, law and relevant considerations to take into account when engaging with closed hearings in future. It would enable them to: identify the conditions under which closed hearings are lawful and necessary; prevent too easy an acceptance of the need for closed hearings; and encourage reflection on the challenges presented by closed hearings and how to manage them.

There is also a clear need for the Guidance to address the concerns of members of the public (including people involved in COP proceedings). 

There are two broad aspects to public concern with closed hearings: (1) the procedural irregularity involved in excluding a party (often a family member) from the proceedings; and (2) the substantive outcome of the hearing in terms of declarations and orders made, which can be perceived as unfair or even as human rights violations. 

These two concerns are inter-related because there can be a perception that an outcome perceived as unjust has come about as a consequence of closed proceedings, i.e. that if there had been a ‘fair’ hearing at which the excluded party had been able to participate (tell their ‘side of the story’, cross-examine witnesses etc)  the judge would have made a different decision.  

In addition, the Re A case in particular has raised (or underscored) public concerns about practices seen as involving ‘deception’ – both by lawyers and by the judiciary.  This arises in particular from the fact that, in April 2022, there was an open hearing before HHJ Moir (with a public observer) at which A’s mother was left in ignorance of highly salient decisions made in an earlier closed hearing – decisions which impacted upon her application in the open hearing. 

The mother applied for her daughter to return home in part on the grounds that professionals had failed to get A to agree to hormone medication and that she (the mother) would be more likely to be able to do so in the home environment[2]. This was also the gist of her application in the hearing before Poole J. Both applications were based on false premises. Having been told that her daughter was still refusing hormone treatment, she assumed (as I believe she was meant to assume, and as her legal team and the public observer also assumed) that her daughter was not receiving hormone treatment. Her position statement claims for example that “at 23 years old, [A] has not attained puberty” (§4) and that “[A] is not taking her endocrine medication, her future remains at risk…” (§12) (Position statement for A’s mother dated 16 September 2022).

At the April 2022 hearing, all other parties, and the judge, knew that the mother’s assumptions that her daughter had not received hormone medication and had not gone through puberty were not true. They did not correct her. 

The mother and her legal team were not told that A had been covertly medicated, or that she had gone through puberty, until the first day of the open hearing in September 2022. 

As a result of learning the true facts at the beginning of the September 2022 hearing, counsel for the mother described the mother’s position statement as “otiose” (i.e., as serving no practical purpose, lacking effect, pointless, useless, futile) and the mother reluctantly withdrew her application for her daughter to return home. 

Up until that point, information had been kept from her such that she participated in an open hearing not knowing about the closed hearings from which she’d been excluded and not knowing material facts about the case. 

Learning about this episode is very disturbing for family members currently involved in Court of Protection cases.  It raises the question “could something like this be happening to us?”.  

It would be helpful for the Guidance to consider ways in which the taint of deception could be removed, as far as possible, from cases involving closed hearings and to recognise and seek to minimise the moral injury they can cause.  By ‘moral injury’ I mean the experience of “perpetrating, failing to prevent, or bearing witness to acts that transgress deeply held moral beliefs and expectations” and “may be deleterious in the long-term, emotionally, psychologically, behaviorally, spiritually, and socially[3].

I hope those who produce the Guidance will – in selecting its language and content  – take account of the fact that members of the public are likely to read it.  While not addressed to us, it should be written in the knowledge that we are part of its audience, and that our understanding of what it says is likely to influence our confidence in the Court going forward.

2. Guidance needs to explain the exceptional circumstances under which judges can discard the ordinary rules of judicial enquiry – with concrete examples drawn from case law, and illustrating ‘good’ and ‘bad’ practice in decision-making about closed hearings 

The Guidance should reiterate that the fundamental principles of judicial inquiry ordinarily demand that all parties are able to participate in proceedings, and that justice should be done openly at a fair hearing, on the basis of evidence made known to all parties. 

This will reassure the public.  

It will also serve as a useful alert to some lawyers.  I’ve been alarmed by the apparent readiness of some of those with whom I’ve discussed Re A to advocate for departure from the ordinary principles of judicial inquiry in order to achieve the ‘right’ outcome without (in my view) sufficient consideration of alternative courses of action or of the moral costs associated with closed hearings. 

The Guidance needs to reference the Court of Protection rules that permit the court to exclude parties from hearings, and to withhold evidence from parties – highlighting that this can only be done where it serves the overriding objective of promoting P’s best interests in circumstances where  “justice would be defeated if notice were given” (§5 COP PD 10B).  

The Guidance should explain the sorts of circumstances under which closed hearings are permitted (or required), making clear the burden of justification lies with those who claim that these ordinary principles of judicial enquiry do not, in the particular circumstances of the case, serve the ends of justice and should be discarded (paraphrased from Lord Devlin in Official Solicitor v K [1965] AC 201 (p. 238)).

Concrete case studies should be included in the Guidance. It would be helpful to include cases where closed hearings were considered and rejected, as well as those where closed hearings went ahead. It should also include those where closed hearings resulted in bad decisions (e.g. the case of Aamir Mazhar[4]) as well as those where closed hearings were clearly the right thing to do and led to positive outcomes.

3.  There should be reporting and monitoring of closed proceedings and closed material hearings 

The Vice President has said that closed hearings are  “extraordinarily rare[5], but nobody seems able to provide information about exactly how many there are, or the circumstances leading to them.

Here’s my attempt to come up with some rough idea of how rare, or frequent, closed hearings might be.  In the course of observing 370 hearings, across approximately 300 different cases in the Court of Protection, and requesting without success access to around 700 more,  I’ve become personally aware of four closed hearing cases.  In two of these cases,  I observed a hearing at which the judge said explicitly that the case had also involved an earlier closed hearing: one was the open hearing in Re A,  the other was an open hearing that followed a closed hearing in Hull City Council v A & Ors[2021] EWCOP 60.  I sought access to, but was not admitted to the other two hearings.  One was the hearing before Hayden J that was subsequently appealed (In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512): in that case I was admitted to the video-platform only for the 5-10 mins it took for counsel to make their arguments (accepted by the judge) that the hearing should be held in private, and then I was asked to leave. The fourth closed hearing is one I only became aware of much later. I was refused permission to observe a hearing (randomly selected from the listings) before HHJ Haynes on 16 June 2020 in Leeds County Court: I subsequently identified it as the hearing that became the subject of an appeal about closed materials in KK v Leeds City Council [2020] EWCOP 64.[6]  So my own experience gives me a ballpark figure of maybe 4/1000 or 0.4%. This is likely to be an under-estimate[7].  In any case, 0.4% is rare, but not (in my view) “extraordinarily” so, especially given the large number of cases heard in the Court of Protection.

It would be helpful (and reassuring for family members of P) for the Guidance to ask that closed hearings, and closed material hearings, should be formally logged as such with some responsible administrative body within the Court of Protection so that their frequency can be known and reported annually  (e.g., in the form of “there were X hearings in the COP during 2023 concerning Y cases,  of which Z were closed proceedings or closed material hearings….. etcetera”, plus some summary detail about the features of the case that resulted in the closed hearings, and their outcome).

4. Closed hearings should be listed as such and open, in principle, to observers 

It seems that some closed hearings are not in fact listed.  In his judgment in Re A, Poole J reports his decision not to list the first closed hearing before him, and he acknowledges that: 

In retrospect it might have been possible to list the case without a case number or with a new case number created for the specific hearing, without any identifying names or initials to enable the listing to be linked to any previous open proceedings, and to make a reporting restrictions order at the hearing to prevent any communication or publication about the hearing (at least not until further order)” (§9 Re A). 

I support Poole J’s suggestion.  I recommend creating a new case number for a (first) closed hearing in a case which avoids linking the listing to previous open proceedings, and using the same closed case number for all closed hearings in the same case (thereby enabling identification of subsequent closed hearings in the same case).   I recommend clearly identifying the hearing as a ‘closed’ hearing in the listing (e.g. by stating “Closed Hearing” in the listing), thereby supporting the reporting and monitoring exercise advised above, and enabling journalists and the public to identify closed hearings as such.

Closed hearings should not normally be held in private.  There would be huge benefits in permitting observation of closed hearings by journalists and members of the public, subject to appropriate reporting restrictions and publication embargos.  One reason for having observers in court is to ensure that justice is seen to be done, to “keep the judge, while judging, under trial” and to “guard against improbity”.  This is arguably more important in closed hearings than in ordinary hearings attended by all parties. 

Obviously, the benefits of transparency would need to be considered on a case-by-case basis and balanced against the risks attached to having observers in court. I am simply suggesting that there should be no ‘in principle’ exclusion of observers from closed hearings.  And for those undertaking this balancing exercise, I draw attention to the fact that breaches of transparency orders, reporting restrictions and publication embargos have been very rare over the course of the last two and a half years, despite the huge increase in the numbers of observers in the Court of Protection, and that compliance with reporting restrictions has been maintained by both journalists and members of the public over long periods in other cases (e.g. more than 2 years in Hinduja [2022] EWCA Civ 1492)

5.  The Guidance should say that judgments from closed hearings should normally be published on publicly available sites (e.g. National Archives)

It is very important, in my view, that when judges discard the ordinary principles of judicial enquiry, that they publish judgments explaining why they have done so, and give a full account of the substantive issues in the case, the decisions they made, and reasoning behind those decisions.

This should be the norm for all closed hearings – but of course it is especially important when closed hearings are conducted in private.  As Poole J said in relation to the closed hearing in the Hull City Council case:

Without notice orders of the kind I have made in this application are exceptional and I consider necessary to set out the reasons for making them in a published judgment, suitably anonymised to protect A’s identity. By previous orders the proceedings have been conducted in private therefore they were not open to members of the public. Nor did any journalist or blogger attend. It is important that when the workings of the Court of Protection are carried out in such circumstances and powers are exercised of the kind I have exercised in this case, the court’s processes and reasoning are at least subsequently laid open in a published judgment.” (§2 Hull City Council v A & Ors[2021] EWCOP 60, Poole J)

The fact that some judgments from closed hearings are published means they can be evaluated to assess the extent to which it was necessary conduct closed proceeding (to protect P from harm and ensure P’s best interests).  Those I’ve read do support the need for closed proceedings: they’ve been concerned, for example, with physical, psychological or sexual abuse from the excluded party, or the risk of P’s removal to a foreign country in a forced marriage case. In addressing these concerns, judges act in accordance with Articles 16 and 19 of the Convention on the Rights of Persons with Disabilities – the duty upon States to protect those with disabilities from exploitation, violence and abuse, and to secure their right to independent living, respectively. 

These bases for “discarding” ordinary principles of judicial enquiry have been set out clearly in two judgments in particular:

(i) In Hull City Council v A & Ors [2021] EWCOP 60 (before Poole J), the protected party (A’s) son (her main carer) was excluded from a hearing at which an order was made to remove his mother from his home and transfer her to residential care. Her son has a long history of criminal activity including multiple convictions for supplying drugs and for assault.  He had obstructed all attempts by social workers and others to check on his mother’s safety, health and welfare by refusing access to the home. He was preventing  any meaningful contact with A inside or outside her home by the other parties to the case. The judge ruled:  “I am satisfied following the hearing on 2 November 2021 that if he were to have notice there would be a substantial risk that he would use the time afforded to him to obstruct A’s planned removal and conveyance. He would be likely to take steps to frustrate the purpose of the order. Those steps could put A at risk of harm. I am satisfied that the exceptional course of proceeding without notice to him is required in this case.

(ii) In KK v Leeds City Council [2020] EWCOP 64 (an appeal heard by Cobb J against a decision by HHJ Hayes QC), the protected party (DK)’s maternal aunt (KK, formerly her main carer and the person she calls “Mum”) applied to be joined to proceedings and was refused party status by the judge at first instance, and then at appeal. As a teenager, DK had been a victim of child sexual exploitation and made allegations against KK’s husband and son of sexual abuse; these were investigated by the police over a period of 18 months (during which time KK and DK had no contact) before the police decided to take no further action. She has ongoing exposure to sexual exploitation and trafficking. The local authority alleged that KK’s relationship with DK exhibits elements of control and said that  “KK having party status would perpetuate and facilitate this control”.  Some of the evidence for this was in ‘closed materials’ which neither KK nor her legal team were allowed to see. Revealing these materials or joining KK to the proceedings would prevent her from “expressing her true wishes and feelings”, “undermine the process of ensuring her effective participation in these proceedings” and “interfere with DK’s right to respect for her private life”.

These judgments provide evidence of the need for closed hearings and address the basis on which decisions to conduct them were made. This is essential for public confidence in the law.  They also set out the decisions made and the reasoning behind them. 

There is no published judgment in Re A concerning the decisions made by HHJ Moir, at a closed and private hearing on 25 September 2020, to hold closed hearings and to initiate covert medication without the mother’s knowledge.  

I asked for the judgment from this hearing, or a transcript of it, to be published when I attended the hearing before Poole J as an observer on 21st-22nd September 2022. Although Poole J arranged for publication of another of HHJ Moir’s judgments in this case (from an earlier hearing at which she had declared hormone treatment to be in A’s best interests), his judgment made no reference to the crucial ‘closed’ hearing at which the decision was made that this medication should be given covertly and concealed from A’s mother. I emailed Poole J (via his clerk) on 12th November 2022 reiterating my request: 

“Given the draconian nature of this decision, made without the mother’s knowledge, and given the human rights implications that flow from it, it seems only right and proper that it should now be published so that the public (whose confidence in the COP’s judicial process may have been shaken by this episode) can understand the basis on which this decision was made…. If there are difficulties with publishing it as a formal judgment now that the judge involved has retired, can a transcript of the recording of the hearing be made public please?”.  

In his judgment at a subsequent hearing (on 14th November 2022) the judge authorised a transcript of this hearing and said that it should be made publicly available on the National Archives. This all took considerable persistence on my part and I’m not at all sure that concrete plans would ever have been made to publish this judgment without my involvement.  

My involvement in getting this transcript on the road to publication (it’s not there yet, and I will pursue it) shouldn’t have been necessary. The Guidance should say that all judgments from closed hearings (or in cases like this one, the transcript of the closed hearing) should normally be published – with redactions if necessary – unless there is some compelling reason why they cannot be.

Leaving aside, for a moment, concerns about the procedural issues associated with closed hearings, there is also the issue of the  substantive decisions made by the court: to deprive P of her liberty contrary to the wishes of both P and her mother; to use covert medication over (so far) a two-year period; to impose draconian restrictions on contact between mother and daughter.  Whether or not closed proceedings had been involved, this is the sort of case that raises fundamental issues of human rights, and I would want to see it published. 

In discussion with lawyers and others, there has been a tendency to conflate the question of whether or not it was right to conduct closed proceedings with the question of whether or not it was right to authorise covert medication etc.  These matters are clearly connected, but also distinct.

Since the transcript of HHJ Moir’s hearing of 25th September 2020 is not yet available, I am not currently in a position to consider what can be learnt about closed hearings from the way in which HHJ Moir conducted the proceedings. Without access to the facts at the time, and the reasoning of the judge, I cannot assess whether or not (in my view) the decisions she made were appropriate, proportionate and justified in the circumstances of the case. Or alternatively whether there might have been alternative (less coercive) means of pursuing the best interests of the protected party.  I have been somewhat surprised at how rapidly others (also without benefit of the 25th September 2020 transcript) have felt able to make a judgment one way or the other.  

I hope that the Guidance that eventually materialises as a result of the work of the subcommittee will consider lessons that can be learnt from the hearing of 25th September 2020, once the transcript is available.

6.  Guidance needs to deal with how to manage open hearings running in parallel with closed hearings – ideally by stating that this shouldn’t happen (certainly not over periods of months or years)

Poole J states the facts of what happened in Re A in his judgment (§86): “Open proceedings have been held in parallel with closed proceedings but information and material which was highly relevant in open proceedings was withheld from a party, B, and her legal representatives, who did not know that any information or material had been withheld”. 

These ‘open’ proceedings have been widely understood by members of the public to have been ‘fake’ hearings, whose only purpose was to disguise from the mother what was going on. This has led to concerns about deception in the Court of Protection.  My exposure to a ‘fake’ hearing (attended by Claire Martin as a public observer) has led me reluctantly to conclude that members of the Bar and the judiciary have a more flexible approach to truth-telling than I had previously believed.

From my reading of case law, it seems that running open hearings in parallel with closed hearings as was done in Re A is rare (perhaps unique to this case) – especially over such a long time-span (two years).  But I don’t know this for sure, since I don’t know whether other cases have simply not been published.

In my view, the Guidance should explicitly advise against running open and closed hearings in parallel. This is because when closed hearings concern matters of central significance to the open hearings, and their existence and/or subject matter are not revealed in the course of the open hearings, this is very likely to result in a perception of ‘bad faith’ from the court  – both from those excluded from the closed hearings, and from public observers.

One deeply regrettable outcome of Re A has been the opening up of a gulf between the legal view (or a legal view) and the public view of what happened in the open hearing (before HHJ Moir) in April 2022, attended by an observer from the Open Justice Court of Protection Project, Consultant Clinical Psychologist, Claire Martin.  

From the legal perspective (at least as articulated in court in the September 2022 hearing) nothing took place that should lead us in any way to doubt the court’s commitment to truthfulness.  In the course of Poole J’s hearing, my own dismay that public observers were (in my words) “misled” by the court was either denied outright (“nobody was misled”, counsel for the Trust) or reformulated to avoid any implication of deception: we were simply “under a misapprehension”, said the judge, claiming that the verb “to mislead” implies saying things that are untrue, as opposed to omitting to speak of things that are true. I found this disingenuous.  Most dictionaries include in their definitions of “mislead” omissions designed to create a false impression. 

There is – as my subsequent research has revealed – a debate in moral philosophy as to whether creating and maintaining a false impression (without explicitly speaking untruths) constitutes “lying” or not, and about the circumstances under which this behaviour might be justified, and the morality of equivocation. On the basis of that literature, I am confident in asserting that it is a defensible proposition to say that the court “misled” A’s mother, her legal team, and the public observer in the open hearing  – and that this was less than honest, less than truthful. This is also the view of many members of the public who’ve used terms like “charade”, “sham hearing”, “fake hearing”, “mock hearing”, “show trial” and “smoke and mirrors” in relation to the open hearings the mother was involved in, conducted under the shadow of the closed proceedings from which she was excluded.  The member of the public who attended the April 2022 hearing expresses it this way:

One key concern I have is the parallel mock hearings. I don’t see how this can ever be defended. It’s duplicitous as well as wasteful. It sets up a situation where you have to lie more and more to cover the original tracks.  If closed hearings are allowed, I think the system has to work out a way of handling additional applications from parties who have been excluded – in this case it seems they decided that they had to go ahead otherwise their cover was blown. This just does not seem befitting of a serious judicial system to me! I think my view would be that if an excluded party makes a subsequent application, then they have to be treated fairly and if the hidden information is material to the hearing for that application, they must then be informed about and included in closed hearings.” (Claire Martin, public observer at the April 2022 hearing in Re A)

Deception may sometimes be a necessary moral cost of acting in the best interests of the protected party (see below), but this doesn’t change its status as deception. 

It’s not simply my perception that the court has misled us, but also its denial that it has done so, that constitutes the moral chasm I now experience between my position and that of the court. It may be that there is an unbridgeable difference between us in relation to the ethics of truth-telling, but that difference could at least be acknowledged and some attempt made to deal with its consequences.

7.  The Guidance should address (and encourage lawyers and judges to address) moral complexity – in particular, the moral costs associated with making the right decision 

Many people in England and Wales share the court’s commitment to justice being done and being seen to be done: to fair and open hearings, with all parties on an equal footing and decisions based on evidence made known to all parties. This seems to accord with a widespread view of ‘natural justice’.  When courts depart from these fundamental principles of judicial enquiry, people can feel angry and dismayed at what they experience as potential injustice and abuse of power. This is a good thing.  It would be far more troubling if nobody cared when the court discards fundamental principles of judicial enquiry.

When courts discard the fundamental principles of judicial enquiry they do so because they believe that, in the individual facts of a case, those principles impede justice.  This is a weighty and challenging decision to make: there is a cost either to the procedures understood to constitute justice, or to a just outcome.  This places the court in a moral dilemma such that whatever course of action the judge decides upon has moral costs.  The fact that a decision may be the right one (or the ‘least bad’ under the circumstances) does not obviate the harm that may also be caused. It is in the nature of moral dilemmas that there are moral costs to making good decisions, and those who bear the burden of those costs can justly claim that they have been wronged. 

In the case of closed hearings (even when this is the right thing to do), there is harm done  to the excluded party.  Judges have recognised this, for example by highlighting the importance of considering – before granting a ‘without notice’ hearing – the impact it has on “… the rights, life, and emotions of the person against whom it is granted” (§41 B Borough Council v S & Anor | [2006] EWHC 2584 (Fam).  I can only imagine the sense of moral outrage, violation, and fury that being excluded from a closed hearing about a loved one would engender in me.

When a party’s legal team is excluded from closed hearings and not informed about their existence (as in Re A), they too can feel wronged. They may feel victims of some version of ‘justice’ quite unlike the ideal they signed up to when they chose to become lawyers. It can be corrosive of their professional identity and sense of their own professional efficacy. One lawyer who’d been refused permission to view ‘closed materials’ told me how frustrated he felt about this, saying he still couldn’t understand (some years later) why this refusal had been necessary. A couple of other lawyers with whom I discussed the Re A case  told me that they would not expect ever to be placed in the position of counsel for A’s mother because their reputation means ‘nobody would dare’ to (as one put it) ‘pull the wool over my eyes – and anyway I’m sure I’d see through it’.  What does this perspective mean for those lawyers who have been excluded from hearings or from closed materials, and (if this has been kept secret from them) who have not divined what has been going on? The implication seems to be (and these lawyers may feel) that they have failed in their duty to their clients, that they lack professional acumen or expertise, that they forfeit the respect of colleagues – not just those who excluded them from a closed hearing, but those in the wider community of the Bar. In Re A I saw in the reaction of counsel for A’s mother (in court in September 2022) some indication of the moral injury he felt had been done to him as a professional[8].

I think there is also a moral cost to the lawyers included in closed hearings and to the judges who hear them  – especially when (as in Re A) there is secrecy about those proceedings. They may well believe that they are doing the right thing, and that their course of action is the only way P’s best interests can be secured, but it’s possible at the same time to feel regret that secrecy and deception are the price to be paid for doing the right thing in these circumstances.  Avoidance of truth-telling can harm the person doing it even when they are acting for benevolent reasons (e.g. studies of moral stress experienced by caregivers who validate a dementia patient’s reality at the cost of truth, e.g. that her spouse is dead and won’t be coming home for tea[9]).  Empirical research finds a range of  morally self-reassuring strategies people use to disregard or minimise the moral costs of engaging in the right action – including, in the case of dementia carers, adopting a consequentialist position (‘the end justifies the means’) – a moral-cost-evasive approach that can function to avoid moral ambiguity – and characterising their actions relatively benignly as “white lies” or “colouring the truth”,  “manoeuvring around the truth”,  “not out-and-out lying Practitioners have produced guidance for lying to dementia patients[10].  Lawyers and judges are heavily invested, of course, in a professional identity involving honesty and rigorous regard for the truth: I suspect that explicit acknowledgement that they are less than honest on occasion is challenging.

Some theorists have drawn on philosopher Bernard Williams’ analysis[11] of what he calls the ‘moral remainder’ in considering judicial approaches to complex moral decisions.  It’s based on the observation that even right decisions can cause harm (albeit less harm than the wrong decision).  To take the famous ‘trolley problem’[12] example, if I divert a runaway tram or trolley that is on course to collide with and kill five people down the track, so that instead it kills just one person on a different track, this may well be the right decision (I’ve saved four lives), but one person who would otherwise have been alive is now dead because of my decision.  Bernard Williams uses the phrase ‘agent regret’ to describe the emotion that gives expression to the fact that one has committed a wrong despite the fact that one’s actions were overall not mistaken.  “Shame, regret, guilt,  remorse for those wrongs can be felt by people who did the right thing – and can be appropriate responses to the moral harm caused in pursuit of the right thing[13].

The Guidance should support moral literacy by addressing the fact that in complex moral dilemmas it may be necessary to recognise that acting for the best does not always yield a morally clean result.  It’s appropriate, then, to discuss how to manage the moral harms that result from good decisions.

8.  The Guidance should state that observers must not be admitted to ‘fake’ hearings (if they continue to happen) without proper briefing.

My strong view is that hearings like the April 2022 hearing (widely described as a ‘fake’ or  ‘mock’ hearing) should not be part of Court of Protection practice.  As one case manager (also a COP observer) said, this kind of “masquerade” is “degrading to those involved”.  If, in future, these kinds of hearings are avoided, then there is no risk of public observers finding ourselves in the invidious position we experienced in Re A.

If they are to be accepted as part of Court of Protection practice, then admission for public observers should be contingent on full disclosure of the facts from the court, along with the issuing of a Reporting Restrictions Order and/or publication embargo.

I struggle to find any justification for admitting an observer, without any briefing, to the April 2022 hearing before HHJ Moir. It must have been obvious to counsel and to the judge (if they had given it a moment’s consideration) that the observer would not be able to write an accurate account of the case. It made a mockery of transparency to admit her.

This is how the observer concerned expresses her view: 

Allowing a public hearing to proceed under these circumstances and admitting me as a public observer makes chumps of me, the mother and her legal team (and the public reading the reports) really – and apart from the serious consequence of loss of trust in the system, I’d also say that the cost and utter waste of time for everyone involved is indefensible.” (Claire Martin, observer April 2022 hearing)

The suggestion has been made that excluding an observer might have alerted counsel for the mother that something was awry:  “… if I was acting for a party and the judge specifically determined that a hearing take place in private, and then excluded observers… then I’d probably wonder why – which might have led me or my client to wonder if there were things happening we were not told of… not easy” (COP lawyer).  If the observer was in fact admitted for that reason, she was being used (as Daniel Cloake suggests in his blog post covering the first day of the hearing before Poole J), as “some kind of prop to add an air of legitimacy to an otherwise compromised application”.

The reverberations of admitting an observer to this hearing (without properly briefing her and serving a Reporting Restrictions Order) are far-reaching and deeply unhelpful to us as observers, to journalists, to members of the public more broadly, and to the Court of Protection itself.

It’s caused harm to those of us actively running the Open Justice Court of Protection Project, leading us to doubt the value of our work.  Not only did we publish a misleading account of a case but also it was an account which promoted the version of events the court wanted the mother to believe – thereby making us complicit in the court’s deception without our knowledge or consent. 

Moreover, our blog post could also have (inadvertently) jeopardised the whole endeavour in which the court was engaged in pursuit of A’s best interests, because it raises the matter of covert medication.  In our blog post Claire Martin wrote: “I don’t know whether or not the options of covert medication (or restraint to ensure treatment) have been considered. (They may have been considered in one or more hearings that we missed).” There is no evidence that the mother in this case read our blog – but had she done so, this could surely have alerted her to a possible scenario in her own case.  The court should never have created a situation in which this could arise.

This whole episode has led to scepticism, from journalists and from the public, about the court’s professed commitment to transparency:

When details are hidden rather than being subject to reporting restrictions, it shakes the confidence of observers and reporters in the whole system” (Tristan Kirk, journalist)

How can I trust that any hearing I attend isn’t tainted by having secret, covert hearings going on ‘underneath’ the ones I observe?’ (Louise Tickle, journalist)

From the perspective of transparency, admitting us to a hearing at which salient facts are concealed from one of the parties and from us, such that we will inevitably form a false impression of the case, is far worse than not admitting us to the hearing at all.  It’s a form of ‘double-crossing’.  The presence of the observer in court – the very thing that is supposed to guarantee transparency – becomes instead a source of misinformation and false news. It runs directly counter to the purpose of having observers in court in the first place.

Family members involved in Court of Protection proceedings often tell us that they believe that having an observer present will ensure that the judge “behaves himself” and “doesn’t do anything wrong – because you’ll be watching!”  We know they have found some comfort from having someone independent and impartial as a witness to their story.  They’ve reported that the judge was “fairer” to them because observers were there and commented that, without observers,  judicial unfairness is “unlikely to be found out[14].  And in writing about our Project, we have often quoted Bentham” “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial”.

In future, we will have to tell P and their family, when they approach us asking for someone to observe their hearings, about our experience in this case.

When members of the public come to believe that people in positions of power are not dealing honestly with us, we become disaffected not only with those individuals (judges and lawyers) but also alienated from the institution they represent.  The way this hearing was managed was an own-goal for the Court of Protection.

The Court of Protection needs to take steps to ensure that nothing like this ever happens again.  

9. The Guidance should emphasise the need to inform the excluded party about closed proceedings as soon as possible (not least, to enable an appeal)

The Guidance needs explicitly to address the importance of determining, before or during the course of a closed hearing, when and how someone (who?) is going to inform the excluded party that the closed hearing has taken place and its outcome.  

In Re A, the excluded party and her legal team had not been informed two years later, and it took the intervention of a new (Tier 3) judge to ensure that she was so informed – apparently (as I understand it) without this having been a position put forward by any of the other parties.

Re A is an unusual case on its facts.  In much of the case law, the excluded party seems to have been informed very quickly (within hours or days of the hearing) – not least because the most common reason for closed proceedings seems to be the removal of P from the excluded party’s home, meaning that they discover the existence of the court order quite promptly in any case.

Earlier guidance (from 39 Essex Chambers) specifies that: “Those who obtain ex parte relief are under an obligation to bring to the attention of the respondent at the earliest practicable opportunity the materials on the basis of which the ex parte injunction was granted… The obligation involves giving proper information about what happened at the hearing. Representatives should respond forthwith to any reasonable request for information about what took place.”

It’s not clear to me what “the earliest practicable opportunity” might have been for informing the excluded party in Re A.  It would be helpful for that to be considered and addressed in order that any future cases with similar features can benefit from lessons learnt.

One consequence of not informing an excluded party about decisions made in closed proceedings is that they are not able to appeal the judgment in a timely manner.  This seems fundamentally unjust.  It distinguishes this case from other cases (e.g. In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512) which is an appeal consequent upon a first instance judge having informed a party of her exclusion from a hearing, thereby enabling an appeal against it).

10.  Additional issues to consider

10.1  A Tier 3 judge? Would it have helped if Re A had been referred to a Tier 3 judge sooner? Should the guidelines indicate the level of complexity at which such referral is required? (In this case the fact that it concerns what used to be labelled ‘serious medical treatment’ seems on its own, to merit a Tier 3 judge.)

10.2. Would it help to have some kind of ‘Special Advocate’ (s.9 Justice and Security Act 2013) to represent the interests of the excluded party?  I recognise that existing guidance from 39 Essex Chambers suggests that the judge should be provided with “a brief account of what the applicant thinks the respondent’s case is, or is likely to be” (X Council v B (EPO) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, [53], Charles J).  Based on my experience of Re A,  however, I have little confidence that this would work, or that the excluded party would feel that her interests were protected by this.  This opinion is based on the way in which the excluded party was addressed in court in an earlier hearing  (“You are making up all of this in order to support a return home…. This is a ploy by you… You’re making this up aren’t you… You are fabricating a story…This shows a level of deviousness that you cannot be trusted in terms of contact…” Hearing of 26 May 2020, Re A). 

10.3 What should people do if they think they may have been excluded from closed hearings but nobody has so informed them? I did not receive any communications from family members of Ps who were able to report having been excluded from proceedings or denied access to closed materials. Some speculated that there might have been hearings of which they were unaware and pointed out that I was asking an impossible question when seeking information about hearings from which they’d been excluded and the existence of which had been kept secret from them. They asked what they should do to find out if secret hearings had occurred.  (I suggested asking the judge a direct question:  “were there hearings I was excluded from?” – I don’t know if that was a good suggestion or not?)

10.4  Excluding P: The terms of reference for this subcommittee specifically exclude consideration of “hearings which take place without the knowledge of P, but with the knowledge of P’s litigation friend”.  Although I circulated the terms of reference with my call for feedback, the single most frequent response from family members concerned exactly this scenario. Family members were concerned when P wasn’t told about hearings: “She is totally unaware of hearings and what is being said about her” (Mother of P).  “She’s supposedly the applicant in this case, but nobody has even told her the hearings are taking place” (Daughter of P).  It was reported that P’s legal representation was inadequate or misleading.  “The lawyer supposedly representing her hasn’t even met her, and has no idea what her views are” (Daughter of P); “Her Barrister has no thoughts other than backing the Local Authority, even regarding serious impositions such as deprivation of liberty” (Mother of P).  “She is saying repeatedly that she doesn’t want this, but her own lawyer argued in court that she should have it. Surely this can’t be right? She must be entitled to a lawyer who will argue her corner?” (Sister of P).  One family member told me that P was unhappy with her representation and had asked for a change of solicitor, which had been refused.  In addition to these family reports, I have  personally observed several hearings (usually ‘urgent’ ones convened at short notice) at which the Official Solicitor stated explicitly in court that they had not been able to contact P before the hearing and had no direct information as to P’s wishes or feelings.  The role of the litigation friend in this situation seemed largely symbolic. Nonetheless, major decisions (including serious medical treatment) were made at some of these hearings. I raise these concerns here since it seems probable that members of the public may expect this matter to be covered in the Guidance (albeit that I recognise that it raises very different concerns).

Celia Kitzinger


[1] Some of the case law comes from cases concerning children, but Sir James Munby P in RC v CC [2013] EWHC (COP) 1424 (‘C v C‘) confirmed that the well-established (albeit exceptional) jurisdiction to refuse disclosure of materials to the parties in children cases is of equal application in the Court of Protection (at §20). Additionally, some of the Family cases concern adults without capacity predating implementation of the Mental Capacity Act  2005 (e.g. B Borough Council v S & Anor | [2006] EWHC 2584 (Fam).  In the Family Division: In re S (A Child) (Family Division: Without Notice Orders) [2001] 1 WLR 211, Munby J; W v H (Family Division: Without Notice Orders) [2001] 1 All ER 300, Munby J.  In the Court of Protection: Hull City Council v A & Ors [2021] EWCOP 60, KK v Leeds City Council [2020] EWCOP 64.  In the Court of Appeal (concerning a COP case): In the Matter of P (Discharge of Party) AA [2021] EWCA Civ 512

[2] That hearing was ‘ineffective’ (i.e. did not actually go ahead as planned, although it took up more than two hours of court time), ostensibly because the Local Authority had failed to visit the mother’s house to assess the viability of a return home.  (See Claire Martin’s account of this hearing: Medical treatment, undue influence and delayed puberty: A baffling case.)

[3] Litz BT, Stein N, Delaney E, Lebowitz L, Nash WP, Silva C, Maguen S. Moral injury and moral repair in war veterans: a preliminary model and intervention strategy. Clin Psychol Rev. 2009 Dec;29(8):695-706. doi: 10.1016/j.cpr.2009.07.003. Epub 2009 Jul 29. PMID: 19683376.

[4] This concerned a ‘without notice’ application to deprive a vulnerable adult of his liberty under the inherent jurisdiction rather than the Court of Protection. The judge (Mostyn J) did not make any enquiries as to whether the appellant or his solicitor could be contacted in order to make representation. The appeal was allowed and Lord Justice Baker (with whom the other two judges agreed) ruled that “In my judgment, the Trust’s application for, and the granting of, the order for which there was no proper evidence and without giving Mr Mazhar the opportunity to be heard amounts to a clear breach of his article 6 rights and was a flagrant denial of justice.” Mazhar v. Birmingham Community Healthcare NHS Foundation Trust & Ors. [2020] EWCA Civ 1377.

[5] Hayden J, quoted in Joshua Rozenberg’s blog post, “Open Justice at the Court of Protection”, 25th October 2022.

[6] My request to observe that hearing was not motivated by my knowledge of the issues before the court – I’d simply selected a random hearing at a convenient time, and received a reply telling me “The Judge has now been is touch and has stated that you will not be able to join the hearing due to highly sensitive nature of the material being considered.” (email from listings clerk at Leeds County Court).  

[7] I don’t have much confidence in this statistic since (a) there may be other hearings I attended at which judges did not reveal the existence of previous closed hearings; (b) some of the hearings to which I was refused access may have been closed hearings, the existence of which has not subsequently come to light through published judgments; (c) Many of the hearings to which I was not admitted were vacated, so shouldn’t really be included in the total (d) It seems that some closed hearings aren’t ever listed, so I could never stumble over them in making random observation requests. All these factors work in the same direction – to increase the number and percentage of closed hearings in the Court of Protection to something rather higher than my 0.4% estimate.

[8] I found it quite painful to watch this lawyer step out of his advocacy role for A’s mother (she was not at that point raising concerns about the closed hearings) to speak on his own behalf about his experience of the proceedings as Kafka-esque, and about not having been able to advocate effectively for his client. I hope his concerns were managed better outside court than they were during the course of the hearing (where he was simply dismissed as ‘grandstanding’ and corrected for using the word ‘mislead’ – it all felt quite brutal).

[9] Tuckett, A.G., 2012. The experience of lying in dementia care: A qualitative study. Nursing Ethics19(1), pp.7-20.  Elvish R, James I, Milne D. Lying in dementia care: an example of a culture that deceives in people’s best interests. Aging Ment Health. 2010 Apr;14(3):255-62. doi: 10.1080/13607861003587610. PMID: 7140,E., 2009. Withholding truth from patients. Nursing Standard23(48). McCabe, M.S., Wood, W.A. and Goldberg, R.M., 2010. When the family requests withholding the diagnosis: who owns the truth?. Journal of Oncology Practice6(2), p.94. Sarafis, P., Tsounis, A., Malliarou, M. and Lahana, E., 2014. Disclosing the truth: a dilemma between instilling hope and respecting patient autonomy in everyday clinical practice. Global journal of health science6(2), p.128.

[10] https://ugc.futurelearn.com/uploads/files/57/ec/57ecfe86-1a98-4540-b009-bb73660e0883/Guidelines_on_therapeutic_lying.pdf

[11] Bernard Williams, ‘Conflicts of Values’, Moral Luck: Philosophical Papers 1973–1980 (Cambridge University Press 1981.

[12] https://en.wikipedia.org/wiki/Trolley_problem

[13] For applications of the concept of ‘moral remainders’ to legal practice see: Iris van Domselaar (2022) Law’s regret: on moral remainders, (in)commensurability and a virtue-ethical approach to legal decision-making, Jurisprudence, 13:2, 220-239, DOI: 10.1080/20403313.2021.2014709. and van Domselaar, Iris, The Fragility of Legal Ethics: On the Role of Theory, Lawyerly Virtues, and Moral Remainders in the Life of a Good Lawyer (October 27, 2022). Available at SSRN: https://ssrn.com/abstract=4260601 or http://dx.doi.org/10.2139/ssrn.4260601. The concept is also used in theorizing about public policy e.g. Arguelles A & McCaskill J (2018) Minimizing the moral remainder, Journal of Public Administration and Governance 8(3): ISSN 2161-7104.

[14] See How being watched changes how justice is done: ‘Insider’ Perspectives

No ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44

By Celia Kitzinger, 17 November 2022

This was a thoroughly dispiriting hearing to watch.

It was difficult to detect much concrete progress, despite clear directions from the judge at the previous two hearings.

The case concerns a woman in her early twenties (A) who is deprived of her liberty in a residential placement (against her wishes and those of her mother) and has been refusing treatment for primary ovarian failure. 

Every day for two years she’s been offered the prescribed hormone treatment tablet and every day so far, she has declined to take it. That’s more than 700 treatment refusals. Each day, she is then given the tablet covertly via her food.  This course of action was authorised in a ‘closed’ hearing (from which her mother was excluded) before circuit judge HHJ Moir back in September 2020.

Covert medication has been successful in bringing about puberty (and that can’t be reversed).  But medical expert, Dr X, recommends ‘maintenance’ medication for the rest of A’s life – to avert risks of fractures and cardio-vascular events. This is the treatment she’s now receiving (also covertly).

Mr Justice Poole first heard the case at a closed hearing on 15th September 2022, which I didn’t attend, and the existence of which was deliberately concealed from the Open Justice Court of Protection Project. He then heard it again at an open hearing on 20th-22nd September 2022, which three observers attended, resulting in two blog posts: “I have to tell you something which may well come as a shock”, says Court of Protection judge  and Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44). The judgments for the two September hearings are published jointly as: Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44 

In his judgment, Poole J said that covert medication was “unsustainable in the long run”.  He directed that:

 “… a treatment plan should be devised, for review by the court, for how to exit the covert medication regime with the least possible harm being caused to A. The plan will cover the question of imparting information to A about the past use of covert medication – should that be done and if so, when, where and by whom….” (§48(iv) Judgment Part A, 15 September 2022)

The Judge explained his concerns with continued covert medication like this: 

On the one hand, covert administration of hormone treatment appears to be the only way in which such treatment, which it is in A’s best interests for her to receive, can be given. She continues to refuse the treatment when offered to her. On the other hand, the continued implementation of the covert medication plan is fraught with risk. My concerns are (i) that A will discover the fact that she has been and/or continues to be medicated covertly; and (ii) that the discovery will have harmful repercussions in that she will lose trust in those caring for and treating her, perhaps even to the extent of losing trust in all professional carers and healthcare professionals, refusing food prepared for her at her current or other residential homes, and suffering physical and mental harm as a consequence.” (§29 Judgment)

Poole J laid out detailed directions as to the work that needed to be done by way of consideration of the ‘exit plan’ in preparation for today’s hearing.

A medication plan should be drawn up by the Local Authority and the Trust, having liaised with [A’s mother], to address:

a) The transition to open medication with A’s consent and how that can be most effectively and safely achieved.

b) The imparting of information to A about her pubertal development.

c) The imparting of information to A about the risks and benefits of maintenance hormone treatment.

d) The imparting of information to A about the use of covert medication.

The plan will include consideration of whether, when, where and by whom any such information should be given to A, and the involvement of [A’s mother] in the implementation of the plan …. By directing that the issues set out above should be addressed I am not, at this stage, directing what the contents of the plan should be.

….  I shall review the plan and hear and consider further directions on 15 November 2022…

Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44, §63(iii) + (iv)

So, my expectation for the hearing was that a Medication Plan would be put forward dealing with these issues outlined by the Judge and that there would be a productive and sustained focus on how A’s best interests in relation to medication could best be managed going forward.

That didn’t happen.

I haven’t seen the plan presented to the court, but according to the position statement of A’s mother, it was initially of very “limited scope”.  It proposed only:

 “… continuing to covertly medicate A for a further six months unless a new nurse could convince A to take her medication voluntarily.  [A’s mother] had expected it to address fundamental issues such as when and how to tell A that she was now a woman and no longer required the endocrine medication, that the new medication was for a different purpose and what to say to A if the issue of covert medication arose”. (§5, Position statement for A’s mother).

I got the impression that some more work had been done on the plan since 13th November 2022 (the date of the position statement), but clearly not enough to meet the judge’s expectations. 

The Judge expressed ”some regret that more detailed planning in relation to … imparting of information to A about her pubertal development, and contingency planning in event of questions from A…. has not already been done”. 

A miasma of discontent pervaded the proceedings. 

It seemed to me as though all the parties felt backed into a corner by intractable difficulties not of their own making – and various attributions were made (more or less explicitly) regarding the contributions of other parties to the troubles they faced.

The hearing on 14th November 2022

The hearing was supposed to start at 10.30 but was delayed for nearly two hours. We were told first that there had been “traffic problems” and then that the parties were “having productive talks” and the judge had allowed them time for that.   

It was finally called on at 12.24pm, by which time the advocates had managed to produce a (largely agreed) draft order and sent it through to the judge.

The main area of dispute was whether the case should come back for review in 6 months’ time (the position of the Local Authority) or in 3 months’ time (the mother’s position).  

The Local Authority said the Trust agreed with their own position (6 months) but the Trust said it actually didn’t (maintaining a position that somewhere between 3 and 6 months would be appropriate).  The Official Solicitor was initially said, by the Local Authority, to support the mother’s position (of 3 months), but this was disputed by the Trust – and then the Official Solicitor produced a version of their postion that was distinct both from the mother’s position, and from the Trust’s version of the OS position.  It was that sort of hearing – none of the parties seemed content with the characterisation of their position volunteered by any of the other parties. 

I’ll present the position of each of the parties in turn, in the order in which they addressed the judge.

Local authority

Counsel for the applicant local authority, Jodie James-Stadden of Dere Street Barristers began with a long and very granular account of what had been done in an effort to produce a Treatment Plan – the main purpose of which seemed to be to highlight the non-involvement of A’s mother.  

There was “no input received” from A’s mother before the multi-disciplinary team [MDT] meeting on 18th October 2022, despite the fact she’d been sent the date and agenda. Following the meeting, a first draft plan was produced and sent to A’s mother on 20th October 2022 – and she didn’t respond to that either.  A final version was produced following input from Dr X and was sent to A’s mother on 26th October, and “again there was no response received”.    

The finalised version was then filed with the court on 2nd November and “no comment was received from [A’s mother] until she filed a witness statement on 11thNovember, last Friday, during the course of the afternoon”.  According to counsel, “that witness statement raised a number of issues including: ‘should A be told she’s achieved puberty?’; ‘should she be told how she’s achieved puberty?’; ‘what should she be told about the maintenance treatment?’; ‘what should be said to A if she questions whether she’s being covertly medicated?’”. 

These all seem very sensible questions to me, and they are in fact questions which I thought had already been raised by the judge.  I deduce, from the fact that A’s mother was raising them after having received the finalised Treatment Plan, that they had somehow – unaccountably! – not been addressed therein.

There had then been an advocates’ meeting late on Friday afternoon, said counsel, at which the mother’s questions had been discussed by legal representatives “at considerable length”.

There’s now a “Part B” to the plan headed “The imparting of information to A regarding risks and benefits of receiving hormone treatment”.  New promotional health materials are to be prepared for A, and a specialist endocrine nurse will visit A, potentially with her mother’s involvement.  “That part of the plan is agreed by [A’s mother]”, said counsel. 

But [A’s mother] still has- I shouldn’t say ‘still’, sorry.  She has issues of complexity with other parts of the plan, and we agree the MDT needs to explore this.”

Counsel ran briefly through issues of contact between A and her family (it seems this is going okay and can be gradually increased), and made clear that A’s mother is not currently pursuing A’s return home.  She also characterised A’s mother as agreeing that continuing covert medication was in A’s best interests,  but counsel for A’s mother corrected that later: “She is neutral on the issue of covert medication. She is not supportive”.

Counsel ended by highlighting the Local Authority position that “the work to be undertaken with A is very complex work… it cannot be rushed because A will not always engage with the plans or the professionals.  Also the fact that the plan as currently proposed involves a change of focus – that there be a new narrative effectively. In the past the focus has been on achieving puberty. Now the plan is that the narrative to A would be focused on maintenance treatment.  So the dynamic of this plan is very different from what’s gone before. It involves liaison with lots of different professionals.  So our position is that 6 months is appropriate time for sufficient work to be undertaken and for evidence to be collated in the form of statements the court is going to need to properly review this.”

The Judge responded: “I understand the position that [A’s mother] didn’t involve herself in discussions at the MDT as had been hoped, but the order that I made previously….  The issues you are setting out are those that ought to have been addressed already, it seems to me….   My complaint is that this could have been addressed by now.”

Well, quite!

A’s mother

Counsel for A’s mother, Mike O’Brien KC, agreed that the key dispute between the parties was the length of time that should be allowed to see if the Local Authority could successfully get A to take her medication voluntarily.  Six months is “much too long”. If it can’t be achieved within 3 months, then A’s mother wants to be fully involved and take the lead.

For A’s mother there’s a crucial distinction between the old medication (to bring about puberty) and the new medication (for maintenance of A’s long-term health now that puberty has been achieved).  She thinks A will understand and appreciate that distinction, and will agree to the current medication on that basis.

But that proposal requires that someone tells A that she’s gone through puberty – and that (for A’s mother) is one of the key shortcomings of the current plan.  

There are no clear proposals to tell A that she is even an adult. This has never been discussed with her. It’s extraordinary that we’ve got to this stage where no one has engaged her in that conversation, and explained to her that the new medication has a different purpose.  The conversations have always been about puberty. [The mother’s] view has always been that A will accept the explanation that the medication is for her bones and her health. What the medication plan also failed to address was what was going to be said to A about how she became an adult, or how questions would be responded to about whether there had been any covert medication. [A’s mother] has not suggested that A needs to be told about the covert medication – that may not arise, but there needs to be contingency planning to deal with it if it does, and there hasn’t been any.”

A’s mother is worried (given past conflicts with professionals) that she would be blamed for any leak of information to A about covert medication or her daughter’s pubertal development.  This makes her especially worried that the Medication Plan sidesteps these issues.

The mother’s counsel also addressed the Local Authority’s characterisation of A’s mother as not having engaged in a consultation about the Medication Plan.  She doesn’t use email.  She wanted to speak to counsel (i.e. him) and he was in Egypt until last Wednesday.  She doesn’t want to attend an MDT meeting “unless she’s got somebody with her. There have been difficulties with relationships in the past. [A’s mother] would feel uncomfortable going into a room full of professionals by herself”.  (As someone who’s been characterised as a ‘difficult family member’, oh yes, I resonate with that!). Later, the judge said he recognised that MDT meetings were “potentially rather intimidating events for [A’s mother] to attend, particularly given the history of the case” and so he was “content to approve expenditure on a solicitor to accompany her,  and for that to be covered by the [legal aid] certificate”.

Finally, it seems that A’s mother has filed an appeal application against HHJ Moir’s decision, made in a closed hearing, to covertly medicate A.  Counsel referred to the Court of Protection Rules Part 13 (“Setting aside or varying default judgment”). There was some discussion about whether this would be heard by a Tier 3 judge (such as Poole J) or by the Court of Appeal, and whether it would actually make any different to A or to her mother.  “We are where we are,” said the Judge, “but it may be of broader interest.”  He also drew attention to the fact that the Court of Protection Rules Committee is considering closed hearings.  In any case, that appeal application was not considered today.

Trust

Counsel for the Trust, Joseph O’Brien KC of St Johns Buildings Barristers’ Chambers said his submissions would be brief (it was nearly 1.30 and the judge had enquired about the need for a lunch break).  He would confine himself to some observations about the Treatment Plan and then address the matter of whether the case should come back for review in 3 months or 6 months or somewhere in between.

 But first he indicated his objection to the version of events concerning the mother as presented by her counsel: “I don’t want and am resistant to responding in detail to some of the submissions that Mr Mike O’Brien has made, by drawing down on past history. I don’t want to do that because I think it’s not absolutely necessary, but some of the narrative before the court is of course not accepted”.  Then he moved on. For anyone interested in rhetoric at the Bar, the device of saying something by stating that you’re not going to be talking about it is a figure of speech known as ‘apophasis’ (e.g. to use a Shakespearean example, “I shall not mention Caesar’s avarice, nor his cunning, nor his morality”. (Donald Trump uses it a lot too. For information about apophasis, see Merriam-Webster on ‘apophasis’; and for a broader look at the language of legal advocacy see: “Advocacy in the William Verden hearing” and “Cross-examining a GP in a COVID-vaccination hearing“.)

Counsel referred in passing to the findings of HHJ Moir’s closed hearing (the one on 25th September 2020, at which she authorised covert medication) and this reminded the judge that there was in fact no transcript, and he said that he would direct that one should be prepared – later adding that he intended that it should be made publicly available via the National Archives.  This is really important (in my view) because at present there is no public record of how the decision to covertly medicate A for such a long period of time, and to withhold that information from her mother, was made. 

After a 30-minute lunch break, counsel returned with two points.  (1) on the issue of A having gone through puberty, “there’s never been a determination by the court that imparting that information is in her best interests”, so – insofar as that matter has not been addressed in the Treatment Plan,  there has been no “rowing back from an order”; and (2) on the issue of when the case should come back for review, he disputed the alignment (previously claimed by counsel for the Local Authority) between A’s mother and the Official Solicitor on the matter of a 3-month return date, pointing out that while counsel for A’s mother “demands a hearing three months almost precisely from today”,  the Official Solicitor wants a full 3-month trial, and then an MDT meeting, after which parties would “pull everything together” and then return to court.  Expert opinion, he said, is that the relevant plan and assessment of it “cannot and should not be done within 3 months”: “In my respectful submission, that is almost magnetic as to where you should go in respect of case management”.

Official Solicitor 

Counsel for A via her litigation friend the Official Solicitor was Sam Karim KC of Gatehouse Chambers. He’s played a relatively low-key role in this case, at least in terms of his contributions in court. He made three observations. 

(1) He supported the continuation of covert medication as necessary, proportionate and justified under these “exceptional” circumstances. 

(2) He said 3 months was the right time scale for running the trial to see whether the Local Authority can persuade A voluntarily to take the medication – and that the case should return to court after a subsequent MDT.

(3) He raised the question about whether an independent expert psychologist or psychiatrist would be of benefit to ascertain whether there are other ways to engage with A. (I don’t think this went anywhere – which is a pity, in my view.)

Judgment

In summary, the Judge accepted that A continues to lack capacity to make her own decisions in the relevant domains (including medication, residence, care, contact).

The Judge authorised continuation of covert medication – pointing out that everyone but her mother considers this to be in her best interests, and that her mother does not oppose it.  He said that A had taken an “intransigent position” on medication, and that her opposition is rooted in a lack of trust of professionals “borne from her relationship with her mother. It is illogical and doesn’t have a rational basis”.  Covert medication is an exceptional course to take but it will bring A significant benefits with negligible (if any) risks.

Discovering, in an unplanned way, that she has been treated without her knowledge and after explicitly refusing treatment could, said the judge, be harmful to her, and the longer covert medication continues, the longer that risk continues.

The judge set out three options: (1) Continue covert medication for the forseeble future; (2) Make the transition to overt medication; and (3) Cessation of treatment. “There may be circumstances in which cessation might be in A’s best interests, especially compared with covert medication, but the second option is the preferred target: to end covert medication on the basis that she voluntarily accepts it.”

The Judge expressed ”some regret that more detailed planning in relation to … imparting of information to A about her pubertal development, and contingency planning in event of questions from A…. has not already been done”. 

He will list the next hearing for a date in mid-March 2023 – probably as remote hearing, since he’ll be in Leeds hearing a long case then. The court will then “review the updated medication plan, its implementation, issues of contact and whether there’s a need for any directions in relation to the residence application”

In the meantime: 

I am concerned about contingency planning in the event – that could happen at any time – that A raises questions about her own pubertal development. It seems to me this ought to be addressed as soon as possible. I urge those who are caring for and treating A to address their minds as soon as possible to what responses would be given were A to ask the sorts of questions we’re been discussing: “why have I changed?”; “why have I developed breasts;  “have I been given treatment I didn’t know about”. I’d hoped that would be in place by now.” (Mr Justice Poole)

Concluding observations

This was an uncharacteristically lack-lustre hearing.

From my perspective as an observer, there was a rather sullen, sour, and fractious tone to the proceedings, which contrasts with the collaborative (‘inquisitorial’) commitment to P’s best interests which I usually see in the Court of Protection.  The Judge – always courteous and rather more patient than I might have been in his position – had to do a lot of the ‘heavy lifting’ throughout this hearing.

The stultifying lack of progress is really worrying – not least because the Local Authority and the Trust have had years to prepare for this. 

At any point in the last two years of treatment, A might have discovered the medication in her food, or been alerted to the medication by a carer.  At any point her grandparents (who visited her in person) could have commented on her pubertal development and raised suspicions.  Or she herself could have questioned her breast development, her hair growth or changing body shape. Was there really no contingency plan in place to deal with this?   It’s extraordinary to me that the deception has lasted so long, and apparently so effectively (if it has).  Or perhaps – as sometimes happens in other fraught and difficult situations (when a loved one is dying, for example) –  A is simply colluding with the conspiracy of silence in which she’s enmeshed: at some level “knowing” and at another level avoiding knowing what’s been going on.

When the closed proceedings before HHJ Moir are finally made public, it should be possible to understand how the court had intended this should all be managed, and how it might end. 

It’s hard to believe that there was no planning for the possibility that A might uncover the covert medication or that a shift to voluntary medication might not have been envisaged at some future point.  And yet, from the difficulties the Local Authority and the Trust seem to be experiencing with the judicial direction to address these contingencies, it comes across as if this kind of advance planning for an ‘exit strategy’ from covert medication is a wholly new idea.

I look forward to seeing how things have developed for A by the next hearing – and hope for a more engaged and collaborative approach from the parties to addressing her best interests.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project.  She tweets @kitzingercelia

Note: We are not allowed to audio-record hearings. All material quoted from the hearing is as accurate as I can make it, based on contemporaneous touch-typed notes, but it is unlikely to be 100% verbatim.

When wishes and feelings change: A s.21A case but the applicant is now happy with where she lives

By Joanna Booth, 16 November 2022

The case I observed on 10 November 2022 (COP 13966522) was heard before Deputy District Judge Sophy Miles.

A woman, SB, is in a care home waiting for dementia and occupational therapy assessment. Her age was not mentioned. 

She’s been deprived of her liberty since 27 February 2020. 

When first visited by a social worker, P was raising concerns about the location of her placement. The details of the concerns were not mentioned at the hearing, but they had led to a s.21A application.

A request had been made by SB’s brother and sister-in-law to have her moved closer to them. They had identified a care home, which they were familiar with and had friends there. It was within walking distance from their home. 

A roundtable meeting was meant to have taken place between the parties before the hearing, but it didn’t happen because of problems on the side of the respondent local authority. The person dealing with the case was on leave. The original solicitor for the respondent had been ill and a replacement had stepped in at the last minute. The local authority had also not provided a position statement for this hearing

By the time of the social worker’s second visit,  on 29th September 2022, to assess SB’s wishes and feelings, SB’s views had changed. 

When the social care worker arrived, SB was sitting in her wheelchair, wearing leggings, a pink top and a cardigan. She commented on the social care worker’s attire that it was a horrible colour.

According to the attendance note report:

SB understood that the social care worker was there to help her and decide on her future. She wanted to stay at the care home she was in. She liked the staff. She said about her brother and sister-in-law, “I don’t want to be tiresome to them. [Brother] calls me all the time. If I moved close to them, they’d feel as if they had to visit all the time. The staff are lovely to me. Why would I want to leave? 

Her room was clean. Her brother and sister-in-law hadn’t visited but they called all the time.

Apparently, her legs and arms were getting worse. We weren’t told what condition she was in physically at all. But she said that she needed more PIP and an electric wheelchair. 

She could do art, which she really loved.

The judge asked if the attendance note was in the bundle. It was not but was being placed there during the hearing. 

Neither SB nor her family members were present at the hearing. No witness statement had yet been sent in by SB’s family. 

The judge noted that the matter had been brought appropriately before the court but the situation seems to have changed since SB now seems to want to stay where she is. The brother and sister-in-law said they had a care home within walking distance and were familiar with it because they already visited friends there.

The judge directed that the family members be asked to consider how visits to SB might conflict with their schedules.

SB’s desires had apparently changed. From what I understood, she had originally wanted to be moved but now she doesn’t anymore. 

Orders by the judge

The judge made the following orders and  directions at this hearing:

  • A transparency order protecting SB’s identity in the standard terms.  (I have subsequently received it, after chasing!)
  • A roundtable meeting to take place in the week beginning January 9th 2023. Hopefully with SB in attendance.
  • The relevant NHS trust had not yet provided the report it was supposed to under s.49 MCA (see, “What is a Section 49 report”). They weren’t even sure yet as to who was meant to provide it, apparently. An order was made for this to be provided later in December.
  • Two updates on referrals had yet to be fulfilled: 1) referral for a brain scan for dementia; 2) referral to occupational therapy, which was particularly important considering what SB had said about her arms and legs getting worse. 
  • A report on the availability of care homes near SB’s brother; and the activities each care home provides since SB had said she loved doing art at her current care home. 

The next hearing is listed for 30 January 2023 at 10.30 am.

Joanna Booth is a freelance journalist who writes at joannab.substack.com. She studied law, politics, and social research methods, and worked for years as a social researcher in higher education organisations. She now works as a journalist, and is working towards a PhD by publication on local media and political participation. She tweets @stillawake

Application to name a protected party in the context of ‘jigsaw identification’

By Brian Farmer and Celia Kitzinger, 3rd November 2022

Very occasionally, the person at the centre of Court of Protection cases is publicly named in judgments and in the media.  Recent examples include  William VerdenRobert Bourn, and Michelle Davies.

This is unusual. the default position in the Court of Protection is that the protected party is referred to as “P”, or by initials like “SN”, “RT”, ‘AB” etc, so that their identity is not public knowledge.  

Reasons for naming someone depend on the individual circumstances of each case. Sometimes it’s because the person wants (or would have wanted) to be publicly named, because they’re a political figure and a campaigner (e.g. Manuela Sykes). Others are reported by their families to want to help others by having their experience shared in the media – like Robert Bourn and Michelle Davies, both of whose stories have appeared on national television. Sometimes they are publicly named in order to draw attention to their own situation and get help – like Steven Neary, whose father Mark Neary turned to the media out of desperation to get support and guidance. For William Verden, naming him was in order to maximise the chance that someone would donate him a kidney.

This is about a case where (although the family, and it is said the protected party herself, also wanted her name to be used) the application to name her focused on the problem of “jigsaw identification”. Basically, this refers to a problem that arises in reporting cases where the salient facts are such that a meaningful report is likely to enable readers to identify the person at the centre of the case, even without naming them.

Introduction by Celia Kitzinger

Brian Farmer, the only journalist regularly to observe Court of Protection hearings, was in court (as was I) to observe a case before Mr Justice Cobb on 18th August 2022.

It concerned a woman in her 30s with autism and what was described as “a hugely complicated medical background”. She was in hospital on a High Dependency ward, intubated and mechanically ventilated.  There were disputes about her treatment (although it wasn’t clear quite what those were) and there was an “extremely difficult relationship” between the Health Board and her parents.

Her parents were in court as litigants in person (i.e. without lawyers to represent them).  Both were medically trained. Her father had been a consultant anaesthetist in the very hospital where his daughter was now a patient.  Her mother was an ICU nurse.

I have blogged about this case previously: “I am fearful for my daughter’s life”: Serious medical treatment in a contentious case“.

This blog is not about the substantive issues concerning treatment but about the right of observers (me and Brian Farmer) to report on the hearing, and to ensure the public know about it.

In order for that to be possible, Brian Farmer applied to the judge to “vary the transparency order”. 

What is meant by “varying a transparency order”?

A “transparency order” is an injunction that is supposed to be served on everyone who attends a public hearing in the Court of Protection.  

It’s a court order which says, at the beginning: “If any person disobeys the order … they may be found guilty of contempt of court and may be sent to prison, fined or have their assets seized. They have the right to ask the court to vary or discharge the order”.

The ‘standard’ transparency order is made to protect the privacy of the person at the centre of the case.  Although their name and the names of their family members are usually used publicly in court, it’s very rare that anyone is allowed to report them.  Usually,  we can write about the case, explain the issues before the court, and quote what was said – so long as we don’t say or write anything “that identifies or is likely to identify” the person at the centre of the proceedings or their family (and, often, nothing likely to identify the carers either).  

Here’s what the relevant paragraph of the injunction says about the information we’re not allowed to communicate.   (The whole order consists of 17 paragraphs plus an Annex, over seven pages of legal language.)

from the Transparency Order we were sent for this hearing

So, we’re not allowed to report that LW (the woman at the centre of the case) is involved in a Court of Protection case (that’s 6(i)(a)).  

Nor are we allowed to say anything likely to identify her family members (“CW” and “EW” are her parents) (that’s 6(i)(b)); or her care team (6(i)(c)).  

And 6(ii) prevents reporting anything likely to identify where any of those people lives, is being cared for, or their contact details.

This is the sort of order that we see a lot in the Court of Protection.

 It’s designed to support transparency and open justice in the Court of Protection (the public’s Article 10 rights to freedom of information and the long-standing commitment to justice not only being done, but being seen to be done) while at the same time protecting the privacy (Article 8 rights) of the person at the centre of the case and their family.

With that Transparency Order still in place, Brian Farmer was able to publish this account of the case: “Retired nurse tells judge her daughter ‘is not safe’ in hospital”.

Jigsaw identification

Sometimes, though, there are problems with the standard Transparency Order that make it impossible to report meaningfully on a case without conveying information that makes it “likely” that the person at the centre of the case can be identified.

Occasionally the person at the centre of the case is so famous (e.g. as a politician, a sportsperson, a media celebrity) that almost anything you write about the person risks identifying them, because so many facts about them are already in the public domain.  

That wasn’t so in this case, but “LW” (who was now unable to communicate her own views about being identified or not) had spoken to the media before, and campaigned to raise money for people with her rare disease (Ehlers-Danlos syndrome), e.g. Rotherham woman with rare condition steps up ‘life changing’ surgery campaignWoman who dislocates her shoulder every night says Nottingham doctors ‘saved her life’.

The wording of the injunction (“identifies or is likely to identify”) means it’s not just naming someone that is prohibited – it’s reporting information on the basis of which someone could figure out who the person is.  

So, if Brian and I reported that LW had Ehlers-Danlos syndrome and autism, that she was in hospital and that her parents (one of them a consultant in the hospital where his daughter was being treated, the other a nurse) were critical of the treatment she was receiving, this could provide sufficient information to identify who she was.  

In the ‘anonymised’ article Brian published on 18th August 2022, he did not describe the father’s job, but only said he had “a medical background”. 

Concern about “jigsaw identification” (i.e. little bits of information which can be pieced together to identify someone) often leads to specific and peculiar prohibitions being included in Transparency Orders (e.g. P’s nationality, their diagnosis, the number of children they have)[1].  Most of the time, though, we have to figure out for ourselves what pieces of information might be covered by the Transparency Order, and that’s one of the challenges of trying to comply with it.  

The potential for jigsaw identification, by which is meant diverse pieces of information in the public domain, which when pieced together reveal the identity of an individual, can sometimes be too loosely asserted and the risk overstated. [J]igsaws come with varying complexities. A 500-piece puzzle of Schloss Neuschwanstein is a very different proposition to a 12-piece puzzle of Peppa Pig.  By this I mean that while some information in the public domain may be pieced together by those determined to do so, the risk may be relatively remote”  (Hayden J, at §18 A Local Authority v A Mother [2020] EWHC 1162 [FAM]). 

It can be challenging for us to figure out how risky it is to report certain facts, or how likely it is that they might result in identification of P.  In practice, this often leads me to self-censor.

Where relevant details would very likely lead to identification of P, it can sometimes make more sense to simply apply to name P.

Public interest and P’s own views

There was public interest in writing about this case in part because the Health Board that the parents were criticising (Betsi Cadawaladr) had recently been criticised in a completely unrelated case in the Court of Protection, before a different judge.

The parents – who were also bound by the Transparency Order – were distressed by it because they wanted to post about their daughter on Facebook.  “We have friends all over the world. We are active Christians.  We want to be able to make clear posts about what is happening to our daughter, with requests that prayers are offered for her recovery.  Facebook is the way we keep people up to date and get prayer cover.”  (This would not in fact be captured by the Transparency Order unless they also said that a court was making decisions about their daughter – but I thought it unlikely that they would want to omit that information, and in fact I can see from Facebook several references to the court case.)

It also seemed that LW wouldn’t have minded people knowing her identity – and might even (as her parents said) have wanted her identity made public.  She had approached the media to tell her story publicly before, and chosen, when she had capacity to do so, to be photographed for the press.  Her mother referred to the court as “stealing her [daughter’s] identity” by making the Transparency Order.

Presumably because of the parents’ view that LW would have wanted her identity to be known, the judge said that the Transparency Order was an ‘interim’ one and would be reviewed at the next hearing.  The judge invited submissions and Brian Farmer submitted the letter reproduced below.

In applying to vary a Transparency Order, the key arguments applied to the facts specific to each case concern the likelihood of identification of P, P’s own likely views and best intersts,  and the balance between the right to privacy (Article 8) and the right to freedom of expression (Article 10).  

We have published letters seeking variations in Transparency Orders several times previously[1].  The letter from Brian Farmer reproduced here is helpful because any of us may in future want to challenge reporting restrictions and his arguments are ones we can all learn from.

Letter from Brian Farmer to Mr Justice Francis seeking to name the protected party

Dear Judge,

I was at the hearing before Cobb J on August 18 and wanted to ask if you would consider relaxing the transparency order and allowing P to be named in media reports of the case.

I appreciate this is an unusual application.

This isn’t a case where P is easily identifiable because she is well known.

The problem here is simply that the circumstances of the case – specifically the occupations of P’s parents – make it very difficult to write a meaningful report without creating jigsaw identification.

I don’t think it’s just a problem for reporters: I suspect a judge will also have difficulty producing a public judgment.

I’d make the following points:

1: Hearings are being staged in public.

2: The case raises matters of public interest –

(a)  You are being asked to make decisions about serious medical treatment.

(b)  The health board was criticised by Mr Justice Hayden in October (Re. PH) “North Wales health board’s ‘substantial and alarming failures’ in care of man slammed by top judge”

(c)   P’s parents made serious criticisms of P’s treatment at a hospital run by the trust during the August 18 hearing (particularly mother).

(d)   P’s parents’ criticisms carry extra weight because father is a consultant employed by the trust and mother is a retired senior nurse.

3: Lots of material relating to P and her health is already in the public domain – in media reports and on social media. Detail was outlined in Ms Sutton’s position statement prepared for the August 18 hearing. That information would seem to suggest that P would not object to details of her health being made public if she had capacity.

4: P’s Article 8 rights are obviously engaged. I would not normally argue that a CoP P should be identified and detail about health conditions made public.

5: However, I would argue that in this case there’s a public interest in reporting the parents’ criticisms and telling people what their jobs are or were – particularly in the light of Hayden J’s criticism. I can’t see how to do that anonymously: giving detail of the parents’ jobs will create an obvious risk of jigsaw identification. How many other patients have parents with those jobs?

6:  Given the amount of information in the public domain about P’s health, what harm would naming P cause? We’d essentially only be telling people that P has another health problem and is a patient in a CoP hearing.

7: I’m not clear what position P’s parents take in relation to P’s identification. They said, on August 18, that P would want her real initials used on documents. Using P’s real initials would obviously add to risk of jigsaw identification.

8: There’s also an issue in relation to what’s already in the public domain. We can’t tell people what’s already in the public domain about P without breaching the transparency order. I’d argue that we should be able to tell people what’s already in the public domain.

Brian

Outcome

The judge gave permission to name LW as Laura Wareham, and to name her parents as Conrad Wareham and Erica Wareham.

This meant that Brian was now able to publish the information that the patient’s father, Conrad Wareham was a consultant and “a specialist in the care of critically ill patients” (see: Judge criticises consultant concerned about how doctors are treating his daughter at Welsh health board“).  It meant he was able to address the sensitive issue of how a family member with (substantial) medical knowledge engages with the medical treatment of his daughter.

It also means that Conrad and Erica Wareham can write publicly on Facebook (and elsewhere) and speak to the media about the role of the Court of Protection in their daughter’s life (although they are not allowed to name the hospital where she is being treated, or the people involved in her care).  

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia

Brian Farmer is a reporter with the PA news agency.


[1] For examples of variations to Transparency Orders related to issues other than naming P, see:

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