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.

The Supreme Court’s judgment is an opportunity returning us to common sense

by Lorraine Currie, 11th June 2026

The image accompanying this blog has been provided by Lorraine’s daughter: the Magic Artist, Grace. To see her artwork (and for details about how to purchase it), you can visit her website: https://gracecurrie.art

Editorial Note: this is the first of many blog posts we plan to publish 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 March 2014 I was at the West Midlands regional DoLS Lead group which I chaired. Together we sat with bated breath waiting for the Supreme Court judgment in Cheshire West. We discussed our own views: we all thought that MIG and MEG were NOT deprived of liberty but that P was. Then we watched as the judgment was handed down: all three were deprived of liberty. Purpose was no longer relevant, relative normality was no longer relevant, the person’s objections were no longer a feature. We suddenly had a one-sentence ‘acid test’. It blew us away! We did not agree.

Since then, we have departed a long way from pre–Cheshire West practice. In those days we spent ages analysing the many factors, discussing and debating with colleagues; is it or is it not a deprivation of liberty? This was by far the longest and most complex part of the assessment, and it was all gone, replaced with such a simple test.

Since then, I have continued in DoLS related work, as chair of the national group and the regional group, a DoLS Lead, a Best Interests Assessor (BIA), an authoriser and an Associate for West Midlands Association of Directors of Adult Social Services (WMADASS). 

In all those roles, I have seen the situations, assessments and authorisations fall into two clear categories; pre- and post- Cheshire West. I would say 80% of cases were post-Cheshire West style and gained nothing from the process other than an independent check. The 20% of cases that were largely pre–Cheshire West style, fell into categories such as: people who shouldn’t be in care, people who wanted to go home, people who could go home, people who were overly restricted, people who were overly sedated, and so on.

After Cheshire West we were, of course, unable to keep up with the work-load,  so we had to develop prioritisation tools and screening tools and pragmatic systems – all, of which really served to separate out pre- and post- Cheshire West situations.

Most backlogs will be made up (on the face of things) of post-Cheshire West type cases because we have already screened them for urgency, intensity of restrictions and so on. 

We have invested huge amounts of money (Lord Sales refers to “severe misallocation of resources in the care and health system”) to bring little or no added benefit to most people. DoLS cannot distinguish between those whose circumstances were a ‘technical’ DoL (that is, they met the acid test) and those whose circumstances were a substantive DoL (that is, they had more elements involved, such as personally objecting). The acid test was broad and simple, and the DoLS scheme was narrow and complex.

There were 364,900 applications in 2024-25 and 118,850 remained incomplete at year end.

At year end 2024-25 there were 115,230 authorisations active.

These numbers are staggering. Large numbers of applications end up not able to be granted because by the time the wheels grind round to them the person is no longer there, they have moved or they have died. Only an average of 5% of patients are ever assessed in hospitals. People go in and go out, and yet the DoLS request remains.

Something was very, very wrong.

What the Supreme Court has now given us back is a common sense, multifactorial approach in place of a “one-size-fits-all” test. BIAs will return to carrying out a proper analysis of the objective element before doing anything else. They may then continue to look at whether the person can give valid consent, and from there other assessments may be carried out. This will reactivate and direct the many skills of a BIA to the people and situations which most need their skills.

Some people seem to be receiving the change negatively; there is almost a sense of mourning. But I want to challenge that with the positives. 

Being able to target the specialist resource where it is most needed is to be welcomed. When we look at those cases where we have made a difference, I challenge you to consider and reflect: could that have happened anyway? 

The person you have successfully returned home begs the question: why they were placed inappropriately and what can social workers learn from this?

The over-medicated, over-sedated person: why were there no regular reviews of medication by other professionals?

The overly restricted person: where were the social care (or other professional) reviews? 

DoLS is not the only game in town. The MCA is much bigger, wider, far-reaching legislation. Most people associate the concepts of necessity and proportionality with DoLS (or more likely LPS), but these are the lynchpin human rights concepts attached to restraint and restriction at the heart of the MCA. All practitioners developing care plans should know whether and how the person will be restricted and should confirm why this is necessary and proportionate. 

It is not all down to DoLS. 

At a recent webinar we considered the question of ‘conditions’ in DoLS and most of the examples given by attendees were not conditions at all but were care management actions.

I believe that DoLs has papered over and covered up deficits in care management. The DoLS team and BIAs have been seen as the experts in all human rights based and mental capacity based work, and this has allowed others to act without fully embracing the principles.

As funds reduce for DoLS-related activity, they can potentially be redirected to ensuring rights-based, legally literate, practice in social care: the learning and experiences of BIAs can be shared to facilitate this.

Advocacy could be increased as we potentially reduce the number of Representatives who need to be paid and as our IMCA contracts reduce. The skills and experiences of DoLS work will inform their wider advocacy practice.

The introduction of the concept of (incapacitous) valid consent will provide lots of learning opportunities for us all. Right now, everyone is looking for guidance and easy answers and there are none. This is one place where I think it’s wise to put the brakes on. This is one area where case law may develop to guide us further. 

We will learn together. We will have to figure out safeguards against coercion and control (particularly I think in 16 -18-year-olds). We will have be very aware that compliance is not always happiness. But we will be able to afford people the dignity of their wishes and feelings being taken seriously. Guidance from the Department of Health and Social Care in this respect will be key, but so will the new Code of Practice. I personally see this as a positive step forward. 

This is a challenging time but I truly believe it will take us to a place which makes much more sense, where everyone is a human rights warrior not just BIAs, where everyone is legally literate and able to use the whole range of tools at their disposal.

None of this will happen overnight. I don’t think there is a Council out there who stopped using the acid test on 2/6/26 and fully implemented a multifactorial test overnight. There is a huge mountain to climb to get us there. 

If there were 115,230 active DoLS in March 2025 this will have increased and these will all need to be revisited. The 118,850 people who were still waiting for assessment will all have to be considered against the new test and we do not yet know whether this will mean assessing them or screening them in or out of the test. 

Added to this, ongoing referrals continue at the usual rate until further messaging is done to educate everyone about the judgment and its implications,  and that means not only the challenge of enough assessors to assess but educating and upskilling assessors in the new test, especially those who qualified after 2014. There is a huge mountain of work requiring even greater resources to get us through to the new normal.

The new normal must be a place where those who need protecting are protected, not only by DoLS but by all the legal tools available; where those who can be empowered are empowered, and their wishes and feelings are given the validity they deserve. It must be a place where all professionals are in the human rights business and all know which legal framework they are operating under and the limits of their power. 

Ultimately a place of dignity and respect. 

Lorraine Currie is now a freelance Mental Capacity Consultant. She has over 30 years Local Authority experience, is a qualified social worker and in 2021 received the LGC Award for Outstanding Individual Contribution. Lorraine provides extensive training and is an Associate for the West Midlands Association of Directors of Adult Social Services (WMADASS) working on DoLS. Lorraine is on Bluesky as @lorrainecurrie.bsky.social.

Endnote

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. 

A statement on the Court of Appeal’s judgment in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements)

By the core team of the Open Justice Court of Protection Project, 9th June 2026

On 21 May 2026, the Court of Appeal handed down judgment in Re Gardner (Deceased) (Court of Protection: Disclosure of Position Statements [2026] EWCA Civ 640. This was an appeal against the decision of Poole J in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3), which provided Guidance about the disclosure of Position Statements (which is sometimes used interchangeably with “skeleton arguments”) to court observers. 

The effect of the Court of Appeal judgment is to limit the circumstances in which position statements will be disclosed to court observers and to refer the matter of how transparency is operationalised in the Court of Protection back to the ad hoc Rules Committee. We welcome the clarity that this judgment has brought. We are keen to work with the Rules Committee in the development of an appropriate approach both to the disclosure of position statements and also transparency more generally.

In the interim, we welcome the Court of Appeal’s suggestion that the three following documents listed at para 4.2 (a)-(c) of Practice Direction 4B are appropriate to disclose to observers: 

(a) the case summary

(b) a chronology of relevant events

(c) the issues for determination at the hearing.

These have NOT been made available to observers in the past. Their disclosure to observers would be enormously helpful in advancing the open justice principle and enabling observers to understand the court decision-making process. We hope that this change can be implemented swiftly.  

A helpful aspect of access to position statements has been that they provide observers access to the case law and legal propositions being relied upon in oral argument. During hearings, legal teams and judges often refer to case names and it can be difficult for observers without legal training in this area to identify them, and (therefore) to understand the reason and substance of the arguments before the court. As such we would welcome, particularly in the absence of position statements, one of the above documents also including a list of the key case law relied on. 

Transparency helps the public to understand how judges reach decisions and reassures people that vulnerable individuals are being treated fairly. Transparency encourages good practice, and enables informed public debate about difficult issues involving mental capacity and human rights.  It enables us to understand and scrutinise how the Court of Protection exercises its power. This is especially important at the moment, given the widespread challenges arising from recent judgments – such as the Court of Appeal’s judgment in Townsend which changes longstanding case law relating to clinical decision-making, and the Supreme Court’s judgment on the reference from the Attorney General of Northern Ireland on the meaning of deprivation of liberty, which overrules Cheshire West.  

It is a matter of significant public interest that how these judgments are implemented, as well as other elements of the court’s work, is scrutinised closely. That is exactly the kind of work that the Open Justice Court of Protection Project was founded, six years ago, to accomplish. We look forward to continuing to support the judicial aspiration for transparency in the Court.

Note: This is a statement on behalf of the core team of the Open Justice Court of Protection Project (Daniel Clark, Amanda Hill, Celia Kitzinger, Gill Loomes-Quinn, Claire Martin). We extend our condolences to the family and fiancée of Carl Gardner. 

Five Practical Tips For Observing Your First Court of Protection Hearing

By Maria Maier, 13th May 2026

I attended my first ever Court of Protection hearing (Case 20033278) on Monday 11th of May 2026. Listed for 10:30am before Mrs Justice Judd, sitting in the Royal Courts of Justice, this was a Serious Medical Treatment case concerning a young woman with anorexia.

The hearing focused on a jurisdictional issue: whether the Court of Protection can determine the lawfulness of a decision not to detain or treat an individual pursuant to the Mental Health Act 1983. It was a challenge to follow, but I think the Official Solicitor’s position was that this was a public law issue exclusively reviewable by the High Court, while Counsel for the Trust argued this may not reflect current appellate authorities, including the recent Court of Appeal guidance in Townsend (Townsend v Epsom and St Helier NHS Trust [2026] EWCA Civ 195).

Despite an interesting discussion around jurisdiction and current legal developments, the most valuable lessons I learnt were not about the law as such, but about accessing and observing the court cases and the operation of the open justice principle in practice.

To give some context, I am an aspiring barrister. I completed an undergraduate degree in Politics and International Studies before converting to Law last year. Since then, I have been 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).

It was through this role that I first became interested in Court of Protection work, where life-changing decisions are made every day on behalf of some of the most vulnerable people in society.

Like many others interested in this area, I was given the advice of ‘The COP is open to the public, the best thing to do would be to go and see a hearing for yourself!’ I am slightly embarrassed to admit that it took me six months to get around to doing this.

This delay was caused not only by procrastination, but also by the confusing process of planning, joining and observing a case remotely. I’m grateful to the Open Justice Court of Protection Project for their help with this.

So, after attending my first hearing this week, here are my five suggestions for how to make the most out of observing a Court of Protection hearing.

1. Prepare for uncertainty and delays

I hadn’t fully appreciated that although the public listing tells you that a hearing will start at a certain time, it might not!

    I had planned to observe on a Monday, and I’d been told that there was a likelihood of ‘non-compliance’ hearings before HHJ Hilder at First Avenue House being listed on that day. As it turned out, they weren’t. But there were two ‘medical treatment’ hearings listed before judges in the Royal Courts of Justice: one at 10:30am and another at 2:00pm, so I sent off requests to observe, asking for the remote link. The first hearing did not begin until 11:50am, and the second either never went ahead or I was never sent the joining link.

    So, based on my own experience, I would recommend setting aside a full day to observe cases and expecting to need to be flexible. Choose a day where several cases are listed that interest you, so that if one is vacated you still have other options to attend.

    There are around 20-30 hearings in the Court of Protection each day. The home page of the Open Justice Court of Protection Project lists two or three cases selected each day as ‘Featured Hearings”, including the issues before the court and relevant background information. This is a great starting point to plan your day. There is also a link from that home page to CourtServe  – the listing service which provides a comprehensive list of hearings across England and Wales. I also found the official Government website listing hearings at the Court of Protection ‘headquarters’ in London (First Avenue House in Holborn) clear and easy to navigate.

    While these last-minute changes can be frustrating, I am told they are standard practice. Keeping an open, flexible schedule gives you the best chance of observing a worthwhile hearing.

    2. Email early … and don’t be afraid to follow-up

    I used the email template given at the bottom of the Open Justice Court of Protection Project Home Page and sent my email to the address they provided for the two hearings I wanted to observe. There are different email addresses depending on which court is hearing the case. I learnt to make sure to get the right one, and to include, in the subject of your email: “Observer Request for Case XXXXXXXX before [Judge name]”, and my full name at the end of the email.

    While the official guidance states that observer requests should be sent before 9:00am on the day of the hearing, Celia Kitzinger advised me to send my email as early as possible. I would strongly recommend doing this because, especially on a busy Monday morning, you do not want your request to get lost.

    Finally, if you hear nothing as the hearing time approaches (around 30 mins before the hearing), do not be afraid to send a follow-up email. I sent a follow-up myself (with URGENT in the subject line) and received my joining link almost immediately afterwards.

    3. Do your reading!

    As you will see, the template email requests copies of the Position Statements (aka skeleton arguments) and Transparency Order.  If these are sent to you (position statements are not always made available), make sure to read these beforehand. I did and found them invaluable (although I only received documents from the Trust and not from the Official Solicitor, and I was also subsequently instructed to destroy the Trust’s position statements).

    Position Statements are particularly helpful because they outline each party’s position ahead of the hearing and explain the outcome they are asking the court to reach.

    The Transparency order is an injunction setting out what can and cannot be reported about the case. Read the entire order carefully, but pay particular attention to the section usually headed, “The Subject Matter Of The Injunction”. The Court may ask whether you have read and understood this order before the hearing begins. If you are worried about understanding this document or haven’t seen one before, there’s a template Transparency Order available online, which means you can familiarise yourself with the format and general provisions they contain beforehand. Bear in mind though that each Transparency Order is specific to its case, so you do need to read the particular order you’ve been sent for the case you hope to observe.

    4. Be ready to appear on camera

    I was quite surprised when the Judge asked me to confirm that I had read and understood the Transparency Order, and whether I had any issues to raise with the Court.

    Fortunately, I was dressed appropriately, sitting at my desk and able to respond clearly. However, it would be easy to be caught off guard by this. You want to make sure that you can respond professionally if called upon. You must also be in a quiet and private place, and not anywhere that other people might be able to see or hear what is going on in the courtroom.

    When you join the link, the software allows you to test your camera and microphone beforehand. This is a useful opportunity to check that you can be heard, that you are dressed appropriately for court and that nothing unsuitable is visible in your background.

    While these may sound like obvious points, the Court of Protection deals with emotionally-challenging cases involving vulnerable individuals. It is important to show respect for both the process and people involved.

    5. Treat every case as a learning opportunity

    Despite having a law degree and a professional understanding of Court of Protection proceedings, I struggled to keep up with the proceedings. For example, I had never heard of or read the Court of Appeal Judgment in Townsend, despite it being a well-known case that turned out to be central to this hearing’s discussion of jurisdiction. Celia Kitzinger’s post, “Anorexia, declaratory protection and the Mental Health Act: Ventilating a jurisdictional question following Townsend”, provides a more thorough report on the substantive content of the hearing.

    The barristers you observe are experts, and hearings will likely involve legislation, case law or legal principles that are completely unfamiliar to you. It is very easy to get lost!

    Instead of feeling overwhelmed and leaving the hearing, try keeping a pen and paper nearby so that you can note down anything you might want to research afterwards. Following this hearing, I spent time reading chambers articles and legal blogs which helped me better understand the Townsend decision and the wider issues being discussed in court. Other useful sources include law firm websites, medical association blogs (such as The Faculty of Intensive Care Medicine) and the full judgements available on the BAILI/The National Archives. Plus, of course, the Open Justice Court of Protection blogs!

    Observing hearings is not about understanding every point immediately. Often, the real value comes afterwards when you take the time to reflect on what you heard and continue learning from it.

    Final thoughts

    I hope that other students, family members and early-career professionals find these suggestions useful. Over the next few months, I’m aiming observe and blog about more hearings and hope to encourage more people to feel confident accessing the Court of Protection themselves.

    For me, attending this first hearing transformed the Court of Protection from something I had only studied into something I could actively observe, question and learn from. I suspect many others are only one hearing away from feeling the same.

    Maria Maier is an aspiring barrister. 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 will begin her Bar Course studies in September 2026. Her LinkedIn is here.

    Anorexia, declaratory protection and the Mental Health Act: Ventilating a jurisdictional question following Townsend

    By Celia Kitzinger, 12th May 2026

    At the centre of this “tragic” case is a woman (“P”) who has suffered from “severe treatment-resistant anorexia for over 20 years”. She’s now “profoundly malnourished” and “at significant risk of death from malnutrition”.  The case comes to court because she is refusing naso-gastric (NG) feeding.  

    That’s how counsel for the Trust, Nageena Khalique KC introduced the case at the hearing before Mrs Justice Judd on 11th May 2026, sitting in the Royal Courts of Justice (COP 20033278).

    Ms Khalique also made clear that “no party is seeking to invite the court to compel NG feeding”: not the Trust, not the Official Solicitor, not P’s mother, and not P’s partner/friend (all of whom have been joined as parties). Naso-gastric feeding (and other treatments) are available to P if she chooses to accept them, but nobody is arguing that they should be forced upon her. As the judge observed, “there is no dispute”.

    It turned out, however, that there was a dispute – but not about P’s best interests. 

    The dispute is about whether or not the Court of Protection has the jurisdiction to make the second of the two declarations sought by Birmingham and Solihull Mental Health NHS Foundation Trust. The first (clearly within the COP’s jurisdiction) is a declaration that P lacks capacity to decide about treatment for her eating disorder. The second (about which jurisdiction is disputed) is a declaration that it’s lawful and in P’s best interests not to detain her under the Mental Health Act and not to impose feeding upon her, under restraint, under s.63 of the Mental Health Act.

    The Trust is asking for that second declaration (as have other Trusts in other cases I’ve observed, who have been granted it) on the basis that the COP does have jurisdiction. But according to the Official Solicitor, the Court does not (or perhaps may not) have jurisdiction to make that second declaration because the lawfulness or otherwise of decisions pursuant to the Mental Health Act are public law decisions instead to be determined in the High Court.

    Unfortunately, despite my best endeavours, I do not understand the basis for the argument of either the Trust or the Official Solicitor and it was very hard to follow what was said in court.

    The Trust’s position that the Court of Protection does have jurisdiction seems to hinge on some argument related to the Court of Appeal judgment in the Townsend case (Townsend v Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195) – which is a case I know very well, having watched all the hearings and attended webinars about it.  It’s easy to distinguish Townsend from this case (and the judge seemed to be doing so at various points) – though whether or not the points of distinction are pertinent to the arguments made was not clear to me. In Townsend, the family strongly disagreed with the (“clinical”) decision not to provide life-sustaining treatment to P, and the court ruled that under those circumstances, cases should come to court, irrespective of whether or not the doctors are making what they call purely “clinical”, as opposed to “best interests”, decisions. In the case in court here, though, the family agree that treatment should not be provided (at least, not by force, which is the only way it can be provided, it seems) and also the Trust is specifically seeking a “best interests” (not a ‘clinical’) decision.  I think the Trust’s argument might rest on the idea that what might seem to be a “clinical” decision (not to provide treatment) is also inevitably a “best interests” decision and hence falls within the remit of the Court of Protection.

    A major impediment to my understanding is that I’m writing this without access to position statements from the hearing.  This is because although I was initially sent position statements from the Trust (there were two, and I had time to read them before the hearing), I was subsequently asked to destroy them, and have not yet received the replacement redacted versions I’ve been promised. As usual, the Official Solicitor refused to disclose her position statement, and the judge did not direct disclosure.  My understanding was also not helped by the fact that it felt at times as though counsel and the judge were talking past each other (but perhaps that was because I didn’t sufficiently grasp what was going on myself).

    In trying to make sense of what happened in court in this case, I searched out some earlier cases concerned with forced treatment for anorexia. Several such cases were helpfully cited in the position statements, but since I’d lost access to those and can’t remember the citations, I’ve had to search out cases myself, and I’ve no idea whether or not these are cases either party might be relying on in making their arguments. I remember some concern about  jurisdictional issues being raised in a hearing I observed before Mr Justice McKendrick, also involving an anorexic woman (Leeds and York Partnership NHS Foundation Trust v FF & Anor [2025] EWCOP 26 (T3)).  This was of course chronologically before the Townsend decision from the Court of Appeal.  Nonetheless, I’ve revisited that case. I find that I recorded (in a blog post back in July 2025) that there had been in the course of that hearing “a detailed exchange about s.19 of the Senior Courts Act (in relation to the MCA and inherent jurisdiction) and its importance in progressing consistency in anorexia cases moving forward.”  Sadly, I continued:  “This legal discussion was technically too sophisticated for us observers to follow, especially as we do not have access to the “legal framework” document cited as an Appendix to the Trust’s position statement…” (see: “No more force (or threat of force) to compel feeding of woman with severe and enduring anorexia”).  It’s dispiriting to be reminded that in that case, too, I was not given access to a “legal framework” document and also failed to understand the legal discussion in court on that occasion.

    I also tried the (excellent) Mental Capacity Law and Policy blog produced by 39 Essex Chambers, which regularly assists with my understanding of legal matters.  It says:

    “… what McKendrick J was doing was (despite his cautious approach to doing so) making a generalised pronouncement about how procedurally to approach the situation of a patient detained under the MHA 1983 where the clinicians have – for whatever reason – decided that they do not feel that the tools of the MHA 1983 provide the answer to the ethical dilemmas that have arisen and have, instead, sought to answer that dilemma by reference to capacity and best interests”  (“Anorexia, the Mental Health Act and the Court of Protection: A clear route map for cases”)

    The subtitle of the blog post from which that quotation is taken promises more than it delivers in relation to the present case. It’s not “clear” to me how McKendrick’s “route map” applies, or indeed how Townsend offers – or mandates – a different route, or detour.  In any event, given the widespread criticism of Townsend and the likelihood of an upcoming Supreme Court hearing, it may be that Townsend provides a very slender thread on which to base the Trust’s argument – or indeed, on which to delay determination of P’s best interests by first detouring down what might turn out to be a jurisdictional cul-de-sac over the next six weeks.

    Despite their disagreements, the parties had agreed a draft order, which I think was essentially a directions order to move towards a hearing to determine which of them is right on the jurisdictional matter. They were, said Ms Khalique, “in agreement that the jurisdiction issue and the applicability of Townsend and whether this court can deal with these declarations – we agree it requires further analysis and further written submissions”.  They want that to happen first, before the Official Solicitor begins to investigate P’s best interests. If the outcome of the next hearing is that the court does not have jurisdiction, then the Official Solicitor won’t need – or be able –  to investigate P’s best interests. If it does have jurisdiction, best interests will come next (if P is still alive).

    The judge seemed quite concerned about all this.

    I have captured as best I can some of the exchanges in court that might shed light on what was happening, and why. (They’re unlikely to be verbatim: they come from my touch-typed contemporaneous notes).

    Khalique: (defending the idea that the court DOES have jurisdiction to make the order the Trust is seeking) What we are dealing with here is another Act [the Mental Health Act] which might make the non-treatment proposal ineligible because of s.63. But we say that because of Townsend there can (or perhaps she said “can’t?) be carve-out.

    Judge: But this is a ‘best interests’ decision. I don’t quite understand, I’ll be honest with you, what is the difference between a ‘clinical’ and a ‘best interests’ decision. You’re not offering treatment against a patient’s best interests, are you.

    Khalique:  There are two stages.. [explains first the clinicians select clinically appropriate treatments and then the capacitous patient chooses which they want to consent to, and the incapacitous patient has a ‘clinically appropriate’ treatment selected for them in their best interests)

    Judge: But, do you offer treatment that isn’t in a patient’s best interests?

    Khalique: There might be more than one treatment…..

    Later, Ms Khalique tried again:

    Khalique: We say what’s happened since Townsend makes it more clear than before that decisions under the Mental Health Act come into the jurisdiction of the Court of Protection.  Townsend says that “Any decision about the care and treatment of a mentally incapacitated adult, including the withdrawal of life‑sustaining treatment, must be taken in the patient’s best interests. There is no carve‑out for ‘clinical decisions’”.  What I’m saying is that also applies to decisions taken under Mental Health Act – and I think the distinction the Official Solicitor is making is that decisions made under the Mental Health Act are carved out by virtue of the operation of that Act. This is an argument that’s not been ventilated before… and all the cases before have not grappled with it either …. The question is whether, in the light of Townsend – whether the point that there’s no carve-out of clinical decisions includes decisions under the Mental Health Act.  And it’s for that reason we say this court may have jurisdiction. I may have been over-simplistic. I may have got it wrong….

    Here’s the view of the Official Solicitor, as represented by Katie Scott.

    Scott: It may be that the Official Solicitor comes to the view that this is all a matter for clinicians acting under the Mental Health Act – not something the Court of Protection should be involved in in any event…   What is the role of the Official Solicitor – or rather the litigation friend – in these kinds of cases….

    Judge: If the Official Solicitor was of the view that what was proposed by the Trust was the right view of what is in P’s best interests, then there wouldn’t be a role for the Court either – because when all parties are agreed as to proposed course of conduct…

    Scott: That’s right. That was Re Y.  The reason the Official Solicitor has any role at all is because it’s being brought to court. The Trust could proceed without a court hearing and say they complied with medical guidance and so on. But because they want the reassurance of the declarations, that leads to the issues the Official Solicitor wishes to ventilate. What is the obligation on the Trust when there is no disagreement?

    Judge: But we don’t know whether the Official Solicitor disagrees or not.  It might be,  I don’t know,  that the Official Solicitor agrees with the proposed course of action, and then there is no need for the court to determine the jurisdictional issue. It would be academic.  

    Scott: Yes, other than the fact that the Trust wants a declaration – presumably because they  want protection for their clinicians when there is a high risk of death.

    (later)

    Scott: It may well be that after meeting P that the Official Solicitor takes the same view [as the Trust] on her best interests.

    Judge: Isn’t a case like this better litigated when there is dispute rather than when there isn’t?

    Scott: But we are now before the court. The Official Solicitor needs to arrive at a view, to investigate the medical records, carry out investigations of her own, bring clinicians to court to probe the evidence… We’re now before the court,  so the court has to make a decision about what it can and can’t do.

    Judge: I am pushing back on the idea that no investigation (of best interests)  takes place between now and the next hearing (concerned with the jurisdictional issues), so we don’t have a hearing in say two months’ time, and then have to wait again to decide best interests.

    [later]

    Scott: The Official Solicitor can’t get wishes and feelings from her until we know what the court is going to be doing.

    Judge: What do you mean?

    Scott: If it’s being said that this court has the power to make a decision about whether or not she receives NG feeding under restraint.

    Judge: Her wishes and feelings are not going to relate to the jurisdictional issue but to whether or not those things happen (i.e. to whether or not she is given treatment under restraint)

    Scott: We have not yet met with P, but I am aware from other cases that some young ladies with anorexia are keenly aware of what powers the court does and doesn’t have – and, having been in the mental health system and dealt with tribunals  – might take a very keen interest in what the powers of the court are. […] What won’t be able to be explained to her at the moment is what the court can and cannot do.

    Judge: The reasons I am pressing this is not idly, but because it’s much harder for courts to decide cases when there isn’t actually a dispute. The fact of a dispute focuses the court on the reasons for the need to make decisions about jurisdiction. Without that, it can become woolly and academic. And that’s a danger in this case.

    Scott: There have been other cases like this. Trusts are still bringing these cases where there is no dispute and asking for relief and that’s one of the- I don’t say concerns – it’s one of the issues that we need to grapple with. Do Trusts need to do this?  And if the answer is “no” then it would be helpful to know that.

    My thoughts at this point are, well, yes, it would be helpful to know whether Trusts need (or are able) to apply for declaratory relief. But at what cost to P and her family in this case if (to put it at its worst) they are caught up in protracted proceedings as a test case to determine a jurisdictional issue?

    But of course, it really matters, to all of us, how the “ethical dilemmas” associated with force-feeding anorexics against their will, are decided in the courts. The principle is not purely “academic” and there’s been heated – and often not very well informed or (in my view) deliberately misleading – media coverage of the way in which the Court of Protection handles these cases. 

    It’s self-evident that how judges decide to make (or not to make) declarations that forced-feeding is contrary to someone’s best interests, and the jurisdictional basis on which they do so, is a matter of legitimate public interest.  So, it’s hard to see that any rational purpose is served by admitting members of the public to a hearing with a complex jurisdictional issue at the heart of it and denying us access to the written arguments that would enable us make sense of it.  Instead of achieving ‘transparency’ or ‘open justice’ (to which the court purportedly aspires), it simply engenders a sense of frustrated alienation.  

    I’ve been told I will be sent a redacted Trust position statement from today’s hearing. But I’ve been refused the Official Solicitor’s position statement, redacted or otherwise – though It cannot possibly be contrary to P’s best interests for members of the public to be granted access to the jurisdictional arguments underpinning her case. The judge asked the parties to provide me with their legal arguments twenty-four hours in advance of the next hearing, so it’s not that she is deliberately trying to obfuscate the case or deliberately to exclude me from understanding what’s going on.  I think it’s simply that transparency is way down the list of priorities, and it frequently seems to take parties by surprise that observers are in court and asking for position statements which they’ve not thought to anonymise or redact in advance – plus the Official Solicitor has adopted a standard refusal policy which is unhelpful and frankly hostile to transparency. 

    I don’t know when the next hearing will be. There was talk of the second half of June (and it seems possible that it may be before a different judge).  For anyone who wants to understand the arguments about what the Court of Protection can and cannot do (which is pretty basic, really, to understanding the justice system!) the first challenge for transparency will be finding out when it is happening. Then observers will have to navigate access to the hearing and access to court documents. I don’t know whether the judge’s direction to provide legal arguments to me in advance extends also to other observers. But without those documents, observers will surely be lost.

    Open justice should mean more than getting into the courtroom (though that is often challenge enough). It should also mean public disclosure of documents essential to understanding the case. That didn’t happen today.


    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)

    Fit for discharge and still in hospital five months later due to delay with eating and drinking plan – updated after 12th May 2026 hearing

    By Amanda Hill, 11th May 2026

    UPDATE: More delay and increased risk to P– note on the hearing of 12th May 2026

    It’s now more than a year that P has been in hospital and around seven months that she’s been fit for discharge. She’s still there.

    This case, previously before SJ Hilder, was escalated to the High Court for an urgent hearing before Lieven J on 12th May 2026 at the Royal Courts of Justice. I’m grateful to Tim Sugden for observing and providing us with an update. The situation is grim. 

    After the last hearing (in April 2026), the care agency gave notice that they would not continue to work with P beyond this week. Their handover meeting with a new care agency was due the day of this hearing – and it was likely that P would  feel ‘upset and overwhelmed’ at suddenly having to get used to new carers.  

    She was due to undergo a ‘swallow test’ this week, but it was said that the speech and language therapist had stated that it couldn’t be done on account of P’s fear of food

    The eating & drinking plan discussed at previous hearings has still not materialised. It’s due by 27th May but there seemed little confidence that it will be produced by then, as no-one has yet been identified and commissioned to compile it. The judge said that therapeutic help should have been provided for P many months ago and that there was no reason why it should not happen now – alongside the support required to help her eat and drink again. 

    So, as it stands, P remains in hospital. The hospital (who are not a party) have stated that P should not go home with an NG tube, at which the judge said that if that remains their position she wanted them to provide an expert report justifying that. The judge stressed that doing nothing was in fact making P worse and increasing the risks to her health and welfare – so this needed to be balanced with the risks involved in taking any action. 

    P’s siblings were given an extended chance to respond to what they had heard – and painted a sad and sorry picture of how their sister has been failed by so many agencies over so many years.

    Towards the end of the hearing, the judge introduced the possibility of a judicial review. She reminded Victoria Butler-Cole KC, P’s Counsel (on behalf of her litigation friend, the Official Solicitor) that if she chose to go down the route of a Judicial Review on P’s behalf, it would likely be before her again and she would have extra powers to order the required action. 

    The next hearing is listed before Lieven J again, on June 5th  2026 at 2pm.  The judge gave special dispensation to the OS counsel, to request another urgent hearing before then if there are still delays in moving things forward.

    ***************

    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. By the time of the hearing I’m describing here (on 11 February 2026), that’s five months ago.[1] 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 an “eating and drinking plan”.

    So, there’ s a deceptively simple solution to enable P  to leave hospital – the development of an eating and drinking plan – but a complex web of responsibilities for making that happen, involving multiple public bodies, multiple teams, and multiple people. And a search for a specialist to produce the plan had proved fruitless at the time of the hearing.

    This is the fourth hearing I’ve observed in this case (COP 13630253), before Senior Judge Hilder at the Royal Courts of Justice. The earlier hearings I observed were on 25th July 2024, 3rd September 2025 and 20th November 2025 and I blogged about the September hearing ( Should surgery be delayed while the legal framework relating to capacity is established?) There have been other hearings I haven’t observed, including one on 16 December 2025 and possibly one on 16th April this year. 

    It’s a complex case and I’ll try to keep it as simple as possible. Rather than go into detail about what happened at the hearing I observed, I will outline the key problems it highlighted, what is getting in the way of solving these problems,  and what the judge can do about it.

    One thing is clear: it’s P, the person at the centre of this case, who is the one who is bearing the brunt of the lack of progress.

    The parties

    In addition to P and her two siblings, there are four statutory bodies as parties to these proceedings, two as applicants and two others as respondents.

    • The applicants are Suffolk County Council (SCC) represented by Ulele Burnham and NHS Suffolk and North East Essex ICB represented by Sarah Vince (who also represented the 3rd respondent)
    • The 1st and 2nd respondents (represented pro bono by Anna Bicarregui) are P’s siblings.
    • The 3rd respondent is Essex Partnership University NHS Foundation Trust (EPUT) (also represented by Sarah Vince)
    • P is the 4th respondent represented via her litigation friend the Official Solicitor by Victoria Butler-Cole KC
    • The 5th respondent (joined as a party from November 2025) is Hertfordshire Partnership NHS Foundation Trust, represented by Stuart Marchant.

    Who is responsible for producing an eating and drinking plan?

    The ICB has overall responsibility for meeting P’s medical needs in the community.  On 20 November 2025 the court ordered the ICB to produce an eating and drinking plan by 1 December 2025. Nearly  3 months later, there is still no plan.  

    The two siblings are “saddened, angered and frustrated that despite the court’s best efforts in the last order there is no plan to get P out of hospital”. Their view is that “no one person/organisation is taking ownership” of the plan and that the public bodies are not working together collaboratively: each of them seems instead to be “more focused on setting out the limits of its responsibility”. 

    An additional complication is that EPUT and HPFT have differing responsibilities for P’s care and mental health treatment. EPUT are responsible for P’s psychological therapy.   HFPT are responsible for primary care coordination, including specialist learning disability services, a role they took on a day after the hearing, following a six-week transition.

    Senior Judge Hilder is trying her utmost to move things along. But, as P’s siblings say, “It is apparent that court orders are not currently being followed“.

    The ICB and LA were directed to file an interim care plan including how P’s nutrition and hydration needs would be met on a return home by a deadline of 29 July 2025. They didn’t.  Then another deadline was set for the ICB to produce the eating and drinking plan by 1 December 2025.  Again, it’s not been produced.

    The OS wants explanations for the lack of progress. They’ve gone as far as “seeking a direction that Chief Executives or other senior officers from the relevant statutory bodies attend this hearing to explain themselves“. But no Chief Executives attended the hearing on 11 February 2026.[2]

    The OS is also seeking a direction that the ICB and EPUT pay P’s costs from 1 December 2025 “on the basis of the repeated failure to comply with court orders, and the failure to put in place the provision needed by [P] to return home”.

    The ICB disputes this, saying that:  “The ICB have only ever held a commissioning role in [P’s] care. The ICB cannot create care plans nor force compliance with trusts outside of its commissioning area”.

    The outcome at the end of the hearing of 11 February 2026

    At the start of the hearing, Senior Judge Hilder said that it was very difficult to understand who is responsible for the eating and drinking plan. Key sticking points were the identification of a suitable specialist to draw up the plan and funding of that specialist. P’s needs are complex and identifying a person with exactly the right skills has not been easy. A named person identified had that very day declined to take on the work. The OS legal team had already been searching and had come up with another named person, who HPFT were going to meet with directly after the hearing. If that person was not suitable, the Deputy Director of Nursing for the ICB agreed to take responsibility for a new search. The OS legal team and SCC offered to pass on the results of their searches in order not to duplicate effort. HPFT would make the final decision.

    In terms of funding, it was hoped funding would be agreed at an ICB panel meeting of 26th February 2026, or if not at the next one on 26th March 2026. The Deputy Director of Nursing told the court that would be the last panel meeting for the ICB as it was closing on 31st March 2026.

    With regards to the costs issue, a solicitor from the OS legal team is going to provide a breakdown of costs to the relevant parties, and all appropriate parties will make written submissions to the court,  that the judge has made time in her diary in late February to consider. It was agreed that P’s siblings should not bear any of the costs even though they are parties.

    At the end of the two hour fully remote hearing SJ Hilder stated “Let’s get this sorted please, it’s been going on long enough”.

    Provided a specialist with the appropriate skills to develop the eating and drinking plan can be identified, and that they agree to take on the work, funding will be agreed at either a panel meeting on 26th February or 26th March 2026. And then work on the eating and drinking plan should begin.

    The Approved Order

    As I often do, after the hearing I asked for a copy of the approved order so that I can check the details. I received it on 20 February 2026, the day it was issued.

    The update from the hearing was that the role of care coordinator was now to be due on 17 February. A dietician identified by the Official Solicitor was considered to have the appropriate skills and the order noted by way of a recital that “following the hearing but before this order was perfected, HPFT confirmed that it would ask the ICB to commission (the dietician) to prepare an eating and drinking plan for [P]”.

    The ICB was ordered to place the funding application before the panel of 26th February 2026, and to inform the parties of the panel’s decision by 4pm on 4 March 2026. If funding is agreed, the first version of the eating and drinking plan is (finally!) to be circulated to all parties by 25th March 2026.

    Another hearing was scheduled for 16th April 2026 but I don’t think it took place as it wasn’t listed when I checked the listings the day before.

    Closing reflection

    I was surprised how difficult it seemed to be to locate a specialist to develop the eating and drinking plan and that (apparently) there isn’t a database or directory. I very much hope by the time of the next hearing to learn that P has left, or is about to leave, hospital: by that time, she would have been in hospital for around a year.

    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) and Bluesky (@AmandaAPHill.bsky.social).

    [1] I asked for all the parties’ position statements for this hearing, to enable me to understand it better in accordance with the open justice principle.  SJ Hilder directed disclose of the Official Solicitor’s position statement for the Official Solicitor, and all the other parties agreed to send me theirs without needing a direction (including P’s siblings). I had received all the anonymised PSs by the end of the day of the hearing on 11th February 2026. I am very grateful to all the parties: the PSs have been very useful in enabling me to follow and report on this complex case and I have drawn on them in writing this blog.

    [2] The Deputy Director of Nursing for the ICB attended, as did the Interim Associate Director for EPUT, the Head of Operations and Partnerships for Mental Health at SCC, the Managing Director for Learning Disabilities and Forensic Services at HPUT and the Head of Legislation and Compliance at HPUT.

    Judge refuses to make Civil Restraint Order against P’s father

    By Celia Kitzinger, 30th March 2026

    A Court of Protection judge has refused an application from South Tyneside Council to make a Civil Restraint Order (CRO) against the father of a young autistic man living in supported accommodation.

    I observed the hearing (COP 14075351) before Mr Justice Poole sitting in person in the Royal Courts of Justice on 24th March 2026. 

    It’s been a long-running case concerning P’s litigation capacity, and his capacity and best interests in relation to residence, care, contact, and use of the internet and social media.

    Earlier proceedings in the Family Court go back to 2017, with disputes about communication with the school, care orders, and contact arrangements.  Injunctions were made against the father and his appeals against them were dismissed as “totally without merit”.  Eventually, an Extended Civil Restraint Order was issued against him in January 2020. He also received prison sentences – first suspended and then immediate – for stalking, breach of a non-molestation order, and harassment. A second Extended Civil Restraint Order was made by Lord Justice Peter Jackson sitting in the Court of Appeal in February 2023 (and expired in November 2025).

    The father’s most recent “totally without merit” appeals are from October 2024 and November 2025, both in the Court of Protection, with several other applications dismissed (without being so certified) between those two dates.   This included dismissal of the father’s application for permission to appeal against a finding from a contested six-day hearing that P lacks capacity to litigate and to make decisions about care and residence, contact, and the use of social media.

    According to the local authority, represented by Brett Davies of Spire Barristers[i], P’s father does not accept that P has a disturbance in the functioning of the mind or brain (Autistic Spectrum Disorder and learning disability) or that he lacks capacity to make his own decisions.  He “does not accept the power or duty of [the local authority] to provide [P] with care and support”.  And there is “no willingness or effort on [the father’s] part to engage with the parties, outside of court, in cooperation for [P]’s benefit”. Instead of corresponding with the other parties when there is uncertainty or dispute, and trying to resolve the matter, there is “an immediate recourse to making an application within proceedings”.   According to the local authority, this “translates into vexatious litigation (for the parties and the court), and consumes an entirely unreasonable and disproportionate share of public resources”.

    And so South Tyneside Council has applied for a Civil Restraint Order, the aim of which (as spelled out in Ludlam, a key authority on CROs) is to prevent abuse of the court process:

    No litigant has the substantive right to trouble the court with litigation which represents an abuse of the court’s process […] The mischief of such unmeritorious litigation is not merely the unnecessary troubling of the opponents (frequently in circumstances where the opponents cannot enforce costs orders against the party bringing the unmeritorious litigation). Over and above this, such unmeritorious litigation drains the resources of the court itself, which of necessity are not infinite. Hence, limited resources which should be devoted to those who have genuine grievances are squandered on those who do not […] It is no defence for the party bringing the unmeritorious litigation to say that he genuinely, and honestly, believed that he had a viable grievance […] [I]n many, if not most, cases the litigant in question has been seriously hurt by something which has happened in the past. The litigant feels that he was unfairly treated and cannot understand it when the courts are unwilling to give him the redress he seeks. To my mind the only relevance of an honest belief in the validity of the unmeritorious claims which are being brought is that it may go to increase the “threat level” of future unmeritorious litigation. The question to be asked, quite simply, is will the litigant, now, continue with an irrational refusal to take “no” for an answer. (In the Matter of John Michael Ludlam Between: Courtman v Ludlam & Anor [2009] EWHC 2067 (Ch))

    Basically, a CRO serves a gatekeeping function by filtering out unmeritorious applications. A CRO in this case would mean that unless P’s father first got permission to make an application (from the named judge who would be specified in the CRO), any application would automatically be struck out or dismissed without the judge having to make any further order and without the need for the other party to respond to it.

    This would save the court time and money, and it would mean that the local authority would be spared the time and expense of frequent litigation against them (and could devote themselves to those with “genuine grievances”).

    The rules on Civil Restraint Orders are set out in Practice Direction 22A, which came into effect on 6th April 2017 with the 2017 amendments to the Court of Protection Rules. An explanatory memorandum explained that the intention was to “give the court greater powers, following the model of the Civil Procedure Rules providing for civil restraint orders, to deal with applications which are without merit and allow the court, for instance, to restrain litigants from submitting repeat applications” There are three types of CRO: limited, extended and general.   

    • A “limited” CRO is limited to the particular proceedings in which it is made.  (§11(a) PD22A)
    • An “extended” CRO would apply to applications in the Court of Protection “concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made” (§13(a) PD22A).  It can be for a maximum of two years.
    • A “general” CRO would cover any application in the Court of Protection (for a maximum of two years) (§21-29 PD22A). It can be “apt to cover a situation where [a litigant] adopts a scattergun approach to litigation on a number of different grievances without necessarily exhibiting such an obsessive approach to a single topic that an extended civil restraint order can necessarily be made against him/her” (Kumar at [60])

    South Tyneside Council applied for an extended CRO (often referred to as “ECRO”).  They applied for an ECRO in preference to a “limited” CRO because these particular proceedings are likely to end very soon (and a “limited” CRO would end with them): the “final” hearing in the current proceedings is provisionally listed for the end of April.

    The upcoming proceedings reflect an interesting development in this case. Re-assessment for the standard Deprivation of Liberty authorisation found that P does not fulfil the ‘capacity’ requirement: in other words he does not lack capacity to consent to his residence and care arrangements (and in fact he does consent to them). This raised questions both about the accuracy of that assessment and about about whether in fact P does have capacity to make (other) decisions for himself, and an independent expert was appointed by the court, consultant psychiatrist Dr Lisa Rippon. She has now assessed P as having capacity to make his own decisions in all relevant areas (which has been his father’s position all along). A pre-hearing review is listed for 8th April 2026: if the judge accepts the expert opinion, the Court of Protection will have no further jurisdiction. Alternatively, the decision may be held over until the final hearing proposed for the end of April (and of course the judge is not bound to accept the expert opinion).

    For the purposes of this hearing, the practical implications for the CRO are that a “limited” CRO would likely end in April, whereas an “extended” CRO would continue to apply to P’s father if new Court of Protection proceedings were to be initiated after the close of the current proceedings. The local authority considers this to be a real possibility, since their view now is that P is likely to be “on the cusp of capacity” and they predict that the COP is likely to be asked to reconsider his capacity in the future. The judge was invited to consider these projected possible future proceedings as the basis for making an ECRO rather than a “limited” CRO.

    The hearing

    Shortly after the start of the hearing, the judge allowed a 15-minute adjournment so that P’s father could read the position statement from the local authority. 

    Like many litigants in person, he did not feel “on an equal footing” with represented parties. He’d experienced practical problems in preparing for this hearing, including accessing the password-protected position statement sent on Friday for this Tuesday hearing.  Although a second version had been sent the previous day (Monday), it had arrived in his inbox while he’d been driving to London for this hearing: he said he’d “parked in the emergency lane on the motorway” to look it, and that it refers to a great deal of case law he hasn’t been able to access. He also complained of having been sent the draft order “less than 24-hours before the hearing” (another familiar concern of LIPs). He had driven a long distance from his home to London, and stayed in a hotel overnight,  in order to attend this in-person hearing, which he’d requested in preference to a remote hearing because (he said) his “internet signal is not very good”, and he has “nowhere private”.[ii] Before the adjournment, the father also said he had no intention of making further unmeritorious applications – and there was an inconclusive exchange between him and the judge about the extent to which the past actions enable accurate predication of future behaviour.

    The judge accepted the father’s procedural concern about the position statement, while also pointing out that “over the years you’ve become extremely knowledgeable and you remain determined to keep making applications to the court”. He explained the basics of the different CROs – which was useful for me, although I think the father was already on top of the distinctions. Before the adjournment, the father pre-empted his later submissions by making the case that a CRO was unlikely to be of any value – partly on the grounds that there may not be any more hearings after April, and partly because “P’s mother is not part of these proceedings.  She can make applications, so what’s the point?”. The clear implication was that if he is banned from making (what judges see as) unmeritorious applications, P’s mother will do so in his place. He also raised – and in the judge’s view attempted to “re-litigate” – matters from previous hearings related to contact arrangements.

    The judge asked counsel for the local authority what the “practical implications” of the CRO would be in circumstances where “conclusion of proceedings may be regarded as imminent”. Counsel for the LA replied: “P is likely to be on the cusp of capacity. If it’s determined that he has capacity there are likely to be some changes moving forward. We know that, irrespective of outcome on capacity, his wishes are to stay at [the placement] and continue to have support there. But there are things he’d like to change. He’d like more extensive access to his mobile phone – to telephone and internet and social media, without support from staff.  If he has such access, he may make decisions which may be unwise decisions. If he is putting himself at risk of reprisals or involvement in the criminal justice system, it’s likely that there will be an application to this court in future. Perhaps “likely” is too strong a word, but there is a real risk that P will be found to lack capacity in the future”.

    The difficulty with making an application for an extended CRO (ECRO) to cover these projected future proceedings is the requirement by way of precondition that the applicant has “persistently issued claims or made applications which are totally without merit”, where “persistently” means at least three “totally without merit” certifications[iii].  It was accepted that in this case there have been only two: an application for permission to appeal the final order of HHJ Gargan, which Poole J dismissed as “totally without merit” on 14th October 2024), and then an application to ask questions of the expert, which HHJ Moreton dismissed as “totally without merit” on 24th November 2025. The local authority argued, however, that “as is clear from Kumar[iv] and explained in Ludlam, this court may review whether other applications, even though not certified by the judge at the time, but with hindsight, were made totally without merit.  It is submitted that many such applications made by [P’s father] are so”.  He invited the judge to consider the father’s applications of 16th April 2025, 3rd June 2025 and 18th July 2025 in that light.

    Judgment

    The judge briefly reviewed the proceedings to date and then turned to the Practice Direction relating to CROs in the Court of Protection: Practice Direction 22A.

    Referring to Rule 22.1 (“where an application (including an application for permission) is dismissed, … and is totally without merit, the court order must specify that fact…”.) he recorded that “at the time of dismissing the application for permission to appeal the final order of HHJ Gargan (14th October 2024),  I did consider it ‘totally without merit’ and did certify that.” (It was noted that Poole J had made the same decision about this application twice – once on the papers, and then again at an oral ‘reconsideration’ hearing – but it was agreed to count only as a single ‘totally without merit’ application.)

    Turning to Rule 22.12 (“An extended civil restraint order may be made where a party has persistently made applications which are totally without merit“, my emphasis), the judge referred to Mr Davies’ “helpful skeleton” which references the case law on CROs and shows that “persistently” means at least three (and even then, the judge has discretion about whether or not to make a CRO). He said: “In the case of  Courtman v Ludlam [2009] EWHC 2067, Edward Bartley Jones QC held that in context, “persistently” has been established in case law to mean a bare minimum of three or more ‘totally without merit’ findings.  Secondly if the precondition for a making of a CRO is satisfied, the court still has discretion whether to make an order and whether a limited CRO would suffice.  The purpose is not to PUNISH but to protect the administration of justice and the other parties from abuse“. The judge also drew attention to the fact that the three unmeritorious applications must have been made within the same proceedings (Lilley v Aspermont UK Ltd [2014] EWHC 2364 (Ch)) – meaning that the previous Family Court applications cannot be taken into account in this case.

    In Ludlam, it was established that, in determining whether or not a party has “persistently” made unmeritorious applications, the judge can count not only those certified as “totally without merit” at the time they were dismissed, but also other dismissed applications which might be so considered in hindsight. The judge was not minded to retrospectively treat the other applications made by P’s father as “without merit” because the judge who dismissed them but didn’t so certify them at the time “was certainly aware of her power to do that”, as evidenced by the fact that she did in fact certify ONE of them – but only one – that way.

    The judge continued: “While of course the court would hope that no applications totally without merit would be made, and while it seems clear that litigation rather than communication with the other parties, is the first and not the last resort (and that is to be deprecated), two ‘totally without merit’ applications is not sufficient for me to make an extended CRO. In terms of a limited CRO, I take into account the appalling history of unmeritorious applications, and that must be relevant.  However, the current proceedings are likely to be concluded by the end of April or soon thereafter, given a clear expert opinion that P has capacity in all domains.  There are going to be one or perhaps two hearings in any event in the next few weeks.  A limited CRO is unnecessary in my judgment. [P’s father] points out – it’s not an attractive submission but I do take it into account – that it is open to P’s mother to make applications if he cannot. I have recent experience of that happening in another context and know the  futility of making a CRO under these circumstances.  It is unknown whether there will be future COP hearings. The local authority says there may be in future but this is a matter of speculation– and it’s perhaps not likely within the time period of 2 years. It is possible, though and I acknowledge that. It is important in COP not lightly to make CROs in a context in which family members are anxious about the wellbeing of their adult child. [P’s father] has represented himself today with eloquence. He assures the court he won’t waste the court’s time in future.  I take this with some pinch of salt as it has been a pattern – I take it into account but it is not a strong point in these proceedings. Considering all the circumstances, I’m not prepared to make the extended CPO sought. I consider it disproportionate, even if the threshold had been met – which it hasn’t, since there have been only two ‘totally without merit’ applications.  Furthermore, I am not satisfied that a limited CRO is either necessary or justified. The proceedings will end soon, there are already hearings at least one of which is going to take place, and the expert evidence is in favour of the outcome that he seeks (namely his son does have capacity in the five domains).  So, the application from the local authority is dismissed.“

    Reflections

    Despite having observed more than 700 hearings over nearly six years, I haven’t come across a Civil Restraint Order in the Court of Protection before.  I’m guessing they are rare in part because the vast majority of litigants do not persistently make unmeritorious applications, and even when they do, judges must surely be reluctant to curtail a person’s access to the courts except as a last resort. On the other hand, I have seen a few cases characterised by successive unmeritorious applications from family members, and it seems that, for whatever reason, other parties do not seem disposed to apply for CROs and the court does not seem disposed to make CROs on its own initiative.

    There are very few published Court of Protection judgments dealing with CROs. As far as I know, though, there’s no requirement on the court to publish judgments relating to CROs, so it’s possible that there are more cases than can be discovered from the National Archives or BAILLI (as is definitely the case with COP committal hearings, despite a limited publication requirement)[v]. Some published COP judgments concerning CROs are summarised below.

    In the case of A Local Authority v MF & Ors [2022] EWCOP 54, two of a family member’s applications (one to remove the Official Solicitor’s representative and the other to remove the local authority as the protected party’s appointee) were dismissed as “totally without merit”. Having been told that bringing any more applications would risk a CRO, he submitted a COP 9 application to remove the Official Solicitor’s representative, signed not by him but by the protected party (who lacked capacity to make such an application). He went on to make two further applications which were also dismissed as “totally without merit”.  As far as I know, no CRO was in fact made in this case. The judge (Cohen J) said:  “In my experience of civil restraint orders, they seem often to be more trouble than they are worth. If any further applications are made by the family they will be dealt with at the next hearing. The issue of the civil restraint order can be put over to the next hearing in March or April” (if it was, there is no published record of that).

    There is reference in a few COP hearings to CROs having been imposed by other courts – including in Family proceedings (Re D (A young man) 2020 EWCOP 1 ), the Court of Appeal (Re P (Property & Affairs Deputyship: Jurisdiction) [2024] EWCOP 77), and by the Kings Bench (in a case with two published COP judgments: Re P (Application to Withhold Closed Material: Concurrent Civil Proceedings) [2024] EWCOP] 26, and P v Manchester City Council [2024] EWCOP 77).   But these CROs don’t transfer across to the COP. There’s also a reference in one COP judgment to a “limited civil restraint order” having been made the previous year “to prevent Mr Michael Clarke making any further applications in the civil proceedings” ([2016] EWCOP 11) – I’m not quite sure what that means or who made it.

    There are warnings about possible CROs in a small number of published COP judgments (e.g. A North East Local Authority v AC & Anor [2019] EWCOP 44; Re M [2015] EWCOP 69 §45(8)) and it looks as though one judge may have referred a case to a more senior (T3) judge to determine whether a CRO was required (Re P (Property & Affairs Deputyship: Jurisdiction) [2024] EWCOP 77 – but I don’t know the outcome.

    I could find only two published COP judgments recording that CROs were actually made: (1) an Extended Civil Restraint Order made by Sir James Munby in Re A (A Patient) [2016] EWCOP38 and (2) a Limited Civil Restraint Order made by Mr Justice Cobb in A Local Authority v TA & Ors [2021] EWCOP 22. I describe them below.

    (1).  Re A (A Patient) [2016] EWCOP 38 – Extended Civil Restraint Order

    In 2016, the then-President of the Court of Protection, Sir James Munby, made an ECRO,  against Desmond Maurice Fitzgerald, the nephew of the protected party (“A”).  She was “an elderly lady” whose lack of capacity to make decisions for herself was said to be due to “schizophrenia present for many, many decades and the tragic consequences of the surgery to which she was subjected all those years ago”.

    The Court of Protection story started three years earlier, in 2013, when Senior Judge Lush appointed A’s niece to be A’s Deputy for property and affairs.  Between 7 March 2013 and 9 May 2013, Mr Fitzgerald filed no fewer than nine unmeritorious applications with the Court of Protection, making allegations of very serious misconduct, including fraud and intentionally misleading the court, against both A’s niece and the solicitors acting for her and against her predecessor as A’s deputy, A’s sister B. In relation to that, SJ Lush said this: “There has been no effective challenge to C’s competence or integrity. Mr Fitzgerald’s allegations in this respect are simply bluff and bluster”.  His behaviour was described as ‘repetitive and vociferous’, ‘tantamount to harassment’, and ‘actionably defamatory’. Costs were awarded against him.

    Desmond Fitzgerald appealed and the case came before Munby J who had this to say: “Mr Fitzgerald has been unrelentingly pertinacious in pursuit of what he believes to be his aunt’s best interests. Unhappily, his pursuit of that laudable endeavour has become obsessive and his desire to litigate (most of the time as a litigant in person) and to correspond with all and sundry has become compulsive. This obsessive compulsion is marked by the very large number of applications which Mr Fitzgerald has sought to make to the Court of Protection (at least 23; see below) and by the enormous number of emails with which he has bombarded all and sundry since 2013.” The judge referred to his “wild and scurrilous allegations”, which included an application for committal of a solicitor involved in the case (“His application for her committal is a farrago of nonsense”).

    An Extended Civil Restraint Order was imposed:  “Those who have been harried by Mr Fitzgerald are entitled to be protected. The court is entitled to protect itself, its processes and, indeed, other litigants from having so much of its time taken up – wasted – by Mr Fitzgerald.”( 64. A (A Patient), Re [2016] EWCOP 38).

    Litigation continued over the course of another two years (the aunt died in the Spring of 2018), and three more judgments were published: Re A (A Patient) (No 2) [2016] EWCOP 39; and Re A (A Patient, Now Deceased) (No 3), and Re A (A Patient, Now Deceased) (No 4). These subsequent judgments document what the judge clearly experienced as very challenging behaviour from Mr Fitzgerald.  His emails were “characterised by hectoring, intimidating bluster and absurd and defamatory allegations against anyone, legal practitioner or judge, about whom he has conceived some cause for complaint” and there were “many attempts by Mr Fitzgerald to rubbish any judgment by any judge with whom he chooses to disagree.” (§3). In the last judgment the judge issues another warning: “Mr Fitzgerald’s latest application is totally without merit. It is a time-wasting abuse of the process, which I accordingly strike out. If Mr Fitzgerald continues to display such forensic incontinence, he may find himself again subject to an extended civil restraint order” (§5).

    The Court of Protection proceedings are perhaps best understood in the context of simultanous acrimonious divorce proceedings in the Family Court, culminating in criminal proceedings and a prison sentence.[vi].

    (2).  A Local Authority v TA & Ors [2021] EWCOP 22  Limited Civil Restraint Order

    The adult son of a patient with Alzheimer’s who had already served a prison sentence for misappropriating his mother’s money (using his LPA for property and financial affairs) was banned from emailing the Court of Protection Court Office in January 2021 following a long period of “abusive and inflammatory means and language” (Re TA  (Recording of hearings; Communication with Court office) [2021] EWCOP 3).

    The Operations Manager reported that the court had received 150 e-mails from TA in 2019, 217 e-mails in 2020 (total 367 – approximately – 15 per month) and that TA had made 39 COP 9 applications in the case over the 24-month period, 35 of them in 2020.  “Pausing here, the sheer volume of applications might well suggest that consideration ought to be given, when determining any of the outstanding applications before the court, to the grounds on which the court may consider it appropriate to make a form of Civil Restraint Order under CPR 1998 rule 3.11 and PD3C.” (Re TA  (Recording of hearings; Communication with Court office) [2021] EWCOP 3).

    A month later, a second judgment (A Local Authority v TA & Ors [2021] EWCOP 22 ) dealt with the local authority’s application for a civil restraint order and Cobb J authorised a limited CRO for a period of  two years.   “There have been four occasions before this hearing began when applications have been dismissed as totally without merit, all of them within the last year. In addition, I have dismissed three applications as being totally without merit in the course of this hearing. There are another four recent occasions when applications have been dismissed as showing no reasonable grounds or no good reason. The threshold for the making of a civil restraint order is plainly crossed. I therefore will make a civil restraint order as the only way to restrict the level of applications.” (§91)

    Beyond the Court of Protection

    Beyond the COP there’s a large and unedifying catalogue of CROs against people who’ve dedicated themselves to using the law as a weapon against those with whom they disagree. Ironically, quite a few of them are lawyers, for example:

    • A former solicitor appealing against being struck off (after being recorded covertly advising an undercover journalist on how to obtain fraudulent accountancy evidence for a spousal visa application) made eight “totally without merit” applications against the Solicitors’ Regulation Authority. The judge granted the SRA’s application to strike out the ninth claim, finding it to be abusive, totally without merit and an abuse of process – and made an Extended Civil Restraint Order against him. https://www.lawgazette.co.uk/news/ex-solicitor-caught-in-immigration-sting-barred-from-further-litigation/5124826.article
    • A former solicitor struck off for dishonesty “appears to have lost all touch with reality and reason” and believes in  “a very wide-ranging conspiracy which embraces all the judges who have made decisions against her… all the counsel and solicitors involved in those decisions, including counsel and solicitors who acted on her behalf, as well as numerous others”.  She was made subject to a General Civil Restraint Order the same year, renewed every two years thereafter, amid lengthy litigation over a dispute with a property developer and continuing complaints about the intervention. To give her leave to continue with applications would “unleash a tidal wave of re-litigation and/or fresh litigation”. Every part of it would be an abuse of process, the judge held. (https://www.legalfutures.co.uk/latest-news/vexatious-ex-solicitor-cannot-start-litigating-again-high-court-says)
    • A lawyer had made a series of job applications to law firms and public bodies and when unsuccessful relied on the Equality Act to allege a failure on a given respondent’s part to make reasonable adjustments to the recruitment process to accommodate his disabilities. There was no evidence that any of the known 42 claims he brought against law firms and public bodies had succeeded before an employment judge. A General Civil Restraint Order was designed to prevent further unmeritorious claims. (https://iclg.com/news/22708-serial-litigant-banned-from-issuing-employment-tribunal-proceedings#:~:text=The%20proceedings%20revealed%20Mr%20Khan’s,claimed%20he%20wanted%20to%20make.)

    It was in fact a notorious barrister, Alexander Chaffers, whose litigation mania (he brought nearly 50 unmeritorious claims against leading members of Victorian society including the Prince of Wales, the Archbishop of Canterbury and the Lord Chancellor) led to the Vexatious Actions Act 1886[vii]. This is an alternative (and I understand more cumbersome) way of seeking to curb unmeritorious applications.

    Querulousness: A psychiatric approach

    The historical decision to curb Alexander Chaffers’ unmeritorious claims by legal, rather than medical, means reflects what some authors see as a key distinction between English-speaking countries, where people persistently making unmeritorious applications are considered a purely legal problem, and the approach in Germany and France where psychiatric concerns are more likely to be raised.

    Early German psychiatrists developed the notion of  “Querulantenwahn” (“querulousness”), “A form of so called paranoia in which there exists in a patient an insuppressible and fanatic craving for going to law in order to get redress for some wrong which he believes done to him. Individuals who fall victim to this disorder are always strongly predisposed …. extremely egotistical … know everything better … differs from other forms of paranoia in so far as the wrong may not be quite imaginary … the more he fails the more he becomes convinced that enormous wrong is being done to him”.  The “querulant” epitomizes the German medical approach to unreasonable complaints: the unmeritorious litigant subjected to legal sanctions like CROs embodies its English-language legal archetype. The burden placed on the courts and on agencies of accountability by querulousness as a  “disorder of behaviour” can be addressed  (say these authors) by mental health professionals who “provide insights conducive to its better management in courts and complaint organizations … thereby ameliorating the distress of the querulous and reducing the disruption they create for others“. The risk, of course, lies in the misuse of psychiatry to silence criticism and to pathologise litigation.  As these analysts recognise, it is not always easy to distinguish the “querulant” from the difficult or tenacious complainant, or even from social reformers and victims of gross injustice.[viii]

    Finally…

    My conclusion from this brief review of Civil Restraint Orders in the Court of Protection is that I find myself surprised by how few there seem to be. I’ve already suggested some reasons why this might be so: most importantly, the majority of litigants do not persistently make unmeritorious applications, and even when they do, judges must surely be reluctant to curtail a person’s access to justice except as a last resort.

    There may also be a problem with the certification of failed applications as “totally without merit” – which is a precondition for making a Civil Restraint Order. What does “totally without merit” mean? I’ve been unable to find a clear definition. Of course many applications are dismissed, and some applications (especially – inevitably – from litigants in person) are poorly conceived, badly expressed and may be submitted in ways that don’t comply with rules or practice directions. Applicants may identify a rational argument for permission to appeal, but a judge can sometimes be confident that, even taking the case at its highest, an appeal is bound to fail and so refuse permission. But dismissing an appeal on those bases is different from what underpins the legal concept of dismissing and certifying a “totally without merit” application – which, in the formal legal sense, is one that has no rational basis or no legal ground. There’s a (fuzzy) distinction between (1) arguable claims that the judge considers to have no realistic prospect of success and (2) “totally without merit” claims which have no rational basis on which they could succeed – at least that is the view of LJ Underhill in Wasif, seeking to clarify the meaning of “totally without merit” in judicial review cases (Samia Wasif and another v Secretary of State for the Home Department [2016] EWCA Civ 82). I’m not sure if Court of Protection judges are using that distinction (or even if that distinction applies in the COP). I’m aware of many Court of Appeal “totally without merit” certifications relating to appeals from the COP, but I don’t see COP judges systematically considering whether or not they should be certifying applications they refuse as “totally without merit” (or the bases on which they might decide that) and I wonder whether perhaps they do so only in those rare cases at the point at which a Civil Restraint Order is actively contemplated.(ix) This is a tricky area (especially for a non-lawyer) and I’d welcome legal feedback and commentary.

    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)

    [i] I am very grateful to Brett Davies for his help in facilitating my understanding of the proceedings.  He raised with the judge my request for the local authority’s position statement, and he subsequently very helpfully volunteered also to disclose a chronology of the father’s “unmeritorious applications” and to liaise with P’s Accredited Legal Representative for permission to disclose the LA position statement from the hearing of 5th December 2025. Disclosure of all three documents was unopposed, and was approved by the judge, and has proved invaluable in supporting my ability to understand and report on this case.

    [ii] Arrangements could surely have been made – as I’ve seen for other LIPs in other hearings –  to support remote attendance if these problems had been raised sooner, but the judge appeared not to know why an in-person hearing had been requested until the very end of today’s hearing when the father applied for costs.

    [iii] Courtman v Ludlam; Sartipy v Tigris Industries [2019] EWCA Civ 225; [2019] 1 WLR 5892; and CFC 26 Ltd and another v Brown Shipley & Co Ltd and others [2017] EWHC 1594 (Ch); [2017] 1 WLR 4589

    [iv] R (Kumar) v Secretary of State for Constitutional Affairs [2006] EWCA Civ 990; [2007] 1 WLR 536

    [v] I understand that the name of anyone against whom a Civil Restraint Order is made must normally be published: there’s a public “List of extended civil restraint orders” and a “List of general civil restraint orders”) – neither of which has any entries indicating that the “court where order issued” was the Court of Protection.

    [vi] See also: https://www.wrigleys.co.uk/news/court-of-protection-news/how-not-to-behave-as-a-litigant-in-person/ and https://www.wrigleys.co.uk/news/court-of-protection-news/persistence-doesnt-pay-also-known-not-behave-litigant-person-revisited/

    [vii] Taggart, Michael (2004), “Alexander Chaffers and the genesis of the Vexatious Actions Act 1896”, Cambridge Law Journal, 63 (3): 656 684.

    [viii] Paul E Mullen and Grant Lester 2006. Vexatious litigants and unusually persistent complainants and petitioners: From querulous paranoia to querulous behaviour, Behavioral Sciences and the Law 24: 333-349l Levy, Benjamin From paranoia querulans to vexatious litigants: A short study on madness between psychiatry and the law. https://pubmed.ncbi.nlm.nih.gov/25698684/; White, S. “The vexatious litigant” WAVR-21 (2012) https://wavr21.com/the-vexatious-litigant/

    [ix] In a previous immigration case, R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1191, a differently constituted Court of Appeal rejected an argument that “totally without merit” should be reserved for cases “so hopeless or misconceived that a civil restraint order would be justified if such applications were persistently made.” Instead they held that it “means no more and no less than ‘bound to fail'”. I have benefitted from this blog post: https://www.ein.org.uk/blog/judicial-review-what-meant-totally-without-merit

    “Open Justice is not open sesame” Court of Appeal told in court document disclosure case

    By Daniel Cloake, 27th March 2026

    Lawyers acting for the mother of a protected party in Court of Protection proceedings last year have told three senior judges that Mr Justice Poole made a “serious procedural irregularity” by allowing an observer access to their written submissions.

    The case was heard on 25th March 2026 in the Court of Appeal (Civil Division) before Lord Justice Peter Jackson, Lord Justice Coulson and Lord Justice Cobb.

    In May 2024, the man originally at the centre of these proceedings at the lower court suffered a brain injury. He was diagnosed as being in “a prolonged disorder of consciousness” and –  following a decision to withdraw treatment in June 2025 – he sadly died on 8th July 2025.

    The main issues before the Court of Protection was whether a so-called ‘living will’ was valid, having been supplied to the court by the man’s fiancée some months after his brain injury. The man’s mother had made allegations that the document was a forgery, or alternatively that it was made on the basis of coercion or undue influence.

    Documents written by the patient before his collapse supplied to the court along with the living will were said to include “highly sensitive personal information, which included a number of serious allegations made … about his family members“.

    In preparation for a legal challenge to the authenticity of these documents, “a substantial amount of evidence was therefore filed … and significant portions of such evidence were extracted and re-produced within the position statements filed for the hearings“.

    Ultimately, the mother withdrew her challenge to the authenticity of the living will and “this material was not in fact pertinent to the decision the court eventually made“.

    The court also ordered that the Transparency Order should cease to have effect shortly after the man’s death. This was contested by the family and the mouseinthecourt reported on a hearing about this in September 2025 ( ‘Let me talk about my partner’s death’ – Court of Protection told’).

    This case has also been followed by Celia Kitzinger, a co-director of the Open Justice Court of Protection Project.  She made an application to the court asking for disclosure of the position statements. The decision of the judge, Mr Justice Poole, was to order disclosure. The judgment (published here) is under appeal not just for the decision to disclose to Celia but also for the guidance he wrote about disclosure of position statements more generally. At paragraph 36 of his judgment, and key to the Court of Appeal proceedings, Poole J said that “there is presently no guidance on the provision of position statements to observers of Court of Protection hearings” and proceeds to set out what he believed the procedure that should be adopted.

    Appellant’s position

    Hence the appeal today – with the written submissions of Alex Ruck Keene KC (Hon), on behalf of the mother, decrying that something of an “urban myth” had developed about the application of the ‘open justice’ principle to Court of Protection hearings.

    Flowing from that urban myth, and exemplified by this case, was the proposition that non-parties have rights to access hearings (and materials relevant to hearings) before the Court of Protection, exercisable upon request, and for their benefit (Written submissions of Alex Ruck Keene KC (Hon))

    The somewhat astonishing proposition put forward was “that the starting point is that the open justice principle simply does not apply to proceedings before the Court of Protection“.

    This “bold and ambitious” argument was resisted in written submissions made on behalf of Celia Kitzinger which relied on the 2019 case of Cape v Dring which states “The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state“.

    This argument was quickly accepted by Lord Justice Peter Jackson, who said that it would be “more helpful to consider balance, and the approach to the balance [between openness and privacy], that is going to arise in these cases“.

    The court also mooted that the question of  access to position statements for non-parties could be “front-loaded” into initial discussions at the point of making the transparency order.

    A lack of clarity in the existing rules, resulting in what was described as “the making of inevitably clunky orders in every case“, may have caused Poole J to set out his guidance “to seek to short-circuit some of these burdens“.

    The difficulty with providing the position statements was alluded to in the appellant’s written submissions:

    It is submitted that there is a difference between oral submissions (as may be taken down by observers) and written documents, which may recite lengthy extracts of otherwise private source evidence. Depending on the events of the day, written submissions prepared in advance may or not end up needing to be made or spoken to, as happened in this case. Documents are easily reproducible and capable of being disseminated widely and informally, including online. (written submissions of Alex Ruck Keene)

    The concern about a blanket provision of position statements was that information could be requested by not just accredited reporters but also “bloggers, tourists, voyeurs, or those with a connection with parties with malicious motives“, it was claimed.

    It was submitted that just because proceedings may be of interest to the public does not necessarily mean there is a public interest in the underlying written material being disclosed. It was said that “most of what was set out in the position statements filed for the hearing on 30 June 2025 was not ventilated in open court…” and the subsequent release of that material to Celia Kitzinger by the judge caused “significant distress and anxiety to the family“.

    “Open justice is not the same as saying open sesame”, said Mr Keene in oral submissions, who said the Court of Appeal should be cautious about descending into the detail of the processes required, as opposed to giving guidance at the level of principle. Keene said this was a topic that the CoP Rule Committee might wish to consider.

    In the mind of this humble blogger, Mr Keene’s suggestion that it could only take a matter of months for this guidance to be produced by the Rule Committee was overly ambitious. The Civil Procedure Rule committee has been dilly-dallying since 2019 following Lady Hale’s request they adopt the principles set out in Cape v Dring.

    In conclusion, the appellant said the order of Poole J should be quashed, and any copies of the position statements already sent out should be destroyed. The court should also record that “the approach set down by Poole J as to the handling of future requests by observers for position statements is not to be followed“.

    Celia Kitzinger’s position as Intervenor

    Emma Sutton KC, assisted by Gemma McNeil Walsh, appeared pro-bono on behalf of Celia Kitzinger. She said her client’s position was that “there can be no question that the principle of open justice applies to proceedings before the Court of Protection“.

    References to various authorities over the years were provided in support of this proposition.

    However, it was conceded that “we do agree the guidance went astray” and suggestions were put forward to make it compatible with rule 5.9 of the CoP rules.

    It was submitted that Poole J correctly carried out the balancing exercise between the article 8 privacy rights vs the article 10 right to freedom of expression (which includes receiving & imparting information) when he exercised his discretion in allow disclosure of the documents to Celia Kitzinger.

    Ms Sutton invited the court to confirm that the decision of the judge to allow disclosure was correct, and should be upheld. And that, subject to fine-tuning the guidance to take into account Rule 5.9, the guidance from Poole J should be confirmed as correct.

    The Official Solicitor’s position as intervenor

    Appearing on behalf of the Official Solicitor (Sarah Castle), Ms Katie Scott  said that Ms Castle wanted to make submissions on her own behalf, and not as litigation friend of the man at the centre of the proceedings in the lower court.

    In written submissions, it was said that the OS “does not advance a case as to whether or not the decision under appeal was wrong and/or the appeal should succeed“, instead she wished to support the submissions made by the appellant with regard to “the difficulties that practitioners experience as a result of the current practice of observers making requests for position statements at the start of or even during hearings“.

    Ms Scott echoed concerns that the court “has almost no ability to control the onward disclosure of such information” when documents are sent out.

    In oral submissions, Ms Scott said the emphasis of her submissions is to ensure that the parties, and those acting as a litigation friend, have sufficient time to respond to any application from non-parties to observe, or for the disclosure of documents.

    Ms Scott also mentioned the significant impact that observers can have on those with a close connection to the case, citing an example of someone “making a serious attempt on their life following the reading of reports of their COP hearing in blogs authored by observers at that hearing“.

    Ms Scott said she was hesitant about any guidance which may result in position statements being “watered down” in anticipation that they would be required to be disclosed.

    Were position statements to be redacted before being sent out, then it was submitted the burden of doing so should not fall upon the person at the centre of the case. This may mean that “the court must take responsibility for both carrying out the appropriate redactions to the position statement, and actually providing a copy of the position statement to the observer(s)“. Or that “the observer must pay the reasonable costs of P’s litigation friend undertaking this exercise“.

    Judgment was reserved.

    Opinion

    This case shows the strong tension that exists between the aspiration and reality of open justice. On the one hand, the theory of open justice means that hearings should be open to the scrutiny and understanding of the public, but on the other hand, this needs to be balanced against the practical realities of time pressures and the fact that Court of Protection hearings often deal with very sensitive information.

    One factor about this case did trouble me, and that is the status in this case of Celia Kitzinger and the Open Justice Court of Protection Project. It was said that the Project had five members, “none of whom are lawyers or journalists“.

    I would wager that Celia Kitzinger has written more about the work of the Court of Protection, in a journalistic and public watchdog capacity, than perhaps any other person in the United Kingdom. To suggest that she should not be considered a journalist because she does not possess a press card – the only qualification for which is a financial element – is a notion that I find difficult to justify.

    Daniel Cloake is a blogger and news gatherer with a keen interest in Open Justice and the niche and the nuanced.  You can read his many other blog posts on his own site,“The Mouse in the Court”.  He’s also blogged for this Project before (e.g. “I have to tell you something which may well come as a shock”, says Court of Protection judge). He tweets @MouseInTheCourt

    Court of Appeal to decide whether open justice applies to the Court of Protection: Briefing for CA-2025-001953 Re Gardner (Deceased)

    By Celia Kitzinger, 22nd March 2026

    Editorial note: We will add a link to the judgment when it is published.

    Does the principle of open justice apply to the Court of Protection?

    That’s the question the Court of Appeal will decide following the hearing on Wednesday 25th March 2026.  It’s an appeal against Poole J’s decision in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3) (15 July 2025). 

    The Court of Appeal case is brought by the mother of the protected party in the proceedings from the Court of Protection: Ruth Cowles, represented by Alex Ruke Keene KC (Hon) of 39 Essex Chambers.  She’s appealing against the judge’s order to disclose her position statements (aka ‘skeleton arguments’) to me as a non-party observer, and against Poole J’s guidance on position statements more broadly.

    There are two grounds to her appeal: Ground 1 is the claim that there were procedural irregularities in relation to the applications I made to the court for disclosure and in the judicial decision to ‘revisit’ an earlier decision; and Ground 2 is the claim that the principle of open justice simply does not apply in Court of Protection proceedings. I expand on both of these below.

    The other three parties from the Court of Protection proceedings have been excused from being parties to this appeal.  They were the Official Solicitor in her role as litigation friend of the (now deceased) protected party, and the protected party’s fiancée (both of whom did disclose position statements when they had discretion to disclose but had not yet been directed to do so) and the ICB (which withheld its position statements until the judge directed disclosure).   

    Permission has been granted for two intervenors i.e. non-parties who have knowledge and experience to bring to the court which is distinctively different from that of the parties and is likely to assist the judges.[1]

    One is the Official Solicitor, Sarah Castle, represented by Katherine Scott of 39 Essex Chambers.  She’s not acting (as she did in the lower court) as the protected party’s litigation friend but rather in her own right as someone with extensive experience of acting as litigation friend to those involved in Court of Protection proceedings, and seeking to protect their best interests.

    The other intervenor is me, also acting in my own right, as someone with extensive experience of attempting to access Court of Protection hearings as an observer, believing in open justice, and seeking disclosure of the documents required to make sense of what I observe and to report it accurately. I watch Court of Protection proceedings and support others to do so, and to blog about them, as part of my voluntary contributions to the ongoing work of the Open Justice Court of Protection Project.  I am enormously grateful to my brilliant legal team who are representing me pro bono: Emma Sutton KC of Serjeants’ Inn and Gemma McNeil-Walsh of 5RB. I feel particularly honoured to be represented by Emma: as a court observer, I’ve admired her advocacy for years. She’s succinct, logical, ruthless, and eloquent. Thank you Emma!

    In this ‘briefing’, I will set out the relevant background and a short summary of the arguments of the appellant and the intervenors. I hope this will assist observers to follow the hearing – either in real-time (in person in the Royal Courts of Justice or via the live-stream) or subsequently via the recording likely to be available after the hearing on the court’s YouTube channel.

    There is currently (as I write this on 22nd March) no agreement that skeleton arguments for this appeal can be made publicly available on the Court of Appeal website for people to download, and no agreement that they can be generally disclosed.  Other than those directly involved in the case, only three people have – to my knowledge – gained access to the skeletons and they did so by writing directly to the court ( civilappeals.listing@justice.gov.uk) to request them, explaining their interest in the case, and giving a reason why they were asking for them – a key reason being to enable them to follow the hearing. In response, the appellant’s skeleton was disclosed to these three people – albeit only in a redacted form (as far as I know without the approval of the judges for such redaction).

    On the assumption that many people will not think to write to the court in advance requesting the skeletons, and that even if they do their requests may be refused, or that skeletons may be sent too late to be useful for those observing the hearing contemporaneously – as has happened previously in Court of Appeal hearings (see The gulf between theory and practice: Open justice in the Court of Appeal) –  I will set out the basic background and arguments as neutrally as I can (bearing in mind my own role in the case). 

    Background

    I’ve organised my account of the background to this case by reference to the three published judgments by Poole J in the lower court. It’s the second of the three judgments that’s under appeal, but it is probably useful to know about the other two to get a sense of the context.

    1. Substantive decision about and applicability of the ADRT (Judgment of 10th June 2025)

    The substantive judgment at the centre of this case is Re AB (ADRT: Validity and Applicability) [2025] EWCOP 20 (T3).  It’s an important judgment that examines and applies the statutory requirements for the validity and applicability of an Advance Decision to Refuse Treatment (ADRT). In the particular circumstances of this case, the ADRT was found, if ‘authentic’, to be valid and applicable.

    The case concerned Carl Gardner, a man in his early 40s who had been living with his fiancée, Danielle Huntington, when he had a cardiac arrest on 5th May 2024 and suffered hypoxic brain damage. He received intensive hospital treatment to keep him alive, and at the time of the first hearing, about a year later, was continuing to receive long-term invasive treatment, including clinically assisted nutrition and hydration (CANH). By this point, after some initial uncertainty about diagnosis, it was confirmed that he was in a Prolonged Disorder of Consciousness (PDOC).

    There was never any doubt but that he lacked capacity to make decisions for himself from the moment of the cardiac arrest onwards – and that includes decisions about contact with other people, and medical treatment. Normally that would mean that ‘best interests’ decisions would be made on his behalf, and any unresolvable dispute about best interests would be referred to the court.  For the first four months after his brain injury, ‘best interests’ decision-making was the presumed (lawful) approach.

    After that, however, it emerged that Carl Gardner had apparently made an ADRT refusing life-sustaining treatment, including CANH, under just the circumstances he was now in.  This could mean that best interests didn’t apply to some medical decision-making.

    About a month before he sustained his brain injury and lost capacity, Carl Gardner had purportedly signed a document entitled “Living Will”, setting out both his wishes concerning contact with various family members, and his advance refusal of certain medical treatment, including life-sustaining treatment, in the event that he suffered a serious brain injury from which he was unlikely to recover so as not to require full time care. (The judgment helpfully quotes extensively from the relevant parts of the ADRT.)  If the document was valid, applicable and authentic, then CANH could not continue to be provided – and the decision about CANH was not a ‘best interests’ decision.

    Carl Gardner’s mother (and other members of his birth family including his siblings whose voices she represents) did not believe that the Living Will or the ADRT within it, was authentic. They said that either the entire Living Will was a fraudulent document which he knew nothing about, or that it was signed by him under undue influence. They also made the argument that it wasn’t valid or applicable. In contrast, his fiancée believed the Living Will to be a genuine document. 

    The judge comments that relations between the birth family and the fiancée “previously strained, are now fairly described as hostile” (§3). He refers to another document accompanying the Living Will, as presenting “a deeply personal account of his family and his fiancée in which there is a stark contrast between the damning description of the former and the glowing description of the latter” (§27.3)

    The mother’s allegations of fraud and undue influence meant that even after determination of its prima facie validity and applicability,  two issues remained before the ADRT could be treated as binding on those providing treatment.  Was the Living Will genuinely signed by him or had it been fraudulently drawn up and presented as Mr Gardner’s own decision? If it was his  genuine signature, had he signed it under undue pressure so as to negate its validity?

    The judgement draws attention to the legitimate public interest matters raised in this case.

    An Advance Decision to Refuse Treatment (“ADRT”) is a very important document which, if valid and applicable, may result in life sustaining treatment being withheld or withdrawn from a person when they have no capacity to make that decision for themselves and irrespective of their best interests. This case demonstrates difficulties that can arise when:

    1.1. An individual who has made an ADRT does not provide it to a healthcare professional or make clear arrangements for it to be brought to the attention of clinicians in the event that they lose capacity to make decisions about their own medical treatment.

    1.2. The authenticity, validity and applicability of an apparent ADRT are the subject of dispute amongst the individual’s loved ones and family.

    1.3. An ADRT which is the subject of dispute or doubt is not brought promptly to the attention of lawyers, Mental Capacity Act specialists, or the Court of Protection.

    Towards the end of the judgment, Poole J sets out “some important lessons for individuals who have made an ADRT or are contemplating doing so, for their families and friends, and for clinicians and NHS Trusts” (§53.1-53.9)

    The family’s allegations of fraud and undue influence meant that – despite the judge’s finding that Carl Gardner’s ADRT was otherwise valid and applicable – the medical treatment he’d apparently refused would continue to be administered pending the next hearing, which was listed for four days from 30th June 2025 (so more than a month later).

    2. Family decision not to pursue undue pressure and fraud; Judicial decision to direct disclosure of position statements (Judgment of 15th July 2025)

    Prior to the hearing on 30th June 2025 (reported in this judgment: AB, Re (Disclosure of Position Statements) [2025] EWCOP 25 (T3) (15 July 2025)), Carl Gardner’s mother (with the support of all family members) decided not to pursue the undue pressure argument. On the first day of the hearing, she decided not to pursue the allegation of fraud either. As a consequence, the parties were able to agree an order, approved by Poole J, that CANH would be withdrawn.  Outstanding disagreements about the contact arrangements between the patient and his family members and fiancée were heard and resolved by best interests decisions from the judge.

    I observed the hearing of 30th June 2025 in person at the Royal Courts of Justice and since I had not received position statements from either the ICB or the family, I made an oral request for disclosure of the parties’ position statements for the 30th June 2025 hearing.  I had requested but been refused access to the family’s position statements at the previous hearings in the case, and they objected again to disclosing their position statement at this hearing.  Following subsequent written submissions (in which I asked for disclosure of all position statements across all hearings in this case), the judge directed  disclosure and also set out some guidance for disclosure in future cases. That is the decision that is now under appeal.

    Here’s what the order said:

    By 4pm on 05 August 2025, all parties shall provide a copy to Professor Kitzinger of the Open Justice Project of position statements in this matter from the hearing: 26 March 2025; 12 May 2025; 22-23 May 2025; 30 June 2025

    Following this order, I was sent position statements from all parties, including the family – who first asked, via their lawyers, whether I would agree in advance not to publish material from them. I agreed, and was sent them on that basis.

    The Guidance about position statements is set out in §36 of the order as follows:

    36. There is presently no guidance on the provision of position statements to observers of Court of Protection hearings. I am told that practice varies and there is some confusion amongst parties, representatives, and observers as to the correct procedure and whether copies of position statements may be provided to observers on request or whether a court order is required. I confess to having taken a less than rigorous approach in the past, simply indicating that I was content for position statements to be provided to observers who had a copy of the Transparency Order. Hence, having been compelled now to take a deeper look at the legal position, pending any formal reconsideration of the standard terms of the Transparency Order or changes to the COP Rules, it might be helpful for me to draw some of these threads together and to set out what I believe to be the procedure that ought to be adopted:

    36.1. Position statements are documents “put before” the Court within the terms of the Court of Protection template Transparency Order. They also become documents within the court record once filed and they are filed once sent to the court listing office or a judge’s clerk or court clerk.

    36.2. Parties preparing position statements should foresee that an observer at an attended hearing in public might request an electronic or hard copy and should therefore prepare suitably anonymised position statements which comply with the Transparency Order. I also suggest that it would be helpful to include a warning on the front sheet of the position statement – a rubric similar to that which appears on published judgments, namely that “there is a Transparency Order in force and that irrespective of what appears in the position statement, the Transparency Order must be strictly complied with. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.”

    36. 3. An observer does not have an automatic right to see position statements, whether they are being used in a hearing they are to observe or have been used at a hearing they have previously observed. A change in the court rules and/or relevant practice direction (or to the standard Transparency Order referred to in the practice direction) would be required to create such a right.

    36.4. If an observer wants to see a party’s position statement they should ask the party in advance of the hearing and state their reason. If they cannot contact a party in advance of the hearing (whether at court or otherwise) they may make the request (with reasons) to the court and that request can be passed on to the party or their representatives.

    36.5 When a hearing is in public and a Transparency Order has been made, a party is free to provide a position statement to an observer attending a hearing without requiring a Court direction provided that (i) the position statement does not include the information protected by the Transparency Order and (ii) the observer has been provided with a copy of the Transparency Order so that they are bound by it.

    36.6 At a hearing in public, a party must ask the Court for permission to provide a position statement to an observer who has requested it if the document does include the information protected by the Transparency Order, provided that the party is otherwise content to provide it. The Court can then allow a variation of the Transparency Order to allow for the provision of that non-anonymised position statement to that observer at that hearing, if the Court considers that an appropriate step to take without hearing further submissions. That variation should be recorded in the subsequent court order. To re-iterate, the order would be a variation of the Transparency Order for the purposes of a specific hearing and on request of the party or legal representative who would otherwise be in breach of the Transparency Order by providing the position statement to an observer.

    36.7 If a party refuses to provide a position statement to an observer on request, the observer may apply to the Court for a direction, as provided for by the standard terms of the template Transparency Order, that they be provided with a copy on such terms as the Court considers fit.

    36.8 Such an application need not be made formally under the procedure in COP Rules Part 10. There is insufficient time to allow for a formal written application to be made and the Transparency Order allows for its variation to be made of the court’s own motion or on application with no requirement for such an application to be made in writing. That is a much more suitable process for a request by an observer at a hearing. The application may be made orally to the Court at the outset of the hearing.

    39.9 The Court will hear submissions by the observer as to how access to the position statement will advance the open justice principle, for example by allowing them to follow the case. If needed, the Court will then hear submissions from the party refusing to provide its position statement as to countervailing factors such as the risk of harm or proportionality. The observer may respond and the Court will give a short ruling and allow the application on such terms as it thinks fit, or refuse it. Dring will be applied.

    36.10 If, after a hearing has concluded, a non-party – whether or not they observed the hearing – requests to be provide with a position statement that was used at the hearing, then they should make a Part 10 application under r5.9(2). That process must be adopted because the application should be on notice with an opportunity for the party concerned to respond. The applicant observer will need to make out a case in support of their application. The hearing having concluded, the more immediate, less formal process outlined above will no longer be appropriate. Again Dring will be applied (and see In re HMP below).

    3. Duration of reporting restrictions (Judgment of 16th September 2025)

    The final published judgment from this case is Re Gardner (Deceased), (Duration of Transparency Order) [2025] EWCOP 34 (T3). 

    The order that followed the final hearing, which all counsel involved in that final hearing had agreed, included a direction that “the Transparency order dated 23 May 2025 shall cease to have effect from 30 August 2025“. As the judgment says, “Mr Gardner was likely to die within a short time of his transfer to a hospice and so the Transparency Order (“TO”) was to be discharged after a suitable “cooling off period” following his death”(§2).

    The birth family “now had a change of heart” (§4). Represented by Parishil Patel KC and Eliza Sharron, they made an application to extend the TO either indefinitely, or for 10 years (later reduced to 2 years) on the grounds that they would be harmed if their involvement in this case were to become public knowledge, that their professional reputations were at risk and their Article 8 privacy rights would be infringed (§10(2)). The judge found these concerns to be “highly speculative and overstated” (§41(ix))

    On behalf of Danielle Huntingdon, Carl Gardner’s fiancée, Alexis Hearnden and Tor Butler Cole KC (acting pro bono) submitted that the events of the past 18 months had profoundly impacted on her. “She has been accused of being party to producing fraudulent documentation including her partner’s Living Will. She has had to battle with the NHS as well as the family to ensure that Mr Gardner’s choices were respected. She wants to talk freely to her family, friends and professionals, and may in due course wish to speak more publicly, about her late fiancé, the Living Will including the ADRT, the circumstances leading to the litigation and the litigation itself. These issues are unavoidably personal but are also of much wider public interest.”  Danielle Huntingdon also wanted the TO discharged because she feared inadvertently breaching it (“I have found it difficult to understand what is caught by the Transparency Order and what can be spoken about as simply part and parcel of my life.  …  I find it very stressful to think that I could be fined or sent to prison if I get it wrong.”  These submissions found favour with the judge (§41(ii))

    I was joined to the case as an intervenor, for this hearing only and was represented pro bono by Emma Sutton KC (thank you!).  I adopted Ms Huntingdon’s submissions and added that the TO prevents commentators from fully airing the important issues in the case and from informing and engaging a wider public in debate about those issues (accepted by the judge at §41(iii)).

    The court considered the purpose of TOs to be the protection of P’s privacy during his lifetime and said: “In the great majority of cases a TO made in Court of Protection proceedings ought to be discharged upon P’s death or within a short period after their death. The appellate courts might say that that should be the rule in all such cases.”  The judgment concludes robustly:

    “The distress and unpleasantness caused by the litigation and the events surrounding Mr Gardner’s injury, hospitalisation and death are raw. They will continue to inflict pain on those close to him and I have no doubt that, for some, they would be exacerbated by publicity about the case. But much of that pain is caused by matters and events which arose before the litigation began and which will not now disappear now that it has ended, even if it were never spoken about publicly. Ms Huntington, Professor Kitzinger and others want to speak and write about the important issues and experiences that arise, not just from the litigation, but from the events and experiences surrounding Mr Gardner’s injury, his management in hospital, and his death. Continuation of the TO injunctive provisions for years after his death would amount to a considerable and unjustifiable interference with the rights and freedoms of them and others. The balance weighs firmly in favour of discharging the TO and removing any restrictions on communicating or publishing information or material relating the proceedings and the public hearings in this case. I refuse the Fourth Respondent’s application and I shall discharge the TO.” (§43)

    This judgment has not been appealed.  In the six months since it was published, Carl Gardner’s name (and those of other family members) has been published in a number of blogs and in other judgments.[2]

    Court of Appeal

    Permission to appeal was granted on 3rd November 2025 on the grounds of compelling reasons for the Court of Appeal to consider Poole J’s guidance, since it (and any amendments made by the Court of Appeal) will be influential – going forward – in determining the proper approach to disclosure of position statements to observers in Court of Protection cases.

    The following very sketchy summaries of some key points from the skeleton arguments (and witness statements) of the parties are poor substitutes for access to the documents themselves[3].

    The Appellant’s case

    Two skeleton arguments were advanced on behalf of the appellant, the first from Parishil Patel KC and Eliza Sharron, the second “replacement” skeleton from Alex Ruck Keene KC (Hons). They differ in emphasis and detail and I’ll focus on the key arguments of the replacement skeleton here.

    1.  Procedural irregularities in relation to the applications I made to the court for disclosure

    The appellant argues that the procedure adopted by the judge was unjust because I had already requested disclosure of the position statements from the earlier hearings and the judge had ruled that I could have them “at the discretion of the parties”.  Two of the parties used their discretion to refuse.  Now I was going behind the judge’s earlier decision by reissuing an application in my written submissions following the final hearing – and the judge made a different decision.

    2.  The principle of open justice simply does not apply in Court of Protection proceedings

    It is common ground that in the Court of Protection under r.4.1(1) CoPR 2017 “The general rule is that a hearing is to be held in private’“. Since the incorporation of the Transparency Pilot 2016, the ordinary practice is then for the judge to order that hearings should be in public, subject to reporting restrictions (the Transparency Order).  This is different from the procedure adopted in relation to many hearings in other jurisdictions which are held in public as a ‘general rule’ from the outset. According to the appellant, the decision to hold a Court of Protection hearing in public does not make it a “public hearing” in the same way that hearings that are public by default are “public”.  

    In Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] 2 WLR 815, Lords Reed and Briggs made clear (at §119) that: “…it is established by Scott v Scott that the open justice principle had no application to the Haastrup proceedings [which were at all times held in private]. There is no constitutional principle that is infringed by a prohibition on the publication of the names of witnesses in proceedings held in private under the parens patriae jurisdiction.”

    The appellant says that Scott v Scott [1913] AC 417 made clear (in different ways) that proceedings in (what was then called) “lunacy” were not covered by the open justice principle and suggests that the relevant principle is not ‘open justice,’ but ‘transparency.’

    This means that Poole J’s references in the published judgment to  ‘derogation’ from the principle of open justice is incorrect, and his reliance on published judgments from proceedings that are public by default (e.g. Hayden v Associated Newspapers Limited [2022] EWHC 2693 (KB); Moss v The Upper Tribunal [2024] 4 WLR 99 and R (MPC) v PMP [2025] EWHC 1462) cannot be sustained.

    This also means that the customary practice, in the Court of Protection, of carrying out a balancing exercise between Article 8 and Article 10 ECHR rights is fundamentally misplaced.  The appellant’s argument is that freedom of expression is not being restricted, but supported, by the making of a Transparency Order (since it is this that enables hearings to be heard in public rather than in compliance with the ‘general rule’ that they should be private), so any balancing exercise involved is qualitatively different from the exercise involved when restrictions are being imposed in relation to the sharing of information about public proceedings.

    The appellant also raises a number of practical concerns: e.g. the time the court devotes to considering and arranging  observer access to hearings and requests for documents, the ‘dehumanisation’ of P by the use of initials in position statements, the court’s inability to control dissemination of position statements after they’ve been sent to an observer.

    There’s a particular concern about the Guidance at §36(5) of the judgment (quoted above), which says that position statements can be provided to non-parties without authorisation of the court: this, says the appellant, does not comply with Rule 5.9(2) of the Court of Protection Rules 2017. There’s also a concern that Poole J did not consider redaction before directing disclosure.

    The appellant seeks a quashing order, an order that I must destroy the position statements sent to me in accordance with the court’s direction, and a judgment specifically saying  that the approach set down by Poole J as to how future requests for position statements should be handled is not to be followed.

    Intervention from Celia Kitzinger

    I do not consider the procedural point (Ground 1 of the appeal) to be well-founded. The judge is obviously not bound by an earlier position adopted without substantive argument. He correctly considered the matter afresh when position statements from all parties were not forthcoming.  Poole J had a wide discretion to make this case management decision, and the appellate court should be reluctant to interfere.

    I accept that the key issue in this appeal relates to para 36.4 and para 36.7of Poole J’s decision; namely whether Rule 5.9(2) of the Court of Protection Rules 2017, which codifies the common law principle of open justice, and the key rule regarding the supply of documents to a non-party, requires authorisation of the judge to decide whether position statements should be given to a non-party. Poole J’s guidance says it does not. I accept this is unlikely to be compatible with Rule 5.9(2) which requires an application to, and authorisation by the court. The appellant (and the Official Solicitor as the other intervenor) appears to share this view.

    The argument that open justice does not apply in the Court of Protection is quite extraordinary. Open justice is a fundamental constitutional principle that applies to all courts and tribunals. This has been made clear in many cases that have reached the Supreme Court or the Court of Appeal, many of which involved hearings which were private “by default”, but where the court or the relevant tribunal (in the exercise of its discretion) permitted a public hearing and/or allowed the disclosure of certain information from such a hearing. My legal team has compiled and presented summaries of ten such cases drawn from across proceedings involving children before the Family Division, mentally ill patients before Mental Health Review Tribunals, and matters of national security before the Investigatory Powers Tribunal.

    Finally I note that the appellant (who had legal representation) could have, but did not, make an application for a private hearing in the Court of Protection. She also could have requested permission to redact her Court of Protection position statements before disclosing them to me. She did not.

    My skeleton argument for the Court of Appeal sets out a revised version of Poole J’s “guidance” that is compliant with the rules and I invite the court to adopt it.

    I have also submitted a witness statement which details the contribution that open justice has already made in the Court of Protection, including improving the conduct of remote hearings (based on my feedback early on in the pandemic), supporting public understanding of the Mental Capacity Act, the work of the Court of Protection and the rule of law, facilitating family members of future Ps to observe the court and hence to participate more actively in their own families’ future hearings, and contributing to the development of guidelines (e.g. on closed hearings and contempt of court).

    I welcome consideration from the Rule Committee as to how observer requests (and hence the implementation of open justice) can be streamlined and made less time-consuming, for observers as well as for the court and more generally on how (collaboratively) we can all do open justice better.

    Intervention from Sarah Castle, the Official Solicitor

    The role of the Official Solicitor is to represent the best interests (as she sees them) of the protected party – and this is key to her decision-making about whether or not to accede to requests for position statements.  She takes as a starting point P’s Article 8 rights to respect for privacy and family life. The role of balancing that against Article 10 rights lies with the judge, and not with her.  I have received many times from many counsel the following standard template response to my request for position statements:

    The Official Solicitor, as P’s litigation friend, is required to conduct the proceedings in P’s best interests; and approaches the request for a copy of the position statement on that basis. She is not able to establish what P’s wishes and feelings are in respect of the request, nor what beliefs and values would influence P’s decision if s/he were able to make it for herself. In those circumstances it seems to her to be a reasonable assumption that P would want, as far as possible, to maintain her / his privacy, and to limit (as far as possible) the extent to which personal information about her / him is provided to observers, even when those observers are bound by a transparency order. For that reason, the Official Solicitor refuses the request to provide a copy of the position statement. She recognises that you are entitled to ask the court for a direction that you should be provided with a copy; and recognises that the court, if asked to make that same decision, will do so on a different basis than she has done as P’s litigation friend, and may well come to a different conclusion.

    Sarah Castle has submitted a witness statement reporting findings from a small survey (30 or so respondents from COPPA, the Court of Protection Practitioners’ Association) to draw attention to the difficulties that practitioners experience as a result of the current practice of observers making requests for position statements at the start of or even during hearings and points out that precious court time allocated to consideration of P’s best interests, can instead be taken up by argument about provision of documents to observers. Like the appellant, she expresses concern about whether and how position statements are stored by observers (and the need to prevent access by a third party) and whether and how they are eventually destroyed. A few survey respondents also reported strongly negative effects on P of having observers in court, including self-harm and disengagement of P from the proceedings about them. She also raises concerns about “evidence” included in position statements (e.g. medical details, or accounts of the protected party’s spiritual beliefs) and emphasises the importance of considering redactions (and the question of who pays for the cost of anonymising/redacting position statements). 

    I hope this brief summary of the arguments will assist in understanding the hearing.

    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] Neither the Court of Protection nor the Court of Appeal has specific rules for joining intervenors, but CPR Part 19.2(2)(a) provides: 19.2(2) The court may order a person to be added as a new party if – (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings…

    [2] See: https://www.mentalcapacitylawandpolicy.org.uk/transparency-in-the-court-of-protection-what-is-it-good-for-and-how-long-should-restrictions-last/;  https://www.iclr.co.uk/ic/2025036482; https://spirebarristers.co.uk/2025/11/25/public-law-newsletter-november-2025/;  JF v London Borough of Hackney & Anor[2025] EWCOP 48 (T1)

    [3] I have been advised not to quote from skeletons (even my own) without the express permission of the court. It’s possible that my attempts to paraphrase will inadvertently lose nuances of meaning or introduce errors – I’m happy to correct any such and to quote verbatim if given permission to do so. For now, this is my best effort. Disclosure of the skeleton arguments to all those who want them would, of course, maximise accuracy of reporting in this case, as in every other.

    [4] Here are links to the blog posts we have previously published about this case in the Court of Protection.

    The gulf between theory and practice: Open justice in the Court of Appeal

    By Celia Kitzinger, 24th February 2026

    The judgment is now published (click on the title to read it)

    Lesley Barnor Townsend -v- Epsom and St Helier University Hospitals NHS Trust [2026] EWCA Civ 195

    UPDATE 27th February 2026

    The Court of Appeal decision: Permission to appeal was granted on Ground 3 and the appeal has been allowed. Ground 3 is this: “The learned Judge erred in holding that a ‘clinical decision’ to withhold life sustaining medical treatment is not subject to best interests considerations and hence is not subject to the supervision of the Courts.” The case was remitted to the COP and a hearing listed at 10.30am before Morgan J on Friday 27 February, but sadly P had died during the night. I extend my condolences to his family.

    Over the last couple of years, judges have been talking a lot about the importance of open justice and transparency.

    But when I watched a Court of Appeal case yesterday (Monday 23rd February 2026), I found – yet again – that it’s not working very well in practice.

    The theory of open justice

    In a speech called “Justice must be seen to be done”, Mr Justice Cobb said: “It is a general principle of our constitutional law, and in the upholding of the Rule of Law, that justice is administered by the courts in public, and is therefore open to public scrutiny”. He quotes from a recent judgment: “In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny”.[1]

    In 2024, the Lady Chief Justice,  set up a “Transparency and Open Justice Board”. In her speech announcing this, she says that “open justice is, first and foremost, a constitutional principle grounded in common law: one that over centuries the judiciary have defined, applied and defended”[2].  In her view,

    “The greatest threat comes not from direct attack on the principle, but rather from careless – sometimes inadvertent – failures to protect its ideals. I intend the judiciary to step up, continuing to play our important constitutional role of protecting and promoting open justice as an essential element of the rule of law.”

    The judge she appointed as Chair of the new “Transparency and Open Justice Board”, Mr Justice Nicklin, says that “over centuries, it has been the judiciary that has steadfastly recognised the importance of open justice and judges who have worked consistently to articulate its principles and promote its objectives”.  In his speech he said:

    “… every Judge, Magistrate and Tribunal Member should be thinking about the ways in which s/he can promote transparency and open justice when sitting. That can be as simple as ensuring that those people who are watching the proceedings can actually hear them, that they have the skeleton arguments to which reference is being made, and can find out the result of the case.”[3]

    Open justice in practice

    The hearing in the Court of Appeal was listed like this:

    So far, so good.  Live streaming started in 2019 and is intended  “to improve public access to, and understanding of, the work of the courts”.[4]

    I’d been looking out for this case because the week before, I’d watched the Court of Protection case that was being appealed. I heard Mrs Justice Theis deliver her oral judgment around 5pm after a full-day hearing.  I’d seen the lawyer representing the family ask for permission to appeal and heard Theis J refuse it – on the grounds that it stood no realistic likelihood of being successful.  But here it was.  Clearly, the Court of Appeal judges had thought it worth hearing the case.

    I am prevented by a Transparency Order from saying very much at all about what the case is about – and I am a little surprised by the descriptor produced by the court in the public listing: “The case concerns serious medical treatment and best interests”.  My description would be a bit different.  It certainly concerns serious (life-sustaining) medical treatment – but the question of whether the decision about continuing or withdrawing it is a  ‘best interests’ decision lies at the heart of the case. The Trust says it is not a ‘best interests’ decision, but a ‘clinical’ decision.

    Usually, the serious medical treatment cases heard in the Court of Protection concern which of the available treatment options is in P’s best interests.  Because P can’t consent to medical treatment, the court “stands in P’s shoes” and gives or refuses consent to whatever treatment the doctors are offering as clinically appropriate.  In effect, that places P in the same position as a capacitous person, with a court’s decision based on best interests criteria substituting for capacitous consent.

    But when a particular treatment is not available as an option because doctors do not consider it to be clinically appropriate, then the court cannot make a decision on P’s behalf that overrules the doctors. 

    In this case, the doctors were saying that a particular treatment was not available to P because it wasn’t clinically the right thing to do.  I watched in the Court of Protection hearing as the lawyer for the family asked the judge to order the doctors to give the treatment, and to attach a penal notice if necessary.

    The judge said this was outside her jurisdiction – not something the Court of Protection can do.  She declined to hear the case – and she refused permission to appeal.

    But now it was before the Court of Appeal….  on what grounds I wondered?

    Based on my previous experience of Court of Appeal hearings, I was sceptical about how transparent it would be.  Yes, I would be able to watch what was happening on their YouTube channel, but would I be able to make any sense of it?

    For one thing, I didn’t have (and still don’t have) a copy of the judgment being appealed.  I’d heard the judge in the lower court give an oral judgment, and I knew it was being transcribed and she would formally approve a transcript so that the lawyers for the family and the other parties and the judges in the Court of Appeal would have a proper record of the reasons for her decision.  The lawyers and judges in the hearing would all have that judgment in front of them and probably refer to numbered paragraphs within it.  Would I be able to follow it?

    Secondly, I didn’t have any of the skeleton arguments for the Court of Appeal.  The most important document, from my perspective, is the written submission from the family supporting the application to appeal and the grounds of appeal.  Without knowing the grounds of appeal, how would I follow the case?  I also wanted to understand the opposing arguments of the Trust and the Official Solicitor. (I do now have the skeleton argument for the Trust which arrived some hours after the end of the hearing – but not that of the OS or the family.)

    Third, I was still bound by the Transparency Order from the Court of Protection and can say virtually nothing about the case, despite the fact (or more accurately because of the fact) that there is information about it in the public domain, both in the national and international press and on social media. I assumed the Court of Appeal would need to address this in some way, but until they do, I am effectively unable to report on the substantive matters. (As it turned out, they left the earlier TO in place in its current form and it still applies as I write this.)

    I emailed the Court of Appeal (time stamped 08:58 on 23rd February 2026) raising these concerns, setting out some arguments for transparency, and asking for three things:

    • Variation of the reporting restrictions to permit reporting of the names of P and the family (in addition to the name of the Trust) so that there can be meaningful reporting of this case. (The names of P and family members are already in the public domain in a press release and national and international media in connection with this case – and they want to be named.)
    • Publication of the judgment by Theis J in advance of the hearing to appeal it (or failing that, a copy of the judgment that I can make public).
    • Making the skeleton arguments accessible to the public. 

    These seem to me modest requests. They were matters that should properly have been considered in advance of the hearing, or at the very beginning, by any judge “thinking about the ways in which s/he can promote transparency and open justice when sitting”. [5]

    The matter of reporting restrictions  was raised by the barrister for the family – because the family want to be able to speak about the case, in their own names, and to name P. They object to the interference with their right to free speech. They had said the same thing in the Court of Protection hearing too. It seemed to me that the three Court of Appeal judges treated this as an administrative matter rather than a principled issue of  Article 10 right to free speech.  The judges did not engage in a balancing exercise of Article 8 and Article 10 then, or later. They deferred the discussion until the end of the hearing (so everyone was referred to with an alphabet soup of initials), and then deferred it again at the end of the hearing until the following day.  I have not received a revised Transparency Order.

    The judges simply ignored the obvious fact that members of the public observing the hearing did not have either the judgment that was being appealed, or the skeleton arguments.  I think they didn’t receive my email until the hearing was well underway – I have no evidence that they read it until my requests were raised after the lunch hour.  It seems there was a large volume of correspondence in the office that day.  But shouldn’t the need for public release of the judgment from the lower court, and the skeletons, have been predicted? It seemed that the judgment had not been redacted in accordance with the Transparency Order (why not?) so the suggestion was to ask Mrs Justice Theis for it (which obviously meant I didn’t have it in time to follow this hearing).

    To repeat:

    “… every Judge, Magistrate and Tribunal Member should be thinking about the ways in which s/he can promote transparency and open justice when sitting. That can be as simple as ensuring that those people who are watching the proceedings can actually hear them, that they have the skeleton arguments to which reference is being made, and can find out the result of the case.”[6]

    And this, again from Mr Justice Nicklin:

    28. To my mind, open justice has four fundamental components:

    a) open courts: that the public (including representatives of the media) can access court hearings – this includes physical access to court buildings and (where the facilities are available) remote access to hearings;
    b) open reporting: that the public and media can freely report on proceedings held in open court, and that any restrictions imposed by the court preventing (or postponing) reports of proceedings (including anonymity orders) must (1) have a statutory basis; and (2) fulfil a legitimate aim, be necessary, proportionate, and convincingly established by clear and cogent evidence:
    c) open judgments: that the court’s decision (and the reasons for it) should be publicly available; – on this point the interesting issue of ‘courts of record’ may well need to be considered; and
    d) open documents: that the evidence and submissions communicated to the court is available to the public so that they can make sense of proceedings and the decision of the Court or Tribunal. The importance of this factor is greater in modern litigation because of the increased reliance, in many jurisdictions, upon written witness statements (often standing in place of a witness’s oral evidence) and written submissions. As I observed in a case in 2022: “The availability of skeleton arguments, and witness statements, deployed in open court hearings is essential to any meaningful concept of open justice”. (§28)

    So, going through each of these “four fundamental components” in turn as they applied to this hearing.

    • the court was ‘open’ in the sense that I was able to watch it, and so did around 50 other people on line contemporanously and it was recorded for posterity and is available on line (https://www.youtube.com/channel/UCdqOblYsySX4cj0nGV6RNSA) where it’s so far had around 600 views. Plus there were 3 or 4 journalists in the press box in the physical courtroom.  But for remote observers, there were difficulties in hearing what was going on especially at the beginning because lots of people had their microphones on and someone was typing very loudly into theirs. At least one observer left in frustration at being unable to hear what was said as a result.
    •  I can’t openly report on the proceedings and (although all counsel made submissions about the reporting restrictions), the judges continued to impose existing reporting restrictions without disclosing the legitimate aim of so doing.
    • The judges said that their decision on the substantive matter under appeal would be handed down the following morning by email to the parties.  If that’s what’s happened, that means that a decision has been made but it’s not public. They did not give any indication as to whether or not, or how, or when, their decision would be made public.
    •  No skeleton arguments were provided for ordinary members of the public (I don’t know if journalists got them) until after the judges received my request during the lunch break.  Nor did we have access to the judgment that was being appealed. I struggled to understand what was going on, despite having attended the hearing in the lower court. I can’t imagine how difficult it must have been for those who hadn’t even attended the previous hearing. I’ve repeatedly raised concerns about the failure to provide skeleton arguments in the Court of Appeal (see Transparency requires free and timely public access to skeleton arguments in the Court of Appeal  and How not to do open justice in the Court of Appeal). I hoped things might have improved. They have not.

    So, no, it doesn’t seem to me as though the judiciary in this case “applied and defended” open justice principles. What I see instead is what Lady Carr has described as “careless – sometimes inadvertent – failures to protect its ideals”.

    In my experience, there is an unbridgeable gulf between the fine words and noble theory of open justice and the on-the-ground reality. And what that means, in the end, is a lack of confidence in the judiciary and in the justice system. The Court of Appeal on this occasion was not really open to public scrutiny – and that corrodes public confidence in the rule of law.

    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] A v British Broadcasting Corporation [2014] UKSC 25; [2015] AC 588 at [23] https://www.judiciary.uk/speech-by-mr-justice-cobb-justice-must-be-seen-to-be-done/#_edn14

    [2] https://www.judiciary.uk/speech-by-mr-justice-nicklin-transparency-open-justice-opportunities-and-challenges/

    [3] (§33 https://www.judiciary.uk/speech-by-mr-justice-nicklin-transparency-open-justice-opportunities-and-challenges/#_ftnref27

    [4] https://www.judiciary.uk/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/#:~:text=Most%20cases%20from%20the%20Court,the%20work%20of%20the%20courts.

    [5] (§33 https://www.judiciary.uk/speech-by-mr-justice-nicklin-transparency-open-justice-opportunities-and-challenges/#_ftnref27

    [6] (§33 https://www.judiciary.uk/speech-by-mr-justice-nicklin-transparency-open-justice-opportunities-and-challenges/#_ftnref27

    [7] §28 https://www.judiciary.uk/speech-by-mr-justice-nicklin-transparency-open-justice-opportunities-and-challenges/