A section 21A hearing: Impressions from a veteran observer and the daughter of (a different) P in a s.21A case

By Celia Kitzinger and Anna (Daughter of P), 9th May 2022

Anna (not her real name) contacted the Open Justice Court of Protection Project towards the end of April 2022, saying that she’d been asked to attend a s. 21A directions hearing about her mother (in a care home, with Alzheimer’s) and was finding the Court of Protection process “opaque”.   She didn’t know how it was possible for her mother to have made an application to court given that her mother knows nothing about it, or what her own role as a daughter was supposed to be (as “interested person” or “party” – what’s the difference?). When asking for information from the lawyers representing her mother, she’d been told to seek independent legal advice.  Could she watch a Court of Protection hearing, she asked, and see for herself what was involved.

Fortunately, there are lots of s.21A hearings to choose from in the Court of Protection, although only First Avenue House London and the Newcastle hub routinely include this descriptor in the listings.  

I offered to observe with Anna, so that we could discuss it afterwards.  

On the day we’d chosen to observe a hearing, there was one before District Judge Beckley (at First Avenue House), listed like this:

3rd May 2022. 10:30am District Judge Beckley
COP13744224 T v London Borough of Hillingdon 

Section 21A Deprivation of Liberty, Decisions relating to P’s care and residence

TO BE HEARD REMOTELY

PRIVATE HEARING NOT OPEN TO THE PUBLIC
Time estimate 2 hours

I’ll give a summary of the case, and describe what happened in court and my views of the hearing  and then Anna will describe her impressions of the Court of Protection, based on her observation, relating it to her own experience..

The hearing – Celia 

The hearing began with the judge restating that the hearing was “private” (as listed) but that the rules permit him to admit observers and to specify that there is no contempt of court if we report the proceedings so long as nothing is published that discloses the identity of the person at the centre of the case, where they live, or those caring for them.  (This is an approach to remote hearings that seems to be adopted uniquely by judges at First Avenue House: judges at every other Regional Hub simply disapply Practice Direction 4C, make the hearing ‘public’, and issue a Transparency Order.)

Christine Cooper, acting for the applicant (T) via her Accredited Legal Representative provided a helpful summary of the case.

It concerns a woman in her early nineties who has dementia and diabetes.  She has no contact with remaining family members, but is supported by a long-term friend (M) who – like T– is not a first-language English speaker. 

Importantly, M holds Lasting Power of Attorney for both Health and Welfare and for Property and Finance. (There’s a very helpful blog post by Alex Ruck Keene on “Powers of attorney, care homes, best interests and deprivation of liberty”, which covers the legal issues concerning deprivation of liberty when the protected party has a attorney.)

Until August 2020, T lived in her own flat.  After hospital treatment, she agreed to be discharged from hospital to a care home to see if she would like it.  

It turns out she did not, and she started asking to go home within a few weeks.

Her attorney (M) approached the local authority on 8th December 2020 to explain that T would like to return home.

Court of Protection proceedings were issued a few months later, on 22nd April 2021. (I don’t know why it took nearly five months to issue proceedings) 

It’s now more than a year since proceedings were issued.

According to counsel for T, it’s been confirmed that T’s flat is suitable for her to return to and M has identified a suitable live-in carer, but “very little has happened to progress a trial return home or to consider any other options for T”.  

Counsel for T said that, “the return home was considered feasible quite some time ago.  The difficulty turns largely on funding issues”.  Later she said, “It’s a terrible tragedy that one of those rare cases where a return home is a feasible action is being hampered by funding issues”.

As I understand it, the issue is that since T was found ineligible for Continuing Healthcare Funding, she’s been considered a “self-funding” resident at the care home, with M having commissioned her placement.  She now owes tens of thousands of pounds for the care she’s received at the care home she doesn’t want to be in, and has “exhausted her liquid assets”.  Her flat (since she’s not living in it and it is mortgage-free) is considered by the local authority to be a capital asset from which she is expected to fund her own care (e.g. by selling it or via equity release). 

Counsel for T challenged this characterization, saying that T is a temporary resident of the care home, who intends to return home, and as such her home must be disregarded in any assessment of her assets.

She was placed there by the NHS as a means of getting her out of hospital. Nobody chose this placement for her. She was put there for an assessment and then left there. It was a short-term expedient in which she’s got trapped by some Kafkaesque nightmare”.

The position taken by counsel for T is that, given the circumstances, T should not have to fund her care, but that in any case “at this stage the most important thing it to get the trial at home done, and if it doesn’t work out, then it will be straightforward as the flat will have to be sold”.    

If the trial of living at home is successful, however, there will be an issue of how her care at home will be funded – at least after the first month, which the local authority has now agreed to fund, on a trial basis.  

The right to a “speedy” decision

Schedule A1 of the Mental Capacity Act 2005 was drafted so as to meet the requirements of Article 5(4) of the European Convention on Human Rights.  

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (European Convention on Human Rights)

Section 21A is supposed to provide the detained person with the means of obtaining that speedy review – but in practice (at least in my experience of watching s.21A hearings) it could rarely be called “speedy” (see: Inspired by Bournewood: A s.21A challenge and delay in the court and Delay in a s.21A challenge to the capacity requirement).

In this case, says counsel for T, “despite no less than 5 sets of directions having been given by the court, T has not had a speedy review of her detention in circumstances where it is entirely possible that she could have returned home some time ago”.

Concerns about quality of care

Not only is there a concern about delay, but also the quality of care she’s received at the care home has caused serious concern to her friend and attorney (M) and to her legal representatives.  

Nobody at the care home speaks T’s native language. There have been problems relating to hearing aids, dentures, spectacles, and T has sustained serious injuries in two falls at the care home.  M reports that T’s swollen legs are not elevated as they should be and that T has sometimes been left in dirty clothes, without having had her hair done. She says T is very sad.

Counsel for the local authority (Thomas Boden) made clear that the local authority does not accept these concerns and there is no evidence of safeguarding issues.

It is disingenuous,” said counsel for T, “for the local authority to say there were no safeguarding issues, when it decided not to undertake an investigation”.

How the judge engaged with the problems: time and money

The judge maintained a firm focus on ensuring that T gets a trial of living at home as soon as possible.  He addressed the practical steps required in pursuit of that aim.  He made no findings of fact regarding the quality of care at the home, nor did he pursue the matter of alternative care homes.

He set up quite a tight timetable by which the local authority and clinical commissioning group need to provide specified information, including a care plan and transition plan, detail about how T’s diabetes will be managed at home, and issues relating to a problem with entering and leaving the flat now that T’s mobility has declined (there are steps).  The local authority asked for 21 days (“due to work load capacity and time available to staff”) but were granted only 14 days to provide information – with a requirement that “a senior officer within social services” must provide an explanation to the court if this direction is not complied with.  

The judge decided against an order (proposed by counsel for T) that an social worker should be appointed to urgently seek another care home for T because “I don’t want to derail our planning for a return home by talking about alternative care homes”.  I got the impression that he very much ‘cut to the chase’ of the issue, which was to get T home as swiftly as possible.

This was so even though the local authority will not keep her place at the care home open to cover the eventuality of the trial of living at home failing.  

Acknowledging that nobody can order the local authority to reserve T’s place, counsel for T arrived at the view that “if that results in her going to a different care home, maybe that’s a good thing”.

It is not within the power of the judge to order the local authority to keep the placement open, but counsel for the local authority indicated that it would be within the judge’s powers to direct the attorney to do so (i.e. M). Presumably this would mean that M would have to pay the care home charges (out of T’s assets) for the month-long trial while T is living at home.

Counsel for T reacted to this suggestion with exasperation: “M has exhausted all T’s liquid assets.  You can’t direct the attorney to do something that can’t be done.”

If there were sufficient funds”, said the judge, “that would be a practical option, but if there’s no funding available for M to do that, it’s not a realistic option for me.  If the money’s not available, I can’t order her to do that”.

Counsel for the local authority then asked the judge to order M to set out the funding position under different scenarios.

Counsel for T responded with incredulity.  “We’ve been around this loop at the RTM [Round Table Meeting] on Friday…. M is a longstanding friend, doing a sterling job of supporting T in the face of circumstances where I think a lot of people would have given up.  She’s not an expert, she’s got no financial training, she’s not legally represented.  It simply isn’t right to try to ask M to go and obtain financial advice and legal advice and then second guess the outcome of the local authority’s decisions….  At this stage the most important thing is to get the trial at home done”.

The judge declined to make any such order.

The judge said he would need to “squeeze in a hearing outside of normal times” to ensure this case was heard in a timely fashion.  It’s listed for a next hearing at 9.30am on 7th July 2022 (as a remote hearing).  There was also a deadline set for filing a COP 9 form, setting out when the trial at home is going to take place- and if that target deadline isn’t met then there will (also) be an earlier hearing on 30th May at 3pm. 

The view of T’s friend and attorney, M

T’s friend and attorney, M, was not a party to proceedings, but the judge treated her as having “an  important role” and asked whether she would like to address him.  She spoke with some passion (bear in mind her first language is not English):

I am appalling the long time it’s taking [the local authority] to decide T can go home, since she decided in her second week at [the care home]. It’s her will to be at home.  She understands that, in later days, she probably won’t be there, but at the moment she’s distressed to be in that place where she’s not happy at all.  I can’t describe how she’s feeling. Please allow her to trial home for her own peace of mind in the latest years of life.”

Later, M acknowledged with a sigh that she wasn’t an “expert”.  “It’s the first time in this situation. I want to help my friend. I’m not familiar with the court. I’m thinking of T’s dignity and peace of mind.  I just want her to be happy and have peace of mind”.

I was pleased to hear the judge check M’s understanding of how things were going forward and thank M for the role she has undertaken so far as T’s attorney.  “The role that people who agree to be attorney for people who lose capacity is a very significant one”, he said. “My thanks to you for undertaking that.  There is recognition from the judges of the Court of Protection for the work undertaken by attorneys.  And I hope you’re reassured that T will be having a trial of living at home as she wants in the very near future”. 

Comment

I was pretty horrified by this case, and dismayed that T should have been deprived of her liberty against her wishes for such a long time, despite the fact that the Court of Protection has had oversight of this case for more than a year. I wondered if Anna would be as concerned as I was with the delays in addressing T’s wish to return home.  I was pleased that the judge behaved impeccably in terms of his focus on T’s wishes and feelings, and attempted (albeit late in the day) to facilitate her return home as soon as possible.

It was also lovely to hear the judge thank M, and express his appreciation of the work carried out by people acting as Lasting Power of Attorney for people who’ve lost capacity. That must surely have felt supportive to Anna, whose sister has Power of Attorney for their mother.  I was alarmed by the challenges being put in the way of T’s friend and attorney and empathized with her position.  I think few people would expect to take on a task of this magnitude when agreeing to act as an attorney for someone, and there seems to be little support available for attorneys in this sort of situation. This is of some personal concern to me since I am a nominated attorney for four different people in the event that they lose capacity in the future, and have also appointed close family members as attorneys in the event that I lose capacity.  For any attorney it would be hard work to have to deal with the position taken by this local authority – and it’s a reminder that we should appoint as attorneys people who not only know and love us and know our wishes well but people also have the stamina, strength and skills to stand up to challenging behaviour from public authorities (and/or – as I’ve seen in other cases – from professionals).

I would add that the interactions between the two lawyers in this hearing was (for obvious reasons) rather less “collaborative” than at most Court of Protection hearings I’ve observed – and I worried that Anna might feel I had misrepresented the “inquisitorial” nature of the proceedings, given what I experienced as the occasionally clearly critical (or even acerbic) nature of the exchanges.

Finally, I tend to put myself in the role of the protected party and think “what if that were me?” and then figure out whether there is anything I can do now, while I still have capacity, that could protect me against ever finding myself in P’s situation.  My personal response to many hearings I observe is to tweak my Advance Decision to Refuse Treatment, or write an email to my attorneys that they can use as evidence of my wishes and feelings.  But there are some circumstances it seems very difficult to avoid.  In this case, T seems to have done all the right things – not least by appointing someone (her friend M) to make decisions on her behalf, both in relation to money matters and in relation to her health and welfare.  But the law doesn’t permit M to just remove T from the care home and bring her home (which is what I would want M to do for T in this situation, and what I would want my attorney to do for me).  I would wish my own attorneys to make all decisions for me in the event that I lose capacity.   But that’s not possible.  The state both withholds from attorneys the right to make decisions relating to deprivation of liberty, and also dictates the basis on which attorney’s decisions must be made. 

My experience as a first-time observer – Anna

When I first received an e-mail inviting me to attend a Section 21A COP hearing relating to my mother, my first reaction was anger (how have we got this far without the family being directly consulted?) and panic. What was the process? How would the family be involved and our voices heard? What was this secretive Court of Protection (COP) that was going to be involved in making fundamental decisions about my mother’s life? 

As a brief background, my elderly mother, who has Alzheimer’s, has been placed in a residential care home by social services, with the complete agreement of her children. This includes my sister who is her LPA* for both Health and Welfare and Finance and Property, and is a decision that we still support, as we fundamentally believe it is in her best interests.  

My mother has, however, not accepted the decision and when asked officially, says that she wants to leave the care home. In order to protect her human rights, she was appointed an RPR* after a DOLS* assessment. Following which the Official Solicitor appointed a solicitor to represent my mother, who has now filed court papers. This happened in a period of around six months, with no involvement from the family.

The case is officially “my mother vs the Council”. “vs”. What images did that conjure up for me? Crime, guilt and innocence, barristers arguing in front of a stern judge, in an imposing court room. “I rest my case, milord”. Waiting for a verdict that would have huge implications, with her family on the sidelines or even maybe not able to participate at all, silent spectators to a life-changing decision. 

Neither of the solicitors in the case could explain much about the process, and advised us to seek our own legal advice. Of course, we knew this meant incurring costs, which we wanted to avoid. I frantically started to try to find out more, going down internet rabbit holes looking for information about this type of hearing. 

And that’s how I came across the Open Justice Court of Protection Project website. I sent them an email. Celia Kitzinger, co-founder of the Project, got in touch which set off a train of events leading to me observing a hearing, within a very short space of time. Celia gave me a lot of invaluable advice, including about the nature of the COP. Very importantly, she explained that it was not an adversarial court but an inquisitorial one, with parties providing evidence that would enable the court to make the best decision for the individual. It is largely a collaborative process, with parties working together. 

I asked Celia if she could help me apply to be an observer of a hearing in order to learn directly about how it worked. I would not have had the first clue how to do this but she guided me through it, figuratively holding my hand, even to the extent of observing the hearing with me.

 The process started with Celia finding a Section 21A hearing. She sent the court an email the evening before asking to be an observer, and forwarded the email to me so that I could send an identical request. 

On the day of the hearing, I received a link to the hearing, which was being held on Microsoft Teams. It was a bit off-putting to read in the header: “TO BE HEARD REMOTELY, PRIVATE HEARING NOT OPEN TO PUBLIC”, the capital letters seemingly shouting that I wasn’t allowed to attend. However, Celia had reassured me in advance that that this message referred to the fact that only people who had been sent an official link could attend. 

Nobody asked me who I was or why I wanted to attend before sending me the link. That said, maybe the fact that my request e mail was identical to Celia’s indicated that I was known to her and therefore an acceptable person! The email included a link to a document, a Directions Order, with a previous date, which I quickly skimmed through to give me more information. This included information relating to the confidentiality of the hearing for all people attending, therefore including me as an observer. 

I logged on nervously ten minutes before the hearing was due to start. Celia had warned me to keep my camera and microphone off. When I was admitted, I saw a couple of people already waiting, some with cameras on and some not, and gradually more people joined. At the allotted time, the court clerk welcomed the attendees and waited for a late joiner. 

This hearing was not the first in the case and therefore the lawyers were familiar with each other. When the late joiner arrived, the court clerk notified and admitted the judge. 

There were seven people in attendance in total, three representing P*, including her LPA, one each representing the local authority and NHS (other respondents named), the judge, the administrator and two observers, myself and Celia. The LPA was not an official party to the case and she choose to keep her camera off. 

After initial greetings, the judge started by saying that there were two observers to the hearing, naming us. He addressed us directly, stating the private and confidential nature of the case, and asking us to indicate by silence that we had understood the law we had to comply with. I was slightly relieved not to have to speak, but would have done so if necessary.  

The judge then suggested that it would be useful to have a quick précis of the case to date to help us. I was really surprised by this, as I was aware that this would take up valuable time, but P’s counsel did this and it was indeed useful. Especially for me with a view that I would be involved in a Section 21A case in a few weeks’ time. The hearing proper then began. 

It lasted for an hour and a half. Each party was asked to speak in turn and various issues were addressed and returned to. The judge also invited P’s LPA (and friend) to speak at certain appropriate points. She was not a lawyer and I felt that a great deal of care was given to making sure that she understood where necessary and could make her feelings known. This was in spite of her not being an official “party” to the case. 

I found the judge very sympathetic and humane, and it was clear that he only had P’s best interests at heart. He was also sympathetic to the huge strains that the local authority was under, especially because of the pandemic, and also the NHS. 

P’s counsel was very good at bringing the court’s attention back to the fact that P is an individual person, trapped in what she called a “ Kafkaesque nightmare”. Everybody treated each other with respect despite their disagreements.

 Some time was spent trying to program future hearings, and dates by which further evidence had to be submitted in order to achieve those. The judge was consulting his diary during the hearing and working backwards. It made me appreciate both the demands on the time of legal professionals and the slow wheels of the legal system, even in this case for which it had been established that time was of the essence. 

The space for the hearing, being a virtual one, created an environment which I thought was probably better than being in a physical courtroom.  I liked being able to observe with the camera off and I felt that it created a certain informality, which made it less of a stressful experience. When at one point one of the attendee’s connection dropped, the hearing was paused to allow them to rejoin and it wasn’t a big issue. I could also see the participants’ faces during the hearing – if it was a physical courtroom, I would have been at some distance, looking at their backs and probably struggling to hear. I am pleased that the hearing about my mother will be a virtual hearing – it also makes it easier for me to attend.

At the end of the hearing, the judge authorized the two observers to have access to the position statements of P’s counsel and the local authority, provided the parties agreed. P’s counsel immediately said yes, and asked Celia (who then appeared briefly on camera) to send it to me, as she didn’t have my contact details. The Local Authority counsel said they would seek instructions (and have not sent their position statement). On reading the position statement of P’s counsel subsequently, it helped me understand further what had been discussed during the hearing and was therefore very useful. In an ideal world, it would have been helpful to have read this before the hearing, but I don’t know if this can always be accomplished. 

So, what have I learned? 

First, I have learned that having an LPA in place does not mean that the LPA can make all the decisions for a person no longer deemed to have capacity – and that those decisions they do make must take account of the person’s wishes and feelings.  The judge made that very clear. In law, an individual with dementia still has views that need to be listened to and taken account of, even if a family, who knows a person and cares for them, thinks they know best. The Court of Protection is the last shield of protection for an individual. Whilst now understanding more about why this legal protection is in place, it does make me question the ultimate value of an LPA for Health and Welfare, as I had assumed it meant that the LPA could make all the decisions in the best interests of P when they were deemed to no longer have mental capacity to make their own decisions. And I wonder how many LPAs fully understand the limitations.  

Second, this experience has really helped me to understand how the Court of Protection works and helped to demystify the process. I was particularly impressed by the care and attention given by the judge to helping make the experience accessible to a lay person, whether it be the LPA or P or myself as an observer. And I was pleased to hear him pay tribute to T’s LPA. I know from the experience of my family that my sister has had to spend a lot of time and energy supporting our mother as her LPA, in addition to her time spent supporting our mother through the care she provided before our mother was admitted into residential care. The COP process is a step that we hadn’t anticipated having to go through, and it shows what a commitment being an LPA is. 

Finally, I won’t comment on my thoughts as to the exact circumstances of T, as I don’t think it would be appropriate. I was more interested in observing the process. That said, it was difficult to hear the details, especially how long it was taking for a satisfactory outcome to be achieved.  I would add that in our case, the whole family is happy with the care being provided to our mother and she does seem happy at the home, even if she doesn’t want to accept it will be the place where she spends the rest of her life. Like many elderly people with dementia, she is fighting her infirmity, and wants to keep the flames of hope alive. 

Observing this case has given me more confidence about my involvement in my mother’s case, when I will probably be a party, at my request, and thus an active participant. The Open Justice Court of Protection Project has certainly helped shed a light on what had seemed an opaque aspect of the justice system. I am much more reassured about the process and certainly my anger has been assuaged. I would thoroughly recommend a family member involved in a similar case to observe a hearing if possible.  It is truly enlightening. 

As for me and my family, we still have a long road ahead but at least we can see it more clearly. 

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has observed more than 300 hearings in the Court of Protection and hopes to observe future hearings relating to Anna’s mother when they reach court.  She tweets @KitzingerCelia

Anna is the daughter of a woman who is currently a P in a Court of Protection s.21A application.  She’s not using her real name because she wishes to protect her mother’s privacy, while also hoping that other families can benefit from reading about her family’s experience.  She hopes to blog in future about the hearings as the case progresses through the court.

*There are lots of initials to learn when involved in a case like this. LPA = Lasting Power of Attorney; RPR = Relevant Person’s Representatives;  DOLS = Deprivation of Liberty Safeguards; P = Protected Person

Photo by Jeremy Wong on Unsplash

Challenges in observing a (remote) hearing at Swansea Civil Justice Centre: Capacity for contact and sexual relations

By Celia Kitzinger, 6th May 2022

I had no idea what this hearing would be about.  I picked it at random because I had an hour free at 10am on the morning of Friday 22nd April, and thought I could profitably use it to perform my civic duty of supporting open justice in the Court of Protection.  

Here’s how the hearing was listed on CourtServe.

IN THE COURT OF PROTECTION WALES

YN Y LLYS GWARCHOD CYMRU

REGIONAL LEAD JUDGE HHJ CROWLEY

Y BARNWR ARWEINIOL RHANBARTHOL HHJ CROWLEY

Sitting at Swansea Civil Justice Centre

Yn eistedd yn Canolfan Llysoedd Sifil Abertawe

Friday, 22 April 2022

Dydd Gwener 22 Ebrill 2022

Before District Judge Taylor

Gerbron Barnwr Rhanbarth Taylor

Amser Cychwyn/ Start TimeManylion yr Achos / Case Details
10:00AMCase number 13738017 Re P to be heard via CVP – T/E 1  hour Rhif yr achos 13738017 Ynghylch -CR gwrandawiad trwy CVP – Hyd 1 awr 
from CourtServe

Access issues

When there was no response (by 9.40am) to my emailed application to observe the hearing (sent as requested in CourtServe to CardiffCOP@Justice.gov.uk, which is the email address of the Wales Court of Protection Regional Hub), I phoned to ask for the link to be expedited, and was told “you’ve come through to Cardiff”.  I explained I knew that, and that I was following the normal procedure for requesting access to a Court of Protection hearing in Wales.  The man who’d answered the phone said he’d transfer me to someone – it rang and rang, nobody picked up, and eventually it clicked back through to him again.  He tried a different number, and this time a woman answered who said she’d phone Swansea and let them know, and that she had already forwarded my  email to Swansea (as had I, while waiting on the phone).  I finally received the Cloud Video Platform link at 10.03am.

When I joined the hearing, I found it had not yet started.  The judge appeared a few minutes later and apologised to counsel for the late start, saying that she’d received a request to observe the hearing that had come via Cardiff and had to be referred on, and that this had caused a delay.

I was very pleased that the judge took open justice seriously enough to wait a few minutes to enable a member of the public to observe – but troubled that there didn’t seem to be a shared understanding about how members of the public are supposed to access hearings.  

Descriptors of issues before the court

As is commonly the case for hearings in Wales, the CourtServe entry for this hearing doesn’t include any description of the issues that will be before the court.  Compare it (for example) with this entry from the Midlands Region, which lists the issues as “P’s capacity regarding her ability to make decisions relation to care, residence and contact” and “Best interests regarding residence and contact, and consideration of whether expert evidence is required”.

from Courtserve

My understanding is that listings are supposed to convey this sort of information in the interests of transparency,  so that members of the public have a fair idea of the sort of issues that will be before the judge, and can make an informed choice about which of the twenty-plus Court of Protection hearings that take place every day they wish to attend. 

Some Regional Hubs (in particular the North-East-North Regional Hub, based in Newcastle) are very good at doing this – to the extent that I’ve created a hashtag #BeMoreLikeNewcastle.

I understand from having attended a number of Court of Protection User Group meetings around the country that other Regional Hubs are working on hard on this: I’ve noticed improvements in listings for the North-East-East Regional Hub (based in Leeds) – though I’ve yet to see any descriptors of issues before the court for Hull County Court (which is part of this Regional Hub).  And (as the listing above shows), the Midlands Regional Hub (based in Birmingham) is also making good progress towards transparency with listings.

I look forward to improvements in Wales.

Opening Summary

There was no opening summary to this case.

Counsel for the applicant, Rebecca Harrington (representing P via her litigation friend) simply launched into the case by saying: “A further s.49 report[1] on capacity is required for contact with others and for engaging in sex.  It’s increasingly important because P has formed a relationship and is also accessing the community independently at times….”.

It was disappointing not to have an opening summary.  I did not know at the time – and I do not know now – anything about P’s age, her wishes and feelings in relation to any of the issues before the court, or the history of the case.  I know only that she has a learning disability (apparently newly diagnosed). 

I assumed, at the time, that there might be a problem with getting through the hearing in a timely manner and that t the delay in sending me the link (and the judge’s willingness to wait until I had joined) meant there was now some time pressure on the proceedings.  In fact, however, the whole hearing (for which an hour had been allocated) was over in 11 minutes – so there would have been plenty of time to provide a case summary.

And, of course, the issues before the court could (and should) properly have been listed in CourtServe (e.g. modelled on the Midlands entry, something like “P’s capacity regarding her ability to make decisions in relation to contact and to engage in sexual relations”), and the opening summary should expand on that entry, with enough information about P and the history of the case to enable an observer to follow the proceedings.

Capacity to engage in sexual relations

Case law on capacity to engage in sexual relations has developed significantly over the last year, in particular via the judgment of the Supreme Court in A Local Authority v JB [2021] UKSC 52.

There’s been a lot of public interest in this case, and we’ve blogged about it several times as part of the Open Justice Court of Protection Project (e.g. “Capacity to engage in sex: Nine responses to the Supreme Court Judgment in Re. JB”; Capacity (and sexual relations) in the Supreme Court: Reflections on A Local Authority v JBCapacity to Engage in Sexual Relations: A forthcoming Supreme Court hearing).  

The Supreme Court affirmed that capacity for sex includes the requirement that P must understand not only that s/he can consent to or refuse sex, but also that a potential sexual partner must likewise be able to consent, and must actually consent, before and during the course of sexual activity.

Members of the public – especially those working with people who may lack capacity to make their own decisions –  are often interested to observe hearings related to their professional concerns.  There is no doubt that the application of case law in relation to capacity to engage in sexual relations is one such concern.  Listing the fact that this issue was before the court would have provided an incentive for observers to attend the court, and thus support the judicial commitment to open justice.  As it was, I was the only observer, and I had attended serendipitously.

I learnt later, from the position statement on behalf of the local authority (represented by Dafydd Paxton) something of the detail of this case.  It seems that P had “developed a significant attachment to a male resident, D, who also has additional needs” and that she “has expressed a desire to have sexual intercourse with him”.  Staff had assisted the couple to spend time with each other, including supporting them to go out on a date to a bar: P was helped to prepare her hair and makeup and pick a dress.  This was an event that seems to have meant a lot to P and she’s been keen to show professionals photographs of the evening.  

The local authority, in consultation with placement staff, has formed the view that P has the capacity to engage in sexual activity with D and an action plan to support them to have a romantic relationship, whilst also providing suitable safeguards, has been formulated.

Up until shortly before the hearing, the local authority had taken the position that there was sufficient evidence before the court to make a final decision on P’s capacity for contact and sexual relations with no need for further assessments or reports.  There were already reports from the allocated social worker, a consultant psychiatrist and a clinical psychologist.

However, counsel for P via her litigation friend took the position that an updating assessment of P’s capacity to engage in sexual activity was necessary, given the Supreme Court judgment.  (I assume that the original capacity assessment for P must have preceded it.)

As it turned out, by the beginning of the hearing the local authority was now content for further capacity evidence to be obtained.

Apologies that our position changed after submitting the Position Statement. We recognise that’s not ideal, but our client department reflected on the helpful Position Statement from the applicant[2] and has taken further legal advice, which is the reason for the change of position.  We agree that it’s necessary to have another s.49 report.  Our principal concern was the delay, but we accept that without it there might be a gap in the evidence at the final hearing”. (Dafydd Paxton, counsel for the local authority)

The judge asked, “Does the case need reallocation to a Tier 3 judge, given the capacity for sex issue?”. 

Neither counsel thought this necessary.  “The issues are not especially complex,” said counsel for the local authority, adding: “We also understand that P’s relationship with D has cooled, so it’s not such a pressing matter – although of course, given her access to the community, there is the possibility of other relationships”.  He also emphasised that “judicial continuity is worth its weight in gold”.

District Judge Taylor ended the hearing by saying she was pleased that P has “settled with the change in accommodation” (I believe this case started as a s.21A application because P had been expressing a desire to leave the placement.). She agreed with counsel that there was a need for a s.49 report (re capacity for contact with others and engaging in sex).  

The next hearing is listed for 10am for 2nd September 2022.

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

POSTSCRIPT (16th May 2022)

On 11th May 2022 (5 days after posting this blog), I received the Transparency Order and a Position Statement from Counsel for P.

The Transparency Order is in the usual terms and nothing in my blog post had breached it.

The Position Statement provides a little more information which sheds light on why the matter of P’s capacity for sexual relations is before the court. There had been a report from Dr L (dated 13th August 2021, with an addendum of 7th October 2021) which concluded that P “does not have capacity to engage in sexual relations“. More recently, the social worker (in a statement dated 21st March 2022) had set out her view that P does have capacity for sexual relations (but she makes this claim without having carried out a formal assessment of P’s capacity). There is, therefore, conflicting evidence before the court in relation to P’s capacity to engage in sexual relations.

Dr L had also reported that P has capacity in relation to contact with others, but the local authority has imposed restrictions on contact between P and D, and restrictions on the timing and location of sex between them. It wasn’t clear what the lawful basis for such restrictions could possibly be if, in fact, P has capacity for contact and capacity to engage in sexual relations.

On behalf of P, the applicant was seeking an order for a further s.49 report specifically to consider P’s capacity in relation to contact and engaging in sexual relations.


[1] See “What is a section 49 report?”

[2] I requested the applicant’s position statement but have not received it. I have also not received a Transparency Order in relation to this hearing and am working on the assumption that the ‘standard’ wording applies.

Photo by Anton Darius on Unsplash

Capacity to make a Lasting Power of Attorney

By Clare Fuller, 3rd May 2022

I wanted to observe this hearing because it was listed as being concerned with the validity of a Lasting Power of Attorney.

Here’s how it appeared in the Court of Protection list for First Avenue House in London:

Midday
20thApril 2022
Deputy District Judge Kaufman13628180 CC -v- The Public Guardian and NRC, Directions, LPA ValidityDirections1 hourRemote
Daily Cause List, First Avenue House

This is an area I work in as a Lasting Power of Attorney Consultant and advocate for Advance Care Planning.  It’s important to me because I believe in the value of a Lasting Power of Attorney in Advance Care Planning and have seen first-hand the challenges when this is not in place.

What is a Lasting Power of Attorney?

Lasting Power of Attorney is a legal document that enables someone to nominate a person or persons to act for them if they ever lose the capacity to make decisions for themselves. 

The person making the Lasting Power of Attorney is referred to as the donor. The person (or persons) appointed to act for them are called attorneys. 

Capacity to make decisions can be lost through a deteriorating long term health condition or a sudden accident or illness. 

Making a Lasting Power of Attorney can be recognised as part of normal life planning.

When a Lasting Power of Attorney is drafted there are key decisions to be made, important information to be included and safeguards maintained; one of these is ensuring that the donor has capacity to make the Lasting Power of Attorney.  

The Office of the Public Guardian publishes resources to help people to understand how mental capacity to make a Lasting Power of Attorney is assessed (see  LP12 Make and register your lasting power of attorney).

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

The Office of the Public Guardian supports the Public Guardian in carrying out the legal functions of the Mental Capacity Act 2005 .  

Within the Mental Capacity Act 2005, section 9(2)(c) makes explicit that a person must have capacity to execute a Lasting Power of Attorney and section 9(3) says that An instrument which purports to create a lasting power of attorney, but does not comply with this (and other requirements) confers no authority.

The question of a person’s capacity (or otherwise) at the point when he executed his Lasting Powers of Attorney was the matter at issue in the hearing before Deputy District Judge Kaufman.  The Public Guardian was represented by Elizabeth Calladine, and the father of the young man who’d made the Lasting Powers of Attorney was in court as a litigant in person. 

The hearing

As is commonly the case in the Court of Protection, with its clear commitment to open justice, the judge asked the applicant solicitor (Elizabeth Calladine) to “set out a brief background to the case for the benefit of [the observers]

A man in his 30s (P) executed two Lasting Power of Attorney (LPA) documents on 7th October 2019, one for Health and Welfare and one for Property and Finance. Both appointed his mother as his sole attorney.  It became clear, later in the proceedings, that at the point he executed these LPAs, he had recently suffered a brain injury in some kind of accident. 

The Public Guardian has brought proceedings to cancel these LPAs as not having been validly created – although they have no objection to P’s mother continuing to support P and make decisions with and for him, and don’t believe that it’s necessary to appoint deputies.[i]  

The Pubic Guardian’s position is that the donor (i.e. P) “lacked capacity to create the lasting powers of attorney for property and affairs and health and welfare dated 7 October 2019 pursuant to  section 9(2)(c) of the Mental Capacity Act 2005  (MCA)”.  This means that “pursuant to section 22(2)(a) of the MCA  the requirement for the creation of a lasting powers of attorney has not been met” and so “under Schedule 1, paragraph 18(a) that the Public Guardian cancels the registration of the LPAs”. 

We learnt that P’s mother has said she doesn’t object to the application made by the Public Guardian and consents to the order that the LPAs will be cancelled.  

However, P’s father (F) has filed an objection stating he feels P is capable of making his own decisions.

This hearing represented the first meeting between the Public Guardian and P’s father.  Elizabeth Calladine said she had “tried to make arrangements earlier but maybe due to the bank holiday it had not been possible to sort it”.

DDJ Kaufman suggested an opportunity for Ms Calladine to talk privately with F “to see if agreement could be reached” and what actions would be most appropriate next. 

DDJ Kaufman explained the evidence the court had so far was from the Special Visitor from the Local Authority who had completed a Deprivation of Liberty for P during which he was identified as not being capacitous. “Obviously,” she said, “you know your son well, and that is very important, and we would listen to your views carefully”. 

Ms Calladine and F agreed to talk privately with a period of twenty minutes set by DDJ Kaufman for all to reconvene.

Following private discussion

After twenty minutes the hearing was reconvened with what appeared a positive outcome. 

Ms Calladine acknowledged the “really productive” time spent talking with F and clarified that the basis of F’s objection was not the matter of retrospective capacity (for the LPAs completed in 2019), but instead the current capacity of P. 

We heard that that P “has come back so much following the accident”, with areas of improvement including moving from a specialist unit to an assisted living facility and the ability to manage his own personal care. 

We heard that when the Special Visitor had previously seen P, he was unable to retain information (a key component in a capacity assessment), but that this had now improved. Further examples of P’s improvement were cited as his ability to participate in the passport application process for a recent holiday to Turkey. 

Agreement was reached between Ms Calladine and F that the LPAs created in 2019 were probably not created validly (due to P’s lack of capacity at that time), but that there’s a strong possibility that P might have capacity to make LPAs now. 

Ms Calladine requested directions for a further (up-to-date) capacity assessment for P, to be conducted (if possible) by the same Special Visitor, as P had previously got on well with her.

DDJ Kaufman responded by acknowledging the “extremely positive progress” made.  She said, “It’s important that everyone is very aware that capacity is time-specific, which means he may not have capacity at one point, but that doesn’t mean he’ll never have it in the future”.  

Invited to say anything else he wanted to, P’s father said that “at the time the last capacity assessment was done, he’d just come out of the coma, after 9 months.  He’d been moved from pillar to post. It’s very different now”.  He recited some of his son’s recent achievements – going on holiday, making decisions about what he wants to eat, and what he wears, describing this progress as “a massive change”.  He said that physically P was still struggling, “but mentally it’s lovely for us, the change is so much”. 

Next steps

The concluding part of the hearing focused on clarification of next steps before a final hearing (or perhaps an agreed order) – including the requirement for a fresh capacity assessment.   

DDJ Kaufman closed the hearing by acknowledging that P is “lucky to have a very supportive and involved family”.

My understanding is that the existing LPAs will be cancelled (since nobody is disputing the Public Guardian’s submission that P lacked capacity at the time that he made them).  But if he is now found to have capacity to make LPAs, he will be able to re-make them in the same terms (or different ones if he prefers) now. 

Reflections

Listening to the hearing I reflected on three key points of learning.

  • Firstly, how capacity can change over time and why reassessment is so important. 
  • Secondly the importance of planning ahead: it is impossible for any of us to know if and when a sudden accident may happen.
  • Finally, capacity can follow an upwards trajectory. We are often used to a downward trajectory (e.g. for people with dementia). To hear of an upwards post-brain-injury trajectory felt particularly heart-warming. 

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


[i] A deputy is someone who has been authorised by the Court of Protection to make decisions for someone if they lack capacity. It may be necessary to appoint a deputy for someone who has not made a Lasting Power of Attorney or when the authority of attorney has been revoked. In essence, Attorneys are appointed by the person themselves in a Lasting Power of Attorney application before they lose capacity  and Deputies are appointed by the Court after capacity has been lost. There are significantly more costs in applying for Deputyship than for a Lasting Power of Attorney (and they are rarely granted for Health and Welfare).  Deputyship applications can also be a more lengthy process.  A further difference is the requirement of a Deputy to submit an annual report to the Office of the Public Guardian, something not required of an Attorney.

Photo by Alina Grubnyak on Unsplash

Medical treatment, undue influence and delayed puberty: A baffling case

By Celia Kitzinger and Claire Martin, 2nd May 2022

The protected party at the centre of the case is a woman in her early twenties who has not experienced puberty, because she has not been provided with the recommended medical treatment for her “primary ovarian failure”.

She has diagnoses of “mild learning disability” and “autism spectrum disorder, namely Asperger’s syndrome” which cause her to lack capacity to make her own medical decisions.  (She also has epilepsy and – at least at the start of the court case –  had a vitamin D deficiency). 

She was removed from her mother’s care in April 2019 and placed in a care home in order to ensure that she receives appropriate medical treatment which the local authority says her mother is preventing her from having by dint of exerting control and undue influence over P. (Her mother denies this.)

The treatment focus for the court is particularly on P’s primary ovarian failure. Without treatment, they say, there are significant health risks, including premature death (see: “Primary ovarian insufficiency in adolescents and young women”; “What are the treatments for premature ovarian insufficiency?”).

There was mention at some point during the hearing that someone from the Turner Syndrome Support Society had visited P and discussed treatment for pubertal induction with her.  The website has very useful information (some of it written for girls and young women) about oestrogen treatment and how to manage it.

Back in May 2020, the Official Solicitor stated unequivocally that treatment “should commence as soon as practicable and without further delay”. 

However, it seems that since the court authorised removing her to the care home more than three years ago, P has not been treated for her primary ovarian failure. 

It is entirely unclear to us why she has been left untreated, since this was a key justification for depriving her of her liberty in the care home (against her will, and that of her mother) and for restricting and then stopping contact between mother and daughter.

We have observed two hearings in this case (COP 13236134), both before Her Honour Judge Moir. We know there have been many other hearings as well. The first hearing we observed was on 26th May 2020 (observed by Celia Kitzinger).  The second was on 25thand 29th April 2022 (observed by Claire Martin).  When we shared information with each other about the hearings we’d (separately) observed, we were surprised, and dismayed, by the apparent lack of progress over this 23-month period.  

We’ll provide some background information (based on a Case Summary, helpfully provided by counsel at the hearing on 26th May 2020) and then each of us will give an account of the hearing she observed [1].

We are “baffled” (as the title of this blog post conveys) because it was absolutely clear at the hearing in May 2020 that the local authority, P’s social worker and P’s endocrinologist were strongly committed to ensuring that P should receive endocrine treatment, and this was endorsed by the Trust and by the Official Solicitor. Although we haven’t seen the judgment, we’re almost certain that this must also have been the conclusion reached by the judge.

Medical treatment was, as the social worker put it in May 2020, the “bigger concern” that weighed against P’s (and her mother’s) Article 8 rights to family life.  It justified not only removing P from her home but also instituting a total ban on contact between mother and daughter for a six-month period. 

But nearly two years later, it seems that endocrine treatment has not been given, and there is discussion of P returning to her family home – either with or without her mother in residence there too – in the hope that (after all this!) her mother will then be able to persuade her to have it.

There will be another hearing in this case, this time before a Tier 3 judge in the Royal Courts of Justice, in June or July 2022.  We hope to be able to observe it, and perhaps matters will become clearer for us then.  We are left with many questions and uncertainties about the case at the moment.

Background: The court’s decision of 18th June 2020

P lived at home with her mother until 9th April 2019 when she was conveyed to a residential placement following an interim authorisation by the Court.  

The local authority had started legal proceedings in the Court of Protection following two safeguarding alerts raised by the NHS on P’s admission to hospital having suffered epileptic seizures on 13th September 2017.  Hospital staff had noticed that P had not undergone puberty and reported that P’s mother appeared to exert a domineering influence over her.

Final judgment regarding her place of residence, deprivation of liberty and care and treatment, was handed down on 18th June 2019.  (Neither of us observed this hearing).

Based on the evidence before it, the court made findings including that:

  • P lacks capacity to conduct proceedings and to make decisions about where she should reside, about her care and support needs, about her medical treatment and about her contact with others
  • P has a diagnosis of primary ovarian failure, the treatment for which is sex hormone replacement therapy
  • Receiving the treatment would have no adverse impact on P
  • Without treatment, the long-term prognosis for P is “extremely bleak” – with an increased risk of osteoporosis, facture risk and an increased risk of premature death through stroke and cardiovascular disease.
  • P’s mother was not accepting of this medical advice, continuing to press for a second opinion, despite the evidence being that there is no range of medical opinion on this issue
  • The court could have no confidence that P’s mother would encourage or support P to take the requisite medication or to keep hospital appointments
  • P’s mother preferred P not to ‘grow up’ and to remain instead dependent on her and isolated without any outside influence or interference
  • P’s mother exhibited no motivation to support P to develop a sense of identity separate from her and showed no inclination to assist P to achieve any growing independence
  • P’s mother was resistant to the idea that P should progress, cease to be like a young girl, or achieve any independence
  • The court had no confidence that P’s mother would facilitate and support any care or treatment plan.

By order of 18 June 2019, the court made final declarations that P lacked capacity to make all the relevant decisions and that it was in her best interests to reside at Placement A and to receive care and support, including treatment for her epilepsy, her  ovarian failure and her vitamin D deficiency.  It was also declared in P’s best interests to have supervised contact with her mother and her grandparents, and a schedule of contact was appended to the order.  

At a review hearing on 17th December 2019 that contact was reduced.  Contact was still to be  supervised and to cover only approved topics of conversation.

Hearing on 26th May 2020, by Celia Kitzinger

The hearing I watched (remotely) on 26th May 2020, before Her Honour Judge Moir sitting in Newcastle, was listed as a review hearing.  I  wrote a brief summary of the case shortly afterwards in this blog post for The Transparency Project. Here I’m writing a fuller account based on contemporaneous notes from the hearing.

By the time of the hearing, P had been living at Placement A for about a year – and my understanding is that this is some geographical distance from her family home.

During her time at Placement A,  there had been a “significant decline” in P’s engagement with her epilepsy treatment and she had not attended any appointments with her endocrinologist. She was not receiving sex hormone replacement therapy. 

The court was informed that she also has “low mood” (which all therapeutic options so far have failed to ameliorate). She neglects her personal hygiene, intermittently refuses to eat and drink, and is refusing to engage in any social activities and is spending increasing time in her room.

The local authority (with the support of  P’s social worker, P’s epilepsy clinician  and  P’s endocrinology clinician) was seeking a further order by which all contact between P and her mother was to be suspended for an initial six-month period.  This is said to be “essential for P’s physical, emotional and social wellbeing”. Contact between P and her grandparents could be maintained (twice a week) but subject to supervision.

During this six-month period, it was proposed that there would be ongoing MDT consultation reviews to monitor and review any health and welfare concerns.

The Official Solicitor and Trust were both broadly supportive of that position. 

P’s mother opposed it. She wanted P to return home.

Most of the full-day hearing was occupied with hearing from two witnesses: P’s social worker, and P’s mother.  Here is a flavour of the oral evidence from each of them

1. Social Worker

The social worker was cross-examined by counsel for P’s mother, counsel for the NHS Trust and counsel for P via the Official solicitor.  I have selected some salient extracts from each cross-examination.  Her core position was that P’s mother has “hindered” P’s engagement with staff seeking to support her with endocrine treatment and that cessation of all contact between mother and daughter for a six-month period was essential.  According to the case summary I was sent,  P is refusing to engage with her social worker, “pulling her bedclothes over her head and/or pretending to be asleep when she visits”. 

Counsel for P’s Mother (Natalia Levine)

Levine:  It seems to me that the local authority has been quite quick to assume wrong-doing of family members rather than seeing the problem as lying with the placement and restriction of contact.  P wants to return home, doesn’t she?

SW: Yes.  But she doesn’t understand the full range of issues that led her to be conveyed to Placement A.

Levine: She’s been nearly a year now at Placement A.

SW: Yes.   We’ve been trying to engage with her the best way we can, but it’s been trial and error. It takes time.  Contact with [P’s mother] has sometimes hindered the approaches that staff have tried to take. 

Levine: Right, but what has happened in real terms is that P’s presentation has deteriorated.

SW: Yes.  There have been concerns about self-care and neglect. We are trying to address them with health education and communication.

Levine: The amount of contact she is able to enjoy with family members has decreased since April last year and she has also deteriorated over that time.

SW: We’ve stuck to the schedule of agreement.

Levine: She’s having less contact with her family, and her condition has deteriorated.

SW: Yes, but there are small pockets of progress.  She will engage with some staff quite positively.

Levine: The order sought is a huge infringement of P’s Article 8 right to family life.

SW: P has a right to a long and healthy life in her own right.

Levine: Does it ever cross your mind that the problem is not the family but the placement?

SW: The placement provides opportunities for P and a well-informed community team.

Levine: Do you not agree that just because a placement on paper looks like it can meet the needs of someone, that doesn’t mean it can do so in practice?

SW: I get what you’re saying, but the risks of returning P home outweigh the benefits.

Levine: As I see it, there’s a breakdown in trust between P and some of the staff members.

SW: Unfortunately, those incidents have occurred because of [Mother’s] involvement and influence.

Levine: Do you not think that if a placement was found closer to where P was originally from, it might open up the opportunity for her friends to visit.

SW: There’s a paucity of specialist residential facilities (goes on to explain)

Levine: P does feel isolated due to geography – that should be a huge incentive to explore alternative placements, and also the difficulties with staff members.

SW: A new placement wouldn’t solve the issues with the family. It wouldn’t change the dynamics that any staff team would have with [Mother].

//

Levine: Has P had any contact with individual friends?

SW: No, she didn’t want to engage with that at all.  Some effort was made […] but [Mother] has been reluctant to provide information about P’s friends to staff.

//

Levine: (If the no-contact order is approved) are you going to return to court to reinstate contact if P continues to deteriorate, or what?

SW: We accept that P will be upset at a no-contact position, but we have to prioritise a long-term health condition, so we would expect a six-month review.

Levine: You have a 21-year-old whose presentation has deteriorated over the last 12 months and you say, ‘we’ll have a six-month review and we’ll monitor it”.  If she stops eating and drinking as much as she is now, and refuses medication, what are you as a local authority going to do about it?

SW: Our bigger concern is her longer-term health.  It’s not about ignoring those issues.  It’s about working with P to support her.  Her going home, or to another placement, won’t address the bigger issue of her not accessing the endocrine treatment.

Levine: Who is going to tell P about the order of the court today?

SW: Normally that would fall to me, but as she’s not engaging with me that could be someone else.  If she doesn’t choose to speak to me, it will be others in the community team.

Levine: What is she going to be told?

SW: We’ll prepare some easy-read information and think about the most person-centred way of dealing with this.

(This segued in a discussion of the COVID-19 restrictions – which were quite new at this point: there was mention that they “could  last until Christmas”.)

//

Counsel for the NHS Trust (Joseph O’Brien QC)

O’Brien: When the court gave a judgment in June last year, Her Honour found that  [Mother’s] interaction with P was stifling her opportunities to experience quality of life.  Have you seen anything to support that [Mother] has taken those words to heart and changed her behaviour at all?

SW:  No.  There have been only two occasions when she’s worked with staff to support P: one to help her agree to washing her hair, another time to facilitate her taking medication. It’s the exception rather than the rule.

//

O’Brien: Is it right that contact is used as an opportunity for [Mother] to influence P.  (Reads out message from Mother to P from Para. 41 of the records):  “I love you P and you are beautiful. Don’t let them break you.  Stay strong and don’t let them tell you what to do”.

SW: Yes, that’s a bit of a concern. There’s a statement there to tell P not to work with staff.  

//

O’Brien: In February of this year, you were of the view that contact should remain as it is and you were worried about the serious impact that terminating or suspending impact between [Mother] and P would have on P.  But the passage of time has convinced you that the balance of evidence has shifted.

SW: Yes.

O’Brien:  It’s significant in your view that P should engage in endocrine treatment that is valuable to her quality of life.  When you look at the balance sheet of probability, do you believe that endocrine treatment is more likely to take place with [Mother] continuing to have contact with P or not.

SW: It’s less likely if [Mother] has contact.

Counsel for P via the Official Solicitor (Sam Karim QC)

OS: How is P at the moment? You say she’s not eaten for a while and her fluid intake is not good and that she hasn’t changed her clothes for a while.

SW: Since that statement she has been eating and drinking – but I don’t believe she’s showered or changed her clothes.

OS: What steps have you taken?

SW: We’ve provided easy read reminders of self-care – it’s as I said a bit of a trial-and-error approach.

OS: How long has this been happening?

SW: It’s been happening the last 9-10 weeks, but prior to that there have been earlier periods when she’s done this.

OS: What do you think is the cause?

SW: A range of factors.  Her mood.  Contact with [Mother].

Asked about restrictions on visits by P’s grandparents, the SW said this too was “so they don’t undermine the care team with negative comments about the professionals”.

2. Mother

P’s mother said it would be “cruel” to stop contact between her and her daughter.  She maintained that she had assisted staff to encourage P to take medication (contrary evidence was read out in the form of a message from mother to daughter saying “don’t let them tell you what to do”).   She believes P has capacity to make her own decisions (including about medication and sharing information with staff. Her statement that if her daughter had been at home, she’d have been taking the endocrine treatment by now was a “surprise” to the court because (said counsel for the Trust) it had appeared that the mother herself opposed endocrine treatment without a second opinion from another expert.  The mother’s explanation that the second opinion was (and had always been) part of an attempt to persuade her daughter to take the medication that she herself was already convinced her daughter needed was treated with considerable scepticism by counsel for the Trust, whose cross-examination of the P’s mother was characteristically robust.  

Counsel for P’s Mother (Natalia Levine)

Levine: You know that the local authority application is to restrict your contact with your daughter so you would have no contact with her at least for six months.

Mother: I disagree with it strongly. It’s cruel. It will have a devastating effect on my family, particularly my daughter.  Restricted contact has made my daughter retreat to her bed and become seriously depressed. She’s become more depressed and withdrawn.

P’s mother gave examples of times when the care home had contacted her for assistance to persuade P to take medication (“and she took the medication within 5 minutes and they’d been trying for hours and hours”), and she described saying to P, “why don’t you have a bath, why don’t you freshen up?”.

P’s mother was very clear that she wanted her daughter back home, where “she saw her grandparents every other day, she was always outdoors, she was happy, she had her dancing” and was able to see her friends. 

She said: “You’ve all had my daughter in care for over a year now, and all that it’s done is she’s depressed.  I’m sure you didn’t intend for her to be locked up, but she is. The less she’s seen of us the more it’s damaged her – and the depression went along with that”.

Ps mother also stated her belief that P would take sex hormones (“medication for her development”) if she were able to come home:  “That should have been sorted.  This has all prevented her taking that medication. My daughter is a maternal sort of girl. She’s already lost that year of taking these tablets. She could have been taking these for a whole year, if she’d been at home”.

Local Authority (Jodie James-Stadden)

Stadden:  You would say, would you not, that P’s decision not to go to medical appointments and not to get showered or change her clothes – those are decisions she has made for herself?

Mother: I think they are a result of her circumstances. (Cites P’s “depression and general unhappiness”; and P’s neglect of personal hygiene is because she dislikes “people peeking in on her in the shower”). It’s not the case she’s made a conscious decision. She’s worked out a way to cope with the misery that she’s in.

Stadden: Your counsel says you remain of the view that your daughter has full capacity to make decisions for herself?

Mother: Yes.

Stadden: You still reject the decision that Her Honour made last year that your daughter does not have capacity?

Mother: I think my daughter has capacity.

Stadden: And you are adamant that your daughter’s behaviour at the placement has nothing to do with you at all.

Mother: Absolutely not. My daughter has started to repeat bad language and she’s become more inward. This is not my daughter – she’s usually happy and free-spirited.

Stadden: Isn’t the truth of the matter, Mrs P, that throughout the time your daughter has been at this placement that you’ve tried to undermine the staff in their efforts to engage her.

Mother: Absolutely not.  I’ve tried to work alongside the staff.  I’ve offered information about her dancing and I’ve offered to take her dancing shoes down, but she has decided she doesn’t want to do that.

Stadden:  But you heard [the social worker] say earlier that you have shown a marked reluctance to give staff details of your daughter’s friends.

Mother:  I reject that.  I asked my daughter, “is it okay if I give staff your friends’ details?” and she said, “no, absolutely not”.  She’s 21 years old and I think it’s up to her as an adult whether she gives those details out.

Stadden: So you’re saying the only reason you haven’t given those details out is because your daughter told you not to.

Mother: Absolutely.

Stadden: Part of the reason for your daughter being in her current placement is to encourage her to be more socially integrated and less isolated.

Mother: Of course.

Stadden: Why haven’t you then encouraged your daughter to give details of her friends to members of the staff to promote her building on those friendships and becoming more socialised?

Mother: I think it’s very unfair of you to say that. I’ve spoken about this many times with my daughter. I have encouraged it. I do want my daughter to be more sociable. 

Stadden: There are no records of you saying ‘come on then, let me give them X’s phone number’

(Mother says she’s mentioned it several times)

//

Stadden: There’s been no progress with treating P for primary ovarian failure since she’s been in this placement.

Mother: Exactly! And if she were at home she’d have had it.

Stadden: There’s no evidence of you ever having positively encouraged your daughter.

Mother: Yes I have!  I’ve always told my daughter, ‘take all of your medication’.  Why is everyone saying everything negative about me when I’m her mother, and I love her.

//

Stadden: You say you’ve done your best to get your daughter to engage, but there’s no evidence in terms of telephone records of that – but there are notes saying you’ve tried to undermine your daughter’s placement. For example, telling your daughter the staff were breaking the law by not allowing her to have contact with you when she wants.

Mother: I think I said she was entitled to two telephone calls.

Stadden: There are other things you’ve said and done that aren’t permitted by the contact schedule, but you’ve gone ahead. Like the diary.

Mother: Yes, let’s discuss the diary please.

Stadden: ‘Don’t let them tell you what to do’ – now, that’s not encouraging your daughter to engage and comply with the staff, is it?

Mother: It was all meant to boost my daughter’s morale. Usually, she’s so free-spirited and happy. It was all meant in a positive way.

Stadden: How is ‘don’t let them tell you what to do’ a positive comment to your daughter?

Mother: Because it’s good when my daughter makes up her own mind.

Stadden: The contact schedule says not to undermine – by action, words or comments – the care staff or the approach they take to her. Surely that comment is undermining?

Mother: By ‘them’ I meant ‘anybody’. Why would you take it I meant ‘staff’?

Stadden: The schedule also says you shall not raise or discuss with her returning to live with you. Yet you just recently said to her, haven’t you, that you’re trying to get her home.

Mother: She’s so depressed. What’s wrong with her coming home?

Counsel for the NHS Trust (Joseph O’Brien QC)

Counsel for the Trust focussed on statements the mother had made – apparently for the first time in the course of this hearing – about accepting the need for her daughter to have endocrine treatment.  “Everyone who has been involved in this case,” he said, “may be as surprised as I am to hear that you now think this treatment is essential for your daughter.”

P’s mother said this had always been her view.  Her previous insistence on a second opinion was not, she said, because she herself doubted the need for her daughter to have endocrine treatment, but because P did.

It was that my daughter needed to hear it from someone else… I knew it was essential. It was about what was the best way to convince P, nicely, and sugar-coated, to take the treatment, and not in a negative or psychologically and emotionally distressing way.” (Mother)

Joseph O’Brien read out a passage from the previous judgment to the effect that P’s Mother “does not accept” the expertise of the treating clinician who had recommended the treatment, and asked, “are you saying the judge misunderstood you?”.

Mother: I think I was misunderstood, yes.

O’Brien: When did you realise you had been completely misunderstood by everyone in that court?  […] You are making up all of this in order to support a return home, and you do not believe your daughter needs this treatment.  This is a ploy by you, Mrs P, to try to persuade people that you believe this treatment is necessary in order to get your daughter home.  You know that is not what you believe.  What have you done by way of contacting Dr A and asking “Doctor, how can I progress this treatment for my daughter?”

Mother: I object. I haven’t contacted Dr A but we do have letters with appointments for my daughter to go.

O’Brien: No, this is the way for you to get her home, so she doesn’t have this treatment.  Okay – what about this. How about arranging an appointment at SH?

Mother: Why do we have to go to SH?

(O’Brien leans back in his chair, closes his eyes, and shakes his head from side to side in a display of incredulity)

O’Brien: Why, oh why, oh why can you not see that that would be the way forward?

//

O’Brien: Why has it taken you until now to tell us that the premise of this case and the premise of the judge’s findings were completely wrong?

Mother: I think I told my solicitor.

O’Brien: You’re making this up, aren’t you?

Mother: No, I am not.

O’Brien: You are fabricating a story that – on any basis of the judgment given last year – this treatment is not necessary until I get a second opinion that tells me it’s necessary.

Mother: That’s not true. I object.

O’Brien: So serious is your suggestion now that you have been misunderstood completely, that this shows a level of deviousness that you cannot be trusted in terms of contact. […] I am going to give you again the opportunity of accepting that your position last year was that treatment wasn’t necessary, without a second opinion.

The judge intervened.

Judge:  When did you reach the opinion the endocrine treatment was necessary for your daughter?

Mother: I’ve known the treatment was necessary. It was just the most sugar-coated way of getting her to accept this.

Judge: Why has a year gone past when you’ve not sat her down and told her she needs the treatment. You’re her mother – why have you not made the effort?

Mother: P’s attitude is ‘I don’t want to talk about it’. And also the very limited contact time. There’s so much P wants to say and wants to get off her chest.

Official Solicitor (Sam Karim QC)

Karim: The independent expert said that P has a mild learning disability and Asperger’s.  Do you accept those diagnoses?

Mother: No, because we have two psychological reports that say otherwise, including one who knows P well – and he’s older and has kids himself.

Karim: Last year you said one of the reasons you wanted a second opinion was because of lies.  Is that still true.

Mother: I don’t know why Dr A said that P had no uterus and no ovaries. The fact is that she does have these parts that Dr A said she didn’t. This was the most distressing thing to my daughter. You can understand why this would be so distressing to a girl of that age, and family is paramount and she is very maternal.

//

Karim: You gave a view about why you think P is not taking the medication in relation to epilepsy.

Mother: I don’t know why she’s not taking the medication for epilepsy.

Karim: “You are beautiful. Don’t let them break you.  Stay strong and don’t let them tell you what to do”. What does that mean?

Mother: I just meant what I said before, to boost my daughter’s confidence to be her own self and make her own mind up.

At which point the judge intervened:

Judge: What does, “don’t let them break you” mean?

Mother: We knew how depressed she was. It meant, “don’t let them get you down

Judge: “Don’t let them get you down” and “don’t let them break you” are two different things aren’t they.

Closing submissions

For the local authority, Jodie James-Stadden said:

P’s eligible needs have not changed. The issue is that there’s been no progress. [The social worker] has very openly and properly identified a number of different reasons as to why P isn’t engaging, and why she’s neglecting her self-care and refusing to have anything to do with the staff, and certainly the treatment, and now declining even to have anything to do with the epilepsy treatment. […]. The basic premise for [the social worker] is that [P’s mother] is adversely influencing P from engaging positively with the professionals charged with her care.  This was the issue from the outset.  We have no confidence that she’d comply with a community team. She doesn’t accept that her daughter doesn’t have capacity despite the court having made a final declaration on that.  Home didn’t work. The placement didn’t work.  The placement with reduced contact didn’t work. She encourages her daughter to (to use her own word) “protest”.  This can only be addressed by removing this adverse influence for the time being to allow some positive relationships to be built, to make some progress with the education that needs to follow to persuade P that she should engage with treatments for her own health and well-being.  In terms of an alternative placement, that’s not a viable option at the moment. This is a specialist provider in supporting people with a learning disability and autism.

Judge: No progress has been made. The indications are that P is not happy.  Why should we persevere with this placement under those circumstances?

Stadden: Because she would not make any progress at home.  She would not be socialised if she were to return home, and she would not receive the treatments. Bar the dancing class and the odd trip to [a shopping centre] with her mother and friends who are either significantly younger, or [name] who is her mother’s age, she has no peer group.  The issue is how to make her daughter happy where she is.

For P’s mother, Natalia Levine said:

It’s a very draconian step to stop contact completely between family members. It directly impacts on their Article 8 rights and the court has to be sure it’s the right course of action.  The court can’t know that in this case. It’s quite clear that P’s presentation has deteriorated over the last few months, and so has her contact with her family. She’s clearly very unhappy. […] She’s a young lady who wishes to have significant contact with her family members. For her to be told that she is to have no contact with them for six months, with no plan backing that up, is surprising and concerning. […] [P’s mother’s] view is that P’s position in that home has become untenable, and trust has broken down, and that’s why an alternative placement should be looked for.  She could move more locally, meet her friends, have a less restrictive placement.  [P’s mother] acknowledges it’s unlikely that P will be allowed to return home, though that is her ultimate aim.  In the meantime, she would like to keep contact with her daughter, maybe even increase it, to encourage P to engage in the process.  If you are minded to grant the order the local authority seeks, I would urge you to reconvene this hearing in 2 months’ time, to monitor the deterioration and reconsider.

For the Trust, Joseph O’Brien said:

When, in June of last year, you gave a judgment, you made a significant order that it was in P’s best interests to have treatment for her primary ovarian failure and for her epilepsy […] You said that if P was in the care of her mother then, as we know occurred before, the administration of medication will not be supported, or indeed occur.  […] The advantages of treatment are significant and fundamental. It is 100% effective, without risk. It ensures a normal life expectancy and no death by serious fracture or cardio-vascular disease.  The disadvantage is that it is against P’s wishes – however she has not been able to form an independent judgment. Those findings in your judgment are as valid today as they were 12 months ago.  What we have seen over the last 12 months is little engagement with the endocrine treatment, and  continued concerns about the way in which [P’s mother] seeks to influence her daughter as to whether this treatment should take place.  Be in no doubt, Your Honour, that the phrases that were used in the diary were, we submit, designed to continue the line of resistance developed by [P’s mother] and imparted to P to encourage her not to engage.  It is of considerable worry and concern to the Trust to hear the evidence of [P’s mother] today, which completely rewrites the history books.  If she’s right that she’s always supported this endocrine treatment, you may well wonder this: ‘what on earth was I hearing evidence about for days last year?’  And it really was quite staggering to hear her say ‘I have supported this all along’.  It elevates her lack of credibility to new levels, Your Honour.  And that is really important, because Ms Levine makes a case that you should have trust in [P’s mother] to promote her daughter’s interests.  And you can’t have trust in that.  If she’d come along and said, ‘I was wrong’, we’d all have to stand back and say, ‘Let’s have a look at this again’.  She doesn’t.  She says when she was articulating a case for a second opinion, she wasn’t: she’s saying she knew it all along.  That, Your Honour, strikes at the heart of the question of trust.  How can you honestly trust her to promote P’s welfare when she’s totally unwilling to recognise what her case was last year. That is sinister. That shows a level of formulating a case in order to derail the very treatment that is so necessary to her daughter. We respectfully submit that that evidence reinforces the local authority’s case as to why you should stop the contact.  […]. All of it, Your Honour, points towards a failure on [P’s mother’s] part to genuinely and honestly accept that this treatment is necessary. It is part of a game plan to get her daughter back home.  And if she goes back home, there is no prospect of this treatment ever taking place.  That’s because she doesn’t accept that her daughter lacks capacity to make her own decision.  So, when Ms Levine talks about Article 8 rights, I endorse that, and so does the Trust. But the Article 8 right we talk about is a right the hallmark of which is the right to develop as a young lady should, and not be faced with cardio-vascular disease at thirty or forty, or unnecessary fractures to her body. The right to flourish.  [P’s mother] seeks to undermine, totally, the need for this medical treatment, and that is compelling in terms of the outcome of this case. It’s not draconian. It’s absolutely vital to ensure that this young lady develops in a way that promotes her health.

For the Official Solicitor, Sam Karim said:

P’s mother has not been positively supporting P to take medication. The explanations from her are not plausible.  So, is stopping contact necessary, proportionate and justified?  P isn’t having fluids, isn’t dressing, isn’t showering, is plainly unhappy.  But it’s more than about social needs.  It’s about the primary ovarian failure. It’s a fundamental right. This engages her Article 8 right to develop into a woman, to go from the pre-puberty stage into adulthood.  And this continuing delay exacerbates the risk of coronary heart disease and osteoporosis, and it will reduce the efficacy of treatment when it commences.  The longer this situation continues, the less chance there is to mitigate the risks and ensure the proper efficacy of the treatment.  The question for you is whether complete cessation of contact is necessary, proportionate and justified.  If you approve the order sought by the local authority, we suggest a three-month review process.  In terms of the Official Solicitor’s position in respect of ovarian treatment, that is a treatment that should commence as soon as practicable and without further delay.

The judge said she would hand down judgment on another occasion. I was not present at that occasion and I am not aware of a published judgment on the case. 

I didn’t expect to learn any more about what had been decided for P and her family.  I assumed, given the (apparently) universal agreement in court that P should have endocrine treatment for her primary ovarian failure, that this would have been arranged, one way or another, within weeks of the hearing in May 2020.

I was shocked to learn from Claire Martin, who observed the hearing nearly two years later, that this has apparently not happened, despite the view of her endocrinology clinician that there are serious risks to P in failing to receive the treatment, “which risks become ever greater to mitigate as time progresses”.

Hearing on 25th & 28th April 2022, by Claire Martin

This hearing caught my attention when looking in CourtServe because it was listed for four days as a contested hearing – which sounded interesting.  When Celia saw the case number, she realised that it was a case she’d seen before and sent me a summary of what had happened at the previous hearing she’d observed.  

The applicant this time was P’s mother (who I am calling M, with new counsel – she’s represented this time by Michael O’Brien).  She’s applied for P to return to her family home, either in the sole care of her mother (Option A), or in her family home (without her mother living there) with a 24-hour package of care (Option B). 

I think that P is still unhappy living in the care home and that she has still not been receiving the medical treatment deemed in her best interests at the previous hearings, and she remains at high risk of medical complications as a result. The reason I say ‘I think’ is because I deduced this from the hearing, rather than it being stated explicitly. There wasn’t an opening summary of the case and its history, and I have not seen the Position Statement for any party (despite requesting these).

The exchange below is what leads me to believe that a) P is still not settled in the care home and b) she is not taking her medications (‘nothing is happening at the moment’). From this I deduce that, because of this situation (if I am correct), M has brought this application, and it is being considered. Otherwise, if P was settled or at the very least taking her medications, why would the court even consider the application (given the previous ruling that it was M who was stopping her taking her medications)? 

Judge: [P] herself doesn’t want option B. She wants to live with her mum.

M O’Brien: She wants to live with her mum, who’s put it forward as an option for the Local Authority. It has been raised at the advocates’ meeting. The Local Authority still hasn’t made a decision about whether it’s wiling to fund it. Option A would cost less – a package of care would have carers coming in but would not be 24/7 care.  

Judge: Is that the case you want to put forward? 

M O’Brien: M is anxious to get on with this but also wants … if it’s the case that Option A is considered by Local Authority, then the best option to get her to take her medications is at home with Mum. 

Judge: The Local Authority is suggesting a period of 6 months of supervised contact. [M] hasn’t taken up telephone contact for some time … I would like to know if M would cooperate with the Local Authority, and whether in fact she IS behind the provision of medication for [P].

M O’Brien: Mum says she’s passionate about getting [P] to take her medication now. The best thing would be if she can convince her within a 12-week period to take it – she thinks she can. Mum very much fears that nothing is happening at the moment and that’s detrimental for her daughter. As far as phone contact is concerned, she appreciates the Local Authority wants an evidence base. She’s concerned. She hasn’t spoken to her daughter for TWO YEARS (last time was May 2020). That’s a very long time with nothing happening. She is now very upset and very passionate the medication needs to be sorted, and is convinced that if she’s in a secure environment with mum that’s the only way to do it.

So, M is now saying that returning home to her care is the only way to ensure that P will receive the treatment. The previous ruling (in 2020) was predicated on accepting the argument that the only way to ensure P received  her medication was to remove her from her home and significantly restrict contact with her mother. 

The basis on which the application is being brought to court again seems to be that P is still not being adequately cared for (she is not receiving the recommended endocrine treatment) and P’s mother is proposing that she is the only person who will be able to persuade P to take it.

Right at the start of the hearing, Counsel for P’s mother said that he wanted to raise the issue of ‘whether this hearing can be effective’. He said that the Local Authority had not visited M’s house to assess viable options for the application for P to move back home, and that this evidence (along with any proposed funding package) was necessary for the hearing to proceed. He was critical of the Local Authority for being unprepared: “It’s unsatisfactory, unhelpful but there we are”. 

There had been several delays that morning before the hearing started. It was scheduled to start at 10.30am but the hearing did not get underway until 12.04pm. Statements by counsel suggested that they had been working away in the background to try to resolve the issue of the Local Authority visiting and assessing the home environment, prior to starting the hearing. Given that the application was expressly for P to return home, I was surprised that this assessment had not already been completed. 

The hearing on 25th April lasted two hours and was then adjourned until Thursday 29th April, which was a planned short directions hearing to agree the interim court order and establish dates for a final hearing. This hearing had been a planned four-day final hearing, and for all concerned, this situation did indeed seem ‘unsatisfactory’.

At the same time, given that the court order from a previous hearing in 2018 stipulated (medication issues aside) that it was not in P’s best interests to live with her mother, I was confused about the basis on which this application was made, and what had changed. 

Joseph O’Brien QC (counsel for the NHS Trust) addressed this matter when invited to offer submissions for the hospital Trust: “Option A [P living at home with her mother] is out of the picture on Best Interests grounds. [There is a] recasting of the findings you made at the original hearing with no evidence as to that change”.  I think by this, he meant that M was ‘recasting’ herself as willing and able to facilitate medical treatment for P, despite the court finding, at a previous hearing, that she had actively discouraged her daughter from accepting the recommended treatment.

Given that the original findings had stated that the court had no confidence that P’s mother would facilitate and support any care or treatment plan, I wasn’t sure what had changed to suggest she took a different position now. 

On behalf of the Trust, Joseph O’Brien QC suggested that no evidence had been submitted to demonstrate that her mother had changed her view in relation to helping P accept and receive the required medical treatment. 

The findings at the previous hearings had been quite damning of P’s mother: that she had “exhibited no motivation to support P to develop a sense of identity separate from her and showed no inclination to assist P to achieve any growing independence”, and “P’s mother preferred for P not to ‘grow up’ and to remain instead dependent on her and isolated, without any outside influence or interference”.  

Notwithstanding all of the above, all parties agreed that, given that the application was for P to return to the family home, Local Authority evidence was needed about what the potential options were in the form of a witness statement detailing their recommendations. 

I formed a strong sense that this application would not have been countenanced had P’s current care arrangements and relationships been successful at ensuring she received the necessary medical treatment (the main reason she was taken into Local Authority care in the first place). 

I am quite baffled as to why it was two years later and P is still not receiving the treatment she needs for her primary ovarian failure. 

Jodie James-Stadden (Counsel for the Local Authority) stated:

The Local Authority has been asked if they would commission a package of care – but for the Local Authority, as things stand, this is hypothetical. The transfer, finding a home …. into P’s name, is not in the Local Authority’s gift. It will require [P’s mother] to have a dialogue with [housing company] which has not been achieved. There is confusion about with whom the responsibility lies. If [housing company] say they wouldn’t consider it, then it’s not on the table. ….. Not the happiest outcome this week.”

Sam Karim QC (counsel for P via the Official Solicitor) focused on the lack of contact between P and her mother: 

I have urged my learned friend for [M] to partake in telephone contact which has been offered since last year – it is proposed as a stepping stone. The Official Solicitor has found it hard to reconcile why she hasn’t.”

Judge: Yes, it has been on offer for 6 months plus. 

Karim: I would urge her to reconsider it. She has had no contact. 

M O’Brien: I would respectfully suggest that Your Honour reads the Position Statement.

As I wasn’t sent the Position Statement, I’m not sure what Counsel for M meant at this point, but he went on to say that any contact between P and her mother is likely to be emotional and that P herself is likely to ask whether she can go back home to live, at which point the call would be ended by the person supervising contact, since that is a topic that (by court order) is not allowed to be discussed. 

Reluctantly, Judge Moir agreed to adjourn the final hearing. 

A brief resumption was agreed for Thursday 28th April 2022 at 12 noon to set out the plan for the final hearing, which is likely to be before a Tier 3 judge, probably Mr Justice Poole, in June or July 2022.

The Local Authority will now visit P’s mother’s house on 26th April 2022 and there is a proposed meeting between her and P’s case worker. P’s case worker will be providing a witness statement and recommendations to the court for P’s care, based on her assessment. 

Reconvening on 28th April, Judge Moir said: “I have received a document from [the case worker]. It’s the only document I have had, since Monday. I have made extensive enquiries as to when the matter could be listed before Mr Justice Poole. It is not easy.” 

It was clear that finding mutually convenient times for all concerned, that fitted with the availability of a (specified) Tier 3 judge, was extremely difficult. The whole system seems tightly stretched. 

Jodie James-Stadden confirmed that the order before the court was the same as the one brought on Monday 25th April, and that this hearing was merely to address re-listing of the case. She helpfully (certainly for me!) summarised the current position in relation to the case: 

“Information needs to be sought from M’s landlord. The Local Authority needs to look at potential commissioning and whether option B [P living in the family home without her mother living there] is viable. The order also records the Local Authority’s continued offer to M for telephone contact with P, and that M continues to decline that offer. It effectively maintains the status quo [in relation to] residence and care. There is provision for additional 1:1 24hr support for P. … There is provision for M to set out her discussions with the landlord, and the usual permission for the Trust and Local Authority to provide evidence. Then relisting. All parties have agreed it, subject to your approval.” 

Judge: Mr M O’Brien?

M O’Brien: Your Honour, the position for [M] hasn’t changed – she wants a hearing as soon as possible. The main purpose of now was to get that date, but the court is not able to get it. I have nothing to add really. On behalf of M, she wants a hearing as soon as possible – if Mr Justice Poole can’t do it, perhaps we can look at other Tier 3 judges for a more reasonable date. 

There was a lot of discussion about whether an alternative judge would be possible, or whether the FDLJ (Family Division Liaison Judge) was preferable, what dates were in the offing and whether a sooner date could be offered by a different judge. None of this was resolved at this hearing. 

The judge concluded the short (15 minute) hearing thus: 

Right. There’s nothing further we can do this morning, I will approve the order that’s been sent through.”

Reflections

I was astounded that a planned 4-day final hearing had to be adjourned almost immediately. My observations of the court system (connected only to the Court of Protection admittedly) have been that the pressures on the system are immense. Court time is precious. Four days set aside in everyone’s diaries should not collapse at the very start of a hearing. 

I wasn’t sure whether the condemnation of the Local Authority (by counsel for M) for coming unprepared to the hearing was fair or not. Given that it was decided that the Local Authority should assess the home environment, his criticism seems well-founded. At the same time, I have some sympathy with the Local Authority position that any assessment is ‘hypothetical’, since the current court order is that P should reside at the placement and should not live with her mother.

I am now interested in such situations: if a court order has been made, can parties who are unhappy with the outcome persist in bringing the case back to court? Or was the application allowed because (it appears) that placing P in the care of the Local Authority has not resulted in the (medical) outcome that was the principal aim of the court order? I am also aware that there are likely to have been additional hearings between the one observed (by Celia Kitzinger) nearly two years ago and the hearing I observed in April 2022, and those hearings may well have resulted in additional directions and orders that have influenced what happened today.  (That’s one reason why the parties’ Position Statements would have been so helpful in understanding this case.)

I am reminded of one of the first hearings that I attended as an observer (blogged here). That was about a man with dementia and the application was to medicate him covertly in his best interests, which the judge approved fairly swiftly. I am not advocating one way or the other here, but notice that it was ruled that it was in the best interests of a man with dementia to be medicated covertly, and yet P in this case does not seem to have received court ordered medical treatment for two years, and I don’t know whether or not the options of covert medication (or restraint to ensure treatment) have been considered. (They may have been considered in one or more hearings that we missed).

The discussion at the hearing alluded to care staff being unable to ‘persuade’ P to take her medication and P’s mother submitted (via counsel) that she herself (when she initially had contact) had tried to persuade P to take it. I don’t know the logistics of the specific medication that P needs to take. I just found it curious that the reason P was removed from her mother’s care was to facilitate a necessary and urgent medical regime, and this has not happened. For two years. 

Leaving the issue of medication for P’s condition aside, it is clear from submissions from all parties that P has not thrived where she currently lives. I came to this conclusion primarily from what was omitted in submissions, rather than what was included. I strongly suspect that, if P were thriving or at least successfully taking her medications, counsel for the Local Authority would have said so. Evidence (in 2020) from the social worker outlined the same situation at that time (when P had been living in the home for one year). Whilst safeguarding concerns were borne out in the court decision in 2019 to move P out of her mother’s care, it would seem that what has transpired since is that (at least where P is living now) Local Authority care has not been successful, either for expediting medicine delivery or, equally importantly, for P’s psychological wellbeing more broadly. 

My heart sank a little reading the evidence from the social worker in 2020, referring to ‘trying to address [self-care and neglect] with health education and communication’. Clearly, I do not know the details of what and how approaches were tried with P, but I thought the omission in all discussions (that I am aware of) missed the key point that P has lost her main attachment figure (whatever is thought about the quality of care that P’s mother provides). 

I would suggest that (if submissions by counsel for the Trust are correct such that P was utterly emotionally enmeshed with her mother) taking her away from that relationship without careful attention to P’s attachment needs and how to work with that as a focus (at least initially), would be devastating for P. ‘Health education’ and a focus on actions and behaviour would miss the relational trauma that being wrenched out of her family home and key attachment relationship would have brought (as I said, regardless of the safeguarding issues attached to that home environment). The reports of P retreating into herself, neglecting herself and refusing to socialise would support this possibility. 

I am left with two over-riding responses. First, this is a very, very protracted situation for P, not only in terms of the delay in her receiving court-mandated and necessary medical treatment, but also (according both to M and the Local Authority) P doesn’t seem to be adjusting to and engaging with carers at her placement. She was reported to not be washing, not socialising, not eating well and not ‘engaging’ at the 2020 hearing. Her mood (perhaps unsurprisingly if she is living somewhere she does not like) was said to be suffering. The implication at the 2022 hearing (though it wasn’t discussed in detail) was that the situation was the same, which was why M had brought the application. In order to want to look after oneself, get washed, get dressed, join in with life, we all need to have hope. I am wondering whether P has lost hope for herself. Psychologically, it seems difficult to justify P remaining where she is after this length of time. 

Second, the forced adjournment of the case seems scandalous in terms of public expenditure. If the application for P to move home has been made and accepted (notwithstanding the previous judgment that P should not live at home with her mother) then surely the parties should have prepared evidence to submit in relation to the application? This evidence was not ready. It didn’t seem to me that any public body was being held accountable for that. Conventionally, costs are not apportioned to parties in the Court of Protection. I have been reflecting on whether this seems fair in this case, when parties have not prepared adequately for a hearing, causing loss of court time, and the huge costs associated with that. 

We hope to be able to report on the case from the Open Justice COP project when it comes back to court in June or July 2022. 

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

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin


[1]  We are not allowed to audio-record court hearings ao direct quotations from the hearings we observed are taken from contemporaneous notes made at the time. They are as accurate as we can make them, but they are unlikely to be entirely verbatim.

Photo by Mourizal Zativa on Unsplash

Treatment against his wishes but in his best interests (without direct evidence on litigation capacity)

By Celia Kitzinger, 29th April 2022

Although his wishes and feelings are not to have this operation, those wishes and feelings are based on delusion… I give less weight to his views for that reason.[1]

So said Mrs Justice Arbuthnot at a hearing on 28th April 2022 concerning a man in his late 50s (Mr SH) with schizoaffective disorder, Type II diabetes and gangrenous toes on his left foot.

He is refusing surgery because he doesn’t think he needs it.  

It was reported in court he’d told the Official Solicitor’s agent that he is firmly opposed to surgery.  He said that God has already healed his foot and that the blackening of his toes as a result of necrosis is simply dried blood which will dissipate.  He also said that doctors are lying when they say that he needs treatment.

It’s not unusual for the Official Solicitor to take a position contrary to the views of the person at the centre of the case in the Court of Protection. People deemed to lack mental capacity to conduct their own litigation proceedings do not have the freedom to instruct their legal team to present their position for them.  Instead:

The current practice in the Court of Protection looks to the litigation friend not to represent P in any conventional sense but to instead identify and relay P’s wishes and feelings, investigate and assess the available options, and present what the litigation friend considers to be in P’s best interests”. ( “Litigation Friend or Foe”).  

In this case, the position of the Official Solicitor (Debra Powell QC) did not reflect Mr SH’s  views (opposing surgery).  Instead, she said that it was in Mr SH’s best interests to have the treatment proposed, even if sedation and force have to be used to take him to hospital and to enable the surgery to be performed.

If you’re deemed to lack litigation capacity, this can have a devastating impact on the way your lawyer presents your case in court – especially when the subject-matter choices you make are considered by others to be unwise.

The hearing

The hearing was originally listed to start at 2.00pm – but I received an email telling me it would be delayed until 2.30pm and in fact it didn’t begin until 3.10pm.  The judge apologised, saying that her previous hearing had run over.  We didn’t end until about 5.30pm. 

After Mrs Justice Arbuthnot talked observers through the requirements of the Transparency Order, counsel for the Trust provided a very helpful summary of the case, which segued seamlessly into an opening submission.

The TrustNageena Khalique QC,

The applicant Trust was seeking an order to enable it to perform surgery under general anaesthetic to improve the blood flow to Mr SH’s foot (angioplasty), and to remove dead tissue (partial amputation of the left big toe, and the second toe, plus debridement of the remaining toes on his left foot).  

Mr SH has “enjoyed a reasonable amount of independence and mobility”, said Nageena Khalique QC, but now, due to the pain in his foot, he is no longer able to do things that matter to him – including “getting out and about” and “going to the shops”.  He’s been in considerable pain, and although he didn’t want to go to the hospital emergency department, he went just a week ago (admittedly, after staff said the police would be called if he didn’t get in the ambulance) and it was found on examination that the blackened skin now extends over a larger area than on previous examination two months ago, meaning that the gangrene is progressing and he risks further spread, leading to a possible need for below-the-knee amputation, or even possible sepsis and death.

There seems no doubt but that this clinical treatment stands the best chance of saving Mr SH’s leg, and hence his mobility.  But he believes that (without treatment) his leg will get better and “in two or three weeks I’ll be running on it”. 

The evidence is that his decision-making ability is affected by “an impairment of, or a disturbance in the functioning of, the mind or brain” (2(1) Mental Capacity Act 2005) which means that he is not able to understand, retain, or weigh information relevant to making the decision (s.3 Mental Capacity Act 2005).

His mental health problems are long-standing.  He began attending psychiatric care in 1995 and has had a number of inpatient admissions, most recently for 6 months ending in June 2018 when he was discharged to the current mental health home where he’s settled. He is “largely compliant and responds well” to the anti-psychotics he’s prescribed, but has some “residual, treatment-resistant psychiatric symptoms” which include religious delusions.

Mr SH believes that he can free people from sin.  When he suffers from tremors he believes these are acts of God. The Trust’s position is that Mr SH lacks capacity by reason of these “religious, grandiose, delusional, symptoms”.  Nageena Khalique QC said: “he’s unable to accept that his toes are poorly or that he needs any treatment for them, and has an unshakable belief that God will make him better”. 

Mr SH also has a fear of the Hospital where the Trust wants him treated as his mother died there following infection and sepsis due to a retained swab that had been left in situ after an operation.  This, said Nageena Khalique QC, is an “understandable fear”, but she emphasised that “the primary driver [behind his refusal of surgery] is his delusional thoughts and his belief that God will heal his toes”. 

If, as the Trust believes, Mr SH lacks capacity to make a decision for himself, then a best interests decision needs to be made on his behalf.  

It is clear that the angioplasty, amputation and debridement would produce the best clinical result.  A consultant surgeon has written a witness statement to that effect, and was standing by to give oral evidence.  

Surgery would enable Mr SH to regain his mobility and hence enhance his quality of life, and thereby also improve his psychological health (according to the consultant psychiatrist witness statement). 

It’s unlikely Mr SH would resist, or require restraint for the surgery to be carried out – he has, after all, complied previously with staff telling him to do things he doesn’t want to do. But if restraint were to be required, the consultant anaesthetist (another witness) has offered to visit Mr SH in the care home and ensure it is carried out by someone other than his regular careers (so that they do not lose his trust). 

Of the available options, the Trust position is that a general anaesthetic on just one occasion, enabling all the surgery to be carried out at the same time, would be in Mr SH’s best interests – and far better than doing nothing (which is what Mr SH wants), or carrying out the surgery in two stages (first the angioplasty, then the toe amputation and debridement) – necessitating two separate general anaesthetics.   Nobody is proposing a below-the-knee leg amputation at this stage, although that was likely to be the outcome in the future if no treatment was delivered now.

Finally, Mr SH’s brother had been consulted and agrees with the Trust’s position.

Litigation Capacity

There followed an awkward discussion of the fact that – as it turned out – Mr SH’s capacity to litigate these proceedings had not been assessed.  The consultant psychiatrist who assessed Mr SH’s subject-matter capacity (i.e. his capacity to make decisions as to medical treatment) did not properly assess his litigation capacity: “she candidly says she didn’t discuss litigation in any detail”.  

Lacking empirical evidence (from a capacity assessment) that Mr SH does not have capacity to instruct a lawyer himself, Nageena Khalique QC drew on ‘in-principle’ arguments from case law.  This boiled down to the claim that since Mr SH lacks subject matter capacity, he is “highly unlikely” to have litigation capacity.

She read from Re P [2021] EWCOP 27, in which the judge (Mostyn J) quoted from an earlier case (Sheffield City Council v E [2004] EWHC 2808 (Fam)) in which  Munby J stated: 

Whilst it is not difficult to think of situations where someone has subject-matter capacity whilst lacking litigation capacity, and such cases may not be that rare, I suspect that cases where someone has litigation capacity whilst lacking subject-matter capacity are likely to be very much more infrequent, indeed pretty rare. Indeed, I would go so far as to say that only in unusual circumstances will it be possible to conclude that someone who lacks subject-matter capacity can nonetheless have litigation capacity.”

Mostyn J then said (and was quoted by Nageena Khalique QC): 

I would go further and say that it is virtually impossible to conceive of circumstances where someone lacks capacity to make a decision about medical treatment, but yet has capacity to make decisions about the manifold steps or stances needed to be addressed in litigation about that very same subject matter. It seems to me to be completely illogical to say that someone is incapable of making a decision about medical treatment, but is capable of making a decision about what to submit to a judge who is making that very determination. (Mostyn J, §33 Re P [2021] EWCOP 27)

The suggestion was that this ‘in principle’ argument – that since Mr SH lacks capacity to make a decision about medical treatment, it would be illogical to imagine that he has capacity to conduct litigation about that medical treatment – obviates the need for anyone to conduct a capacity assessment with Mr SH to determine whether or not, in practice, he has litigation capacity.  It can simply be assumed that he does not.

The judge accepted this argument, saying “there should perhaps have been an earlier consideration of litigation capacity, but it is quite obvious what the answer is to that”.

On the one hand I was quite disturbed that Mr SH’s lack of capacity to conduct legal proceedings was simply deduced,  without empirical evidence.  But I also strongly suspect, given what I heard, that had empirical evidence been sought, the same answer would have been reached – and an adjournment for a few weeks  to get that evidence before returning to court would have left Mr SH at risk of his gangrene spreading further, and mean that more of his toes might need to be amputated. It was a pragmatic but uncomfortable solution – and not one I would want to see adopted frequently by the court.

The Official Solicitor: Debra Powell QC

The judge turned next to counsel for Mr SH whose position was effectively the same as the Trust’s.

Debra Powell QC began by checking that the formal requirements had been met such that she could act as Mr SH’s litigation friend (i.e. that Mr SH could be deemed to lack litigation capacity) and the judge confirmed this.

Debra Powell QC  had previously stated that she had no questions for the witnesses – three of whom were on the platform: a consultant vascular surgeon, a consultant anaesthetist, and a consultant psychiatrist.  She described their witness statements as “very thorough”, said they “canvass all the issues”, and concluded that “the evidence is clear and cogent that this is the least restrictive option – and the only option that provides him with a realistic option of keeping his leg”. 

The decision, she said, was “obvious”:  “from a medical point of view there’s no doubt about his medical best interests, but the quality-of-life issues are overwhelming”.  

She reiterated that Mr SH’s opposition to surgery is based in delusional beliefs: “(1) that God has already healed his foot – he says the black is dried blood (but it’s because the tissue is dead); and (2) he’s convinced – and uses colourful language to express the belief – that doctors are lying to him.

This contrasts (she says) with opposition to surgery expressed by some other Ps in other hearings who’ve expressed “a firm and consistent view that they would rather die with 2 legs than live with one”.  Mr SH’s wishes and feelings are “important”, she said, but “shouldn’t take precedence”.   

A comparison can be made with another case in which the judge authorised treatment contrary to the patient’s wishes.   

This was not a man who had expressed a wish to die, rather than have this treatment. This is a man who has consistently maintained, and I consider genuinely believes that he would get better without treatment. Unfortunately, that possibility is entirely irreconcilable with the medical evidence.” (Hayden J, §25 Pennine Acute Hospitals Trust V TM [2021] EWCOP 8))

She ended by saying:

There is no evidence that he’ll suffer psychological harm from having the procedure done against his will.  He may be angry and upset and to some degree distrustful afterwards, but that needs to be weighed in the balance  against what would happen if his foot deteriorates.  

So in my submission this is the least restrictive option, giving him the best chance of a longer life and  the best quality of life.  The best interests decision comes down in favour of surgery as soon as possible.”

The judgment

There was a break of nearly an hour while the judge “gathered her thoughts” and (re)read the paperwork before delivering an oral judgment.

Her judgment added a little more detail from the court bundle of evidence about the extent of Mr SH’s refusal to accept treatment and his refusal to attend hospital for appointments on several occasions. 

She ran through the evidence for his not having the capacity to make the decision for himself about medical treatment for his legs, saying much the same as the two lawyers.  

Her judgment on best interests, too, relied heavily on what the lawyers had said. 

She concluded:

“It’s in his best interests to undergo the angioplasty, amputation and surgical debridement as a single planned surgical admission which gives the best chance of preserving his lower left limb which will enable him to do the things he enjoys and maintain a significant quality of life not too dissimilar to his current lifestyle. Although his wishes and feelings are not to have this operation, those wishes and feelings are based on delusion… I give less weight to his views for that reason.  It is lawful, necessary, proportionate and in Mr SH’s best interests  to make the declaration sought and to approve the order.”

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


[1] We are not permitted to record Court of Protection hearings. Quotations are based on contemporaneous touch-typed notes and although they are as accurate as possible, they are unlikely to be entirely verbatim.

Photo by How-Soon Ngu on Unsplash

Refusing to eat and declining a feeding tube: Capacity at issue

By Celia Kitzinger, 21st April 2022

The hearing concerned an application from an NHS Trust (represented by David Lawson) to insert a PEG-J tube under general anaesthetic and then to deliver clinically assisted nutrition and hydration (CANH) to a young woman (P) who was admitted to hospital having fractured her femur and is now refusing to eat.

She’s saying she doesn’t want CANH – but both parents (who are also parties and litigants in person) support the Trust’s application.   

The case (COP 13913343) was heard (remotely) across three days (5th, 7th and 8th April 2022)  before Mr Justice Williams sitting in the Royal Courts of Justice. 

I didn’t observe on the first of these dates but did watch on 7th and 8th April 2022. I had asked to observe on 7th April not knowing that the case was “part heard” (this is usually indicated on the listings), and so was surprised to be joining a hearing that had already started two days earlier, and for which (as a result) there were no opening statements from the parties.  This meant that it was initially difficult to orient to what the case was about and what was happening[1]

As there was no opening summary (the judge did not permit one due to time constraints), I’m not sure what took place at the initial “urgent” hearing on 5th April 2022, but I think it must have become clear that there was a problem with making even an interim declaration about P’s capacity to make her own decision about CANH, and that the judge must have declared that an independent expert could be appointed.  I base this deduction on the fact that (proposed) counsel for P via the Official Solicitor (Emma Sutton, on the first day of the hearing) expressed concern about the evidence on capacity because it was based on:

  • evidence from the treating consultant psychiatrist (Dr K) that P lacked capacity to make decisions about nutrition and hydration due to a delirium arising from a urinary tract infection; that infection was resolving, following which he thought she may regain capacity; and 
  • evidence from a consultant liaison psychiatrist (Dr B) that P does not have any significant psychiatric illness, although she’s depressed and has an “adjustment disorder” following the breakdown of her marriage, but that her current refusal to eat does not relate to this disorder.

Emma Sutton also queried the need for an “urgent” decision, given that P’s weight seems relatively stable at present, and she is willingly receiving IV fluids and vitamins, and has mostly “normal” levels[2].

It appears that an independent expert consultant psychiatrist (Dr Ty Glover) was appointed following the hearing on Tuesday 5th April and that he was asked to assess P’s capacity and best interests.

He visited P in hospital the following day (Wednesday 6th April) and the court received his report in time for the hearing on Thursday 7th April (the first day I observed).  

In his view P does not have capacity to make her own decision about CANH, and it’s in her best interests to receive it. 

By this point, the court had also received a new capacity report from Dr B (and I think from Dr K too) saying that P had regained capacity to make decisions about CANH due to improvement in her physical health, the urinary tract infection having been treated. In Dr B’s view,  there is no suggestion that P’s capacity was compromised except when she was delirious from infections.

From Thursday morning onwards, then, everything hinged on which way the judge – confronted with contradictory capacity assessments – would decide about P’s capacity to make her own decision about CANH.

If P can understand, retain, weigh and communicate information relevant to the decision, then – in accordance with the Mental Capacity Act 2005 – she has capacity to make that decision. The choice as to whether or not to consent to a PEG-J tube is hers, and hers alone.  It cannot be forced upon her, even if (as her doctors say) she may die as a result of her refusal. If she has capacity to make her own decision, the court has no jurisdiction.

If, however, there is evidence that P cannot understand, retain, weigh and communicate information relevant to the decision, then it is the responsibility of the judge to make a decision in her best interests.  That decision, it was pretty clear from the outset, would mean court-authorised CANH, likely with restraint, and subsequent psychiatric and psychological support to mitigate her distress at being treated against her will. 

P objects to anyone else making the decision for her.  She was in court throughout the two days of the hearing that I observed, appearing on screen from her hospital bed.  She said clearly in court on Thursday: “I feel that I am able to make decisions about my health”, adding that she would accept support and “guidance” with decision-making.  

Her family (a sister and both parents were in court) had informed the judge that – although they want her to have treatment – they know that P is an independent person and she would be “fuming” or “seething” if the decision were taken out of her hands.

Some background

The Official Solicitor’s two position statements gave some useful background about P and her life.  

She’s in her early thirties and was born with cerebral palsy, is a wheelchair user, and only has the use of her left hand. There’s no clear psychiatric history.  She’s been treated for depression and anxiety, and a possible brief psychotic state in response to infertility treatment. For a long time, she’s also had a “dysmotility of her oesophagus and stomach” (which will not improve). This means that treatment (i.e., delivering formula feed via the tube) would likely be long-term. 

There is general agreement that she’s now depressed, having recently suffered some significant negative life events.  She’d been hoping to become pregnant via IVF and it became clear last year that has failed. Also in 2021, she separated from her husband and moved out of the marital home to live with her mother. And then she fractured her femur when she fell as a hoist slipped while her mother was transferring her.

She’s lost a lot of weight during the three months she’s been in hospital.  That’s because she’s mostly declining to eat – not entirely, but enough to cause dramatic weight loss, and (possible) malnutrition and electrolyte imbalance.  On admission on 4th January 2022, she weighed 59kg (just over 9 stone). By 22nd March 2022 she weighed 39.5kg (just over 6 stone).  As the judge, Mr Justice Williams, said several times, that means that she’s lost a third of her body weight over a three-month period.  

I don’t know why she’s refusing to eat: she wasn’t asked in court, and there is no explanation in the position statements I’ve seen.  The expert psychiatrist in court said he’d found no evidence of fear of weight gain or body image concerns, nor is she actively suicidal or seeking to die (though he reported that she’d answered affirmatively when he asked her if she sometimes felt it would be better if she just didn’t wake up).  There was mention at one point of P “not communicating when she’s asked why she’s not eating”. 

She does not see a problem with her weight and does not believe that her health (still less her life) is at risk from not eating.  She has what she calls “good days” and “bad days” – and as it turned out, the first day of the hearing was “a good day” (said the barrister for the Trust) when “she managed a lot of food”.  

In the past, P seems to have been treated as having capacity in relation to CANH.  A gastroenterologist who’s been involved in P’s treatment since 2015 provided written evidence to the court, which was referred to in oral argument. Back in 2015,  P seems to have consented to insertion of a PEG-J tube.  The following year, she refused reinsertion of a PEG-J after the initial one was accidently dislodged, and she managed adequate nutrition over the following years, despite being intermittently troubled with various degrees of difficulty of swallowing, nausea, sickness and constipation, which were managed by the gastroenterologist and his team every four to six months.   

This gastroenterologist’s view was that P has always previously been accepting of treatment when it was really needed – such that now she either does not understand how unwell she is from a nutritional perspective, or she doesn’t want to get better. Both of these, he says, are out of character for P.

Thursday 7th April 2022

First Witness: expert consultant psychiatrist – P lacks capacity and forced treatment would not cause lasting harm

The expert consultant psychiatrist, Dr Ty Glover, appointed by the Official Solicitor, gave evidence on the morning of 7th April 2022.  He’d been appointed at very short notice, had been sent P’s medical records but been unable to read them because “the password didn’t work”, and had squeezed in a visit to P on his way back home from a long drive to see another patient the Official Solicitor  had instructed him to visit hundreds of miles away.

On arrival at the hospital, he’d found that Dr B, one of P’s treating psychiatrists, was with her conducting hisassessment, so he’d had to wait outside for his turn, and he’d talked with P’s father while waiting.

In court, Dr Glover said that P has a “genetic predisposition” to suffering from a “depressive disorder”,  inherited from her maternal grandmother.  The combination of some “fairly tough” life events and “being vulnerable to anxiety and depression anyway” makes it “not surprising” that (in his view) she’s developed what he calls (referring to the International Classification of Diseases (ICD) F33.3) “Recurrent depressive disorder, current episode severe with psychotic symptoms”. 

He found P to have feelings of “worthlessness”, “lethargy” and “a lack of self-worth”.  There is “a lack of worth P gives to her life, the lack of future she sees”. He described one symptom of her depression as “psychomotor retardation”: “You ask her a question, like ‘how are you feeling today’ and there’s an abnormally long pause before you get a response, and because I’m impatient I fill the gap and ask another question like ‘has it been a good day?’.  I asked her father, ‘is that normal for her?’ and he said, ‘no, she usually chatters away’.”[3]

He attributed her not eating to her depression: “when you’re depressed you tend to go off food.  I always think if I became depressed, that wouldn’t happen, because I quite like food – but she’s always had gastroesophageal problems, and she’s had difficulties in that domain before, in 2016”.   

Although he said she had psychotic symptoms associated with depression, when asked by counsel for P via the Official Solicitor (Pravin Fernando): “Did you observe any psychotic features in P yourself?”, Dr Glover said he had not.  He seems to have been relying on what P’s father had told him in a conversation outside P’s door, while he was waiting to go in to examine her: “Her father was fairly certain she suffered from hallucinations – seeing and hearing things that aren’t there.  [Her father’s] evidence was so clear and compelling that I knew the diagnosis before I went in to see P”.  He believes that the “almost certain presence of psychotic symptoms also undermines P’s capacity…. It’s very difficult to retain capacity in a psychotic world”. 

Dr Glover said he thought it likely that if P were treated against her will (with CANH and anti-depressants) she would likely regain capacity to make her own decisions about eating and drinking in about  8-10 weeks. 

Until she regains capacity to make her own decisions, the proposed treatment plan involves restraint, the use of mittens to prevent her dislodging tubes, and a period of one-to-one nursing.  Dr Glover did not think that forced treatment would have any significant or long-lasting impact on P. He thought the anaesthetic plan was “very sensible” (“the use of anaesthetic drugs will really mitigate some of the acute emotional upset that would go with any operative procedure”).  He also emphasised the importance of family and nursing staff “rallying around and helping” which “will minimise any significant psychological harm” associated with having her wishes overruled.  “And then you just have to hope that the nutrition is established and as her capacity comes back, she agrees with the feeding.  The treatment panorama in 6, 8, 10 weeks’ time might be completely different.”

The judge summarised the situation by saying that “everyone is agreeing that if she were her normal self, she’d be agreeing to the treatment plan, so I think when she gets better, she’d realise why it was done against her wishes. But is there any risk of her losing faith in her family?

If she goes back to who she was two-plus years ago,” said Dr Glover, “I think she would understand the roles people played in this and that people were trying to look after her – including her family”. 

The judge reflected that he was “very conscious of P listening to this and how she will be conscious of decisions being made about her, rather than by her, and how that’s going to affect her, going forward.”

A significant intervention from P – “I am able to make decisions about my health”

I got the impression that the judge was ready to make a decision at this point, based on Dr Glover’s evidence.  

But of course the consultant psychiatrist for the Trust disagreed Dr Glover on the matter of whether or not P has capacity to make her own decision about CANH – and the judge said to counsel for the Trust, David Lawson, that “if you’re relying on his evidence, I’ll have to resolve the dispute between the two psychiatrists”.

Counsel for the Trust said that the Trust was now “minded to accept the evidence from Dr Glover” (i.e. that P lacks capacity to make a decision about CANH), thereby clearing the way for the judge to go ahead and make a decision. 

The judge checked that the Trust no longer wished to rely on Dr B’s evidence, and indicated (quite strongly) that this would enable a timely decision from the court.

 “In an ideal world, one would want to drill down into all of these issues in terms of evidence, but I was asked to list it for a one-day hearing as soon as possible.  Mr Lawson, it’s your application, and it’s up to you how you put your case.  If you’re now saying that you accept the evidence from Dr Glover, the court would not need to hear from Dr B. I found Dr Glover’s evidence reasonably convincing and I would see no particular reason to disagree with it unless there’s alternative expert evidence.”

The judge pointed out that time constraints meant that if he was required to hear additional evidence on capacity he was “not sure you’ll even get a decision on capacity from me today”.  It would be sensible (he said)  to “focus on what can be achieved today” and if the Trust wants “a decision that she should undergo this procedure as soon as possible, then something has to give” – but it was up to the Trust to decide whether or not to call the doctors whose evidence was that P in fact has capacity to make her own decision: “the ball is in your court”.  

I expected counsel for the Trust to decide not to call Dr B, and then a judgment.

At this point a family member (I think it was P’s mother) switched on her mike and announced, “P would like to say something”.  (The judge had previously made clear at the beginning of the hearing that P was free to address him at any time.)

P’s invention was straightforward – and devastating for the course of action the court now seemed about to embark upon.

Just to make it clear,” she said, “Dr Glover saw me for literally half an hour, if that.  To me, I don’t think that’s fair. Because how can someone’s opinion in half an hour be right?”

The judge recognised the force of her interjection immediately: “So you’d like me to hear from Dr B, would you? Because he’s got a different opinion.  Dr Glover’s new on the scene, so if you want me hear from Dr B, I’ll do that”.  

The exchange between the judge and P (supported at times by P’s sister who was with her at the bedside) went on for a few more minutes – and it was evident from the interaction what Dr Glover had meant by “psychomotor retardation”.  There were long gaps in P’s speech and she seemed to be struggling to find the right words, to the extent that the judge suggested (appropriately, I thought) that she might find it easier to tell her sister who could write it down and report back to him.

But rather than accept that suggestion, P asked “So just run it by me what Dr Glover’s decision was?”.  The judge explained:

Judge:  Dr Glover was saying you’ve been through a lot of life events with your marriage and IVF and being admitted to hospital, and that’s exacerbated your anxiety and depression, so you’re not who you usually are, and so you’re not able to make a properly informed decision about a PEG-J.  And he thinks with the PEG-J being put in, you’ll get back to your normal self, but without the PEG-J and nutrition, you’ll find it difficult to get back to being your usual bubbly normal self.  So, he thinks I should make the decision for you, and have the feeding tube put in.  Does that make sense?

P:  Can uhm (pause) can uhm (pause) can it be (pause). I feel (pause). I feel like uhm (deep sigh)

Sister:  How do you feel? Go on.

(silence)

P:  I feel that I am able to make decisions about my health – and day to day things – but I need guidance to do with my health.

Judge:  Okay.  I think Dr B thinks you can make decisions, but at the moment the big decision is about having the feeding tube put in, and I think what I’m being told is that sometimes you say it would be a good thing, and on other occasions you say no, and that’s why it’s being put into a court to decide whether you can make your own decisions. […] Everything I’ve read supports the idea you need this feeding tube to get more nutrition put in and get you physically better.  The question really is, should I take the decision or are you able to take the decision for yourself.

P:  I don’t feel like…. (pause). To me, uhm…. (pause). I do have good days and bad days.  Some days I can eat and other days that’s (pause)

Judge:  That’s part of the problem I think – getting the nutrition in you consistently to keep you well.  A feeding tube would make sure you’d get the feed every day, instead of it being erratic.

P: To me, it feels I’m not underweight or overweight. I’m at a steady weight.

Judge:  I’ve been told you’ve lost twenty kilos since you went into hospital, which is a lot of weight.

P: (speaks quietly to sister)

Sister:  She wants to know how much that is in stone.

Judge: There are 2.2 lbs per kilogram so you’ve lost (pause) 44 lbs, which is 3 stone.  So you’ve gone from 9 stone to 6 stone.  Which is a LOT!

(Silence)

Sister:  You understand you’ve gone down from 9 stone to 6 stone?

P: What’s 6 stone?

Sister: What you weigh now.

Judge:  Ask [Sister] what she weighs – or perhaps you shouldn’t!  Sisters shouldn’t subvert each other like that.

P:  (says something quietly while looking down at her body)

Judge: Did she say ‘where’s it gone?’

Sister:  She’s just looking at herself and said “oh!”

The judge then asked if it would be okay to talk to the lawyers again and P agreed, but asked him to return to engage with her again after that.  

On resuming his address to the lawyers, the judge said, “Well, that answers the question for us. I think Dr B ought to give evidence as P has raised a question about Dr Glover’s knowledge of her”.

It was good to see that P’s intervention could influence the course of the hearing in this way.  The judge’s response to her concern was an excellent illustration of putting P at the centre of decision-making about her.

Second witness: Dr B, treating consultant psychiatrist – P has capacity and forced treatment would be ‘difficult’

Dr B gave evidence based on having met P over the course of the last three months at least (he said) 6 and 7 times.  He’d seen her several times in the week after her admission to hospital, because he’d been asked to decide whether she had capacity to make a decision about treatment for her hip fracture (he’d decided she did).  Then he’d seen her a few weeks later to see if she’d benefit from anti-depressants, as she’d not been eating or sleeping well, and had found it difficult to be in hospital.  He’d also discussed her case in multi-disciplinary team meetings and at the Ethics Committee, and had spoken with her mother.

At some point (the chronology wasn’t entirely clear) he’d been asked to assess P’s capacity to make decisions about a PEG-J and had initially concluded that she lacked capacity due to delirium associated with a urinary tract infection – but anticipated that she would regain capacity when she recovered.

He was then away from the hospital for a period (“I myself fell ill with COVID”) and didn’t see her until his return 

In his most recent report, he describes her as “brighter” and concludes that she does have the capacity to make her own decision about the PEG-J.

He agrees with Dr Glover that P is depressed “but I don’t think it’s severe, and I don’t think psychosis is part of her depression… there have been other reasons for her to have psychotic symptoms which have been more transient” (i.e.,  the infertility treatment medication – bromocriptine, of which psychotic symptoms are a possible occasional side-effect – and, recently,  the urinary tract infection which led to delirium that in turn led to psychotic symptoms).  He also pointed out that some of the symptoms of depression are equally  associated with being physically unwell – for example “lethargy is very common in physical illness and so usually we call these biological symptoms and they are not counted as symptoms of depression”.

The matter of diagnosis (“depression/adjustment disorder” vs. “severe depression with psychotic symptoms”) occupied quite a bit of court time.  This was presumably because of what is often called the ‘diagnostic’ component of the capacity test: does the person have an impairment of, or a disturbance in, the functioning of, the mind or brain (whether permanent or temporary) (s. 2(1)(2) Mental Capacity Act 2005).  But as Pravin Fernando said in his closing summary (see below), there is no requirement in the Act for the impairment of, or disturbance in, the functioning of the mind or brain to be tied to a specific diagnosis. 

The judge addressed a crucial question – the extent to which P understands that her low weight is threatening her health and (perhaps) her life. This is information necessary to decision-making about the PEG-J.  If she doesn’t understand the risks to her health of further nutritional deficits, then (irrespective of which diagnosis is correct,  and insofar as either diagnosis constitutes an impairment or disturbance that causes her lack of understanding), she must be found to lack capacity for decision-making.  

Capacity unravelled

This was the point at which the adequacy of Dr B’s capacity assessment began to unravel for me.  

P’s capacity (or lack of it)  is at the heart of this case. If she has capacity then the court has no jurisdiction.  But it’s impossible to know whether or not she has capacity to understand, retain and weigh information relevant to the decision that needs to be made if – as Dr B says  – she hasn’t actually been given that information.

Judge:  One of the most striking things in your second witness statement is that P said she thought her weight is appropriate.  Does that indicate a lack of understanding?

Dr B: Yes, it does.

Judge:  We saw that earlier perhaps. (i.e. when P spoke to the court)

Dr B: She has not been weighed that often, or given information about her weight.

Judge:  But a third of her body weight – 20k for a 60k person is pretty significant, and loss of any more weight may prove to be fatal.

Dr B: Yes.

Judge: (reading from Dr B’s report) “She did not think her weight was problematic” – so again, she’s not understanding the situation, because her weight is certainly problematic.

Dr B: Weight is certainly a problem. We have discussed nutritional quality. We didn’t particularly focus on her weight.  

Judge: If she doesn’t understand that losing 33% of her body weight puts her life at risk, she needs to be disabused of any misapprehension about this pretty quickly.  (Reading from Dr B’s report) “If she goes down further she will have difficulties” – that doesn’t suggest an appreciation of the risk to her life.

Dr B: Correct. One of the things we’ve noticed is she needs to take things slowly and gradually.  At the point in time I saw her – I saw her in two chunks, morning and afternoon –  I would personally have explored that a little bit more.  But Dr Glover came in.  I had a real rapport with P, but I had to curtail my conversation with her.  She is not able to eat adequately, and she did say she is feeling the effect of not having enough nutrition. We didn’t discuss the full impact, but the discussion was in that direction.

Counsel for P via the Official Solicitor, Pravin Fernando, picked up on this line of questioning in his cross-examination.

OS:  One of the features of this case is that we understand P doesn’t want to die.  She says that consistently to professionals who ask her that question – but she also, in the same breath, says she considers that she’s not underweight, or has no issues with her weight.  How do you marry up these conflicting positions? Because on any objective view, her life is at risk because of the drop in her body weight.

Dr B: I think that has been our challenge here.  I think that she does not want to die.  What she wants to happen is to go back to her loving family.  With regards to weight, I don’t think she has been given the information about how much weight she has lost and what the impact is going to be. 

OS: Well, isn’t that fairly fundamental to your determination on capacity.  Because in determining whether or not she has capacity to make a decision about a PEG-J, you would need to know whether she understands what the impact is of the weight she has lost.

Dr B: (Reiterates a variant of what he said previously about having discussed nutrition with P, rather than weight).

OS:  I don’t mean to be flippant when I say this, but how are you able to put forward any positive statement about P’s capacity when you’re unsure about her understanding about her weight? 

Dr B: Well, a PEG-J is a fairly technical thing.  I have not given her all the necessary information – all the pros and cons of the operation – but broadly speaking I have explained to her why she needs it.

OS: You say, ‘it was clear that she could consider that if she did not eat enough then she is likely to deteriorate’ – you didn’t explore that with P?

Judge: I think he said he didn’t have the opportunity, because Dr Glover then came in, and he’d have spent more time with her if he’d been able to.  You saw how P was today (in conversation with the judge). Was she similar with you?

Dr B: No, she was much more comfortable, much more eloquent.  I think she’s under pressure at this point.  It’s not unusual for her to get tongue tied, but this is distinctly different from when I saw her yesterday.

Judge:  The reaction we saw was surprise- potentially one of surprise – when told she’d lost 3 stone in weight. Was that similar to her reaction to you?

Dr B: I didn’t exactly put it to her how much weight she’d lost, but I have put it to her how different it is between now and where she was when she was well and happy.

Asked about the psychological impact of being forced to have treatment she doesn’t want, Dr B said “it is clear she would not want anything done against her wishes – anything at all.  She did not like the naso-gastric tube.  But if we can work with her, she will agree to it”.  He gave as an example the fact that she’d agreed to an x-ray after it had been explained to her and doctors gained her confidence.

And if she doesn’t agree?  “That becomes extremely difficult.  The tube needs to be there, and she needs to participate cooperatively in terms of nutritional input through the tube.  If she did not have capacity and had to be treated against her wish, you have possibly heard about mittens, and that is the situation we would get into, and that is not a pleasant situation”.

Pravin Fernando (for P via the Official Solicitor) asked, “Do you think that your opinion [about P’s capacity] is at present inconclusive, without having a further discussion with P about the impact of not going along with the PEG-J?”.

David Lawson (for the Trust) asked: “If you don’t understand that you’re critically underweight, you can’t make decisions about nutrition and a PEG-J can you? That must be right, mustn’t it?

Dr B had no satisfactory answer to either question (though he referred to P’s right to “take an unreasonable view” on the matter). 

The judge suggested that Dr B and the gastroenterologist who is recommending the PEG-J should “talk it though, with the space and time to allow both of you to explore with her the options that she faces and then make a fully informed decision if she’s able to.”  The court needs evidence, he said, “that there’s been a very specific discussion with P that she understands the options – and if she still doesn’t want the PEG-J and everyone else thinks she should have it, then I will have to grapple with whether it’s due to a lack of capacity.”

It was agreed that this discussion could happen the following morning, with the hearing to be continued in the afternoon, although – depending on the evidence needing to be heard – the judge could not guarantee a decision in that case before Easter.

The Official Solicitor was not very happy with this course of action and tried to short-circuit the process: 

OS: There are two avenues – one is the course suggested, that the matter of capacity is revisited with Dr C [the gastroenterologist] and Dr B having this discussion with her – but we do have the evidence from Dr Glover that fundamentally she’s unable to make these decisions.

Judge: If Dr Glover’s evidence is accepted.

OS: We were about to proceed on the basis of Dr Glover’s evidence

Judge: Well that’s the danger of hearing further evidence, isn’t it. It has an effect.

The case, said Pravin Fernando, had been brought on an urgent basis and “we really do need to resolve this matter. We have grave concerns about it going any further than tomorrow”. The judge responded that he would not be able to sit past 4.30pm the following day, and Pravin Fernando subsided: “I don’t think there’s anything else I can say”. 

A closing interaction with P and her family

Before closing for the day, the judge returned to P.

Judge:  P, are you still with us.

P: Yes.

Judge: P, it’s been quite a long day. The plan is for Dr B and Dr C to come and see you tomorrow morning.

P: Why?

Judge: To make sure that you understand what the plans are and what the consequences are if you have treatment and if you don’t.

P: Who is Dr C?

Judge: The doctor who specialises in stomach problems and nutrition.

P: Which one is he?

Judge: I think he’s here now. Dr C, perhaps you can turn your camera on.

[Dr C appears on screen]

Dr C: Hello.  (Holds up face-covering) You’ll see me with a mask on tomorrow.

Both parents (they are separated and were participating in the hearing from different locations) were also invited by the judge to speak if they wished to and both expressed scepticism that one more day of trying to explain things to P would make a difference.  

P’s father said “Regarding them coming to see P in the morning, it won’t make much difference… we’ve all been explaining it to her all the time…. Twelve months we’ve been going through this”. 

Her mother – crying, and clearly desperately concerned for her daughter – tried to explain a more complex situation than appeared to have been presented to the court: “P’s problems began before all this… she doesn’t eat three meals a day anyway, prior to all this happening. I can’t get her to eat and drink at home. Before going into hospital, she went from a size 16 to a size 12 and she must be a size 6 now. Initially when she went in, she didn’t have any help at all with food – she has [medication] to help with stomach cramps and these weren’t given to P and when they were given, only intermittently.

The judge said (sympathetically) that he hoped to reach an “end point” tomorrow.  Some arrangements were made for recording tomorrow’s capacity assessment.  And since P’s sister couldn’t be with her tomorrow, her father agreed to be there with her.  

The court would reconvene at 2pm the next day.

Friday 8th April 2022

I missed the first 10 minutes of this hearing because (when I enquired) I was wrongly told by court staff to use the same link I’d been given the previous day, when in fact a new link had been issued.  I realised there might be a problem when nobody admitted me to the hearing from the virtual waiting room and I emailed counsel directly asking for the link.  Observers should not need to have to do this if the Court is serious about open justice.

Agreement on capacity and ways forward

When I joined the hearing, I learnt that there was now a common position that P lacks capacity to make her own decision about CANH.  

As her parents had predicted, the explanations offered by Dr B and Dr C that morning had been unsuccessful.  P was unable to understand that she’d had rapid and significant weight loss, and so unable to understand the risks to her health.

Matters discussed included:

  1. How psychiatric and psychological support would be provided to P to support her through the process of having treatment against her will (apparently there is no psychology service based within the hospital)
  2. Evidence from Dr C about why a PEG-J was the best way of providing nutritional support for P (as opposed to a naso-gastric tube or PEG or jejunostomy)
  3. Scheduling of the surgery – likely now to be after the weekend.

Final submissions

For the Trust

In his final submission, David Lawson said that the Trust’s position now is that P lacks capacity to make her own decisions about CANH because of her depression and other factors identified by Dr Glover.  She doesn’t understand that she’s lost so much weight, or the risks of that (including the risk of death).  

The judge engaged counsel in some attempts to disentangle the two different diagnoses, and David Lawson said that whether P has ‘depression’ or ‘adjustment disorder’, either is an impairment of mind or brain and has “explanatory power for why she can’t understand, or retain or weigh” the relevant information. 

There was also a discussion about ‘fluctuating’ capacity and its relevance for P. Counsel

was particularly concerned that there should be no interruption of treatment during the three weeks of ‘refeeding’  – as would occur if P were said by Dr B to have regained capacity within a day, or week, of the PEG-J being inserted (in which case, of course, if she asked for the treatment to be removed, he would have to comply).  Dr Glover’s estimate that it would take 8-10 weeks for P to regain capacity to make decisions about the PEG-J was mentioned several times.

According to the judge  “P has sadly been sustaining a diminishing lack of capacity over some period of time, and is now in general, usually, well below the capacity line, but it’s conceivable if the operation takes place and she starts to improve that there might be a day, or an hour, when Dr B might say ‘well she appears to have capacity now’ but if you were to go two hours later, she’d have lost capacity again.  And I don’t want that to create a difficulty, but I’m reluctant to put a time scale on it.  Overall, I think given that the diminution of capacity has happened steadily over some period of time, I think it likely that the regaining of capacity is likely to take some time as well and it’s certainly unlikely that she’ll regain consist capacity before we resume after Easter”. 

Counsel drew on the case of Royal Borough of Greenwich v CDM (Rev 1) [2019] EWCOP 32 to make a distinction between ‘micro’ and ‘macro’ decision making capacity  in relation to fluctuating capacity.  In that case Mr Justice Newton considered how a person’s individual  decisions about what to eat, and whether or not to take insulin,  had to be assessed in the context of their broader understanding of the management of diabetes. By parallel, it’s impossible for P to make a capacitous decisions about individual meals (‘micro’ decisions) if she doesn’t understand her that her weight is too low and she’s at risk of death (the ‘macro’ context).  This was summed up by the judge as: “You’re saying that she doesn’t have capacity in general for anything that falls within the perimeter of nutrition-related decisions”. 

In terms of best interests, P should be fitted with a PEG-J because “she’s a young woman with decades of life in front of her who is severely ill”.  He referred to her Article 2 right to life and said “there’s so much to gain here from a clear management plan for restored nutrition”.  He acknowledged that this decision is contrary to P’s wishes but hopes that “as and when and if she returns to capacity she will come to regard this intervention more favourably”. 

The expectation is that the case will be back in court after the Easter break “so details of the discharge plan and amount of support can be discussed” (as the judge put it).

For P via the Official Solicitor

Pravin Fernando began his closing submission by addressing what he called “some confusion about the necessity for specific diagnoses” in relation to the Mental Capacity Act 2005.  The Act refers simply to “an impairment of, or a disturbance in the functioning of, the mind or brain” (2(1).  He added that the COP 3 formuses the same language and admits the possibility of this “impairment or disturbance” not arising out of a specific diagnosis, when it instructs the person completing it:  “Where this impairment or disturbance arises out of a specific diagnosis, please set out the diagnosis or diagnoses here”.

The judge intervened to comment that it’s “always described as a diagnostic limb and a  functional limb  but perhaps that leads to an undue focus on the specific diagnosis rather than meeting the test of the section”.

Pravin Fernando replied: “There’s no requirement, My Lord, for there to be a DSM or ICD-10 specification. I think we can often focus on these things unduly. The point is when one steps back and looks at it from this viewpoint,  it’s clear that P (in the view of the Official Solicitor) has an impairment of or disturbance of her mind,  affecting her ability to make decision. I should say, for the avoidance of any doubt, that the Official Solicitor does accept the evidence of Dr Glover that P suffers from ‘severe depression with psychotic symptoms’.  She is unable to make decisions about the PEG-J and nutrition as a consequence of that impairment. It’s as simple as that, My Lord, when you look at an individual who’s lost a third of her body weight, and barely recognises that, and clearly does not understand how to look after herself and keep herself well.” 

In terms of best interests, Dr C is clear (said counsel) that the treatment is urgent, and that any further weight loss would “take us into disastrous territory”.  But in addition, “day by day malnutrition makes the likelihood of the success of the intervention less and less”.    Counsel wanted the operation to fit the PEG-J to take place as soon as possible to prevent “irreparable damage” to P. 

P’s psychological reaction to being treated against her will was also a concern.

Counsel: The concern is this. I’m trying to phrase this diplomatically. Dr B’s evidence on capacity was, we say, somewhat wanting.  His plan for psychological support is somewhat lacking.  We don’t want to delay this decision, but we want a plan that properly engages with contingencies, should P have an adverse psychological reaction to the PEG-J being put in.  Obviously, we hope that’s not going to happen, but it must be catered for.

Judge: What do you say is the appropriate mechanism for dealing with that? Obviously it’s not going to be done at twenty past three on a Friday afternoon just before the Easter holidays.

Counsel: I hope Dr B, who I believe is still on the call, can give  the court some assurance that he and his team, once the decision is made will properly engage with the task in hand.  My Lord will be able to review that at some point in future should this matter come back. 

Judge: Are you suggesting a review next week to check that all is being done that needs to be done – if the operation takes place on Monday as Dr C suggests is the more likely option.  To see the fleshed out psychiatric and psychological care plan?  Or is the Official Solicitor content with a recital that confirms that Dr B will work on this and put it in place.

Counsel: No, My Lord. We simply just want them to do it.

Judge:  I got the impression that Dr B is committed to P and will do his very best to put a package together.  Whether it’s entirely within his gift, resource-wise, to put  in place everything he’d like, is another question.

The judge was obviously concerned about the “adverse consequences of going against a strong-willed person’s expressed decision” but hoped that when she recovers she would “reconcile herself to it as having been necessary”.

Although he accepted that (based on evidence about P’s decisions in the past) that she would probably consent to treatment if she had the capacity to do so, he pointed that this observation: “doesn’t answer the question of how you’ll respond to it being done against your will when you don’t have capacity; she can still be very cross, offended, feel violated by me taking a decision and things being done when she said she didn’t want them done, But as I understand it the family’s position, and everybody’s position, is that even if her reaction were at the worst end of the scale, still the benefits of her continuing to live outweigh the Insult to her autonomy of going ahead against her will”. 

Judgment

A brief ex tempore judgment dealt with what the judge called “the headline points” (helpfully delivered at dictation speed).  

I have given some detail here because the judge said explicitly that he did not intend to publish the judgment.

The judge summarised the facts of the case.  He said that P has “lived fully” and “made the most of life”, despite trouble throughout her life with difficulties in eating and drinking, due to her physical impairments, mostly managed without need for a feeding tube.  Last year the combination of failed IVF and the breakdown of her marriage (which would be difficult for anyone to deal with) led to deterioration in her physical and psychological health, and she then suffered a fracture of her femur which required her admission to hospital in January 2022, where she has been ever since.  Although she was considered to have capacity to make decisions in relation to treatment of her femur during her stay in hospital, she was not able to eat or drink sufficiently to maintain her weight, and declined medication, investigations and treatments.  On 29th March 2022 Dr C, a consultant gastroenterologist saw her, was alarmed by her loss of body weight (of around a third), and thought it essential that an urgent application was made to the Court of Protection to insert a PEG-J to enable her to receive sufficient nutrition.

The issues that emerged over the course of the proceedings – said the judge –  were  (a) the question of P’s capacity to make her own decision and then (if she lacks capacity) (b) on the psychological aspects of the best interests decision to insert a PEG-J (the clinical need for a PEG-J being uncontroversial).  

(a) On capacity

The evidence from the psychiatrists on capacity finally led to an agreed position (“but a position” said the judge –  “I think I would have reached in any event, even if it had not been agreed”) which is that P lacks capacity under the criteria set out in s.3 of the Mental Capacity Act 2005.  

The precise formulation of the condition that P is currently experiencing I don’t think is critical,  but it’s agreed that P is suffering from depression. Whether one needs to say that meets any particular diagnostic criteria in DSM or ICD I’m not sure matters very much, but she clearly does suffer from  depression. Whether that is properly described (as Dr Glover says) as “Recurrent depressive disorder, current episode severe with psychotic symptoms” or whether it is “depressive syndrome/adjustment disorder” doesn’t really matter.  For my purposes, the combination of depression and hallucinatory features – whether they arise from the depression or from the impact on the functioning of her mind of infections or electrolyte imbalances or nutritional deprivation […] mean that for the purposes of the statutory test it is quite clear that she isn’t able to make a decision for herself because she has an impairment in or disturbance of the functioning of the mind or brain.  It’s clear that she’s unable to make the decision because there are deficiencies in her ability to understand some aspects relevant to the decision. I accept the evidence from her family, Dr C, and by extension the evidence from the nursing team, that there have been regular attempts to help her understand the extent of her weight loss and the implications of her weight loss and the implications of her refusal to accept nutrition for her health.  While she seems to appreciate there is some consequence of this, she does not appear to appreciate that her life genuinely is at risk. And with only a couple of further steps down this road, her condition will become life-threatening, if it is isn’t already.  And so, I’m satisfied that efforts have been made to give the information to her and that she’s not been able to understand it. I’m also satisfied she’s unable to use or weigh information relevant to the decision. I wonder at times having seen P on a couple of occasions whether she is in a position genuinely to communicate a decision – though I don’t think that’s the key here.  So, in relation to whether P has capacity to decide about the PEG-J and the care and treatment plan thereafter, I’m quite satisfied that she does not.  Looking at it from the other end of the telescope,  an aspect that reinforces the correctness of that conclusion, is that Dr M – who’s had long involvement with P –  says that over the course of dealing with P, she’s been able to recognise when she’s needed surgical intervention, and he can’t conceive of her declining to have the treatment necessary to sustain her life save by not understanding the information or being so depressed she’s unable to make that decision.  The unanimous view of family is they “want their P back” and this isn’t their usual P.  She’s someone who likes to engage in life, has aspirations for the future – and the P they say they see now is very different to the P they’ve known and lived with and loved for 30 odd years,  until the course of these traumatic events in 2020 and 2021 took their toll on her psychologically.” (Williams J)

(b) On best interests

The judge reported the parents’ view that “if P had capacity, she would have seen the need for this procedure and would have agreed to itThey think that if it’s undertaken against her will that she will come around to the idea that it was necessary”.  Nonetheless, he said:

 “Doing this against her own wishes is likely to add a further layer of psychological insult to her. However, in terms of the overall best interests decision, it’s clear from Dr C’s evidence,  and from the family’s to be fair,  that P desperately needs this procedure to be undertaken; it’s the only realistic route back to physical health and also the best opportunity for restoring her psychiatric and psychological health as well. […]  My concern (and that of others) is what impact would this have on P to do it against her will and how could the consequences be ameliorated?  The benefit of Dr B’s input is in ensuring that a psychological and psychiatric plan for managing this – albeit in in embryonic form at the moment – has addressed that. […] So, overall, in terms of the holistic best interests decision, I’m quite satisfied that for medical reasons P should undergo the PEG-J procedures and the implementation of the care and treatment plan. And thereafter, although there will be some impact on her psychologically, it’s clear that the benefits in terms of prolonging her life and restoring her psychological and physical well-being outweigh the psychological risks of this being imposed against her will.  She will remain in hospital and will remain supported psychologically and psychiatrically… It seems reasonably clear that P’s capacity has been diminishing for some months in terms of what’s been described as the ‘macro’  decision in relation to procedure and the nutritional plan, and that is going to endure for some weeks.  There would need to be a significant improvement in her physiological wellbeing but also in her depressive condition for her to regain capacity on the macro-decision and that is likely to take some time […]. The bare minimum Dr Glover thought was 3 weeks and more likely 8 weeks for the medication to have an impact on her functioning. In respect of her lack of capacity, this is likely to endure until there is a really significant improvement in her psychiatric functioning.

Working on the basis that P would not regain capacity before the next hearing in this case (after the Easter break), the judge made the declarations and orders sought by the NHS Trust – that she lacks capacity to make her own decisions about her medical treatment, that it’s lawful to insert the PEG-J and to administer the care and treatment,  and that any consequent deprivation or restriction of her liberty is lawful.    

The PEG-J is likely be inserted on Monday, after the weekend.

Reflections

One very important aspect of this hearing (for me) is that it implicitly confirms the fundamental right of people who do have capacity to make their own decision to refuse to eat and drink and to refuse clinically assisted nutrition and hydration.  This was never explicitly stated in the hearing (or by the judge) but it’s the basis for the whole application, in that if P had been found to have the requisite capacity, her refusal would have been respected.  

The whole point of assessing whether or not P had capacity to make the decision for herself  was to determine whether or not compelling her to have the PEG-J tube against her wishes was lawful.  If she’d had capacity, she could not have been so compelled. Recent judgments have made explicit capacitous people’s right to refuse to eat and drink and to refuse a feeding tube (e.g. Re PH [2022] EWCOP 16).  

The right (capacitously) to refuse to eat and drink and to refuse CANH is so basic that it shouldn’t really need to be affirmed – except that I’ve seen people wrongly sectioned for voluntarily stopping eating and drinking (with the stated intention of hastening death) with no evidence of mental illness and no reason to believe loss of capacity. And I’ve been told by health care professionals that permitting such refusals, and providing palliative care for people dying as a result, is akin to “assisting a suicide”.  

Voluntary stopping eating and drinking (VSED) is sometimes chosen by people who want to control their own dying (e.g. because they are terminally ill and want to advance the time of their death) and unless there is reason to doubt their capacity to make this decision for themselves, their right to make these refusals must be respected.  There is more information about VSED on several websites (e.g. here).

Second, this judgment affirms that when a person stops eating and refuses a feeding tube, it can be appropriate to consider whether they understand that they will lose weight, suffer malnutrition and eventually die as a result – because if they do not understand that, and do not actually wish to die, then – assuming they also have some impairment in the functioning of their mind of brain that ‘causes’ them not to understand this – they clearly do not have capacity to make that decision for themselves.  In this case, P did not wish to die. She did not understand that she had lost a third of her body weight, and did not believe her life was at risk.  This is very different from the people I’ve known who chose VSED because (in their 80s) they had degenerative illnesses and actively wished to speed up the dying process and avoid what, for them, was a humiliating and protracted death.  Respecting the right to refuse treatment (as Dr B was clearly concerned to do) must be modified when the person who wishes to refuse it lacks the mental capacity to understand the consequences of her refusal.

Third, it was useful to hear Pravin Fernando’s clear and succinct account for why the so-called ‘diagnostic’ component of the capacity assessment (the requirement for P to have an “an impairment of, or a disturbance in the functioning of, the mind or brain” (s. 2(1) Mental Capacity Act) that “causes” her inability to understand, retain, weigh or communicate information relevant to the decision to be made) does not actually require a definite or fixed diagnosis.  I have listened to a fair number of judges trying to determine which of the  different diagnoses presented to them by different witnesses in court is the ‘correct’ one –  and most have felt it incumbent upon them to decide this, despite the fact that any of the possible diagnoses would constitute “an impairment of, or a disturbance in the functioning of, the mind or brain” for the purposes of determining capacity. It doesn’t seem to me that judges are necessarily best placed to make a determination between contested psychiatric/psychological diagnoses, or that it is actually required that they should do so.  In this case, Williams J did not decide between diagnoses but simply accepted that either of them fulfilled the requirements of the Act. (Incidentally, it’s very unusual – in my experience – for ‘depression’ to be the key diagnosis in a finding of incapacity and this case stands out for that reason too.)

Finally, I  welcome the judge’s recognition that being forced to have treatment you wish to refuse is likely to cause distress – even if, in the long run, you might come to see it as the right thing for your doctors to have done.  Personally, I am horrified by the idea of being given medical treatment against my wishes, no matter how good the intentions of those delivering it, and no matter what I might think about the value of the treatment in the future.  For me it would be a violation of my autonomy and bodily integrity. I would (literally) rather die.  And so, I have written an Advance Decision to Refuse Treatment (an ADRT, in accordance with ss. 24-26 Mental Capacity Act 2005) which makes it unlawful for doctors to give me a medical treatment to which I do not or cannot consent.  If, like P, I became depressed, refused to eat and drink, and refused a feeding tube then (supposing I were found to lack capacity to make my own decision), my ADRT would determine the outcome for me: no feeding tube could lawfully be provided.  From what I have learnt about P, I don’t think she would have wanted to make an ADRT like mine – but it’s not that unusual to meet people who do. (For more information about refusing medical treatments in advance of losing capacity to do so, check out the charity Compassion in Dying website.)

Many other people tell me they are concerned to ensure that they do receive medical treatment at a possible future point when they may have lost capacity and be refusing it.  This is particularly so for people with recurrent mental health issues and fluctuating capacity – people who refuse, while sick, the very treatments they welcome when well.  They don’t want their incapacitous refusals to carry weight with doctors, as P’s refusals did with Dr B.  It certainly seemed as though P’s parents were dismayed that P’s refusals – which, for them, were clearly an outcome of her mental illness – were accepted as capacitous by Dr B. For anyone who envisages maybe being in such a situation, who wishes to maximise the likelihood of receiving the treatment they are refusing, the Advance Statement (provided for in s.4(6)(a) Mental Capacity Act 2005) is a good strategy to adopt.  

Suppose that P had written, in advance of losing capacity, something like: “I have difficulties with eating and drinking due to my physical impairments and prefer not to have a feeding tube, but to eat and drink as much as I am able. That is a decision it’s important for me to make when I have capacity to do so. I recognise, however, that there might be a future time when I become depressed or anxious and unable to eat, without recognising the risk to my health and even to my life. If my life is at risk, please give me a feeding tube, even if at the time I am refusing one.”  This “written statement made by [P] when [she] had capacity”  (s.4(6)(a) Mental Capacity Act) would go quite a long way towards supporting the doctors and the court with the difficult decision to give treatment contrary to P’s (current) wishes.  This might be something P would wish to do in future. It’s something anyone who has an ongoing health issue might want to consider.

I have written before about  “advance requests for restraint and compulsory treatment” in relation to a young man with psychological diagnoses involving hallucinations and suicidal ideation.  When well, he wants to live and accepts kidney dialysis for his end-stage kidney failure.   But when he relapses psychologically, he refuses dialysis and says he wants to die.  In court, Mr Justice Hayden asked him whether, if he refuses dialysis in future when he is “overwhelmed” by his mental illness, he wants to be restrained and compelled to have it?  He didn’t hesitate to say “yes”. And that’s what the judge ordered should happen. (See also “Psychiatric survivors’ views on advance consent and ‘forced’ treatment” for a legal analysis of how the law could better advance self-determination for people in this sort of situation).

I hope to observe the next hearing in this case when it returns to the court.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has observed more than 300 remote hearings in the Court of Protection since 1st May 2020.


[1] Thank you to Pravin Fernando for sharing the Official Solicitor’s two position statements (prepared for the hearings on 5th April 2022 and 7thApril 2022 respectively) on request and in a timely fashion.  I requested but did not receive the position statements from the applicant Trust.  As an observer, I was also disadvantaged by the judge’s decision that there should NOT be an opening summary to this case – a decision made on the basis of time constraints.  This judicial decision made it much harder for me to follow the case as it unfolded during the hearing.  In my view, if the Court of Protection is committed to open justice, judges do need to ensure that there’s an opening summary/orientation to the case.  If an observer is willing voluntarily to devote (as I did) many hours to observing this case and writing a report of it, it would seem compatible with the court’s stated commitment to open justice to make a small contribution in the form of a 3-minute introduction for those of us who otherwise struggle to understand a case without any advance knowledge about it.  This is especially important when a judge does not intend (as Williams J informed the barristers) to publish his judgment on BAILII.  (I’ve also not been sent a transparency order for this hearing – although the existence of one, and the fact that the names of treating clinicians are covered by it, was mentioned during the course of the hearing –  so I have simply made an informed guess as to what it might require of me.)

[2] I think there must also have been a declaration that P lacks capacity to litigate these proceedings, since Pravin Fernando appears as litigation friend via the Official Solicitor, without the qualification “proposed” as attached to Emma Sutton at the first hearing.

[3] All quotations are as accurate as I can make them, given that we are not allowed to record court hearings: they are based on contemporaneous touch-typed notes but are unlikely to be verbatim.

Photo by K. Mitch Hodge on Unsplash

More on Mr M: Medical recommendations, still awaiting discharge and final hearing plans

By Claire Martin, 12th April 2022

Mr M is still in hospital. He has now been there for 40 days. 

He was originally taken to hospital under court order for assessment of his ulcerated legs, to enable medical recommendations to be made.

We have previously blogged about this case, herehere and here.

At this hearing[1] (12 noon, Friday 8th April 2022, COP 133883671) before Mrs Justice Theis, I was again expecting to hear about Mr M’s discharge from hospital, but he was still there. 

Medical assessment and recommendations have now been made. There is only one treatment option: regular and frequent (3 times a week) dressing changes to Mr M’s ulcerated legs.  Neither amputation nor debridement is required. It is likely that the ulcer will never heal and that Mr M will remain at risk of repeated infection and deterioration. So, how he is cared for in the community and helping him to understand and make decisions (if possible) about his needs and care are very important. 

The obstacle now is the parties involved in Mr M’s care working out a solution, either with, or for, Mr M about where he lives and how his needs (in full) can best be met. There is a suggestion that he might regain capacity to make decisions about his medical care and where he lives. Mr M’s mental health issues are very relevant to these decisions, but the Mental Health Trust (whilst agreeing to complete a further capacity assessment and join in with care planning) is resisting becoming a party to the proceedings.

Ulele Burnham (counsel for the applicant local authority) was in agreement with the Official Solicitor that the Mental Health Trust should be joined as a party to proceedings, submitting: 

One of central issues we think – possibly the issue we think ought be determined by court today – is the question of joining the mental health trust. My lady, that is in essence, strictly speaking, Ms Gollop’s application. … I support the submissions made by Miss Gollop. The engagement and assistance provided by a mental health legal team … it’s not an easy situation for clinicians to get through on their own. I don’t want proceedings to be more protracted than they have been”.[2]

Theis J asked “I have seen Ms Gollop what you have said. This has been raised with the mental health trust. They think there is no need to join them. Why do you say it’s necessary if they are willing to do capacity assessments, as they say?

Katie Gollop QC (counsel for the Official Solicitor) replied: “It’s not just about capacity evidence – it’s about the proper coordination, in the proper way. We need the mental health trust to have input in that and have discussions. … All parties felt underwhelmed by the capacity assessment provided by [mental health trust psychiatrist]. It will assist with discharge planning – at the moment it is somewhat uncoordinated. The physical problem – the driver for application – has fallen away. Only one treatment is on offer for this issue. At the start that was amputation. [Mr M] has just finished a course of antibiotics. Dressings is the important bit. Coupled with the fact that the vascular surgeon has formed view that it’s chronic, unlikely ever to heal. The mental health problem and the drug dependency, in tandem with the wound presents a significant challenge. Mental health really will be an important part of discharge ongoing. More important than the current NHS Trust. [there are implications for] deprivation of liberty, in future. If impairment is solely dependent on drugs, then it may be subject to a proper understanding of what exactly he needs – the Mental Health requirement in Section 1 of the Mental capacity Act (the requirement for deprivation of liberty) may be lacking. That will be useful for the kind of planning we need. It will be greatly helped by having the mental health trust there to assist in those discussions.”

Counsel for the NHS Trust (Emma Galland) and for the CCG (Eliza Sharron) were neutral on this issue. I thought that was curious. Since the CCG would be funding some of the care for Mr M, I thought they would have had more of an interest in the mental health trust adopting a more active role. 

Theis J agreed with Katie Gollop QC: “I think it does need the mental health trust to be joined. It will underpin the legal advice in the discharge plan. I am satisfied that they should be joined.

The remainder of the hearing was discussion between all parties and the judge about what should be included in different paragraphs and as recitals in the draft order, by when parties should have filed their evidence and setting the date and time of the next (and I think, final) hearing. 

It was said that the question of Mr M’s mental capacity to decide about where he lives and medical treatment was connected to the “substance dependency rather than his psychotic illness”. Mr M apparently willingly takes the psychiatric medication that he is prescribed and his psychosis is not the reason for the mooted lack of capacity for the decisions before the court. 

So, the issues that remain, for the Official Solicitor representing Mr M, are:

  1.  a further capacity assessment to enable the court to make a judgment on Mr M’s capacity for the decisions he faces;
  2. following a suggestion from the psychiatrist who completed the previous capacity assessment, information about whether an anti-depressant is to be trialled and if not, why not; 
  3. evidence about mobility and wheelchair use – this is currently a completely grey area for the court; 
  4. a plan from the hospital about the threshold for future admission for ulcer treatment; 
  5. evidence from the parties as to whether it is proposed that on discharge, Mr M should be deprived of his liberty to ensure that wound dressing changes and ulcer monitoring continue and/or to prevent further illicit substance abuse; 
  6. if deprivation of liberty is not proposed, a robust plan for care in the community.

Even though Mr M’s care and treatment are taking a long time for the different agencies to organise, the snippets of information in the hearing about how Mr M is faring suggested that he is not finding his time in hospital an aversive experience. He has gradually become more able to speak about how he is (the Official Solicitor’s agent visits him regularly). He can sustain a conversation for longer than when he was first admitted to hospital and he has started to ask her how she is doing. He has not shown interest in others until recently. There is understandable consternation regarding how Mr M would fare in the community without the structure and 24-hour monitoring that a hospital environment provides. It is likely that he might return to drug use and avoidance of care for his ulcerated legs. This would restart the whole process of admission to hospital (and the question of his capacity to refuse) and could end up in court again. 

Equally, Mr M’s human rights are compromised by the lack of coordination, clear assessment and adequate planning for his care. I was struck by how little the court knows, even now. Mr M’s own voice remains conspicuously absent in proceedings. His mobility, even whether he can walk at times or requires a wheelchair to move about, is not known. If he does require a wheelchair, it was unclear whether an assessment had been done to establish the correct wheelchair. Given that he has been in hospital for 40 days – at a huge cost to the NHS, when Mr M is said to be ready for discharge – I would have thought that assessment for his likely future functioning and needs (including correct equipment and support) might have been a priority for the NHS Trust. Especially, as Katie Gollop QC noted:

The Official Solicitor is very conscious that public bodies are financially stretched and its employees’ time is also scarce. At the same time, Mr M is very vulnerable: his chronic problem of an ulcer that is unlikely ever to heal, coupled with the risks attendant on him being drug dependent, is a difficult one to manage. Co-ordination and timely provision of information are essential.”

The next hearing, which I think is intended as a final hearing (though it is only scheduled for an hour) is on Friday 20th May 2022, 12noon. I am intending to observe. 

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin


[1] Thank you to Katie Gollop QC for providing me with the final Position Statement for Mr M via the OS. I have drawn on this to write this blog. 

[2] We are not permitted to audio- or video-record court hearings. Direct quotations of what was said during the course of the hearing are as accurate as possible, based on my contemporaneous touch-typed notes but are unlikely to be entirely verbatim.

Photo by Yender Fonseca on Unsplash

The value of observing a case management hearing in the Court of Protection

By Helen Moizer, 7th April 2022

The value of observing a case management hearing in the Court of Protection.

When I observed a Court of Protection hearing for the first time, I did not know what I was entering into or what to expect. Despite it being a video hearing link, I still felt apprehensive and as though I was about to intrude on a group of people and disturb their discussions. On reflection, this is precisely why the Open Justice Court of Protection Project was set up. 

My first attempt to see a hearing failed as the hearing was cancelled. On that occasion, I’d followed the Open Justice Court of Protection Project’s guidance and asked the court for a link, but in the morning of the hearing the clerk to email me to say the hearing was no longer going ahead. If a court clerk is willing to take the time to update an observer, I thought it would be worth trying again.

The second time around proved successful, and I was provided with a link to join (Case nos. 13775782 and 1377580T: unusually there were two protected parties at the centre of this hearing.) 

 I was hoping I could do the virtual equivalent of  sneak in and sit down at the back without being noticed, but Mrs Justice Arbuthnot spoke directly to me and asked me to confirm who I was. Mild panic did ensue. However, on letting all the parties know I was just observing as a member of the public, Mrs Justice Arbuthnot immediately welcomed me and asked one of the lawyers to send me the transparency order at the end of the hearing.  I provided my email address and the hearing continued on.

Despite this being a case management hearing, rather than a final decision-making hearing, it gave me first-hand experience of how a COP hearing is run, the representative’s role in drafting an order for the judge to approve and how the interests of the protected parties are upheld. 

It has also left me intrigued by what will happen to the two parties in question. Little was known about the family dynamics and capacity of one young woman for example. The representatives were trying to speak to her doctor and the care home of her younger sibling. These insights highlighted the vulnerability of COP parties.

My main motivation for observing a hearing was to gain experience in this area of law and how it works in practice. This was something I gained, and it has sparked my interest to observe more. Hopefully if more people know about how easy and receptive the court is, COP hearings will see many more public observers.

Helen Moizer is Assistant Legal Officer at the Free Representation Unit. She tweets @h_moizer

Photo by Jr Korpa on Unsplash

Two years on: A postscript to “Remote justice”

By Celia Kitzinger, 29th March 2022

Two years ago today, on 29th March 2020, the Transparency Project published my blog post about the first all-remote Court of Protection hearing of the COVID-19 pandemic.

With their permission, I’ve reproduced it below. (It was originally published here, under the title, “Remote Justice: A Family Perspective”.) This reprint is followed by a brief reflection on what – from my perspective as an observer – has changed over the last two years since I published this piece.

Remote Justice: A Family Perspective (as published on 29th March 2020)

On Tuesday 17 March 2020, less than 24 hours after the Prime Minister’s announcement to the nation to avoid all non-essential contact due to COVID-19, I attended the first entirely remote hearing for the Court of Protection.  I was there in a voluntary, non-official capacity to support someone I’ll call “Sarah”, whose father was at the centre of a serious medical treatment case.  

I’ve been supporting Sarah for just over a year, trying to get the Clinical Commissioning Group and the General Practitioner (GP) responsible for her father’s care to engage with her concerns.  This culminated in a formal ‘best interests’ meeting at the end of 2019, at which it was impossible to reach an agreement about her father’s treatment, and then – inevitably – to this court hearing.  

I’ve attended more than a dozen court hearings in similar circumstances (and acted as litigation friend in one), all focussing – as with Sarah’s father – on the question of whether clinically assisted nutrition and hydration is in the person’s best interests.  I’ve learnt a lot from families involved in these cases about their experience of the hearing itself, as well as in the run-up to and aftermath of the hearing.  Sarah’s experience was different – in part because this hearing was held remotely, via Skype for Business. 

Not surprisingly, there has been a flurry of publications about remote hearings and I’m glad to see a sustained focus on how to get them working efficiently and how to “make the remote hearing as close as possible to the usual practice in court” (Mr Justice MacDonald, 25 March 2020, The Remote Access Family Court, version 2).  The overwhelming response reported so far has been positive.  Despite acknowledging some technical glitches, judges, lawyers and journalists have said that they work well. 

But I haven’t seen anything published about how ‘lay’ participants in court proceedings – litigants in person, witnesses, or family members who are parties to a case – experience remote justice.  So, this is about Sarah’s experience, and mine.  Sarah can’t put her real name to this piece because of the Reporting Restriction Order: it is “strictly forbidden to allude directly or indirectly to the true identities of the anonymised persons” in the judgment.  But we discussed this piece before I wrote it, and she’s read it and is quoted in it and is pleased that it will be made public.

In other cases I’ve been involved in, families have often talked about the gravitas attached to a courtroom hearing: the formality of architecture and room layout, the elevated more distant seat for the judge, the ritual of rising when the judge enters, the element of theatre.  It can feel intimidating, but it is also reassuring evidence of the seriousness attached to the case and the ceremonial impartiality of justice.  This is important because by the time a family reaches court, the question of whether or not a loved one should receive life-sustaining medical treatments has been addressed on multiple occasions, sometimes over many years, in often muddled and confused ways and at times of heighted emotional intensity. It’s been raised at the bedside, in hospital corridors, in doctors’ offices – frequently without the full facts being known or taken into account, and without family members feeling that they have been heard.  The courtroom setting is designed as a formal arena for putting that right.

With a hearing conducted wholly over Skype, all that gravitas is lost.  Court architecture is replaced with the backdrop of barristers’ and witnesses’ living rooms.  The judge appears up close and personal, just like anyone else with his face in a little square on the screen.  And what we found in practice was that a preoccupation with the technology distracted people’s attention from the substantive content of the case.

Two barristers have written their own account of the hearing for Sarah’s father.  For them, “it felt comfortable and familiar relatively quickly” and they thought witnesses might feel “less intimidated”, pointing out that “many wore casual attire and sat in their homes, responding to the questions, but not having the full glare of the court on them.”  Although they acknowledge some technical glitches, they conclude: “what did we miss? In truth, nothing that mattered.”  Journalists, too, have been excited about the use of Skype in this hearing: one tweeted enthusiastically: “I have to say it is super-fascinating watching this pioneering Skype trial – I could get used to court reporting from home! Also enjoying the occasional meow from someone’s cat & checking out the décor of people’s gaffes.”   

But it was precisely the “casual attire”, the distracting pets, and the domestic backdrops that added to Sarah’s distress.  During the three days of this hearing, I was with Sarah in person.  We were in a solicitor’s office in an otherwise empty building, along with Sarah’s pro bono solicitor and barrister.  The four of us were there together – attempting social distancing as per government instructions – because we hadn’t heard that the hearing would be conducted by Skype until the day before.   We’d been told to prepare for a face-to-face hearing at Nottingham Civil Justice Centre and when the news came through that it would be moved to Skype, Sarah was on a flight from her home outside the UK, and I was on a train from my home in Cumbria.  As it turned out, I’m glad and relieved that Sarah and I were able to be together for the hearing, and also to have Sarah’s legal team there in person to explain what was happening.  I cannot begin to imagine how tough it would have been for Sarah to have to go through this alone – listening without support to impenetrable arguments between lawyers about her beloved father, conducted in language that was, as she reminded us “way above my pay grade”.  I think she’d have simply become disengaged and unable to follow the proceedings.  According to one study, that’s exactly what happened to litigants held in detention centres in the USA: they stopped engaging with the legal process (and were more likely to be deported as a result). 

Sarah’s father is referred to in the judgment as AF.  He had a stroke on 5 May 2016.  About a week later, while AF was still in hospital he started refusing to eat and drink and said that he wanted to die.  Doctors decided that AF lacked the mental capacity to make his own decisions and inserted a naso-gastric tube against his wishes.  He turned to his daughter immediately afterwards and said, “this is wrong”.  He pulled the tube out several times – despite attempts to stop him by putting mittens on his hands and a bridle on his nose to lock the tube in place.  Because he was “non-compliant” with treatment, doctors (again against his wishes) made a surgical incision in his abdomen and inserted a feeding tube directly into his stomach (a Percutaneous Endoscopic Gastronomy [PEG]).  He was then discharged to a nursing home where he has remained ever since.  At first, AF was “uncooperative” with feeding and personal care but this has diminished over the years.  Sarah believes he has just become “ground down” over time, because he has tried so hard to tell people that he doesn’t want the medical treatments that are keeping him alive, but he has been given them anyway.  He still refuses to eat and drink enough to sustain his life – a short trial without clinically assisted nutrition and hydration found he quickly became dehydrated.   Sarah’s barrister was presenting Sarah’s case:  that PEG feeding should stop and that her father should be allowed to choose for himself whether he wanted the food and drink that would continue to be offered to him.  Sarah accepts that he would probably refuse to eat and drink and would probably die.  

As the judge acknowledged, Sarah does not want her father to die but was “fighting for his right to die” because she believes that is what he would want. 

Sarah lost the court case.  The judge said that: “it would be categorically contrary to AF’s interests for him to be set on the path that will lead to his inevitable death ….  This may be a diminished life, but it is a life nonetheless which has, as I have said, intrinsic quality and from which AF derives pleasure and satisfaction.”  

Of course, she (and I) feel angry and upset by this judgment, and this inevitably inflects the way we feel about the hearing itself.  Sarah says: “I’m left wondering whether I should have waited and insisted on a face-to-face hearing. It just felt like a second-rate hearing.”

There is evidence that outcomes can be influenced by remote, as compared with face-to-face, hearings: one study found that 50% of applicants heard via video link were refused bail, compared to 22% of those heard in person.  Nonetheless, my own view is that this was a complex case and that the judgment is not an outcome of Skype but rather a combination of some challenging facts and this particular judge’s knowledge base, skills set, and established predispositions.  I think he would have come to the same decision if we’d all been face-to-face in a courtroom.  But a face-to-face hearing would not have left Sarah wondering if justice had been denied her father because of the circumstances of the hearing, or feeling that she missed out on her opportunity to influence the court.

For families in serious medical treatment cases, the court offers the opportunity of ‘being heard’, ‘speaking out’ and ‘giving voice’ to their relative’s wishes – often after a long period of feeling silenced and ignored.  It offers the opportunity of ‘being seen’ after having felt invisible within the medical system.  For Sarah, who had only ever met her father’s GP in person just once over the course of the three years the GP had been caring for him, and who felt she had been entirely side-lined by the professionals responsible for his care, this was her opportunity to ensure that they heard her truths about her father.  What actually happened instead was that Sarah became invisible to the court after giving her witness statement, and the relationship between her and her father was effectively erased by counsel for the Official Solicitor who acted as litigation friend. Right from the outset, Sarah felt that issues other than her father’s wishes were centre-stage.  Because this was the first all-Skype hearing, there was a lot of talk about managing the technology at the beginning and end of each day, and intermittently throughout the day as glitches arose and needed addressing. It was definitely a distraction.  At times there was what felt to us like an unseemly and self-congratulatory focus about being “the first” such case, about its “pioneering” role in remote justice.  Sarah said: “I’d like the judge and lawyers to know that this hearing was not about bigging yourselves up because you did the first Skype trial.  This is about my Dad.”  

For me, there was a marked lack of empathy displayed for Sarah throughout this hearing (Sarah’s own legal team excluded, of course).  Having, for comparison, lots of experience of how judges and lawyers engage with families when they are co-present in a courtroom, I was shocked by the lack of sensitivity to what Sarah might be thinking or feeling at various points and by apparent indifference to her presence.   This was partly – perhaps largely – accounted for by the fact that, except when Sarah was giving her witness statement and being cross-examined, she was not visible to other participants.  Due to bandwidth problems, the judge asked everyone (except himself) to turn off video-cameras unless they were giving evidence or questioning a witness.  This meant it was easy for lawyers to forget that Sarah remained in the virtual courtroom throughout the hearing.   They spoke about her in her presence – nothing uncomplimentary, but just the fact of hearing yourself talked about in the third person is quite unsettling.

Nobody – except those of us in the room with her – could see how upset Sarah became at various points and so they didn’t modify their behaviour to avoid causing her unnecessary distress.  For example, counsel for the Official Solicitor routinely introduced herself to each successive witness by saying: “I’m speaking on behalf of A…” (where “A” was the first name of Sarah’s father).  Every time she said this, Sarah winced as though she’d been struck.  For Sarah, she – her father’s daughter – was the person speaking on behalf of her father, not this woman who barely knew him.  To her dismay, Sarah had been refused permission to be litigation friend and that role had been taken by the Official Solicitor.  Sarah knows AF better than anyone else.  She wanted to be her father’s voice, to speak on his behalf when he could not.  It hurt to have this woman she’d never met speak on behalf of her father.  And she found it disrespectful that he was regularly referred to by his first name, “A”, rather than as “Mr F” (or even “AF”).   I hope and believe that if the lawyers had seen Sarah’s distress, they might have found ways of adapting their behaviour.  Maybe if Sarah had been physically co-present, the judge might also have avoided the (to non-lawyers) bizarre claim, in the published judgment (para. 2), that AF himself (acting via the Official Solicitor) opposed his daughter’s views and that AF himself was saying that it was in his best interests to continue with the PEG.

Even when Sarah was giving her witness statement, she didn’t feel as though she was ‘seen’ in court: “In a court room people can see body language. They can feel the pain and emotion when you speak about that moment of utter desperation that you went through.  But I was in a little one-inch box on a screen and being honest I bet half of them weren’t even engaged in looking at it – as the judge couldn’t monitor them to make sure they were paying attention.”

Sarah felt unable to get her message across as she would have done in person: “Skype took away from me the ability to look these people in the eyes – these people who have their opinions about my Dad and only knew him through third-hand notes.  I wanted to look them in the eyes and make them hear the truth but I was looking at a computer screen.”

There were the usual hassles with technology – some of which I assume will get ironed out as people become more familiar with it.  Two of the barristers involved described it as “pretty plain sailing and other than technical glitches the only concern voiced during the hearing was the problem of not being able to see “the judicial pen” (because the judge was only visible from the shoulders up): this, for one barrister led to uncertainty about how to pace his speech with reference to the judge’s note-taking.  But my experience was much less positive. Given the speed with which it had been set up and the novelty of what we were involved in, yes it was impressive that it was even possible and huge thanks are due to the solicitor who took responsibility for enabling this.  But we had to contend with intermittent loss of connectivity and delays while key people reconnected  (including waiting for the judge to reboot his computer); batteries going on two different witnesses’ laptops such that they then had to dash to find their chargers and plug them in; and corruptions with recordings which led to the decision to stop and restart recording every 30 minutes.  All of these led to hiccups in the proceedings.  They aren’t so different from hassles in court when microphones don’t work, interpreters are late, bundles are unpaginated, documents are lost – but these technological problems were not instead of courtroom hassles, but additional to them.  It was still necessary to circulate paperwork to people who didn’t have it – and attempts to do that over Skype (so that everyone could see it on screen simultaneously) failed, resulting in a resort to e-mail – and some witnesses struggled with opening emails or finding Dropbox documents at the same time as running Skype.  

One disconcerting feature of Skype, which affected Sarah’s questioning in court – and that of several of the witnesses – was that there was often an audio time lag which meant that the judge or counsel doing the cross-questioning would think that someone had finished speaking when, in fact, they had not, so would begin to speak with what was experienced by the witness as an interruption.  The witness would stop – and so would the person ‘interrupting’.  A pause followed during which both waited for the other to continue.  Then both would start up again simultaneously and the same thing would happen again.  Sarah (and others) found themselves apologising for ‘interrupting’ when this hadn’t actually been the case. This was enormously frustrating for lawyers who were good communicators and wanted to listen to witnesses with patience and courtesy.  There were many occasions where people with really excellent communication skills were stymied by the technology.

In actual – rather than virtual – courtrooms (or in the waiting areas outside) it’s not unusual for family members I’ve supported before to hear solicitors and barristers joking together, catching up on gossip and exchanging news.  On occasion, this can be experienced as inappropriate and exclusionary for people new to the courts – but, lawyers do tend to know this and these conversations are often sotte voce on the front benches as family members seat themselves near the back.  One effect of remote justice was to amplify this ‘informal’ aspect of courtroom interaction because it is equally accessible to everyone online.  While we were waiting for a formal start one day, there was a discussion between the judge and some of the lawyers about the judge’s current reading matter: Daniel Defoe’s Journal of the Plague Year: it was beamed directly into our office where Sarah and I listened to a conversation about rich people decamping from the cities to the country to escape the plague, and speculation about this in relation to COVID-19.   Jokey informality also came into play as lawyers tried to fix technical problems.  At one point the judge asked a barrister to adjust her video, saying “We can only see the back of your head. We are all looking at your left ear”.  She replied, “My Lord, that may be my best feature!”.  Something similar could have happened in a courtroom, certainly, but it was, in this case, the remote technology that offered the opportunity for the quip and the technology that ensured we all heard it.   Perhaps, for some parties this humanises the legal process.  For others, this kind of levity threatens the formal justice process and diminishes the legitimacy of the court: it can work to undermine the impartiality of the process by displaying how ‘pally’ some of these professionals are with one another  (in particular, in this case, the judge and one side’s barrister), leaving the rest of us feeling outsiders – debarred from having that kind of exchange with the judge,  not ‘one of them’ by profession or by class.  

Sarah describes her feelings about the informality engendered by remote justice: “It definitely made me feel like the outsider.  In a court room I’d have felt like it was more of a level playing field.  I know there’s the pomp and ceremony of the court, but you can see the pecking order – from me at the bottom to the judge at the top, so you feel better because you know the structure.   The visible structure makes you feel safer.  But this felt chaotic, which made me feel nervous and insecure.

Part of the chaos was the intrusion of ‘everyday life’ disrupting the formal ‘theatrical’ elements of the courtroom – the cat that mewed and knocked over books, the tail-wagging dog behind one witness, the mobile phone that kept going off on one witness’s desk.  Sarah was not impressed that the judge’s dogs barked loudly and long (necessitating a short break) when someone apparently rang his doorbell – not just once, but twice. 

Skype technology also provided everyone with views of the interiors of other people’s homes.  The judge, to his credit, had an entirely neutral backdrop (a blank wall, I think).  But that wasn’t true of most other people – although one solicitor mentioned having removed a picture of a tiger that would otherwise have been visible onscreen.  It would be worth considering the effect of some of these ‘backdrops’ upon a person who is not wealthy, who is unable to access legal aid, who is forced to scrabble around looking for pro-bono legal representation, and whose cultural heritage does not include large rooms with grand pianos or costly furniture – especially given that we were also treated to multiple superfluous Shakespearean quotations from the judge, which were not accessible to Sarah.  These views of other people’s domestic interiors with their displays of wealth or specific cultural capital can create, or reinforce, the impression that justice is administered by people with economic, educational and class privilege.  And as Sarah says, “I wanted my Dad to have his day in court – not in someone’s front room”. 

The term “remote justice” makes it sounds quite distant – and in some ways, it is.  A family member can’t see the lawyers in the flesh and can’t “look them in the eye” and a person can be rendered invisible when their camera is off.  But it can also be, paradoxically,  quite up-close and personal in terms both of the facial images on screen (the proximity generated by ‘remote’ technologies can sometimes be quite startling) and the home environment behind which doesn’t necessarily fit well with the ‘gravitas’ of the court, or reflect the seriousness of a decision about whether or not to honour an incapacitated person’s choices.   

Obviously, there are pros and cons to remote justice, and in the era of COVID-19 we have to accept that there is no realistic alternative.  Hearings conducted by phone and video-conferencing are not new and I know from other families I’ve supported that they are sometimes very much appreciated – for example when someone has difficulty travelling (perhaps due to disabilities or because they want to stay by a loved one’s bedside), or because of the expense of travel and overnight stays away from home.  I’ve also heard about the problems that can arise.  We avoided (I think) any embarrassing moments caused by forgetting to press “mute” or turn off our cameras in this hearing. In an emergency telephone hearing in a different case, about whether reinsertion of a dislodged PEG tube was in the patient’s best interests, a family member overheard a barrister’s doorbell ring, followed by the voice of a visitor expressing surprise that the hearing was not yet finished: the barrister was clearly audible as she voiced frustration and expressed her view that the hearing was a waste of time as the outcome was a foregone conclusion.  

Remote justice is a real opportunity with the positive potential to make justice more streamlined, efficient, accessible and inclusive.  I support its development both in the context of court hearings and in relation to best interests meetings that (in my area of work) regularly precede them.  But this needs to be well-designed, well-researched and well-delivered.  This is possible only if the experiences of everyone involved in these hearings are included in the analysis, and properly addressed, so that common law principles of fairness and natural justice are upheld, and seen to be upheld.  

According to Mr Justice MacDonald, the feedback from those involved in this case “has been universally positive”.  But neither Sarah nor I had yet contributed to that feedback or reported on the ‘things that mattered’ in our experience of a court hearing conducted wholly by Skype.  This is our contribution.  We would like lawyers and the judiciary to take it into account. 

The last word goes to Sarah: It felt like a second-best option. It didn’t feel professional. It didn’t feel like justice.  It felt like a stop gap to ensure a box was ticked – rather than a serious and engaged attempt to make decisions about my Dad.

What’s changed since 2020?

Since that first hearing in March 2020, I’ve watched more than 300 remote hearings in the Court of Protection, including another hearing involving Sarah (before a different judge) and several other hearings before this same judge (Mr Justice Mostyn). Not one of them has been anywhere near as brutal as this initial experience. The best have been characterised by compassion, generosity and humanity.

In fact, I found the quality of a remote hearing immeasurably better just a few weeks later when I watched Mr Justice Hayden, and blogged about it here (“When remote justice works“). All the intrusions that felt so distracting in that first hearing – the views of wealthy people’s domestic interiors, their pets, a judge who briefly left the hearing to deal with dogs barking when his doorbell rang – none of those has happened again. Nor has the casual conversation, and joking between judge and counsel. And it became glaringly apparent that the judicial quality of “empathy” is not constrained by the medium in which the hearing is conducted. It can shine through in remote hearings as much as in face-to-face ones (or, of course, can be missing in either).

I was impressed to find that the Transparency Project blog (which I’d written with some trepidation as to how the court would respond to overt public criticism) was widely read and commented on by lawyers involved in the Court of Protection. Overwhelmingly, they were not defensive or dismissive, but engaged with Sarah’s and my concerns and seemed determined to ensure that future hearings worked better for the families (and protected parties) involved in them.

Over the last two years, everyone (lawyers, judges, families and protected parties alike) has become more accustomed to the technology of remote hearings. For 18 months at the height of the pandemic, most of us conducted our relationships with friends and family via video-platforms: they became the ‘new normal’.

By the time of the second hearing involving “Sarah”, six months later – at the end of October 2020 (blogged here) – both she and I, and the professionals involved in the hearing, were familiar with the process. It no longer felt “second best”. This time her concerns were all with the outcome of the hearing, and not with procedural injustice.

I no longer believe, as I said in the blog two years ago, that “gravitas is lost” in a remote hearing. From the hundreds of hearings I’ve watched, I’ve learnt that what families mean by “gravitas” (dignity, seriousness, solemnity) does not in fact reside in court architecture, coats of arms, wigs and robes, or rituals of address and behaviour. In my experience, these external manifestations of “justice” can sometimes seem rather ridiculous, and the “performance” element of the courtroom can alienate lay people and distract everyone from the serious business at hand. Rather, the “gravitas” families appreciate is a quality of attention, a focus, a willingness to engage, in depth, with the medico-legal and ethical issues before the court. I’ve seen how good the Court of Protection can be at doing exactly that – in remote hearings as much as in physical courtrooms.

And where Sarah thought that the “pomp and ceremony” of the physical courtroom would provide the security of ‘knowing her place’ (at the bottom the pecking order, as she saw it), what I’ve seen repeatedly in remote hearings is that P and their family are put first and foremost at the centre of the hearing about them. That’s not achieved with theatricality, pomp and circumstance. It’s accomplished with humility – by fully engaging with the people at the centre of the case, and by paying attention to P and to the family’s presence and recognising their significance in the hearing. That’s what was missing for Sarah – in large part due to the distraction of new technology, used poorly, in ways that undermined the possibilities for her to be seen and heard. The effect of the video-platform was to exclude her from full participation. But it doesn’t have to be that way.

Overwhelmingly what I’ve seen in the Court of Protection since then is the use of remote hearings to facilitate and support the participation of both P and P’s family. Remote hearings have offered them the opportunity to be present when otherwise they would not have been able to – because they are sick in hospital (even sometimes in intensive care), because they are frail or vulnerable and cannot travel to a physical courtroom or would find it exhausting or painful to do so – or simply because they live a long way away from the court where the case is being held. Families often appreciate the opportunity to attend remotely – especially in serious medical cases where they want to spend every possible minute at their loved one’s bedside. Of course for others (and sometimes for the same family on a different occasion) it’s been important to attend face-to-face – and the court has been able to offer that opportunity more recently too.

Sarah did not feel “seen” or “heard” by the court – and it is literally true that she was not seen or heard after giving her evidence, since she was asked to turn off her video and mike for the remainder of the hearing. The lawyers seemed to “forget” she was there and conducted ‘business as usual’, talking about her and her father, in her (unacknowledged) presence in language she did not understand. What I’ve seen ever since then is that judges are keen to know who is on the platform and especially to know if P or P’s family members are there. They tend to greet them and explicitly welcome them to the court. Lawyers and judges often make reference to them during the course of the hearing: “I’m very conscious that P is listening to this and will not agree“, or “This must be very hard for the family to listen to”. The contrast with the apparent indifference to Sarah’s presence in court is striking – and it’s achieved on a video-platform.

An orientation to P and P’s family is now apparent even when (as in Sarah’s case) they’ve turned off their cameras and muted their mikes. I’ve watched hearings where (the court has been told) a device has been set up in P’s room in a care home so that the hearing is continuously transmitted for P (and their family) to watch it if and when they want to, but without the camera or mike being enabled at P’s end, so they can observe without the stress of being seen (or ‘watched’). Careful planning puts in place the opportunity for them to raise an electronic hand or switch on their camera (or ask a support person to do so for them) if or when they wish actively to participate. I’ve seen how well this can work in practice to enable P’s participation in a way that simply wouldn’t be possible in a physical courtroom.

My impression is that it’s been a steep learning curve over the last two years for the court – and the result is something that (mostly) works well. Familiarity with the technology (and ways of managing it when it fails), familiarity with the medium (because we all communicated mostly via video-platforms for so long at the height of the pandemic) and a willingness to explore with P and P’s family different ways of engaging flexibly across remote, hybrid and in-person hearings means more opportunities to ‘do justice’ well. As in-person hearings are now also possible, there will need to be more exploration of how best to build on what has been learnt during the pandemic that can be of enduring value beyond it.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She has observed more than 300 remote hearings in the Court of Protection since 1st May 2020 – prompted initially to do so by this first disastrous hearing she was involved in as a support person for Sarah, which was also the catalyst for founding the Open Justice Court of Protection Project in June 2020.

Absconded

By Celia Kitzinger, 25th March 2022

The young woman at the centre of this case has “a notable story for someone who’s only in her early twenties – there’s a staggering amount of social and personal problems that P has dealt with in her very young life[1] (said Ben McCormack of Garden Court North Chambers, representing P via the Official Solicitor). The judge said later that although “Mr McCormack’s word was ‘notable’, I’d suggest ‘harrowing’ might be a more accurate description of it”. 

She has a history of drug use, self-harm, self-neglect, homelessness and being exploited financially. She’s at risk of sexual exploitation, assault and rape – having previously reported being forced into sex work by people she calls “friends”.  She’s made six separate allegations of rape. She’s been pregnant and had a baby who was taken into local authority care.  She has a history of criminal offences, including shoplifting and threatening people with knives, and has served prison sentences. 

She’s been said to have “complex emotional needs and emotional dysregulation” and a “probable learning disability” – but it’s not entirely clear that these (uncertain) diagnoses qualify as ”an impairment of, or a disturbance in the functioning of, the mind or brain” (s.2(1) Mental Capacity Act 2005) sufficient to trigger the Mental Capacity Act.  More questions have been asked of the expert clinical psychologist who examined her, and produced a first report in December 2021. An updated report is awaited, but there is no agreed submission date for this, and some concern about the delay in his response about when he can complete this work.

The question has been raised as to whether the case should transfer to a High Court judge – partly because of borderline capacity issues (and the possibility that the local authority might seek to use the inherent jurisdiction), and partly because of the complexities raised when someone is believed (albeit here on an interim basis) to have capacity to engage in sexual relationships but not to have capacity to make their own decisions about contact.  

So far, though, the case remains with a circuit judge, His Honour Judge Andrew Berkley, in Manchester Civil Justice Centre.

On the day of the previous hearing, just over a month earlier, P was moved from prison to a new specialist placement with a very restrictive care package.  It includes: two staff with her at all times, trained in restraint and de-escalation techniques; use of a security vehicle for transport outside the placement; restrictors on windows; security alarms throughout the property; no access to an internet-enabled phone; and vetting of phone calls and visitors.

She’d been invited to attend court today to share her views about her placement and care package with the judge.  

But she’s gone missing.

On 18th March 2022, five days before this hearing, she “absconded” from the placement.  

She asked to go outside for a cigarette, staff accompanied her into the garden, she climbed over the garden fence – and when they tried to physically restrain her, she kicked them in the face, made it over the fence and disappeared.  She’d said she wanted to go to live with her boyfriend in another city and police believe that’s where she’s gone.

So, instead of the predicted court hearing focused on how she was “settling in” to her new home, the court is asking for a full explanation of how she was able to abscond, and an urgent review of her care plan.

The two hearings

I’ve watched two hearings in this case (COP 13836522), the first on 22nd February 2022 and the second on 24th March 2022.  

There’s a longer history of hearings, all (I believe) before HHJ Berkeley, going back to October 2021.

The court has already found (for the purposes of s. 48 of the Mental Capacity Act 2052 (i.e. as interim declarations) that there is reason to believe that P lacks capacity to conduct court proceedings and to make decisions as to her residence and care, and contact with others – although (according to Ben McCormack), “on any view, she’s close to the borderline of having capacity to make decisions”.

The hearing on 22nd February 2022

The very restrictive care plan, and a new placement, were approved at the hearing on 22nd February 2022.

P didn’t attend this hearing because it was held on the very day of her release from prison and there was, said Ben McCormack, “some uncertainty about when the van was turning up, so we didn’t know quite when- there were too many moving parts”.

The judge asked why the application to approve this very restrictive care plan was made “urgently” on the very day of P’s release from prison, given that (he said) “when I read the care plan put together on 10th February, it was clear that this young person was going to be released on 22nd February – so the authorities have known she would be released today for about two weeks“.

There was no satisfactory response to that question and the judge remarked that “the local authority needs to reflect on that”, not least because “an earlier hearing, in advance of the day of her release, would have enabled P to attend the hearing” (as she has in the past, making – according to the judge – “colourful contributions“).

 The judge approved the care plan because he had “absolutely no doubt that while these restrictions are at the highest level of restriction, they are necessary and proportionate to the level of risk this young woman presents“. He had, he said, “been made aware at previous hearings of the extent to which P will utilise all means of communication available to her (whether her own devices or not) to contact people who present grave risks to her – including the serious risk of death“. This new placement and care plan was to attempt to prevent those contacts and also “to prevent [P] from absconding from the placement or in the community” (according to the local authority Position Statement).

The plan was to invite P to attend the next hearing to “see how she responds to the new situation”.  Her counsel suggested that hearing should be “in a week or two”. 

For the local authority, Arianna Kelly of 39 Essex Chambers thought that would be too soon.  For the first two weeks, she said, P would be “settling in”.  She suggested that it would be best to have a roundtable review in about three weeks and then return the case in court in four weeks’ time, as this would result in “a more meaningful review”.   

The judge, who had met P at previous hearings, said: “I share Ms Kelly’s time scale that the matter should be brought back in 3-4 weeks.  My experience of this young woman is that there may be a honeymoon phase and things will become more difficult as days pass.”  This turned out, with benefit of hindsight, to have been an unfortunate decision.  He did add, though, that “if a more urgent hearing is required… that remains within the ability of the lawyers to make an approach to the court”.

The hearing on 24th March 2022

At this hearing it was apparent that things had gone badly wrong.  Not only had P absconded, but there had been “internal miscommunication” about what was happening on the ground.

Counsel for the local authority (Arianna Kelly) reported in her Position Statement that P had absconded on 18thMarch but “was returned by the police”.  At the beginning of the hearing, she offered an “unreserved apology” for this error of fact.  

Counsel for P via the Official Solicitor (Ben McCormack) correctly stated in his Position Statement that P “did not in fact ever return home. She has thus been away from the property for five days and nights without either her own lawyers or (seemingly) the local authority’s legal team being aware of that fact”.  He expressed “major concern” that she should have absconded without her own legal team being notified until after 5 days had elapsed, just before this hearing.  It was of great concern, he said, that P had talked openly (on 17th March 2022 – the day before she left) to her solicitor and care staff about wanting to go to live with her boyfriend – and it seems that’s exactly what she did, the following day[2].  The care provider did not immediately notify the local authority social work team or its safeguarding team.  “It would have been better,” said Ben McCormack,“if that information had come to us earlier – within hours of her jumping the fence”. 

What these incidents reveal (at best) is a lack of communication between the care agency and the local authority. That cannot be good for [P]. Urgent steps must be taken by the authority to ensure that the care staff are aware that key information that goes to [P’s] wellbeing needs to be shared with the local authority.” (Ben McCormack).

On behalf of P, Ben McCormack made three key points:

  1. The court and parties need a proper explanation of what has happened since P ran away. (The probation service also needs to know, as she was in breach of an order)
  2. The local authority needs to think about, and explain, what’s going to happen when this young woman is brought back unwillingly and locked up again. “Someone has to plan for this. How is it sustainable?  What are the plans for her to see her boyfriend? He might be a terrible influence. He might be a nice lad. Nobody knows. She lacks capacity to decide on contact, so somebody has to decide on her behalf. How can someone add a bit of sparkle to her life?  Looking at the carers’ records, she does a lot of smoking, and a lot of cleaning, and not much more than that.  When she’s brought back, there has to be some strategy for making life better for her, to see whether she could be persuaded that it’s a bit better for her to stay there – without having to drag her off the top of a fence and get kicked in the face for the privilege of doing so.”
  3. The case should come back for an urgent hearing. “Minds are focussed and evidence is obtained when a lawyer has to be back in court.  We would like it to be in person, in a courtroom with P having the opportunity to be able to attend.  She said last week she didn’t want to. She’s physically very well and could attend court if she wants to.”

The judge accepted all three points. He was concerned that this information about P having absconded (and not returned) had not been made available sooner, and emphasised “the significance of effective communication in respect to the situation of a young woman as vulnerable as P”. He was “gravely concerned” about the risks P was now exposed to and said “I need to understand, as do all parties, how this situation has arisen” and asked for a “speedy explanation”. He also decided to issue a direction to the clinical psychologist whose answers to follow-up questions are pending, that he should respond by 3 weeks today.

The next hearing is planned for 2.30pm on Friday 1st April, probably an attended hearing in Manchester – with an invitation to P to attend in person. 

Reflections

At the centre of this case is a young woman who “absconded” from a house with locked doors and windows, monitored day and night by people trained in restraint, because she simply didn’t want to be there.  

She’s evidently extremely vulnerable to exploitation and abuse but, as Munby J put it, “What good is it making someone safer if it merely makes them miserable?”

I don’t know if P was happier before she was locked up – first in prison and now in her placement. Maybe not. Maybe her own decisions didn’t lead to a happy life, any more than the decisions of the court on her behalf seem to have done.  But she is clear that she wishes to be free of restrictions and allowed to leave the placement – despite what the Official Solicitor says are “real and significant risks” to her in doing so.

The tension is between, on the one hand, P’s autonomy and freedom, and on the other keeping her safe from harm. As Ben McCormack put it, “she’s been locked up for her own good, but she doesn’t like it”.  

This is a classic dilemma for the Court of Protection – posed here in a particularly acute form, not least because this very vulnerable young woman seems to be close to the borderline for capacity to make her own decisions.

Much may now depend on ensuring that the placement is attractive to her not just because it is “safe”, but because it offers her opportunities for a more fulfilling life, including her right to have personal relationships with other people.

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


[1] We are not permitted to audio record court hearings. Quotations are as accurate as I can make them, based on contemporaneous (touch-typed) notes, but they are unlikely to be verbatim.  The words quoted here were said by Ben McCormack in his very useful opening summary to the hearing of 22nd February 2022.

[2] It also seems that (contrary to the restrictions approved by the court in the order of 22nd February 2022), P had acquired an iphone, and it seems likely that she used it to make the arrangements to abscond.

Photo by Ye Jinghan on Unsplash

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