Judge authorises medical treatment and DOLS in hospital

By Celia Kitzinger, 1st July 2026

This is the first time, post-AGNI, where I’ve seen new Deprivation of Liberty Safeguards authorised by the court[1] – and it surprised me, as P is a patient in hospital who needs urgent treatment for his brain injury. 

The Trust made an application for a declaration that it would be lawful to administer the standard recommended clinical treatment for P’s condition: there was no dispute about either his diagnosis or the appropriate medical treatment – except from P himself.

He’s resisting treatment because his brain injury causes him to be unable to understand he needs treatment (he thinks there’s nothing wrong with him).  He refuses permission to insert cannulas and removes them after insertion.  To treat him successfully, doctors will need to sedate him. The Trust applied for court authorisation of general anaesthetic for five days (for treatment usually given on ward) and sedation as necessary subsequently, both effectively as restraint to enable treatment.

The Judge authorised treatment (unsurprisingly) – and also authorised DOLS.

The hearing

The case (COP 20035691) was heard by Ms Powell KC on 22nd June 2026.

It was the first hearing in a case concerning a man in his forties who’s been unwell for around 5 months with a deteriorating mental state and psychotic symptoms. He was originally detained for two months under the Mental Health Act 1983, but was subsequently discovered (following MRI brain imaging, lumbar puncture and EEG) not to have a primary psychiatric disorder but instead to be suffering from autoimmune encephalitis – a serious but often treatable condition in which the body’s immune system mistakenly attacks the brain, causing inflammation (“encephalitis”). By the end of April, his detention under the Mental Health Act 1983 was rescinded on the basis that his condition was organic rather than psychiatric. 

There is evidence to override the presumption of capacity in relation to medical treatment, notably from a consultant psychiatrist, and from the neurology team.  P “demonstrates severe cognitive impairment, requires one-to-one supervision, engages in occasional episodes of aggression, is tangential in his speech and is developing language dysfunction – he has a poor insight into his illness, insists he’s completely well,  and is not aware he’s in hospital”.  When the Official Solicitor’s agent visited him, his answers to questions about his medical condition and the proposed treatment were “confused” and “unintelligible”.

The Treatment Plan proposed as being in his best interests is pretty standard for autoimmune encephalitis:  5 sessions of therapeutic plasma exchange, testicular examination and imaging,  and brainimaging; 5 days of Intravenous Immunoglobulin plus oral steroids if clinically appropriate;  and peri- and post-operative care and treatment as necessary.  The only unusual feature of the treatment is the need to deliver it with restraint and under general anaesthesia or sedation – the only way it can be delivered given that he’s resisting treatment. There is consensus that this is in his best interests – from the clinicians, the Official Solicitor and an Independent Mental Capacity Advocate (IMCA) who has visited him (no family members or friends have been involved and the judge said she knew very little about his pre-illness life).  Even with treatment, “he is not going to go back to being cognitively unimpaired – but without the treatment the future is terrible, and avoidably terrible” (Counsel for the OS). As the judge put it, “it is likely,  given the length of illness he has already suffered, that there is a degree of irreversible brain damage”.

The Trust (Barts Health NHS Trust, represented by Parishil Patel KC instructed by Hill Dickinson LLP) was seeking: (i) a declaration that P lacks capacity to conduct these proceedings and to consent to medical treatment; and (ii) an order that P should be treated in accordance with the Treatment Plan – to include restraint and/or sedation as required to deliver the Plan safely.

A draft order had been agreed between the Trust and the Official Solicitor (represented by Katie Gollop KC), effectively to make that declaration and order – and that’s the order the judge ended up making in the course of a short oral judgment at the end of the hearing.

The judge also authorised Deprivation of Liberty Safeguards. In light of the recent Supreme Court decision in AGNI, I hoped to understand the judge’s decision-making process in authorising a hospital DOLS – but it was over in a flash with no explication.

The judge reported the submissions made (in written form) by the applicant Trust: “In the Trust view, the circumstances under which he will be restrained and sedated amount to a deprivation of liberty under Art 5, using a multi-factorial approach. These methods are coercive as it is likely that he will not remain in hospital without them. His compliance will be secured through sedation.”  She went on: “I agree with those submissions and authorise the DOLS as necessary and proportionate“. 

On what legal basis did the judge decide to authorise DOLS?

Given the uncertainty and confusion that’s followed the AGNI judgment, many of us are looking to court judgments for careful articulation of the legal basis for deciding whether or not the living arrangements of particular Ps, considered in a multi-factorial way, meet the criteria for ‘deprivation of liberty’. There is, as Lucy Series has said, “widespread confusion and disagreement on the ground, already, about how to apply this test. There are so many potential elements that may or may not be relevant, and little clarity about how they work in combination with each other” (“Elephants, mosaics and hammers“).

In this case, the relevant elements of P’s situation that the judge said mean that P’s living arrangements meet the criteria for ‘deprivation of liberty are that he’s “restrained and sedated” (she could have added, if I heard right, that he’s also under one-to-one care) and he would “not remain in hospital” if he weren’t compelled to. But what that this tells me is that P meets the criteria for “deprivation of liberty” under the Cheshire West definition, because he is subject to ‘continuous supervision and control’ and ‘not free to leave’. The judge didn’t provide any reasoning as to how this P is deprived of his liberty under the AGNI interpretation. Simply referring in passing to a “multi-factorial approach” without spelling out any of the multiple factors purportedly considered in making a DOL assessment really doesn’t illuminate how she arrived at her decision. At the very least, I expected a reference to P’s active objections to treatment: that must be relevant to (if not determinative of) the decision that he’s deprived of his liberty (§187 AGNI)

I’m not disputing that the man at the centre of this case is deprived of his liberty, or that the judge made the correct decision. My gut reaction is that he is deprived of liberty and that also seemed to be the undisputed view of all professionals and the judge in this hearing. I expect that’s why it wasn’t really argued orally in court. I imagine the relevant arguments had already been provided in the written documents before the judge.

How would one apply AGNI to this case? After the hearing, I posted my own summary of the case and some questions about it on various group discussion forums with MCA professionals about how to apply the AGNI multi-factorial approach. Not surprisingly, I received contradictory and speculative responses from a range of people (including COP lawyers).  One common response was simply “because he’s objecting to treatment” (drawing on §187 and §151 AGNI, although these paragraphs weren’t cited orally in court by counsel or by the judge). Then there’s the FG case (a court-ordered caesarean) as precedent for claiming that Article 5 is engaged if P is being sedated to stop them leaving to avoid treatment: AGNI did not suggest that this was wrong. But there’s this: “In ordinary circumstances, an individual in hospital to receive treatment (and who, for their own protection, would be prevented from leaving while, say, confused and unable to think because of medication) would not be regarded as suffering a deprivation of liberty within the meaning of article 5.” (§145, AGNI). This P’s circumstances, it was suggested, are not “ordinary” – because he’s objecting. There was some discussion of the order in which the “objective” (not free to leave etc) and “subjective” (he’s objecting) elements should be assessed – and if it’s “iterative” so that the subjective is part of the objective, how exactly that should be done in this case?  Some suggested that this P meets the requirements for being deprived of his liberty because the restrictions go beyond what other patients with the same illness receiving the same treatment would need (because their treatment would be ward-based, without general anaesthesia and sedation). Others speculated that perhaps it was simply that the court was more focused on the (urgent) best interests issue and just played it safe on the DOL issue without detailed arguments (which seems to me to be absolutely true!).

In seeking to understand how the DOL decision was made in this case, I did not have the benefit of Position Statements. In compliance with the Court of Appeal decision in Gardner, I was sent a “Case Summary” instead – a detailed (5-page) document covering helpful information about P, the parties, and the application, as well as a “chronology of factual background” (essentially a list of medical events extracted from the consultant neurologist’s witness statement).  But the “Case Summary” does not cover any legal arguments made by the parties – and it barely mention ‘deprivation of liberty’ (it just provides, in the chronology, a date on which a DOLS was sought). I strongly suspect that the relevant legal arguments, with case law and citations from paragraphs of AGNI, are in the Position Statements, and that they underpinned and were relied on by the judge in making her decision. But without the Position Statements, and without substantive oral argument, observers can’t know why or how a decision is made. In the end, despite having watched the hearing and heard the oral judgment, I don’t know the legal basis on which this judge made the decision she did about deprivation of liberty – which pretty much defeats the purpose of observing the hearing in the first place.

Facts about P can be sensitive, and that was given as a reason in Gardner (in the Court of Appeal) for withholding Position Statements from observers.  But position statements are supposed to be legal arguments and they should be the least sensitive of the legal documents. The ironic result in this case is that I now have information about P’s testicles conveyed in a “Case Summary” but know virtually nothing about the legal basis for decision-making concerning them. And the one thing I most wanted to understand in the wake of AGNI  – on what legal basis did this judge decide that P is deprived of his liberty – was entirely opaque to me.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)

[1] For a helpful resource on the AGNI judgment see https://www.39essex.com/wp-content/uploads/2026/06/2026-UKSC-16-Summary-for-website.pdf. What I’ve seen frequently, since the AGNI judgment was handed down, is (a) a decision to delay until a future hearing judicial determination as to whether or not residence and care constitutes a deprivation of liberty; and (b) ending of  proceedings because they are newly recognised as having been “improperly constituted” as DOLS or s.21A under the now superseded Cheshire West definition.

AGNI: A common-sense judgment or agony?

By Eleanor Tallon, 30th June 2026

Editorial Note: This is the third blog post we have published in the wake of the Supreme Court decision, handed down in June 2026, changing more than a decade of law and practice on ‘deprivation of liberty’ (see Endnote for more information).

For people who consider their loved ones well cared for, safe, and happy, the pre‑AGNI deprivation of liberty (DoL) processes were nonsensical and often intrusive. For that reason, the current judgment brings a sense of relief to many. But for other individuals, whose daily lives are dictated and constrained by institutional or quasi‑institutional regimes, with simple choices removed from their decisional space, and an array of human‑rights abuses hidden behind closed cultures, this judgment may have a more detrimental impact.

While some individuals in these circumstances may not be fully aware of the restrictions imposed on their liberty (or may have grown to accept the narrowed decision spaces they inhabit), many advocates and activists acutely recognise the implications of the judgment and strongly convey a sense of agony.

The positives and negatives of AGNI. 

In many situations, DoLS and judicial authorisations have mopped up the mess created by an under‑resourced health and social care system that has had to firefight and prioritise significant need over promoting human rights.

Article 5 safeguards have effectively compensated for a lack of appropriate or accessible mechanisms to address what are often Article 8 abuses.

There certainly should be accessible safeguards outside DoL processes, and perhaps this judgment will open the door to broader awareness and embedding of human rights and Mental Capacity Act (MCA) principles. I hope it does, and many proactive colleagues are pushing this agenda.

Although the judgment landed as a bombshell, there have been concerted efforts to make practical sense of it, and there are positive aspects to narrowing the objective definition of DoL. 

Rather than the broader ‘bright line’ threshold provided by the acid test, the objective element is realigned with the Guzzardi multifactorial test, which interrogates the degree, intensity, and effects of the restrictions. This encourages a more nuanced assessment of the cumulative impact of the arrangements, in which any coercive approaches are crucial considerations.

Similarly, the greater emphasis on determining wishes and feelings is very much welcomed. Of course, all practitioners should centralise wishes and feelings regardless of this judgment, but it serves as a strong reminder for those who are less conscientious.

Overall, the revised criteria for establishing what constitutes a deprivation of liberty will mean that significantly fewer people will be subject to DoL assessments or authorisation frameworks. This will enable more targeted support for individuals in the most critical need of Article 5 safeguards.

Nevertheless, individuals who struggle to express their concerns, who have no one to speak up on their behalf, or who remain silenced by systems that pathologise their distressed or withdrawn behaviour, will remain invisible[i]. In particular, this will affect people who are privately funded and who may not be reviewed under any other statutory process[ii].

Furthermore, there is a real risk of inconsistency and confusion about what this judgment means. Formal guidance will go some way to alleviate uncertainty, but how well that guidance cascades into care settings and day‑to‑day practice is another question. 

The main problems I foresee stemming from AGNI are threefold.

One: the risk that valid consent under Article 5 is conflated with consent more generally, thereby diminishing the understanding that informed consent and the processes set out in the MCA 2005 are fundamental to the delivery of care and treatment.

Two: the risk that compliance and acquiescence are regarded as the accepted standard for valid consent under Article 5, or that such compliance, which may be an ingrained pattern of behaviour, is misconstrued as a positive expression of wishes and feelings. This prompts considerable ethical and philosophical debate, which requires far fuller exploration than I have space for here.

Three: that the purpose and relative normality of the arrangements are now treated as relevant to whether a person is deprived of their liberty, which could be interpreted in a way that minimises the extent and effects of the concrete situation.

In terms of purpose, it would be highly concerning if any health or social care providers were to use restrictive interventions as punishment, rather than solely to keep the individual safe. In practice, the purpose is always likely to be protective; it is therefore unclear what this distinction adds.

As for relative normality, this term functions as an empty signifier, in that the judgment does not define what relative normality means. It is therefore left to subjective interpretation, which may drift into a regressive disablist approach, whereby what is classed as ‘normal’ for a disabled person is positioned differently from that for a non‑disabled person, moving us away from a universal concept of liberty.

In P v Cheshire West and Chester Council [2014], Lady Hale held that it is:

45. [.] axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

That said, I am optimistic that AGNI will be applied in a non‑disablist manner, with an initial focus on whether the circumstances meet the threshold for confinement under the multifactorial approach (which, arguably, will capture a minority of those previously caught, given the narrowing of the objective definition). Where an individual lacks capacity (under the MCA) to decide on arrangements that amount to their confinement, this should be followed by a holistic evaluation of whether valid consent can be derived from the person’s basic understanding of their situation, and their wishes and feelings over time. I hope this will foster more meaningful, relational engagement with the person and their loved ones during DoL assessments.

Above all, I hope that any financial savings arising from the reduced applicability of the DoL safeguards are reinvested into person‑centred, accessible, rights‑based services. I would urge that wider advocacy mechanisms be made available to safeguard Article 8 rights, beyond time‑limited, issue‑specific advocacy roles such as IMCAs and Care Act advocacy. Article 8 safeguards should be offered to all individuals who remain in restrictive care outside the scope of the AGNI – DoL threshold, including those in privately funded arrangements. 

In summary, AGNI may prompt a much‑needed re‑evaluation of MCA practice; however, for this to be effective, it must be accompanied by an inter‑agency and cross‑sector commitment to meaningful investment in human rights, advocacy, and person‑centred care. Without that, the judgment risks creating more problems than it resolves.

Eleanor Tallon is an Independent Social Worker, Expert Witness, and Best Interests Assessor. Eleanor is also an ESRC-funded Doctoral Training Pathway (DTP) student at the University of Birmingham. Her research focuses on the application of the Mental Capacity Act 2005 in private brain injury case management. Eleanor can be contacted via email eleanor@mcaprofessional.co.uk or through her website mcaprofessional.co.uk and found on LinkedIn or X(Twitter) @Eleanor_Tallon

[i] HL v UK provides a compelling example of how individuals who struggle to express their concerns can become effectively invisible. HL was treated as having consented to admission because he did not attempt to leave; this was interpreted as compliance. His distressed behaviours, including agitation and self-harm, were medicalised and used to justify continued hospitalisation.

[ii] Although all adults with eligible needs have a right to an assessment under the Care Act 2014, in practice this may not be realised for “self-funders”. This may occur because individuals or their relatives are unaware of their entitlement to a Care Act assessment, they are given inconsistent information or experience extensive delays due to the prioritisation of other cases. As a result, many self-funders remain outside statutory systems (Henwood et al., 2022).

Endnote (by Daniel Clark)

Back in 2014, In Cheshire West, the Supreme Court considered the meaning of a deprivation of liberty (DoL) through reference to Article 5 of the European Convention on Human Rights. Lady Hale, giving the majority but not unanimous judgment of the Court, presented an ‘acid test’ for deprivation of liberty: is a person under continuous supervision and control, and not free to leave? 

On Tuesday 2 June 2026, the Supreme Court handed down judgment in what is increasingly being referred to as “AGNI’ (the case was brought by the Attorney General of Northern Ireland).  The Supreme Court overturned Cheshire West, finding the acid test to be wrong in law, and directed a different approach.

First, the identification of the objective element of a deprivation of liberty must entail a multifactorial analysis, which includes consideration of the intensity and purpose of confinement. If these conditions are not satisfied, there is no deprivation of liberty. 

Second, a person may lack capacity to make decisions about their care and residence but can nevertheless give valid consent through an expression of their (positive) wishes and feelings. If a person is giving such consent, they are not deprived of their liberty.

To access the judgment, see: Judgment (PDF) (hyperlinked)

To access the court’s approved press summary, see: Press Summary (PDF) (hyperlinked)

To access the commentary published by the Open Justice Court of Protection Project, see: Commentary on the UK Supreme Court case about deprivation of liberty (hyperlinked)

If you would like to contribute a commentary about this judgment, please contact openjustice@yahoo.com, and mark your email for the attention of Daniel Clark. 

Declaration of death or serious medical treatment withdrawal?

By Claire Martin, 28th June 2026

UPDATE: 2nd July 2026 at 4pm

The case was heard this afternoon by Garrido J. The Trust has now made an application for a declaration of death. Since the last hearing, the “apnea” test has been done (twice) by two independent experts who conclude that P is dead according to neurological criteria. Some family members dispute that P is dead: they report having seen him trying to breathe. The ‘red triangle light’ on the ventilator goes on from time to time which family take as evidence of attempts at breathing, but according to medical professionals (including the nurses who’ve witnessed it), that light goes on if there is air movement caused by P being moved, or by his reflex movements, or even by condensation building up in the ventilator which alters the air pressure. The hearing will continue at 11am tomorrow (via MS Teams): this was a late decision so it may well not appear in the public lists. It is possible that P’s partner will give evidence about what she’s seen (P trying to breathe). It’s possible the family will pursue an application for another independent expert to examine P. There will be “closing submissions” from the Trust (Parishil Patel), the family representative (Arianna Kelly) and the Official Solicitor (Nageena Khalique) and a judgment.

*****

The key question in this case, which will be back in court on 2nd July 2026, is whether or not a man in his 40s, who had an out-of-hospital cardiac arrest on 24th May 2026 (so about a month ago) is now “brain stem dead”. 

What is brain stem death?

Brain stem death is the irreversible loss of all functions of the brain stem – the part of the brain that controls breathing, swallowing and other reflexes (e.g. pupil response to light, gagging, response to pain). In many countries, including England and Wales, this is considered to be “death” in law, even if the heart continues to beat, with the assistance of a ventilator.  Some legislatures (but not England and Wales) allow a religious exemption to the neurological criteria for death, and there are a few controversial cases of  ‘brain dead’ people being maintained for years (e.g. famously, Jadi McGrath[1]). These cases underscore the importance of correctly testing for brain death and also the ethical concerns that arise in these cases.

A neurological definition of death has been accepted and endorsed by the courts from at least 1992 onwards (Airedale NHS v Bland [1993] AC 789).   “In medicine, the cessation of breathing or of heartbeat is no longer death. By the use of a ventilator, lungs which in the unaided course of nature would have stopped breathing can be made to breathe, thereby sustaining the heartbeat. Those, like Anthony Bland, who would previously have died through inability to swallow food can be kept alive by artificial feeding. This has led the medical profession to redefine death in terms of brain stem death, i.e., the death of that part of the brain without which the body cannot function at all without assistance. In some cases, it is now apparently possible, with the use of the ventilator, to sustain a beating heart even though the brain stem, and therefore in medical terms the patient, is dead; “the ventilated corpse”.” (Lord Browne-Wilkinson in Bland).

Clinical guidance about  “brain stem death” is provided in the Code of Practice for the Diagnosis and Confirmation of Death  by the Academy of Medical Royal Colleges in 2008.  It says: “Death entails the irreversible loss of those essential characteristics which are necessary to the existence of a living human person and, thus, the definition of death should be regarded as the irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe.” 

There’s an NHS page about brain death and its diagnosis here. If someone is brain dead, the damage is irreversible and, according to UK law, the person has died:”It can be confusing to be told someone has brain death, because their life support machine will keep their heart beating and their chest will still rise and fall with every breath from the ventilator.“

The question before the court: Declaring death vs considering best interests

Almost all applications to discontinue mechanical ventilation or clinically assisted nutrition and hydration are decided on the basis of ‘best interests’.

But when a person is already dead (on the basis of neurological criteria), so that the effect of the medical treatment is not to keep the person alive but simply to maintain a beating heart in an otherwise “dead” body, ‘best interests’ decision-making does not apply.  All the court can do is make a declaration of death.

In an earlier blog, we reported on a case seeking a declaration of death (Withdrawing treatment after brain-stem death: A case in the Family Division). In that case all the proper tests had been done to make a declaration of death, and the Official Solicitor declined to act (because P must be alive to have “best interests”).

This is the approach also used in previous court cases in the Family Division:  “If a patient is brain stem dead, then there are no best interests to consider. Once those criteria are met the patient has irreversibly lost whatever one might define as life…[…] Once a court is satisfied on the balance of probabilities that, on the proper application of the 2008 Code (and where appropriate the 2015 Guidance), there has been brain stem death there is no basis for a best interests analysis, nor is one appropriate. The court is not saying that it is in the best interests for the child to die but, rather that the child is already dead. The appropriate declaration is that the patient died at a particular time and on a particular date without more.” Sir Andrew McFarlane §96 Re M (Declaration of Death of Child) [2020] EWCA Civ 164,  

Directions hearing

This was a very short (35 minute) directions hearing before Mr Justice Garrido, sitting in the RCJ on 24th June 2026. 

There was no substantive opening summary, and although I asked in the usual way, I was not sent position statements, or any of the three documents recommended for disclosure to COP observers in Gardner (i.e. a case summary or chronology or statement of ‘issues before the court’).  This report is as accurate as I can make it in their absence.

Counsel for the applicant Trust (University Hospital Southampton NHS Foundation Trust), Parishil Patel KC, explained that it is the view of the treating doctors that the man at the centre of this case has “suffered catastrophic and irreversible brain injury with permanent loss of brain stem function” – meaning that they believe he meets the criteria for ‘brain stem death’.  I gathered that this is accepted by some family members and not by others: they are “split into two camps”.   Counsel for the patient (Nageena Khalique KC) instructed by the Official Solicitor reported that “a lot of the information has been discussed and debated albeit not accepted by the family”.

However, one of the tests required by law for determination of brain stem death  – the apnea test – has apparently not been performed at the level needed. Counsel for the Trust said that, for that reason,  the applicant Trust is not currently seeking declaration of death, but rather, in light of P’s condition and poor prognosis, is applying for a declaration that it is lawful and in P’s best interests to withdraw life-sustaining treatment. This might, however, change.

Test for brain stem death – and why has it not been done

The judge said that he understood the reason for the apnea test not being done was an inability to do it to the relevant standard “because the patient is being ventilated”. Parishil Patel, for the NHS Trust, said that when the relevant tests were being conducted that was the situation, though it might not be the “position forever”.

A second opinion doctor is being engaged to repeat the relevant ‘brain stem’ tests and may perform the outstanding apnea test. The court was informed that two doctors must be present to carry out the tests.

Judge: Everybody realises there are any number of demands on doctors which may result in delay, but, anyway, your Trust is doing the best it can to obtain a second opinion doctor.

Counsel for the Trust: Yes, and everyone recognises the urgency. If in fact [P] is brain stem dead, the quicker we get on to that moment the better, if only because, if he is brain stem dead, we are providing treatment to someone who is dead.

Judge: What does [treating doctor] say about the realistic chance of performing the relevant test?

Counsel for the Trust: Two things – he DOES think the test can be performed and that’s why he is asking the second opinion doctor to do it. There are also ancillary tests upon which the court can rely. There’s a reasonable degree of confidence that the second opinion doctors may well be able to (pause)

Judge: …. opine on the issue of brain stem death.

Counsel for the Trust: The case would then be a different sort of case …. to withdrawal of life-sustaining treatment. […] Is this a declaration of death case or is this a continuation of the case that is currently in the application which is withdrawal of life-sustaining treatment?

What next?

The judge was clearly concerned that some family members might dispute a diagnosis of death, even after expert evidence was obtained.  “Any suggestion that additional evidence ON TOP OF the second opinion doctors –  that needs to be cauterized at the earliest opportunity. Any additional application for expert evidence would need an application in advance.” [judge’s emphases]

Counsel for the Official Solicitor hoped that “at the next directions hearing we will have some more useful information from the second opinion doctors. That will be pivotal in shaping the case.” She went on “Until we see that evidence, the OS position is cautious, because it may be that further questions need to be asked or different expertise is required. […] I am grateful that an application for further evidence CAN be made within the timescale that’s proposed.”

The judge was hopeful, asking whether it was “realistic, Ms Khalique, to expect any questions of the second opinion doctors to be raised and answered in advance of the hearing on Thursday next week.” She replied that there may be “some questions that become obvious [and it] might precipitate the instruction of an expert“.

The current position of at least some family members means, however, that there is likely to be a contested hearing, with at least one family member opposing the application (whether it’s for treatment withdrawal in P’s best interests or for a declaration of death resulting in treatment withdrawal). Chloe Moran, a solicitor from Irwin Mitchell representing P’s brother, told the court that her client opposes the Trust’s application and wishes to be joined as a party.

The next hearing is scheduled for the afternoon of Thursday 2nd July 2026.

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core team of the Open Justice Court of Protection Project and has published dozens of blog posts for the Project about hearings she’s observed (e.g. here and here). She is on X as @DocCMartin, on LinkedIn and on BlueSky as @doccmartin.bsky.social

[1] Jahi McMath was 13 years old when she suffered a massive haemorrhage following a tonsillectomy on 9th December 2013, in Oakland Children’s Hospital in California. Three days later she was diagnosed as ‘brain dead’ (confirmed by two staff physicians and three independent specialists). Her mother, who did not believe her daughter to be dead since her daughter was breathing (with a ventilator), her heart was beating, and her body was warm, made an application to court for appointment of a “neutral” neurologist to assess the patient’s medical status – that expert confirmed Jahi was brain dead, and the judge had no alternative but to authorise withdrawal of medical treatment. A death certificate was issued, listing her date of death as December 12, 2013.  (see “Brain death,”“dead,” and parental denial: the case of Jahi McMath). The family fought a protracted battle to keep her on mechanical ventilation until she “died” (again) in 2018 (see https://edition.cnn.com/2018/06/29/health/jahi-mcmath-brain-dead-teen-death).   There’s a thoughtful discussion of the implications of “brain death” here: https://aeon.co/essays/why-medics-and-the-law-clash-with-family-in-brain-death-cases

Overturning Cheshire West and my Grandma’s experience of ‘the death house’ care home 

by Elissa Novak, 25th June 2026

Editorial Note: This is the second blog post we have published in the wake of the Supreme Court decision, handed down in June 2026, changing more than a decade of law and practice on ‘deprivation of liberty’ (see Endnote for more information).

In overruling Cheshire West, the Supreme Court concluded that its “acid test” alone was not sufficient to establish a deprivation of liberty. There are arguments that the safeguards had become too broad and too burdensome for an already overwhelmed system. But my family’s experience sits uneasily with that account. For us, this did not feel like a system overwhelmed by safeguards. It felt like one that was under-resourced, adversarial, and unwilling to make those safeguards accessible when they were most needed.

In 2014, in Cheshire West, the Supreme Court held that a person was deprived of their liberty if they were under continuous supervision and control and not free to leave. Those protections should have been in full working order by the time my Grandma needed them in 2018, but when it came to that point not only were they not put into place for her, we weren’t even told they existed.

Born in 1930, my Grandma was funny, cheeky, loving and firmly opinionated. She had been diagnosed with end-stage heart failure and vascular dementia, with fluctuating capacity and had been living happily in a small nursing home funded by Continuing Healthcare. The nature of her dementia meant she was able to make some decisions independently and needed support with others, but she never lost the ability to express her wishes. 

In 2018, I was due to get married. A week before the wedding, the manager of the nursing home told me to prepare myself as my Grandma was “hanging on” for my wedding and would die shortly afterwards. Just four days after the wedding, I received a call from the same manager informing me that, as “I was no doubt aware”, my Grandma had not died, and so needed to move out of the home.

We were told that my Grandma had met with several managers from the local CCG and agreed to move to a particular care home that we knew instantly she would never have agreed to. It was a place she called “the death house”, where her best friend had died two weeks after moving in following complications triggered by dehydration. My Grandma blamed the home for her death and would shake her fists and blow raspberries at it whenever we drove past. 

My parents, who held lasting powers of attorney, had not been told about the meeting. They were told this was because my Grandma had now been assessed as having “full capacity” and so did not need anyone present. There were no minutes or meeting notes recording what was discussed, how the move had been explained, how her capacity had been assessed, or whether she had been asked if she wanted a family member present. My Grandma, for her part, had no memory of either the assessment or the meeting.

When we explained the proposed move to her, she told us in unmistakable, and quite fruity, terms that she would not go to “the death house”. By chance, later that week, I was visiting when two managers from the CCG unexpectedly arrived to get my Grandma to sign paperwork. This was another meeting we had not been told about. I was asked to leave but my Grandma grabbed my hand and said she wanted me to stay. During the meeting, it was clear that my Grandma did not understand what was being explained and notably she no longer recognised the name of the home. When I showed her a picture and explained it was where her friend had moved to she immediately told the managers that if they wanted her to go to the “death house”, they should “kill her now to save some time”.

Despite this, the move went ahead on the basis that she had already consented and had full capacity. 

I cannot detail every horror that followed, but some are impossible to ignore: the lack of a bed, or any medication and oxygen for her on arrival on moving day, the constant broken equipment, the daily missed medication, the lack of staff, the reused linen covered in the discharge from another resident’s bed sores, the use of restraint to stop her attempts to leave, being left hungry, soiled and distressed and the threats that we would never see her again if we kept raising concerns. Nor will I ever forget the moment she clutched my hand in visible fear at the end of visiting and told me: “You don’t know what it’s like here at night.”

Each day brought a new crisis but when we raised concerns and showed videos of my Grandma saying she did not want to be there and explaining how badly she was being treated, we were told that she lacked capacity and so this could not be taken seriously.

During this same period, my mother was in intensive care after cancer surgery, and I was leaving work twice a day to go to the home and check that my Grandma had been fed, had oxygen and had been given her medication and taken to the toilet. Despite constant contact with the NHS, the local authority and the care provider, nobody told us about deprivation of liberty safeguards, best interests decisions or the Court of Protection. I was too overwhelmed and sleep-deprived and too consumed by the immediate task of keeping her safe to research beyond the advice given by those same bodies.

After a final dramatic escape attempt, which we only learned about later through a subject access request, the home evicted her. My bedbound Grandma had somehow managed to get over the bedrails (in use without risk assessment or consent to stop her leaving), crawl out of her room and across the corridor, and climb down the stairs towards the main doors before staff found her. It was only then that we heard about deprivation of liberty safeguards, when they were cited by the home in the eviction decision following my Grandma’s repeated escape attempts and her repeated statements that she did not want to live there.

She was thankfully then moved to a wonderful home, where she lived for another year before dying peacefully surrounded by her family. It later turned out that everything that happened was entirely avoidable, as this other home could have taken her sooner, having had a room available when she was forced into “the death house”. 

I still carry an immense amount of guilt that I did not get her out sooner, and I have to stop myself from thinking too long about what else may have happened that we did not know about. But I also know that families cannot use rights they do not know exist, especially when they are exhausted, frightened, and firefighting one crisis after another. 

Like many people, I was brought up to trust that public institutions will protect us when we are at our most vulnerable. Even when I could not understand the motivations of decision-makers in my Grandma’s case, and even when I witnessed first-hand the severe neglect and appalling conditions she and other residents were experiencing, I still believed that someone, somewhere, would do something to help. I believed it could not be possible for people to be effectively imprisoned in such appalling conditions, against their will. Discovering that my belief and that trust was misplaced felt like a betrayal so deep it is still difficult to look at directly.

This is what troubles me about the current debate. We are told Cheshire West overwhelmed the system. Yet my family never experienced an excess of scrutiny. We experienced decisions made without us, safeguards we knew nothing about and could not access, and a system that placed excessive responsibility on us to keep my Grandma safe while in care but then threatened us when we advocated for her wishes and wellbeing.

If safeguards are not visible, understandable and enforceable for all people who need them, then they are failing. But that is not an argument for fewer safeguards. It is an argument for better ones. The overwhelm in the system is real, but it is multi-faceted. It reflects long-term underfunding across the NHS, social care and the legal system, which has left families to fill the gaps in health and social care alone while being expected to navigate complex legal processes without professional guidance. 

Poor accountability, inaccessible processes and defensive decision-making compound that underfunding, turning safeguards that should protect people into systems families struggle to find, understand or use. Too many people are living and dying in conditions that should shame this country. 

My Grandma’s experience does not persuade me that we need weaker protections. It taught me that robust safeguards are essential, and that they must exist in practice, not just on paper, for everyone who needs them. If doing so overwhelms the system, then the system is not fit for purpose and an urgent and far more radical rethink is needed.

Elissa Novak is an unpaid carer to her son and studies Law part-time with the Open University through its Carers’ Scholarship Programme.

Endnote (by Daniel Clark)

Back in 2014, In Cheshire West, the Supreme Court considered the meaning of a deprivation of liberty (DoL) through reference to Article 5 of the European Convention on Human Rights. Lady Hale, giving the majority but not unanimous judgment of the Court, presented an ‘acid test’ for deprivation of liberty: is a person under continuous supervision and control, and not free to leave? 

On Tuesday 2 June 2026, the Supreme Court handed down judgment in what is increasingly being referred to as “AGNI’ (the case was brought by the Attorney General of Northern Ireland).  The Supreme Court overturned Cheshire West, finding the acid test to be wrong in law, and directed a different approach.

First, the identification of the objective element of a deprivation of liberty must entail a multifactorial analysis, which includes consideration of the intensity and purpose of confinement. If these conditions are not satisfied, there is no deprivation of liberty. 

Second, a person may lack capacity to make decisions about their care and residence but can nevertheless give valid consent through an expression of their (positive) wishes and feelings. If a person is giving such consent, they are not deprived of their liberty.

To access the judgment, see: Judgment (PDF) (hyperlinked)

To access the court’s approved press summary, see: Press Summary (PDF) (hyperlinked)

To access the commentary published by the Open Justice Court of Protection Project, see: Commentary on the UK Supreme Court case about deprivation of liberty (hyperlinked)

If you would like to contribute a commentary about this judgment, please contact openjustice@yahoo.com, and mark your email for the attention of Daniel Clark. 

“Steadying the ship”: Vice President’s judgment will list factors to consider before making applications for declaratory relief in life-sustaining treatment cases relating to the Mental Health Act

By Sydney White, 24th June 2026

The grave facts of this case (COP 20033278, before Mrs Justice Theis on 23rd June 2026) are discussed in a previous blog (Anorexia, declaratory protection and the Mental Health Act: Ventilating a jurisdictional question following Townsend). In summary it concerns a woman (“P”) who suffers from anorexia nervosa and is refusing nasogastric tube feeding.

The Trust brought an application to the Court of Protection for a declaration that it was lawful and in P’s best interests not to detain her under the Mental Health Act and not to impose feeding upon her.

As emphasised throughout the hearing, this is a case of “unanimity”: P’s mother, the Official Solicitor, P’s treatment team—and, now, an independent medical expert (whose report was not available at the time the application was made)—are all in agreement that it is not in P’s best interests to treat her under compulsion.

In light of this independent medical opinion, the Trust (represented by James Berry KC) no longer believes it requires declaratory relief from the Court of Protection. Their submission today (initially before the court on Friday 19th June 2026 in advance of what was otherwise to have been a two-day substantive hearing about declarative relief on 22nd and 23rd June 2026) was to withdraw their former application pursuant to CoP rule 13.2. That was not opposed by the other parties (P represented through her litigation friend the Official Solicitor by Katie Scott and P’s mother, represented by Victoria Butler-Cole KC).

The importance of this case is that, in response to the Trust’s application to withdraw, the OS invited the Court to give a full reasoned judgment, addressing:

(1) The circumstances in which a Trust should make an application to the Court where it proposes not to detain a patient under the MHA 1983, and not to provide potentially life-saving treatment to the patient (e.g. by way of NG feeding under restraint); and

(2) Which Court has jurisdiction to determine such an application (it being the position of the OS that, to the extent that the Trust requires any relief on the facts of this case, that relief should be granted by the High Court in the exercise of its inherent jurisdiction.[1]

Counsel for the Trust said they were “agnostic” on the first issue.  Regarding the second issue, the Trust’s position was that no such guidance should be given because “there are plenty of authorities that say the court should not be used as a general advice centre, and this is a contentious issue on which there is no clear authority”. The Trust also submitted that if the Court of Protection were to tackle such an issue it should do so in a case where there is a contested substantive issue. These submissions were successful. Mrs Justice Theis accepted that the jurisdiction question was ill-suited to the facts of this case, because the application had been issued (and was being withdrawn) without dispute from any party. I found myself wondering if this was persuasive: why would it be more appropriate to deal with the jurisdiction question in a case where there is disagreement, given that it is fundamentally a question of legal principle? Nevertheless, it became clear early in the hearing that this issue would not be tackled in this case.

The first issue led to a much longer discussion. Mrs Justice Theis was keen to “steady the ship” by creating a list of factors to be considered when deciding whether to issue an application for declaratory relief in these circumstances. That list is likely to include:

  • Whether an independent, external second medical opinion has been obtained
  • Whether there is any dispute (a) as to P’s capacity, and (b) as to the treatment plan, between the treating team, the treating team and the expert second opinion, and between them and P or those with an interest in P’s welfare (including an IMCA if there is no-one else, s.37 MCA)
  • The impact on P of bringing these kinds of applications (it was reported that P was very upset on learning of these proceedings)
  • The relevance of the framework used for withdrawal applications relating to patients in prolonged disorders of consciousness
  • What other steps can be taken to, for example, shorten proceedings

Some of these factors are quite vague, but will no doubt be refined in the published judgment.

The point, concerning “the impact on P of bringing these kinds of applications” was expanded upon by Ms Katie Scott, for the OS, in a manner tailored specifically to the experiences of patients with anorexia nervosa. She listed three ‘impacts’ to be considered. First, the fact that court proceedings are inherently stressful for Ps. Second, the need to avoid confusing P when applications are “legally complex and difficult to understand” and are often procedurally complex as well. Third, the need for clarity as to the scope of the application: what the court is being asked to do and what the powers of the court actually are. Ms Scott drove home the point that this is particularly important for patients with anorexia nervosa, who are, in her words “invariably intelligent, extremely engaged in their treatment and decisions being made about them…have been in the system for decades, [and are] very familiar with the powers of the MHA”.

Ms Scott demonstrated great respect for patients with anorexia nervosa with these submissions. The need for control is a core feature of anorexia, and proceedings in the Court of Protection are often both legally and procedurally confusing in a way that epitomises lack of control. It is to be hoped that Ms Scott’s insights are reflected in the list of factors that results from these proceedings.

The Trust was granted permission to withdraw its application, Although Mrs Justice Theis did not go as far as she might have in response to the OS’s submissions, she did indicate that she would take this opportunity to consider how, in her published judgment, she could support decision-making about court applications in this contentious and complex area of law.

I await with great anticipation the published judgment, which will no doubt serve as a useful tool for clinicians, legal practitioners, patients with anorexia nervosa, and those with an interest in their welfare.

Sydney White recently completed her MPhil (Master of Philosophy) in Medical Law at the University of Oxford. Her dissertation focused on the Court of Protection’s approach to best interests assessments for patients with anorexia nervosa under the Mental Capacity Act 2005. Her fascination with Medical Law brought her to the Open Justice Court of Protection Project.  She has previously published these blog posts: An in-person hearing on anorexia (Re CC): Observer’s rollercoaster and the role of “hope”,  Respecting autonomy in treating Anorexia Nervosa, and Cross-jurisdictional challenges and Schedule 3 in a case of anorexia: Health Service Executive of Ireland v SM [2024] EWCOP 60. She can be found on LinkedIn at www.linkedin.com/in/sydney-e-white, on Twitter/X @sydwhiteCOP and on Bluesky@sydneywhite

[1] I was not granted access to the skeleton arguments (or any other documents) relating to this hearing.  I am grateful to Celia Kitzinger, who was granted access to, and received,  written versions of the legal arguments from the Trust and the Official Solicitor via an order from Judd J at an earlier hearing: she drew on them to help me to elucidate the issues as presented by counsel orally in this hearing.

A personal reflection on decision-making processes

By Vicky Farrell, 22nd June 2026

As an experienced clinical lead within NHS community services for older adults, I recently attended a virtual hearing with the aim of gaining insight into how the Court of Protection facilitates complex decision-making outcomes. The case I observed was  COP 20019749 before Mrs Justice Theis sitting at the Royal Courts of Justice on 20th May 2026 (via MS Teams).

There are times in my clinical practice where case management for complex individuals reaches a decision deadlock. Within frailty care, decision stagnation often appears to arise from either structural constraints (organisational boundaries, ability to allocate resource, insurances, GDPR, operational capacity and demand) or differing judgements about acceptable levels of risk and responsibility (what is considered ‘safe enough’ at home).

As a first time observer, I am grateful to another observer who watched the same hearing for provide a summary of the circumstances of this case which are as follows:

“The Capacity Assessment undertaken by the independent expert concluded that P lacks capacity. However, the parties subsequently drew up an agreed list of questions that has been put to her, and a response is required within four weeks.  The applicant LA (Kent County Council) was seeking a direction for a timetable to be worked out for the outstanding issues to be resolved. P will reach 18 in two months’ time and faces an uncertain future as an adult with several different agencies involved or disputing their involvement. Specifically, the referrals for P to have an OT assessment and a Speech & Language assessment, and the fulfilment in her EHCP that she should have education provided for her, are all seemingly stuck at the moment because of this dispute.” 

The similarities – What took me by surprise was how similar the conversations in court felt to discussions in my own clinical practice: such as who are the appropriate representatives at this discussion, who is responsible for assessing care and support needs, who is responsible for funding such care, services, continuation of care across geographical boundaries, and what happens when stakeholder opinions do not align. The hearing was also affected by the same constraints and contexts that shape frontline decision-making. One example was that a professional had not responded to requests for information and P was on waiting lists for statutory services whose assessments may support and inform court processes and outcomes. The most interesting part for me was the request from the barrister representing P, who asked for a framework setting out how organisations are going to work together to provide integrated and coherent care. In other words, how are multiple organisations going to share and hold risk, information, and responsibility and how will this look in practice.

The differences were significant – Decision-making within complex at-home clinical care utilises pattern recognition, ‘rule of thumb’, experience, and the need to assess and implement care plans rapidly. Today, the judge had access to all submitted documentary evidence in order to make informed decisions and this clarity in ownership of information provided a clear trail of accountability. This was highlighted when the judge referred to written records to confirm how long P had been on a particular waiting list. In day-to-day clinical practice, fragmentation of information across systems and organisations perhaps creates greater levels of uncertainty in what can be known. While the outcome of a hearing is subject to appeal, a judge holds authority to compel action from others and if required, can make a final decision. The designated ‘decision-maker’ is more challenging to identify in frontline clinical practice, regardless of whether the decision is being made using the best interests process. This is because no stakeholder can compel another person from another organisation to act. So if an adult holds full capacity to decide on how their safety can be supported at home, their proposed care plan still requires alignment and agreement across the family members and organisations who provide the resources necessary to enable the care plan to work. Within my day-to-day world, there is no operational framework that allows one of these individuals to exercise authority over another, in order to make a final decision.

In summary – What surprised me most was not how different the Court of Protection was from frontline practice, but how similar many of the underlying challenges appeared to be. Questions about responsibility, risk, information sharing and cross-organisational working remained central. The key difference was that the court provided a clearly defined decision-maker with authority to direct action when agreement could not otherwise be reached.

Vicky Farrell is an Advanced Practice Physiotherapist and Predoctoral Clinical Academic Fellow at University of Exeter. She is planning to carry out doctoral research on how complex care decisions are made when supporting older adults living with frailty to remain at home.

Note: From the other observer’s feedback form: The judge set timescales for various evidence documents to be submitted, and set the next Case Management Hearing for either 23.06.26 or 24.06.26 (remotely), and the further full day’s hearing (with evidence from both a doctor and a social worker) on 08.07.26 (hybrid).

Fit for discharge for the last 8 months and still in hospital: Yet more delay (and Lieven J offers to mediate)

By Kim Dodd and Amanda Hill, 21 June 2026

“I apologise to [P’s siblings], who must think that the justice system is a bit of a joke.
But we have to do our best.”

Mrs Justice Lieven, 5th June 2026

The protected party (P) is a woman with diagnoses of mild learning disability, “emotionally unstable personality disorder”, functional neurological disorder, dissociative disorder and elective mutism (she communicates using Makaton). She’s been in hospital since April 2025. In September 2025 she had surgery and was soon afterwards declared medically fit for discharge.  She’s now been in hospital for 14 months and it’s about eight months since she’s been fit for discharge.

We’ve previously blogged about two earlier hearings in the case (most recently “Fit for discharge and still in hospital five months later…” and before that  “Should surgery be delayed….”). The latest hearing in this case (COP 13630253) was on 5th June 2026, before Mrs Justice Lieven.

The delay  – now of 8 months duration – is caused by the absence of an eating and drinking plan. She is currently receiving nutrition by an NG tube. According to the approved order of 20th November 2025, “all parties agree that a coherent plan is required for [P’s] nutritional needs prior to discharge from hospital” – subsequently referred to as an “eating and drinking plan”. But it’s now eight months since she’s been fit for discharge and there is still no eating and drinking plan, despite the best efforts of two senior judges to move the situation along.

We’ve both observed previous hearings in this case (Kim one, Amanda five, six in total) all before Senior Judge Hilder, the Senior Judge in the Court of Protection and a Tier 2 judge at First Avenue House. (Judicial continuity has not been matched by continuity of counsel – only Anna Bicarregui, acting pro-bono for P’s siblings, has been constant across the hearings we’ve observed). There have been more recent hearings (which we’ve not observed) and the case has been escalated to Mrs Justice Lieven, a more senior (Tier 3) judge. Another observer (Tim Sugden) reported on the first hearing before Lieven J (on 12th May 2026) – see the update at the beginning of the ‘Fit to Discharge’ blog. Not much had changed. The hearing we’re reporting on here, which Kim observed, is the second hearing before Lieven J and it took place around a month after the update in the last blog post.  

Once again, this was a remote hearing, and again there were 21 people on the link. Lieven J raised with Emma Sutton KC, new Counsel for the ICB and NHS Suffolk Trust, the potential need to prepare a schedule of how much this case has cost the public purse. Counsel for the ICB and Trust later confirmed that, in relation to the issue of the time and costs of the proceedings, “we had a useful prehearing discussion, and we all want her out of hospital as soon as possible“.

Key points from the hearing are as follows:

  • Most of the discussion was about developing a plan to get P out of hospital to her home.
  • At the hearing in April 2026, it was disclosed that P’s care providers had given notice. A new care agency is already in place, but they won’t be the ones to be used once she goes home.  The carers want to wear body cameras. Lieven J states that this is an interference with P’s Article 8 rights, and not her Article 5 rights: “A camera is Article 8. There’s too much law in this case – we don’t need it! The obvious answer would be to put CCTV in?” and that the issue of filming P against her wishes was not an issue for the court.  But Victoria Butler-Cole KC representing P via her Litigation Friend the Official Solicitor, says that P is not happy to be recorded: the plan is to get psychological input to determine whether imposing filming on P against her expressed wishes is likely to cause more problems than it solves.
  • There is still no eating and drinking plan. It is now expected to be provided by the independent experts on 15th June 2026. What has changed, though, is that the hospital is now saying she can go home with the NG tube in place having previously said that was not allowed.  That makes things more straightforward.
  • Carers would need to be trained in Makaton as that is how P communicates. P’s sister confirmed to the court that she hasn’t spoken verbally in 20 years. The judge asked P’s sister if she could identify someone who formed a positive relationship with P. P’s sister identified ‘BA’ who “….entered into her world rather than trying to fit her into a mainstream box“.
  • P’s sister went on to say: “We asked for mediation with the ICB. Our life has been completely changed by this. Regarding therapy, we agree it doesn’t need to be structured, just someone to go. She’s been in hospital for 14 months and nobody has been near.”
  • P’s sister also said, “We’re actively excluded from the meetings“. When Lieven J asked why, P’s sister replied, “We challenged them so they kicked us out”. This was not accepted by Counsel for the ICB and Trust, who stated that “lots of the meetings are professional-only meetings”.
  • Lieven J replied: “OK, I think what’s important…. I know there’s a difficult balance, it’s common in cases. People get cross. But the reality is that [P’s siblings] have a knowledge of P that no one else has. There are two psychologists involved….. Sit down and talk to (P’s sibling), do it at 4.30pm one day and I’ll mediate it. I don’t know if I’d be good at it but let’s put it on the table, Ms Sutton”.
  • P’s sister stated in respect of that: “I’m sick of reading in reports that she’s not willing to engage, no one will go near her. We’re grateful for help with mediation.” P’s sister said she liked the suggestion of the judge being involved.
  • Lieven J said “I apologise to (P’s siblings), who must think that the justice system is a bit of a joke. But we have to do our best”.
  • The judge also stated “We need a project manager in this case”, suggesting the care provider or an external person for the role. “There’s no point having a care team who meet physical but not emotional needs…… ” And to P’s siblings, “Ms Sutton is brilliant. If someone can find a way through to care planning, it’s Ms Sutton“.
  • There was a discussion about how often MDT meetings, facilitated by Suffolk County Council, were happening. The judge asked for a three-page summary of the issues, with a reply from P’s siblings, so she could try and understand what the differences in view are.
  • Lieven J asked Henry Slack (representing the hospital), how P had been in the past week and Henry Slack replied that he didn’t have knowledge. The judge then asked “Apart from [P’s siblings], is there anyone who has daily or weekly contact with her?” and Henry Slack replied “I don’t think so“. Lieven J stated that at the next hearing they should hear from someone who sees [P] at least three or four times a week: “At the next hearing I want a ward sister or manager, someone who sees her, apart from her siblings”.
  • Lieven J stated that she hoped at the next hearing, on 29th June at 2pm, they would (finally) have a care and discharge plan. She added, “It would be a perfect case for me to say it’s just not a deprivation of liberty given the decision of the Supreme Court”.  This comment is interesting, in the context of Lieven J’s position on the meaning of “deprivation of liberty”.  In previous judgments, Lieven J  has previously taken a different position to that set out in the Cheshire West Supreme Court decision in 2014 – and her judgments have been subject to appeal. The Court of Appeal ([2025] EWCA Civ 478) found that Lieven J’s approach to deprivation of liberty (in [2024] EWHC 1690 (Fam)) was not consistent with the Article 5 framework established in Cheshire West. Now that the Cheshire West decision has been recently overturned in AGNI, Lieven J’s approach has been vindicated!

Finally, we note that this may be one of the last cases in the COP before Lieven J.  On 12th June 2026 it was announced that she’s been appointed as a Court of Appeal judge.

Amanda plans to observe the next hearing at 2pm on 29 June 2026 and hopes that Mrs Justice Lieven will preside over a hearing with a clear plan in place.  

Kim Dodd has family experience as the daughter of a P in the Court of Protection and has previously blogged for the Open Justice Court of Protection Project. Having retired early from her own corporate career and studied for a Master’s of Law, Kim has developed her interest in law generally and particularly in the area of the law on coercive control. She is on LinkedIn (here).

Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is a core team member of OJCOP. She is also a daughter of a P in a Court of Protection case and has been a Litigant in Person. She is mainly on LinkedIn (here), but also sometimes on X (@AmandaAPHill).

Note: There was no opening summary and no documents were provided to observers. Thank you to Victoria Butler-Cole KC who checked this blog post for factual accuracy (e.g. the names of counsel)

Removal of P from the family home: Permission to appeal refused

By Celia Kitzinger, 19th June 2026

The woman at the centre of this case is in her forties, of Bangladeshi heritage, and she’s lived in the UK from a young age.  She has a learning disability and is non-verbal, and also has hearing impairments. She lives with her family (both parents and her brother) in a rented property, and spends three days a week at a daycare centre.

Back in February this year (so four months ago) Tribunal Judge Smith made an order, following a one-day contested hearing at which all parties were legally represented, that it’s in P’s best interests to move to a supported living placement.  I don’t know why the judge considered it to be in P’s best interests to move: I didn’t observe the February 2026 hearing and haven’t seen the order. There’s no published judgment. The Local Authority (London Borough of Lewisham) and the Official Solicitor support the move. The family opposes it. 

The hearing I observed, in person, at First Avenue House in London on 16th June 2026, before Senior Judge Hilder, came about as a consequence of P’s brother (now without legal representation) having made an application to appeal the order to move his sister, and to stay the order until permission to appeal is decided.[1]  

The judge relied in this appeal hearing on a note of the oral judgment under appeal – a note that had been agreed by the represented parties, but not yet submitted to the judge for approval (presumably due to time constraints). As I’ve noted before in other cases, it can be challenging for observers to understand what is going on in appeal hearings without having access to the judgment under appeal (or at least whatever written record of it is before the court). Given that there is now (with publication of my blog post) a written record of the appeal, and given the “administrative errors” that bedevilled this case (see below),  I hope that the judgment might be published in due course.

“Administrative error” in the Court of Protection

There had been what SJ Hilder described as “administrative errors” in dealing with the brother’s application to appeal.

The brother filed a COP35 notice seeking permission to appeal within a few weeks of Tribunal Judge Smith’s order but “regrettably, that application was not referred to a judge” (said SJ Hilder). Instead, “a staff member requested a COP37 argument should be filed” – in other words, they asked the brother to send the court a position statement, which he did.   When the position statement was received in mid-May “regrettably it was still not referred to the judge who made the order or to a Tier 2 judge. Instead, it was referred to a different Tier 1 judge [Tribunal Judge Reeder] for a review…”.  That T1 judge (perhaps not aware that a COP35 had been filed?) heard the case. He refused the application for a stay and ordered that P should be transferred to the supported living placement the following week (on 15th June 2026), with the application for permission to appeal to be considered a month later (i.e. after the move had been effected).  This should not have happened.

On Sunday 14th June, the day before P was due to be transferred, her brother (acting as a litigant in person) made an out-of-hours application seeking a stay of Judge Smith’s order so as to prevent P’s planned move.  Morgan J stayed the order until 4.30pm on Tuesday 16th June 2026 and directed that the matter be referred to SJ Hilder. 

This hearing was listed to consider whether Judge Smith’s order of 19th February 2026 should be stayed further and to make directions or dispose of P’s application for permission to appeal.

After explaining what had happened, Senior Judge Hilder apologised  (in the hearing) to P’s brother:  “I’m sorry your COP35 application for permission to appeal has not been dealt with more speedily. Normally it would be. This was an administrative failure.”

 The sorry story of administrative (and judicial?) failure leading up to today’s hearing presumably offers the opportunity for reflective review, process improvement, and further training.

Consideration of the application for permission to appeal

After dealing with ‘housekeeping’ issues (including problems with the judge’s laptop, my questions about the Transparency Order, the opening summary from Senior Judge Hilder, and the position statements which the judge had not seen and required an adjournment to read), the judge asked counsel for the applicant local authority (Alexander Campbell), “So, where are we going to go next?”.

Counsel for the local authority said the two key issues were

  1. Whether the stay on Judge Smith’s order that P should be moved to live in the supported living accommodation should be extended beyond 4.30 today (the time it was due to expire under Morgan J’s order)
  2. What should happen to the brother’s application for permission to appeal. Would SJ Hilder hear it (and determine the appeal in a rolled-up hearing)? Or should it be referred to another Tier 2 judge?

The local authority’s position was that the stay on execution of Judge Smith’s order should not be extended further and that SJ Hilder should refuse permission to appeal.

Counsel for P via the Official Solicitor (Amina Ahmed) agreed with that position.  She did not think it in P’s best interests for the stay to be extended and she invited the court to deal with the permission application today.

P’s brother suggested that rather than Senior Judge Hilder hearing his application for permission to appeal, Judge Smith should do so because “he has background knowledge and has sat 4 times and is coming back to hear the case in August.  He could have a look at it then”.  SJ Hilder explained that because it’s Judge Smith’s order that he is seeking to appeal, all that Judge Smith could decide is whether or not to give permission to appeal.  If he did, the appeal itself would then have to be heard by a different (Tier 2) judge.  As she herself is a Tier 2 judge, “I could consider permission today and then, if necessary, the  application to appeal”. There was also an interesting short exchange between them as to use of AI:

Judge: Did you use AI in writing this document? [his skeleton argument]

Brother: No.

Judge: Not at all?

Brother: Well, I used Google. Just Google.

Judge:  So, you put documents into Google and asked questions?

Brother: Yes.

Judge:  I think that is using AI.

The judge then explored (first with the brother, and then with counsel for the local authority and counsel for P) the four grounds on which the brother wanted to appeal the judgment.

  1. Procedural irregularities. First that the Local Authority evidence was not tested in the February hearing – but this was by agreement with all parties.  Secondly, the solicitor from the firm representing him changed frequently and the only constant was a trainee solicitor  – and Mazur showed (he said) that shouldn’t have happened.  I assume – though it wasn’t explicitly stated – that the argument must have relied on the High Court decision in Mazur & Stuart v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB) without reference to the fact that this judgment was later overturned in the Court of Appeal (CILEX & Ors. v. Mazur & Ors [2026] EWCA Civ 369).  In any event, under questioning from the judge, it became clear that he was represented at the February hearing by a well-qualified Court of Protection barrister (despite feeling that the trainee solicitor did a “rushed job” of instructing him).
  2. The placement brochure provided at the February hearing didn’t paint an accurate picture of the placement as it would be experienced by P. Various issues were raised including locked doors, mixed-sex facilities and availability of staff on the floor on which P would live. 
  3. The ‘best interests’ analysis at the February hearing didn’t properly engage with P’s circumstances – in particular the “irreplaceable relationships” P has with her family members.
  4. The proposed placement carries risks that don’t apply at home. A repeated concern related to P’s “lack of modesty awareness” and its consequences in a mixed-sex environment: “She doesn’t understand when a door should be closed or open … She doesn’t understand when she should be dressed or not dressed”.  The Official Solicitor was particularly critical of this ground of appeal: “It was very clear before Judge Smith it was a mixed facility.  One of issues that exercised the local authority, the Court and the OS was the fact that P is sharing a bedroom with her father while she’s at home and receiving personal care while her father was there…. [P’s brother] cannot now come before the court and say modesty is an issue when it’s been a matter of concern for most of the time proceedings have been before the court.”

In coming to her decision, the judge reminded herself of Rule 20.8 in the Court of Protection Rules 2017 which says that permission to appeal should be granted only where the  court considers there is a real prospect of success or there is some other compelling reason why the appeal should be heard.

In terms of what makes a successful appeal, she turned to Court of Protection Rules 2017 Rule 20.14. “The appeal judge shall allow an appeal where the decision of the first instance judge was wrong, or unjust because of a serious procedural or other irregularity in the proceedings…”

She then went through each of the grounds of appeal.

On Ground 1 The judge was “not satisfied [it] is accurate or appropriate”.  

She treated Ground 2 as a claim that the judge had heard (or seen) “misleading evidence” about the placement and pointed out that the parties had agreed not to call evidence, so she gave “no weight to that ground”.

Grounds 3 and 4 were described by both represented parties as reflecting a “wish to relitigate the case” – and that seems also to have been the perspective the judge took insofar as she drew attention to the agreed note of the judgment that showed  Judge Smith had engaged with the pros and cons of P remaining in her family home versus moving to supported living, including recognising the importance of her family relationships and her attachment to the family home.  She said, “there’s nothing new in what is expressed in this fourth ground that wasn’t already before the court in February” and read out some extracts from Judge Smith’s best interests analysis: “what does supported living offer that family does not… stimulating independent environment… opportunity to develop friendships … no risk of bedbugs or damp…. Possibility that it will cause her confusion … everything will be done to limit impact… She will still visit the day centre as before… the family will continue to meet with P to maintain relationships”.  She concluded that the judge had considered these arguments  and that P’s brother “simply does not agree with the decision the judge made”.

She ended by saying:  “Therefore this court cannot come to any conclusion other than that the appeal has no real prospect of success. That is the end of your appeal process”.

When should P move to her new home – and what’s the ‘transition plan’?

Counsel for the local authority said they would look to carry out the move on Thursday (two days later).  The judge explored with everyone how this would work in practice.  As always, Senior Judge Hilder’s questions showed exemplary attention to detail in planning ahead as well as displaying her grasp of the material in the bundle.

Judge: P has been visiting the placement for some time, and she’s taken part in discussions about her room. I’ve seen photos of the very splendid orange walls she has chosen. Where is she today?

Counsel for LA: (after consulting with the social worker seated behind him) At the day centre.

Judge:  What’s the status of the packing?

Counsel for LA:  Some packing has been done and her belongings moved in already. The rest – there isn’t much – is to be done on the day of move.

Judge:  Does she have daycare centre attendance tomorrow?

Counsel for LA: Yes

Judge:  How does she get there?

Counsel for LA: She’s escorted

Judge: So the carer goes to her home and picks her up? Does she stay with her there?

Counsel for LA: No.

Judge: And on Thursday?

Counsel for LA:  (after whispered conversation with social worker) She doesn’t go to the day centre. The usual carers arrive at her home and instead of taking her out for community activities they provide personal care …

At this point the judge suggests it makes more sense for the social worker to report direct – and he answers her questions.

Judge: She hasn’t yet slept overnight in this placement?

Social Worker: No

Judge: Has it been explained to her

Social Worker: Both the placement and the day centre have done social stories with her.

Judge: I’ve seen a  lovely photo of her making the bed.

Social Worker: She actually got into it to try it out. And they’ve helped her put her clothes in the wardrobe.

Judge: When will she be able to actually be told about the move?

Social Worker: A good time to tell her would be tomorrow at the day centre.

Some discussion about contact between P and her  family followed, and this seemed to raise some concerns for the judge. She was told that the new placement recommends “not too much contact with the family in the first two weeks”.  She adjourned the hearing for 30 minutes to give everyone time to come up with an agreed transition plan.

When the hearing resumed, it was clear there was disagreement about who should take P from her home to the new placement on Thursday.  The local authority view was that only the carers should be involved. The brother thinks only family members should be involved.  The Official Solicitor suggested that carers and families could all be involved and travel at the same time (in two taxis).

Judge: And how would that work when they get there?

Counsel for OS: The family and carers would see her to her room and reassure P and settle her in.

Judge: I’m concerned that that many people would not settle her. They would unsettle her.  It may be better if the  carers take her and the family join later.

Counsel for OS: That could work. I am hoping the family can be positive about this new chapter  – although it’s not been their view in the past  – and that would assist P in not feeling torn about where she is.

Judge: And what basis do you have for promoting this good feeling.

Counsel for OS: She’ll see family and carers essentially working together to get her there.

Judge: And what if they’re not constructively working together?

Counsel for OS: Then it should be just carers.

Judge: And how are we going to know in advance? We have very long proceedings that have been contested… I’m concerned that just hoping family and carers will work together productively is maybe a little optimistic.

Counsel for OS: Yes maybe… I recognise [P’s brother] wants to be involved in the move… that would be a way of doing this…. But if that’s not acceptable to [P’s brother], then we are clear it should be the carers who take her.

Counsel for the LA: The option which has the least scope for difficulties and least scope for confusion is for it to be the carers who take her.

Judge:  Who will arrange and fund the taxi?

Counsel for LA: The local authority.

Judge: And if they turn up at 10.30am – pick up bits and pieces and do personal care, what time would they be leaving the house?

Counsel for LA: About 11.45 or 12 o’clock.

Judge: What time is lunch at the placement?

Counsel for LA: 12.30 or 1pm

Judge:  Is there anything planned for the afternoon?

Social Worker: Yes, the plan for the first day is dinner together, watching TV with other residents… Unpacking….

Judge:  So, is there any reason why [P’s brother] and Dad couldn’t bring themselves to the placement at say 2.30 to help her unpack?

Counsel for the LA: It’s the recommendation of the placement is that family don’t attend for the first two weeks.

Judge: On what basis? Two weeks is way too long. There’s not been a 2-week period when she’s not seen her family.

Counsel for the LA: We have left it to the placement to decide what the arrangements should be.

Judge:  In other words, you are giving to carers who don’t know P a very wide decisionmaking power.  Ms Ahmed, have you had any input into this as P’s representative?

Counsel for LA/OS (not sure): mentions arrangements for video contact

Judge:  Can she even use it as she’s non-verbal? I am very concerned that P would have  no contact with her family for 2 weeks. I’m going to rise. I am going to invite you to have further discussion. I don’t see any basis at all for saying there shouldn’t be contact for 2 weeks.

Following another short adjournment, a transition plan involving more contact between P and P’s family was agreed – including a family visit on the afternoon of the day of her move, another visit the following week, and visits by P to her family home once a week subsequently.

The time already allocated for a hearing on 21st August was reduced from one day to two hours, starting at 2pm, and was repurposed to review how P’s move has gone.

The hearing closed with the judge saying to P’s brother: “I am expecting you to do your best to be as positive as you can, so P finds this transition as smooth as possible”.

Reflections

This may be a useful blog post for people trying to understand what’s involved in “appeal” hearings. An appeal is a formal request to a higher court (here, from a Tier 1 to a Tier 2 judge) to review and overturn a decision made by a lower court. It is not a retrial; rather, it is a process to examine whether the original judge made a serious error of law, applied facts incorrectly, or if there was a severe procedural injustice. Appeal judges rarely hear new witnesses or see new evidence. Instead, they review the previous judgment and legal arguments from the original hearing. An appeal will only be successful when there it’s clear that the original judge got the law wrong, made a decision that wasn’t supported by the evidence, or there was a serious mistake in the way the hearing was conducted which unfairly affected the outcome. Permission to appeal is generally required before a judge will hear the appeal itself: this is to filter out appeals with no chance of success, reserving judicial resources for cases where it’s possible that a genuine miscarriage of justice may have occurred. Many applications are from people who are simply unhappy with what the judge decided – which is not the same thing. You can read about another unsuccessful application for permission to appeal here: Permission to appeal refused: A procedural dead end. For more information about appeals from Court of Protection judgments, take a look at this very useful blog post, which includes information about successful appeals, and about alternatives to appeals: Appealing a Court of Protection judgment 


Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)

[1] In her very helpful short introduction to the case at the beginning of the hearing (none of the PD4B para.4.2(a)-(c) COPR 2017 documents having been prepared as per Gardner), SJ Hilder also mentioned that the case had been before the High Court back in 2005 and again in 2012 concerning a potential forced marriage. I’ve not been able to find any published judgments relating to this. I’m grateful to SJ Hilder for directing disclosure of the applicant’s position statement (to which they had no objections) and for disclosure of the approved order from this hearing.

Court approves sedative PRN medication

By Maria Maier, 17th June 2026

As an Independent Advocate for individuals who lack mental capacity, I have seen at first-hand the vital role the Court of Protection plays in safeguarding some of the most vulnerable members of society. Despite its importance, the Court’s work is often overlooked and underreported. By observing and reporting on its cases, I hope to contribute to greater public understanding and informed discussion, helping to ensure that the Court protects our fundamental rights as effectively as possible.

As I had time available for court observation on 10th June 2026, I reviewed the court lists the evening before and found case COP 20031464. The matter was listed before Ms Justice Harris at 1:00 pm as a remote hearing in the Royal Courts of Justice. I sent an email (at 5:50pm 9th June) asking to observe, copying and pasting the updated template e-mail from the Open Justice Court of Protection website.  This updated template requests three court documents identified in the Court of Appeal judgment in Re Gardner as documents that can be made available to observers to assist transparency (see: A statement on the Court of Appeal’s judgment in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements).  These are: a) the case summary, (b) a chronology of relevant events, and (c) the issues for determination at the hearing.

The following day, a Court Associate sent me the joining link for the hearing at 10:23am. Later, at 12:33pm, I received a Case Summary from Ms Justice Harris’s clerk, while the Transparency Order arrived just a few minutes before the hearing began.

The Case Summary was incredibly helpful. It made a significant difference to my ability to follow and understand the proceedings, providing essential context that would otherwise have been difficult to grasp. I am grateful to the legal teams for contributing to transparency in this way.

From the Case Summary, I learnt that the protected party at the centre of the case (“P”) is a 17-year-old male with childhood diagnoses of Mixed and Other Personality Disorders and Reactive Attachment Disorder. These conditions are said to result in high levels of impulsivity, profound mood swings and intense emotional dysregulation.

As a result, P has been assessed as lacking capacity to make decisions about his care and residence, including the level of supervision and restrictions required to meet his needs. He had previously been detained under section 3 of the Mental Health Act 1983 but has since been discharged to a suitable care placement.

Just over a week before the hearing (on 2nd June), a round-table meeting took place at which a draft order was agreed. The proposed order sought interim authorisation of P’s care arrangements and requested further evidence from the local authority regarding aspects of his care, particularly the use of PRN medication. (“PRN” stands for pro re nata, meaning medication administered only when required rather than according to a fixed schedule.)

The use of PRN medication became a particular focus because of its potential sedative effects. When the draft order was presented to the Tier 2 judge, HHJ Gillespie, concerns were raised about both P’s age and the possibility that the medication could amount to a form of chemical restraint. As a result, the matter was escalated to a more senior Tier 3 judge, Ms Justice Harris.

The parties in the hearing were:

  • The appellant Local Authority (Lincolnshire County Council) represented by Richard Borrett,
  • The first respondent, P, represented by Oliver Lewis,
  • The second respondent, Lincolnshire ICB, represented by Daniel Taylor.

When Ms Justice Harris joined the call, counsel for the appellant provided a summary of the case and updated the Court on P’s condition. Although P had been experiencing ‘improved episodes of dysregulation’ prior to the previous week, his presentation had deteriorated over the preceding seven days. This deterioration included several incidents of self-harm. Although there is no confirmed evidence of causation, Mr Borrett outlined that these changes have coincided with changes to P’s medications.

Mr Borrett then began his submission for an interim declaration from the Court that it was lawful and in P’s best interests to stay in his current placement, for physical restraint to be used when necessary, and to so far as the PRN medication amounted to chemical restraint – for its use to be authorised by the Court. Mr Borrett clarified that physical restraint is not used often and is very light. Mr Borrett also made it known that, while psychiatric PRN had been increased over the last few days, it is being reviewed by P’s doctors and has only been given at P’s request.

The groundbreaking Supreme Court judgment (AGNI) came up, as it must do in many hearings at present. Mr Borrett made clear that the Local Authority was still reflecting on its position as to P’s ‘deprivation of liberty’ stating, ‘we haven’t had, or anyone else for that matter, the chance to digest that judgment and decide what it means on an individual case basis’. The 24th July 2026 was agreed by all parties as a date by which the Local Authority should have considered the implications of this judgment for P’s case and decided on a way forward.

There were no disagreements between the parties at this hearing. Both barristers for the respondents were invited by Ms Justice Harris to present any arguments against the appellant, however neither did. Mr Lewis thanked the Local Authority, ICB and those caring for P for pulling together ‘quite impressively’ the information regarding P’s medications. Mr Taylor echoed that he had ‘no objections’ and that ‘the proposed way forward seems reasonable.

What struck me most about the hearing was that the Court considered this matter despite there being no dispute between the parties. The proposed arrangements had already been agreed, and neither respondent party opposed the local authority’s application. Nevertheless, HHJ Gillespie had recognised the significance of the issues involved and, given P’s age and vulnerabilities, considered that scrutiny by a more senior judge with specialist expertise was warranted.

This served as a useful reminder that the Court of Protection is not simply a forum for resolving disagreements. Even where there is consensus, the Court has an independent responsibility to ensure that restrictions imposed on a person who lacks capacity are lawful, proportionate and genuinely in that person’s best interests.

Although the hearing lasted only 37 minutes, it provided an opportunity for careful judicial consideration of arrangements involving close supervision, the possibility of physical restraint and the administration of sedative PRN medication. The application was not treated as a procedural formality. Instead, the Court ensured that the proposed restrictions were justified and accompanied by appropriate safeguards.

Ms Justice Harris ultimately approved the agreed draft order. She stated that she was “more than content” with the proposed arrangements and was “satisfied that the restrictions in place – the supervision, physical restraint when necessary and PRN, if it amounts to chemical restraint – were lawful and proportionate, and in P’s best interests.”

Mr Borrett then raised the issue of whether the case should remain at Tier 3 or be returned to HHJ Gillespie. Ms Justice Harris noted that the PRN medication was not being used regularly and was administered only when necessary and at P’s request. In those circumstances, she was satisfied that the level of intervention did not require ongoing oversight by a Tier 3 judge.

Maria Maier is an aspiring barrister with an interest in the Court of Protection. She is currently working as a Relevant Person’s Representative (RPR) and Rule 1.2 Representative for adults who lack mental capacity and are deprived of their liberty under the Mental Capacity Act (MCA).  She has previously blogged for the Project here: Five Practical Tips For Observing Your First Court of Protection Hearing  She will begin her Bar Course studies in September 2026. Her LinkedIn is here.

 

 

Iatrogenic harm and the Court of Protection

By Michael Layton, 12th June 2026

This blog draws on my experience as a specialist in neurodevelopmental psychiatry working as an expert and professional witness in Court of Protection proceedings. I have also worked closely within organizations providing care for individuals with very complex needs and am the father of two children with complex neurodevelopmental needs.

Most of the cases I’ve been instructed in have concerned those with a neurodevelopmental condition (i.e., autism, learning disability, attention deficit hyperactivity disorder (ADHD), and also specific learning difficulties, such as dyslexia and dyspraxia). They have been mostly cases where capacity is considered “borderline”, and they have focused primarily on welfare matters – residence and care, often along with contact as well as internet and social media. I am often invited to give opinions in highly complex cases, particularly in relation to sexual relations, sexually harmful behaviour, vulnerability and individuals who refuse to be assessed. I have also been involved in some cases related to marriage, foreign travel and one case of indoctrination. 

In this piece, my focus is on ‘iatrogenic harm’ – a concept used in medicine to refer to any injury, illness, or negative consequence caused by medical treatment, examination, or institutional practice, rather than by the underlying disease. Court of Protection proceedings can likewise cause unintended harm to the person at the centre of the case (“P”) as well as to P’s family, and to P’s wider support network (i.e. care providers and professionals in social care, education, and healthcare). 

Some degree of iatrogenic harm is inevitable in medicine: medication has side effects, surgery always risks complications, and screening tests can cause pain and anxiety. Good governance is needed to prevent complacency and desensitisation to the risks (and to human error). From speaking to legal professionals, my impression is that for many reasons (e.g. stress, time and cost) they agree that one should always avoid going to court to resolve a dispute if one can. That would suggest their awareness that being engaged in legal proceedings, in itself, comes at some considerable personal cost (i.e. harm). This should come as no surprise, as civil court proceedings will often be focused on resolving a conflict.

There are two main sections to this blog post. First, I’ll describe how the experience of P, P’s family, and the network around P shapes their approach to court proceedings. Second, I’ll highlight the specific impact of court proceedings on the professionals and on the wider network around P, since these inevitably rebound on P, P’s family and their immediate network of support.

I’ll end with some final reflections.

1. Previous experiences of P and P’s family prior to proceedings

A wide range of prior experiences – often challenging or negative – can shape how both P and their family feel about and respond to involvement in Court of Protection proceedings. These include (as discussed below): 1.1 the impact on P and the family of diagnostic delays, 1.2 professional scepticism about autism and ADHD diagnoses, 1.3 parent blaming, 1.4 technological change, 1.5 (age-related) transition between services and 1.6 an arbitrary legal concept of adulthood. 

1.1 Diagnostic Delays

A neurodevelopmental condition may be diagnosed prenatally, at birth, or months, years or even decades later. Diagnosis is often delayed, sometimes because the family has not identified that there was something wrong but very frequently because of system-based delays. Parents may find themselves signposted to voluntary sector services and wait months or years for diagnoses after an already delayed initial assessment. 

The threshold for being assessed for mental health difficulties through Child and Adolescent Mental Health Services (CAMHS) is very high, even for children with very complex needs and high levels of risk. For children who are seen as relatively well, with no identified “risks”, the waiting list is often months (and can be years) before they can see a clinician able to make recommendations. Such children may not be identified so readily through school-based screening programmes.

CAMHS clinicians usually do not have the latitude to make diagnoses such as ADHD and autism, as it requires referral onto another waiting list or pathway. Although there are good reasons for these specialised pathways, this means further delay. The waiting list now for autism and ADHD diagnostic assessments across the country can be up to six years in some areas.

Families accessing private assessments (to try to speed up diagnosis) can find that – sometimes as a result of (often unfair) media coverage, diagnoses are dismissed as not valid or are not acted on by NHS providers simply because the patient or their family has paid for diagnosis privately. There is currently a social media campaign to raise this issue with the Equality and Human Rights Commission. Without the diagnosis, it is very difficult to access the right support and treatment.

Once people have a diagnosis, the person may find themselves refused access to “mainstream” mental health services like CMHTs. Some services may position themselves as lacking the specialist expertise to treat such patients appropriately, often citing their role as treating “severe and enduring mental illness”. Limited or lack of a ‘specialist’ provision, or a lack of adaptation within the local mainstream service will also these individuals. Relying solely on specialised services creates problems. 

1.2 Professional Scepticism about Autism and ADHD diagnoses

Parents and patients often tell me they face repeated scepticism from health, education and social care professionals about their concerns, and this Is often a barrier to accessing services (including diagnosis).

Inevitably, professional scepticism is going to have a negative impact on P and P’s family. They feel dismissed, not taken seriously, and unheard. We see this with the difficulty of accessing a broad range of services which are frequently heavily gatekept. This is particularly significant to services such as CAMHS, but also in terms of more recent media coverage in relation to autism and ADHD diagnoses. These services often provide the diagnostic stamp of authenticity needed for P to access specific kinds of support or treatment.

Individuals can be seen as “seeking diagnoses” in a way which is somehow pathological. Professionals may also not recognise the positive benefits of diagnosis in terms of validation, self-understanding and access to wider support. Instead, being overfocused on not wanting to give people labels. If diagnoses are provided privately, there can be considerable scepticism about these diagnoses, even if they are provided by senior clinicians who may work within the NHS or have left the NHS months or a few years previously. 

There is a sense in which the concept of some of these diagnoses is being subject to the culture war that we so commonly see in the media and political discourse. This is the case for ADHD and autism recently. Advancing psychiatric and psychological knowledge is not welcomed as progress in the way that comparable issues in the world of cancer treatment are but are often portrayed instead as a threat to society by undermining individual responsibility and by encouraging poor parenting and dependency on benefits. All this ignores the complex epidemiological evidence and the large numbers of individuals who are unable to work due to long-term mental health problems. 

1.3 Parent Blaming

Parent-blaming has a long and tragic history which dates back to the concept of the “refrigerator mother” in relation to the diagnosis of autism in the 1950s. This was a classic example of reverse causality where children who were emotionally cut off because of their autism were reported to have mothers who were less emotionally responsive to their children. As a result, mothers were blamed for their emotional distance as if it caused the child’s autism, whereas, in fact, the parent had retreated into a less emotionally intrusive way of being with their child over time and in response to their child’s symptoms of autism. 

There are many good psychological explanations for why parents of autistic children will show affection differently. If a child does not reciprocate affection, then repeatedly trying to engage with them in an affectionate way can be a trigger. Part of the autism diagnostic process is identifying sensitivities to social and sensory triggers such as hugs and tickles. It is very common for children with autism to either want hugs and tickles on their own terms, under very specific circumstances or to not want them at all. Similarly, their social communication difficulties can lead to problems understanding the emotional meaning of affection. This concept of refrigerator mother has now fallen out of fashion as we have better understood the sensory, social-communication and emotional elements of autism. 

However, the themes of parent blaming have continued, and if you ask parents about their experiences of trying to get a child with autism or ADHD diagnosed, they will often report being or feeling blamed by professionals. Often because they are seen as having poor parenting skills or being accused of having few boundaries with their child. Many of these parents may be neurodiverse themselves as these are highly heritable conditions.

Parents will often also be dismissed if their children do not have significant behavioural problems at school (“Not Fine in School”).  Well-behaved children who are pro-social and anxious will often go under the radar of an autism or ADHD diagnosis, particularly in women and girls. Parents in that situation, when they ask for help, may be seen as overprotective, over-anxious and trying to get their child unfair advantage. They may be seen as not being able to cope with parenting their child at home, while the school appears able to do an obviously much better job of it. Then, when problems develop later in adolescence, the parent may then be seen as having failed early on, and the deterioration related to their neurodevelopmental condition may instead be attributed to the pre-existing parenting problems.

In its most extreme forms, parent blaming can be seen in suspicion or actual allegations of Fabricated or Induced Illness (FII), what used to be referred to as Munchausen by proxy. In my professional work, I have seen a number of parents (usually mothers) where I have either been aware or have suspected that some professionals have identified FII. In fact, the mothers have had an extremely sophisticated understanding of their child’s needs but are seen as too closely involved. Their close involvement has arisen because of delays in diagnosis, professional scepticism, parent blaming, and inadequate resources. These mothers become pathologized and/or labelled as “difficult”. If they become even more “difficult” or point out symptoms other people do not immediately recognize or agree with, they can ultimately end up with a label of FII. Whilst relatively rare, it is something that I have seen several times in my working life.

1.4 Technological change

The increasing recognition of neurodevelopmental difficulties has to be considered alongside the large number of societal changes that have occurred with the digitalisation of day-to-day life. Digital technology and social media have arguably led to a progressive fragmentation of society alongside increasing complexity and specialization of work. This all makes the nature of education, work and day-to-day social interactions more complex and therefore increases the challenges that neurodivergent adults and children face in day-to-day life. The complexity of the world has increased dramatically in the last 30 years. We cannot be sure that our brains, which evolved in a very different environment, can keep up.

1.5 Transitions between services

Transitions between statutory services create a range of difficulties. 

The first transition can be from paediatric services to Child and Adolescent Mental Health Services (CAMHS) – sometimes mainstream CAMHS or, in some regions, a specialist CAMHS for neurodevelopmental needs or learning disability. Paediatrics tends to use (in broad terms) a medical model. Older children may be more likely to be seen in CAMHS, where the process is very different and where knowledge and experience in Autism and/or Learning Disability can vary considerably between different CAMHS services. Over the years some services have been structured to focus on depression, anxiety, eating disorders, and psychosis. That is not to say that CAMHS teams do not take autism and ADHD seriously. For many of them it will be seen as their core business, but because of the gatekeeping, there are many individuals who will not be able to access their expertise because of the high demand and because the threshold for eligibility is set so high. 

Another key transition often fraught with complexity is the move from children’s into adult services. Paediatrics may well be transferring the care of a young adult with a learning disability and complex medical needs over to a range of different services where the parents had previously got all of their input from one organization. The psychiatrist may take over psychotropic medication prescribing, or it may go back to the GP. They may find that their psychiatrist may or may not look after epilepsy. There may be a neurologist involved in relation to epilepsy. There may be a rehabilitation physician involved in relation to neurodisability. Most often, the GP will take over many of these roles which were once the province of the paediatrician (but without the time or the access to specialist resources).

Individuals moving from CAMHS to adult mental health can be shocked by the difference of provision. CAMHS services may have provided very in-depth, detailed support for children with emotional and behavioural difficulties related to autism and/or learning disability or to ADHD. For P or the family, it is hard to make sense of the different criteria for adult mental health services. For example, many adult mental health services say that they do not accept the care of individuals without what they often describe as a “severe enduring mental illness”. Individuals with autism without a learning disability may find themselves moving from a service where they may have received psychological therapy alongside medication for years, to an adult service which appears to say that they have no needs. If they are lucky, they may be offered routine follow-up if they are taking medication for ADHD.

1.6 An arbitrary legal concept of adulthood

Adult services can fail individuals with a neurodevelopmental difficulty if they try to impose an artificial concept of adulthood. There is no point at which someone becomes an adult in mind and body. They simply do this in law. 

Parents who have stabilized and scaffolded a child for 18 years should not suddenly change that approach if it has worked simply because the person has attained legal ‘adulthood’. Imposing a false veil of choice on someone who lacks capacity and is not well supported does nothing to promote autonomy or inclusion. 

At the worst, I have seen extremely good transition processes overseen by the courts and praised greatly for their quality, fall apart because of an adult service which, in spite of this process, decided that P was an adult and should make their own decisions. This then took months to repair because of the complexity of P’s needs, and the physical health problems this triggered, alongside emotional and behavioural difficulties.

It is very easy to view parents as infantilizing their children in these settings. However, it is important to look at the trajectory of individual development People with mild or moderate learning disability may have quite a different emotional and developmental profile to most 18-year-olds, and this has to be approached sensitively, and with realistic long-term goals for maturation and skills acquisition. These goals must reflect the different trajectory of change for the neurodivergent person. This does not mean they should be treated like children – but it also means that they should not automatically be seen as somehow lesser because they do not conform to what we think of as adulthood. Nor should their presentation be considered to be simply a product of over-involved or controlling parenting.

Many, if not most, of these individuals are in families who have faced repeated difficulties accessing the right kind of support and help and continue often to do so. To then critique the parent who has kept that child well, happy and in a loving setting, and to pathologize that, is akin to parent-blaming of the “refrigerator mother”. It is imperative to reflect on how much P is reliant on others for care and how little support may have been provided in the past. Statutory services cannot suddenly transplant P into an adult world and expect them to be a different person because you tell them and their carers that P is an adult now.

There is no definition of what an adult should be psychologically, sociologically, or psychiatrically. An adult is a legal concept. It is simply someone who is 18. There are all kinds of different adults, and there are many adults who are dependent on their parents and are not pathologized for this because they do not come in contact with statutory services. 

The individuals that we work with in the world of neurodevelopment have very good reasons to be dependent on their parents and that in itself should not be pathologized. It should be understood, and the need for dependence should be reduced where this is in P’s best interests, rather than as an age-related expectation. The vast majority of parents would love their child to be more independent and would like to be able to step back from their child’s care. However, it is very difficult to do so with services that may be inadequate or have failed in the past.

The overall impact on P and P’s family

All of the issues I’ve listed above are longstanding and have been present since I first became a consultant in 2008. As providers of education, health or social care, we are familiar with the system, and it is very easy to forget how alienating and confusing it is for families. To many, this system appears to make no sense, not just in terms of continuity of care, but at a more basic level: a consistent definition of what a need is.

In one extreme case, I saw an individual who had been diagnosed with a medical condition in childhood, seen by the paediatrician, and who had managed it with the family very well. Their care had been transferred over to adult services. The diagnosis had been changed by an adult physician without having received the information from paediatric services and the parents had then been effectively accused of Fabricated or Induced Illness, and the young adult was removed into care. Eventually this was resolved but only after years of considerable distress caused to P and P’s family. This is a rare and extreme example, but it is an important indicator of the fragmentation of an increasingly overburdened system. The complexity and lack of consistency of this system does not just cause rare but serious problems like the unwarranted removal of P. On a day-to-day basis, it can cause confusion, distress, and anxiety for P and P’s family.

In adult services, professionals can be surprised at the approach taken by parents when dealing with statutory services. It takes some time to learn that the parents of a child with neurodevelopmental needs have spent sometimes their child’s entire life fighting for what on the face of it would seem to be entirely reasonable and proportionate input once the needs have been identified. The process of getting those needs identified can be so arduous that parents and P can be left with little faith and great scepticism when encountering professionals. 

Many parents I meet tell me that they are seen as a “difficult parent” – and some have read documents reporting them as such. Most describe how professionals do not like being challenged by them and this is why they are seen as difficult. Some are angry or upset about this, understandably so. Others view it more as a battle scar and are more pragmatic about it. It is a common experience for everyone working in the world of autism, ADHD, and learning disability to meet parents who have had these negative experiences at the hands of education services, health services, and social services – usually not as isolated events but as a recurring thread or theme over years or decades. These anxieties generated by these experiences for P and P’s family continue on into adult life. 

NHS and social care and education are under an immense amount of strain now. The inevitable gatekeeping that goes with that only serves to amplify the effects of these past experiences. It is very difficult to reassure parents or P that their services will remain consistent and reliable. One of the first thoughts many parents have on discovering their child has lifelong difficulties is, “Who will look after them when I’m gone?” This is such an important thing to remember as a professional involved in this area. We are passers-through for an individual whose life is in so many ways dependent on the good offices of others.

2. The impact of Court of Protection proceedings on P, their family, and wider network

The impact of the proceedings extends beyond P and their family (the first two issues I address below) and is also likely to affect formal carers (2.3), providers (2.4) and professionals (2.5).

2.1 Impact on P

When a person becomes a P in the Court of Protection, the longstanding experiences of that person and their family inform and inflect every part of the process. 

P will often have been waiting for a particular issue to be addressed, so going into Court of Protection proceedings may be explained to P as an opportunity to express their disagreement about a particular issue. For example, this may be about restrictions placed on them or a belief that P lacks capacity when P believes they have capacity. This can be given a positive spin, but although court proceedings can be a positive opportunity for P to potentially obtain more freedom, new resources, or to be viewed as a more autonomous individual, P may feel they should have had all of those things already and may view this instead as a delayed attempt to provide something which should have been there for years, and part of a repeating process of bureaucracy and people saying no to P. That experience would not be unusual for many people who are more cognitively able and aware of proceedings.

There are many aspects of the proceedings which can affect P adversely – including assessments (e.g. see the case Re EOA [2021] EWCOP 20). In another case I had to do an indirect assessment based on 3rd party evidence because assessing P was going to cause “significant self-harm”. Concern about the harm caused by excessive assessment was also raised in the recent Supreme Court judgment on deprivation of liberty (AGNI [2026] UKSC 16, e.g. para. 102).

There are many instances where harm is less evident and so does not get identified in the proceedings or reported in published judgments. I have seen important or urgent medical treatment delayed because of the legal processes. Professional decision making is often paralysed by fear of acting unlawfully and P may become frustrated and distressed by slow proceedings with repeated delays. My personal experience is that Court of Protection proceedings are becoming increasingly protracted, particularly in complex or contested cases. Cases that would have taken months in 2015 now take at least a year. Cases that might have taken 1 year now take 2 or 3. This appears to be a function of an overburdened public sector. I understand that formal data on delays is not collected, but that judges regularly raise concerns about delay.

The stress and anxiety that family and informal carers experience about the proceedings can also affect P, as I discuss in the next section.

2.2 Impact on family and informal carers

The complex, slow, defensive and sometimes adversarial elements of the proceedings take their toll on parents. It is not hard to see how this could affect P. It is also easy for the parent to feel criticised for this, even though in almost all cases the parents’ stress should be met with compassion and understanding not criticism.

For P’s family the proceedings (however positively professionals may try to frame them) can be experienced as part of a recurring process of bureaucracy in a system which (from their perspective) tends to under-provide, criticise and dismiss. Families may expect not to be listened to, or not to be believed. The case of Steven Neary and his father Mark is probably one of the best known and most serious. However, for some, proceedings that are initially seen as the opportunity to finally be heard and to get justice, is a hope that is disappointed. 

Proceedings may focus on allegations in relation to child or adult protection issues, which inevitably cause anxiety, distress, and disagreement if parents are subject to those allegations. Families may feel they are suspected of these things even if it has not been made explicit. This fear should not be dismissed as overactive imagination or paranoia. Allegations of over-involvement, enmeshment, and being seen as difficult can easily tip over into allegations of causing harm, either by disrupting the individual’s care or, in extreme circumstances, allegations of FII.

For parents, there are a number of shocks to the system. One of the biggest is discovering the lack of influence they may have. They will often be concerned that their views will be set aside, with professional views being taken as paramount. Sadly, this can be the case in reality, particularly where parents are blamed or pathologised.

In my mind, this is the last possible approach one should take with a parent of a child or young adult in these situations. A careful, reflective and balanced approach is needed. Parents are almost invariably dedicated to their children, often know them extremely well and better than most of the professionals involved. Where there may not be agreement on everything, their views must be given considerable weight, especially where parents have been caring for their child at home.

Particular consideration needs to be given to the level of support that P has been given by their parents, and that suddenly changing that support may be dramatically destabilizing. It should not be assumed that the closeness of the relationship is pathological. There should not be a rush to turn P into an ill-defined version of an ‘adult’.

The complexity of the Court of Protection proceedings is also very challenging for family. I frequently provide training around capacity assessments to health, social care education and legal professionals, both formally and informally. It is very clear a significant number of professionals have very little experience and confidence in doing assessments, often relying on others or completing them quickly without practical training. Most training on Capacity Assessment for professionals seems to come from one-off events and online training, rather than being embedded in ongoing professional development in the way, for example, a doctor’s training in prescribing is supervised and structured. So, these are proceedings where legal procedures and the core concepts of capacity are very difficult to understand, even for experienced professionals. P and P’s family are entering this legal realm expecting that professionals will disagree with – and possibly criticise – them in a way which feels deeply personal. We are asking a lot of parents to become parties in these cases or to contribute to them. They may not be supported adequately for these processes, especially if they are without legal representation due to lack of sufficient funds or legal aid eligibility (which is a common and invidious position).

Alongside the complexity of proceedings there often are the delays in the processes. Obtaining an up-to-date DoLS assessment is often a very slow process, with a well-documented national backlog. In my experience, delays in Court of Protection cases seem to be increasing as the workload and complexity of case law increases. The gaps between onset of case hearings and resolution seem to be getting longer, and it is increasingly difficult to get actions taken. All this has a definite impact in clinical work, as clinicians can struggle to know what decisions they can and cannot make without some sort of legal process.

For both P and P’s family, court proceedings, far from being a liberating experience that addresses human rights issues and access to resources, can often be a process of re-traumatisation. They may be forced to go over events that happened years ago, which may have been painful or distressing. The process can feel combative and critical, with P framed as lacking capacity, and often as risky or at risk, and the family portrayed as having failed their child in various ways.

There are recurring themes in these distressing interactions with services. Whilst this is not within the definition of trauma in the sense of PTSD, from the point of view of P and P’s family they will often experience distressing and intrusive thoughts about these proceedings most of the time. 
There is an interesting parallel with the literature on litigation for personal injury, where the mental health of individuals going through a personal injury claim is often made worse by the process of litigation, and the cessation of proceedings can ameliorate some of the psychiatric distress. It does not seem unreasonable to suppose that litigation in the Court of Protection could be similarly intrusive for the parties.

In sum, parents involved in Court of Protection proceedings can feel that they are going into an unfamiliar, complex, and often distressing and traumatizing process that is subject to repeated delays. All this whilst interacting with and relying on the overloaded and underfunded services they are going to court with. It should not be a surprise if it becomes an all-consuming element of their life.

2.3 Impact on carers

Formal (paid) carers frequently have limited understanding and experience of the Court of Protection. This can leave them with anxiety and fear about making mistakes and with concerns that their work is being constantly scrutinized.

If the case is related to restrictive practice or restrictions on P, they may feel unfairly criticized by P, P’s family, professionals, or P’s advocate or litigation friend. The more anxious individuals are about making mistakes, the more mistakes they tend to make, once anxiety goes above a certain level. None of this is liable to improve P’s quality of care

Significant errors can be made because carers may think that things are being dealt with by the Court of Protection. It can happen that they think they do not need to act or cannot act because the matter is being addressed in court. I have seen a safeguarding referral not being made because the matter was thought to be dealt with by the court. I have seen medical treatment decisions delayed because of concerns that treatment cannot be given without the approval of the court. This can lead to safeguarding referrals not being made and medical issues not being addressed. 

Carers and care home managers (and their teams) are generally anxious about getting involved in Court of Protection proceedings even at a distance (i.e. their notes, reports and opinions being scrutinised so intensely). There is usually very little in their training or experience to properly prepare them for this. As for giving oral evidence in court, this is extremely intimidating. Regardless of their level of competence in providing care, there is a gross “inequality of arms” for family members giving written or oral evidence compared with evidence from professionals 

2.4 Impact on providers

Like carers, providers may feel criticized for the quality of care they are providing. They may receive short notice requests for large volumes of information, which must go through appropriate data collection processes within the organization’s policies. This can put great burdens on care providers, especially smaller ones with limited resources and no experience of Court of Protection proceedings.

Providers may be placed in an impossible position of having to give notice to someone if they are found to have capacity to make certain welfare decisions that may affect their ability to provide P with care. Some providers cannot sustain a service for someone who is a risk to the public if not supervised. Stress from proceedings or changes in supervision may lead to behaviour that causes distress to staff and other residents, making the service unsustainable.

These are inevitable dilemmas in some areas of capacity, and these are important to factor into a case early on, as proceedings may put P’s placement at risk.

2.5 Impact on professionals

Professionals tend to have an inherent fear of the legal system, worrying about being sued for professional failings or facing regulatory interventions from bodies like the HCPC, GMC, NMC, or similar.

With regard to Court of Protection proceedings, professionals in education, health, social care, and law, as well as the legal profession, are all working in areas that are essentially publicly funded and subject to stretched resources, with the constant need to do more with less. Individuals are working within systems where gatekeeping and overstretched resources cause delays and slow down the provision of core services.

Obtaining psychiatric reports or capacity assessments from a health provider or ICB can be extremely difficult due to shortages in staff and high levels of demand. Providing up-to-date social work evidence with a detailed chronology is also difficult, especially if the social work team is understaffed or relies heavily on locums.

In the legal system, funding for legally aided work has been progressively reduced over the last 30 years, leading to more cases being dealt with by fewer legal professionals and paralegals with large caseloads, causing delays in addressing key issues.

All these professions tend to be overstretched and so put professionals at a high risk of burnout, which can contribute to a range of problems in day-to-day work. Burnout can make individuals more reluctant to think flexibly: they may become more task-focused than person focused, and less able to reflect on alternative hypotheses about P’s needs and support.

There is also talk of moral injury among individuals working in what are sometimes referred to as failing systems, particularly in doctors working in the NHS who see patients receiving suboptimal care. This can cause individuals to become numbed and detached, leading to professionals appearing uncaring when they are trying to cope with an overwhelming workload.

All of this makes it very difficult for any professional providing support or treatment to P to feel comfortable going into court to provide a statement of their opinion, knowing it will be challenged. They may fear such a challenge will cast serious doubt over their previous professionalism and provision of care or treatment. This can also make individuals more rigid and less likely to agree to compromise or consider alternative hypotheses, and more averse to taking risks.

Many contested cases in the Court of Protection involve serious risks to the individual or others, and there are significant anxieties about what would happen if P is found to have capacity. Professionals in those situations feel ill at ease and fear criticism if they find (or agree with a finding) that P has capacity and then P subsequently harms themselves or someone else. This is an area where I am frequently instructed. It involves a range of “borderline” capacity issues. By borderline I mean cases where it appears plausible that P may have capacity or could be supported to develop capacity. For example:

  • Contact: Where P is vulnerable to exploitation and there are concerns about capacity for contact. This may be related to contact with family, a sexual partner or stranger / “mate crime”. This may overlap with internet and social media use.
  • Sexual relations: often linked to vulnerability and contact. This may overlap with internet and social media use.
  • Sexual offending / sexually harmful behaviour – often linked to sexual relations and risk to others. This may overlap with internet and social media use.
  • Self-harm and suicide – often linked to care and residence alongside medical treatment. Fluctuating capacity and advance care planning is often a key issue.
  • Non-sexual violence to others – often linked to care and residence alongside medical treatment. Fluctuating capacity and advance care planning is often a key issue.
  • Self-neglect / refusal of care – often linked to care and residence alongside medical treatment. Fluctuating capacity and advance care planning is often a key issue.

Going to court can be a helpful way of reassuring professionals that they have done, are doing or want to do the right thing. However, often people are not going to court with that intention, but rather because there is a contest over capacity and/or strong disagreements about what should be done in P’s best interests. Even when capacity issues are resolved, professionals may feel compromised by ’best interests’ decisions which “go against the professional grain”. For example, allowing contact with an abusive individual, allowing someone to remain in their own home when they are at significant risk, or allowing an individual to continue to drink alcohol despite evident harm.

Professionals are particularly concerned because there the names of expert witnesses are almost always published and sometimes their evidence criticized or rejected. The professional culture in law is different from those found in health and social care. In litigation, there is conflict, and this conflict is formalised into a legal process. Legal professionals are not simply judged by whether they win or lose a case, but by how well they conduct that case. In health, education and social care, decisions are usually reached by consensus (sooner or later) and without very detailed and very public scrutiny. The professional fear of criticism by a judge who is not part of their profession in a court setting does nothing to encourage independent experts (or other professionals) to work within the Court of Protection framework.

Overall, I raise these issues not to dismiss, undermine, or insult the legal system or legal professionals. My experience of working in the Court of Protection has been very positive. I firmly believe that virtually all the practitioners I have met in this field, whether legal, judicial, health, education, or social care professionals, practice with the best intentions and genuine belief that they are doing the right things for the right reasons. Inevitably, there will always be some individuals who may not be up to standard, but that is not my general experience.

One of the reasons I continue to work in the Court of Protection field is because of the broadly collaborative and constructive attitudes of many of the legal professionals I deal with, and the generally collegiate atmosphere amongst them. Nonetheless, just as doctors, social workers, educationalists, nurses, and psychologists have to reflect on their practice, we have to consider the parallel of iatrogenic harm in legal processes and how that applies to different groups of individuals.

In terms of the Court of Protection, the group of individuals who have neurodevelopmental conditions (along with their parents and family) have often experienced a series of repeated, difficult interactions with services. They may feel stigmatised. All of this can have had a longstanding corrosive effect on their faith in services, and their resilience to engage with both the courts and the statutory services. 

Final reflections

P and P’s family exist within a complex network of interacting systems which are overstretched, lack continuity and consistency, and may be fragmented. The professionals within these systems are at risk of burnout and even moral injury. All of this can amplify the negative experiences and expectations of P and P’s family.

In a system focused on addressing P’s best interests, we must reflect on how this system may also unintentionally harm those interests, despite the fact that all the individual elements may be trying to do their very best.

Michael Layton is a Consultant Psychiatrist in independent practice specialising complex neurodevelopmental and neuropsychiatric conditions. He has provided over 140 reports as an expert, for criminal proceedings, the Court of Protection, the Family Court, personal injury cases and second opinions. He is a member of CoPPA (Court of Protection Practitioners Association) and recently became a member of the COPPA Cymru Committee.