Open justice fails again: This hearing wasn’t publicly listed – then the judge denied us remote access, and never sent the approved order 

By Celia Kitzinger, 12 May 2024

Last week, Mr Justice Nicklin was announced as the chair of the judiciary’s new transparency and open justice board.  He gave a speech welcoming  “a new breed of court reporters” – and the “hugely valuable contribution” made by members of the public who tweet or blog from court.

It’s lovely to feel “seen” and valued like this – especially in a context where I often feel anxious about the time and trouble we cause to court staff, lawyers and judges who are trying, desperately and against the odds, in an under-resourced system, to administer open justice with a listing service, a set of rules, and video-technology none of which are really fit for purpose.  I’m really pleased that Mr Justice Nicklin appreciates what we do – and even more so that he acknowledges that he’s “vulnerable to the charge that ‘talk is cheap’. It is easy for judges to talk loftily about the importance of transparency and open justice” (§35).

Over the past few years, since we launched the Open Justice Court of Protection Project, I have listened to a lot of fine words from the judiciary about open justice. That’s nice – but what I really want is concrete action. And I would like the judiciary – and in particular the members of the judiciary’s new transparency and open justice board – to understand what public observers (and journalists) are up against.  So please read on.

This blog post is about the dismal reality of trying, and failing, to observe a hearing in  an important case – a  hearing that never even appeared in any public listing.  I can’t tell you anything about what happened at the hearing because half an hour before the hearing was due to start, we were refused a link to observe remotely – and then, despite twice asking for the approved order, it’s never been sent.

Background

Peter (not his real name) has been the subject of previous court proceedings before HHJ Burrows, and there’s a published judgment (PH v A Clinical Commissioning Group & Anor (Dismissal of proceedings) [2022] EWCOP 12).

Back then, in March 2022, Peter, who has diagnoses of Autistic Spectrum Disorder, moderate learning disability and Tourette syndrome had been detained under section 3 of the Mental Health Act for several years, in fact for most of his adult life.  The judgment says: “He is subject to very considerable restrictions on his liberty beyond those detained patients usually experience. No one believes him to be in the right place. Everyone seems to believe he ought to move to somewhere which meets his needs much better. It is anticipated that place will be outside a hospital setting.” (§1)

Peter’s mother made an application to court under s. 16 of the Mental Capacity Act 2005, seeking declarations as to what residence and care options are in Peter’s best interests.  The judge, after carefully considering the respective roles of the Mental Capacity Act 2005 and Mental Health Act 1983, and the interaction between them, decided that the Court of Protection had no useful role to play at this stage: “I am unable to see how this Court has any useful and proper function in this process at this stage” (§24).  He dismissed the application.  

This case is important because Peter is one of more than 2,000 autistic people and people with learning disabilities who are detained as inpatients in mental health hospitals in England (Assuring Transformation NHS Digital data). The overwhelming majority (92%) of autistic people and people with a learning disability who are detained in hospital are put there, as Peter was, using the Mental Health Act 1983.  It is very rarely the case that living in hospital is in their best interests. 

So, when we learnt that the case was back before HHJ Burrows in Preston on 25th April 2024 (COP 12717426), and that the hearing would be held ‘in public’, we were keen to observe it and I made enquiries (for myself but also on behalf of Daniel Clark, another member of the core team of the Open Justice Court of Protection Project).

Open justice fails

Neither Daniel Clark nor I was able to observe this hearing, or to find out afterwards what had happened at it.  

There were three fundamental failures of open justice.

1. The hearing did not appear on any public list

We heard about the hearing informally through one of our contacts  – so we only found out about it late the day before and had minimal information. All hearings in the Court of Protection are supposed to appear on public lists (in CourtServe).  That’s part of what open justice means. The public should be informed that a hearing is taking place.  That’s pretty much a bare minimum requirement.  There’s no chance of observing a hearing if we don’t even know it’s happening. 

A (very helpful) member of court staff speculated that it didn’t appear on the public list for Thursday 25th April (which is published at around 4.30pm the afternoon before) because it had only been added to the judge’s list on the morning of the day the list was published (“It may be because it was added on Wednesday and the list may have already been sent in, prior to me listing it in his honours diary that morning”).  He later confirmed that was indeed the problem.  So, although the CourtServe list indicates that it’s updated regularly (often every half hour or so), it seems to be just a fact of life that a case  scheduled on a Wednesday morning for a hearing on Thursday morning (i.e. around 24 hours later)  is ‘too late’ to be included.  This makes me concerned about how many hearings never, in fact, appear in the lists at all.

2. HHJ Burrows refused permission to observe remotely.  

There was an earlier indication from court staff that we would be sent a link to observe it, but then at  9.30am on the morning of a hearing due to start at 10am,  we were told: “Unfortunately, we are not sending any links out this morning as his honour has directed this to be a fully attended hearing. Anyone may come and observe in person (Including Mr Clark) but the court cannot send out teams links for remote attendees, I am sorry this is the case and would try to urge you to send someone to come and observe in person if you have the capacity to do so.” (Court Clerk, Preston)

Had we known earlier that the hearing could only be observed in person, one of us might have made the 1-2 hour journey to Preston to observe it.  But the judicial decision not to provide links to this hearing was conveyed to us way too late to make this possible – and this must surely have been evident to the judge if he’d given it a moment’s thought.

Under these circumstances, I believe that open justice could only be served by issuing links to members of the public who wanted to observe  – or, I suppose, by delaying the start of the hearing to allow us to attend in person, though that would seem a very expensive option, and one unlikely to be compatible with the judge hearing other cases in his list in a timely fashion that day. 

Of course, sometimes it’s simply not possible, especially in regional courts, to provide video-access to fully in-person hearings because courtrooms aren’t supplied with the appropriate equipment or there are no staff available to set it up.  Requests for remote access can impose intolerable burdens on the court or its staff.  But in this case, the non-availability of a video-link was attributed not to resource problems but to a judicial decision simply not to provide it.

I find this baffling. 

The whole point of the much-vaunted Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (see Practice Direction on Remote Observation of Hearings, June 2022) was to empower judges to “allow remote observation of in-person and hybrid hearings” as well as remote ones (§3).  The regulations (and underlying statute) include as a “mandatory consideration” for judges making a decision about whether or not to  provide remote links for observers, the importance of open justice.

“Decision-makers must give due weight to the importance of open justice. This is a mandatory consideration. Open justice serves the key functions of exposing the judicial process to public scrutiny, improving public understanding of the process, and enhancing public confidence in its integrity. Remote observation can promote all those purposes. Access for reporters, legal commentators and academics is likely to do so. Judicial office holders may take as a starting point that remote access for other observers is desirable if they would be entitled in principle to have access to a courtroom in which the hearing was taking place, and giving them remote access is both operationally feasible and compatible with the interests of justice.” (§18,  Practice Direction on Remote Observation of Hearings, June 2022)

When there has been a failure to publicly list what was intended to be a “public” hearing and members of the public have learnt about it informally and have asked to observe, then – in my view – that strongly supports the provision of remote access.  Conversely, to tell us half an hour before the start of a hearing that we can only observe if we attend in person is, in effect, to decide on a private hearing. It’s not clear to me, then, how HHJ Burrows’ “mandatory consideration” of the issues here resulted in a decision not to provide remote links.

Against a general backdrop of judicial support for and practical facilitation of open justice, I’m very disappointed that HHJ Burrows  – who is Lead Judge for the Court of Protection North West Region –  decided against permitting remote observation under these circumstances.

3. No response to my requests for the approved order

The hearing from which we were excluded was listed (it says in the Transparency Order) to consider:  

“(i)  The capacity of P to litigate in these proceedings; 

(ii)  Appointment of Litigation Friend 

(iii)  Decisions as to P’s care; 

(iv)  Decisions as to P’s residence; 

  (v)  P being deprived of his liberty.”

After the hearing, I emailed the judge (via his clerk and via the ordinary COP.Manchester@justice.gov.uk email address) asking for the approved order from this hearing so as to be able at least to report accurately on the decisions of the court.   

We’re entitled to the approved order from “public” hearings under COP rule 5.9 

Supply of documents to a non-party from court records

5.9.—(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.

I sent emails on Monday 29th April  2024 and again on 7th May 2024.  I’ve received no response.  

Open justice is not a “bolt on”

I was pleased to read Mr Justice Nicklin’s statement that: 

“The Lady Chief Justice and the Board want to move away from regarding transparency and open justice as a ‘bolt on’; something to be regarded as additional to the administration of justice. We need a recalibration: to make openness and transparency an essential feature of delivering justice. Many already do so, but every Judge, Magistrate and Tribunal Member should be thinking about the ways in which s/he can promote transparency and open justice when sitting. That can be as simple as ensuring that those people who are watching the proceedings can actually hear them, that they have the skeleton arguments to which reference is being made, and can find out the result of the case.” (§33)

The case I’ve described here doesn’t even begin to meet these aspirations.  We weren’t able to access the hearing due to a listing failure, and we’ve not been offered skeleton arguments (or “Position Statements”) nor have we received the approved order which I have twice requested and am entitled to receive. 

The three elements of which this failure is composed are all familiar to me.  We’ve no way of knowing, of course, how many hearings never appear in public listings, but I do know that when we learn about hearings from family members and others involved in cases, and then go to find them in the lists, we can’t locate them around 50% of the time.  (We blogged about one case here: A ‘secret’ hearing on life-sustaining treatment).  Judges don’t often refuse to send links for “public” hearings (I can think of very few other cases) – but often quite frequently nobody responds to our requests for the links so we don’t receive them anyway (and there have been previous inexplicable judicial decisions not to admit particular would-be observers, e.g. A disappointing failure of open justice: DJ OmoRegie says no)).  Finally,  I am normally sent approved orders when I request them (albeit at a cost of £5 from one judge) – although it sometimes takes several reminders and I can think of one other case where repeated requests have failed to elicit it. So, yes, this hearing before HHJ Burrows was an exceptionally comprehensive failure of open justice, but the elements of which it’s composed are familiar.

As Nicklin J also said, quoting the Lady Chief Justice: “The greatest threat comes not from direct attack on the principle [of open justice], but rather from careless – sometimes inadvertent – failures to protect its ideals.” (§45) 

I think the judiciary’s new Transparency and Open Justice Board will have its work cut out for it.  We look forward to participating in the Judiciary’s promised stakeholder engagement. 

This particular case will be back in court again on 16th August at 2pm before HHJ Burrows sitting at Preston (with a time estimate of 2 hours). I am still hoping that open justice might prevail. 

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia

 

Crisis point – is hospital a viable option for P?

By ‘Anna’, 9th May 2024

The protected party in this case (“L”) is a man in his twenties with “significant learning disability”, autism and complex physical disabilities. He had been living at home with a care package in place until July 2021, when his care package broke down and he was moved to a new placement after an application by the Health Board to the Court of Protection. This was supposed to be a temporary emergency placement, but L is still there nearly three years later because, over the years, suitable alternative arrangements have not been found

Now a placement needs to be found urgently.  Following a long period of notice, his current placement is threatening to withdraw care if he does not leave immediately. The problem is that the only options before the court are either a sub-optimal placement an hour and a half  away from the community and family he loves, or hospital admission, which nobody seems to accept would be in his best interests. 

Background to the hearing

This hearing, listed for three hours on 19 April 2024, was the latest in a long running case (COP 13290314) before HHJ Porter-Bryant[1], sitting in Newport, Wales. Celia Kitzinger has blogged about one aspect of the case from an earlier hearing here. There are also two judgments, from December 2023 here, and an appeal upholding that judgment (CL v Swansea Bay University Health Board & Ors), published a few days before this hearing. 

As noted in the earlier blog post, this is “a very complex and long-running case – and one that is causing immense distress to the mother”. Over time, the relationship between L’s mother ‘C’ and various professionals has broken down, to such an extent that she is prevented from visiting L at his placement. Various allegations have been made about C’s behaviour and C was discharged as Personal Welfare Deputy for L. In order to move things forward, protocols to do with medical clinical appointments, contact in the community, and care planning have been agreed between C and the Health Board. The initial objective of this hearing was to consider those protocols, as well as to consider the long-term residence, care and contact options for L, but, as the judge said[2] in oral judgment at the end of this hearing, matters have taken a turn and the situation has moved on rapidly. 

Things have reached a crisis point. 

The placement – having given L notice to leave in September 2023 – has now enforced the notice. The staff are at the “end of their tether” with the notice period and it is now “D Day”. They’ve said “enough is enough” and they will care for L no longer. The placement manager is off work with stress and there is a threat of union involvement and action. There are fears that the staff would even walk out “and that fear seems to be justified” according to the judge.

Two options have been found by the Health Board: H, a private supported living placement that has a vacancy for L, or hospital. 

Rosie Scott , counsel for the applicant Health Board, set out the matters before the court:

1) Is it in L’s best interest to reside at H, or another placement? 

2) C’s contact with her son

3) Care planning protocol 

In the event, there was no time to discuss the care planning protocol and most of the time was devoted to the first issue of residence. 

Residence options for L

There was only one available community option offered by the Health Board, “in the sense both that there is a vacancy and that the Health Board has determined that it will commission a place there”.

The Health Board had considered other community options before coming to its commissioning decision. One was another supported living placement, which was ruled out because it would result in “overprovision” for L: 2 to 1 support 24 hours a day (he’s assessed as needing only 12 hours a day) and ‘non-negotiable’ clinical support from people like an Occupational Therapist. During the hearing, Counsel for the Health Board conceded that cost was a factor, but said that L’s autonomy weighed more in the commissioning decision. Domiciliary care options (proposed by his mother) were also considered but ruled out. 

The only alternative to this community option was a “bed within the acute admission unit” of a local hospital. This would mean a much more restrictive environment – and L does not need treatment.

Despite the stark alternatives, there were concerns about the proposed placement – including the space available and particularly whether there is a fire risk for L, due to the size of his wheelchair. Other issues include the compatibility of L and the other residents, and the fact that the placement is an hour and a half away from L’s home town, where he has lived all his life. 

There has been a high level exploration with L about moving to H. When shown photos of H, he reacted positively to some of them but he didn’t like the photos of the bedroom. He wants to stay where he is (which isn’t an option) and wants to see his mum and dad more, which would be difficult with a placement so far away. 

In his summing up the judge said “Community is of magnetic importance to L, he is a (home town) boy”, echoing submissions by Counsel for the father of the  “magnetic importance of family” for L and “being where he is familiar”. It is also an issue for L’s parents, as it would make contact with L more difficult. 

Counsel for the Health Board stated, however, that the placement is suitable, available and can meet L’s needs. She acknowledged that a closer placement would be ideal but stated that the search for a placement had been a national search and they were “lucky” that it was (only) an hour and a half away. She argued that it was in L’s best interests to move there. It is the only option in the community and they would be asking the court to authorise L’s deprivation of liberty at this placement. She proposed a 6-week review and raised the prospect that it could become more than an emergency placement; it could be a long term placement for L. The “bottom line” or ‘stark fact” is that no other options (in the community) are being considered by the Health Board. This was partly due to questions about L’s needs but also due to financial constraints. L’s Litigation Friend (represented by Nia Gowman) does not, in contrast, see H as a long-term option, but agrees with the Health Board that it is the only option for now. 

The alternative to H before the court is hospital. But there was discussion about how viable an option for L this really is. Neither counsel for L or for his mother considered it an option. Even the Health Board proposing it did not seem to think that it was an appropriate option, unless a community option was not available. Rosie Scott stated “I suspect it is not necessary to say that a clinical environment in hospital is not suitable for L” if a community option is available.  She continued that it would take a long time to find somewhere else and it would not be quicker if L is in hospital. She emphasised that “going to hospital does not mean another option will become available”. In other words, if L was placed in a hospital, he could be there for some time.[3] Counsel for L did not consider hospital to be a viable option and was surprised that the Health Board was even considering it. With a hospital admission there was no concept as to how L would be cared for.  

At some point during the discussions, the judge made a comment (which I didn’t catch) which implied that hospital had only been put forward as an option by the Health Board in order to cast the community option in a better light. Rosie Scott took umbrage at that. She stated that she “must push back on the idea that hospital is being put forward as a black art to shine light on [the community option]” and the judge accepted that it was an “unwise comment on my part”. He referred to this again in his oral judgment, stating “I had suggested disingenuously that a cynic would say that the [community placement] was presented as an alternative to hospital to make it more attractive but I was not suggesting that it was inappropriate. It is what it is, there are only two options”. He continued by saying that little is known about the ward apart from it is in hospital in [home town], little is known about whether L would have his own ward, or contact, or community access…. “it is a hospital setting and not a home. It is a setting for those with difficulties different to L’s, it is a medical environment……..it is however close to home…….Much of the evidence for a placement is not before the court because the Health Board do not consider it a viable option. I agree”. He stated that it is hard to see that it would be in L’s best interests. 

Not surprisingly under the circumstances, the judge decided that it was in L’s best interests to move to the community placement. The current predicament was that in his current placement staff could walk out on L, he could be evicted, which could lead to him going to hospital. Therefore, it was in his best interests to move to H on a short-term basis, whilst accepting that there were still concerns. In particular, a fire evacuation plan should be prepared before L moved there.  

Everyone seemed to hope that the new placement would provide the opportunity for a “fresh start” and, despite all the problems relating to contact in the current placement, the Health Board was not seeking contact restrictions: “At present there are no restrictions sought by either the Health Board or the owners of [community placement] in terms of [the mother’s] presence at [community placement] or in contacting staff. It is hoped that none will be necessary in this fresh start”. 

The judge acknowledged that the start of the relationship had been positive.  Imposing restrictions could have the opposite effect (to that intended) to the extent that the relationship would start on a “poisoned basis”. He stated that it was a difficult balancing exercise such that if he got it wrong, “we could go back to the beginning” and be in a worse position. “I stress to the court that the placement needs to work. If it is put to me that the relationship is deteriorating, I will put measures in place to ensure that the placement is retained”. 

The judgment concluded with the judge stating that the search for a long-term residence should continue. For example, domiciliary care could be met if the Health Board could fund it, or another suitable placement. However, he said that he didn’t wish to make that a requirement for the Health Board, “I appreciate the significant resources that have been given over to this case already. We aren’t there yet”. He acknowledged there may be further developments. Could the drawbacks of this placement be mitigated? If L becomes happy at the placement, that would be a significant factor. 

Finally, there was a brief discussion about C allegedly breaching the Transparency Order. She had sent an email in mid-April to her member of the Senedd, apparently wanting their involvement as she was not happy with the Health Board’s commissioning decisions. The Health Board alleged that this breached the Transparency Order because it “identified that C is the mother of a P involved in Court of Protection proceedings to somebody who is not involved in proceedings or involved in L’s care or support”.The judge stated that he realised C wanted help (from her Senedd member): “C, I know you reached out for help, but those orders are there for a reason, you can get yourself into trouble. I’m aware why you did it”.

The hearing concluded with another hearing set for July, to consider how the placement is working and the protocols that were initially due to be covered in this hearing. 

Reflections

A shadow hanging heavily over this hearing was the fact that hospital was being considered an option even though that would be a clinical environment and not suitable for his needs. It seemed to be posited as a residence of last resort for L – but still a possibility if there was no community placement for him. The paucity of options is an extremely sad state of affairs. 

As the judge stated in his December judgement, he recognises that C feels very strongly about trying to ensure that L obtains the right care: “I have never lost sight of her love or strength of feeling and determination to do all that she can to secure what she feels is the best outcome for P”.  She has had her personal welfare deputyship taken away, even though there were no findings of wrongdoing. She wants her assembly member to help her challenge the Health Board’s commissioning decisions but is unable to contact them due to the transparency order in place. And now her son is being moved an hour and a half away from her to a placement that she doesn’t feel is approriate, but is the only viable option. And a sword of Damocles is hanging over her: in effect, “don’t rock the boat or you won’t be able to see your son”. 

I should say that L’s father was also represented in this hearing, and the dynamics of the relationship between him and C are also a factor in decisions about contact. I feel that it can be very difficult for families, who have to tread a fine line if they feel their loved one is not receiving the approriate care.  At the same time I know that professionals are placed in difficult situations too. That said, if a placement can turn around and say they won’t care for somebody anymore, then the odds are certainly stacked. It’s a very difficult situation to navigate. 

Finally, the discussion at the end of the hearing about the Transparency Order resonated strongly with me as I am subject to a Transparency Order myself which prevents me speaking openly about my involvement in a Court of Protection case.This exchange highlights, in my opinion, the practical difficulties faced by families whose freedom of speech is restricted by a Transparency Order, and whether the restrictions are really proportionate and necessary. I understand why restrictions are in place, to protect P, but I do wonder if there is not some balance to be struck as the restrictions are very onerous for families practically. These orders are generally in place until the court orders otherwise and, as I know from my ongoing experience of trying to get a Transparency Order varied (changed), getting that court order can be extremely difficult.

‘Anna’ is the pseudonym of a woman whose mother was a P in a Court of Protection s.21A (challenge to a Deprivation of Liberty) application. She is a core team member of the Open Justice Court of Protection Project. She is particularly interested in family experiences of the Court of Protection and increasing understanding of the Court of Protection for families. Anna is not using her real name because she is subject to a transparency order from her mother’s case. She is attempting to change this. She has written about her family’s experience: ‘Deprived of her liberty’: My experience of the court procedure for my mum

[1] I am grateful to the clerk at Newport court who facilitated access and tried to help when I encountered sound issues, which was frequently. I was the only observer on the link and this was a fully in-person hearing. Thank you too to Rosie Scott and Nia Gowman for sharing their very helpful position statements.

[2] It is forbidden to record any part of a hearing and I don’t touch type so my notes will not be 100% accurate.  

[3] People in the United Kingdom with learning disabilities can end up staying in hospitals for a very long time.  This is a recent report from BBC Scotland: https://www.bbc.com/news/articles/ck5k91j6g00o?fbclid=IwZXh0bgNhZW0CMTEAAR32TFS2o5y3TuHB-WSWTcLbYhxr6JkDcv4qQJbjqqmRDdglltMdmFJ88Ag_aem_AboDYaAZGAMIfFosrnwD0YwJhlpfUM4gX2YT_Q01QtZ2Su91fxtncBEvlu53aCgU5_frI5bRMLcvLhDcwwCOXI-N

And it is an issue in Wales too: 

Homes Not Hospital protest: Learning Disability Wales backs Stolen Lives campaign

A day in the Court of Appeal

By Cliodhna Carroll, 8th May 2024

Editor’s note: You too can watch this hearing – it’s recorded and available on YouTube here: https://www.judiciary.uk/live-hearings/re-a-by-her-litigation-friend-the-official-solicitor/

On 30th April 2024, having cancelled my day due to a bad cold and looking like Rudolph the reindeer, I reached for my iPad to find something to entertain me and remembered that the Open Justice Court of Protection Project had tweeted about an appeal hearing which was being held that day following the Court of Protection decision in Re A before Mr Justice Poole. I knew it concerned a young woman who was deprived of her liberty in a care home (against her own wishes and those of her mother) in order to ensure she received medication (covertly).

I have wanted to attend a Court hearing for many years, but never seemed to be able to prioritise this, and on the one previous time I tried to join a hearing, the case did not go ahead. So, this seemed a perfect way to spend my ‘sick day’. 

The post on X from the Open Justice Court of Protection Project provided clear instructions on how to join the hearing. Two clicks later and I was on the judiciary YouTube channel watching the live-streamed hearing in the Court of Appeal. 

On first impressions, I appreciated that there were two camera angles, one towards the three judges and one towards the open courtroom where the solicitors and legal representatives were seated, and possibly family members or other members of the public, though this was not clear. Having read a number of previous blog posts about attending Court remotely in the Court of Protection (via MS Teams or cloud video platform), I was glad to be able to hear all speakers and appreciated the anonymity of my attendance (e.g that I did not have to introduce myself nor state why I was present)

I had read previous blog posts about this case which I had received as I am on the mailing list from the Open Justice Court of Protection Project, so I was aware of the background to the case, which meant that it was relatively easy for me to follow along. You can find the previous blogs here[1]:

P’s case has been before the Court of Protection for a number of years. She is a woman in her 20s who has diagnoses of “mild learning disability”, “Asperger’s”, epilepsy and a medical condition affecting her ovaries which impacted on her reaching puberty. She has been living ‘temporarily’ in a care home for a number of years where she has received medication to induce puberty, which (since she repeatedly refused it) was given covertly. Reading previous blog posts, it seems that A’s mother was not aware for a number of years that A had been given medication covertly. It was not clear from what I heard, though I may have missed it, what had prompted the move to a care home, though I gathered that there was a belief that P’s mother had influenced A to refuse medication. 

A has consistently expressed a wish to return home to live with her mother. There are a number of concerns regarding her mother’s ability to care for A including the ongoing provision of medication. There were a number of references to there being an “enmeshed relationship” between P and her mother. There were discussions about P’s mother being the person she trusts most in the world and that her mother is best placed to support her with agreeing to take medication, which she needs to take for life. There were discussions about telling P about receiving medication covertly and if she is told that she was covertly given medication this may lead to a distrust in professionals, which could impact future treatment, care and support. 

Further details of the background to this case are available in Mr Poole’s judgment from 20 March 2024 A, Re (Covert Medication: Residence) [2024] EWCOP 19  – which is the judgment being appealed. It makes for quite sad reading. 

I gather from previous blog posts and from my observations that Katie Gollop KC represented the local authority and Sam Karim KC acted for the Official Solicitor representing A. Joseph O Brien KC represented the NHS Trust.  A’s mother was represented by Michael O Brien KC. 

The local authority and the Official Solicitor were both appealing Mr Justice Poole’s decision that it was in A’s best interest to return home whether or not she independently agreed to take medication. From the current hearing I gathered that there was a directive within Mr Poole’s judgement for parties involved to develop a plan to consider how to support P with accepting medication, with the assistance of her mother. I gathered that part of the appeal was the Local Authority’s claim that this plan was simply not feasible and was associated with both short-term and longer-term risks to A.

I was struck by the compassion and consideration shown to A throughout the discussions. The legal representatives all indicated a long relationship with A’s case and demonstrated their knowledge of her journey over the past few years, particularly in relation to her health, treatment, relationships and social / community life, along with a reflection on her level of cognitive functioning and ability to make decisions. 

I was touched by the thoughtful reflections to aid the understanding of A’s mother’s perspective, provided by Michael O Brien KC within the hearing. Whilst we did not hear directly from A’s mother in the appeal hearing, Michael O Brien certainly brought parts of her story to the proceedings, which felt very important given that there could be a tendency to judge some of her behaviours, particularly regarding choices she has made for her daughter. This understanding of A’s mother felt crucial in many ways. As a clinical psychologist / neuropsychologist, thinking systemically is key to working with families and the wider systems around A, and having an understanding of all parties within a system is essential, particularly in the event that there is a need for things to change (e.g. understanding a medical condition, ensuring appropriate treatment). 

It was reassuring to hear repeated discussions about the legal framework and the mental capacity assessments at the heart of this matter. Whilst there are limitations to the Mental Capacity Act (not least related to the frontal lobe paradox), it does provide a relatively clear legal frame (at least from a clinician’s perspective). The process of best interests decision-making was returned to a number of times within this hearing, and it certainly felt that A was being held at the centre of things. 

I am curious as to where this case will go; and appreciate the need for  Judges to hold on to multiple perspectives to aid with decision-making, and to support with guiding best interests decisions for A. 

Reflections 

There were a number of things which stood out to me during this hearing. Firstly, was my feeling of discomfort and anxiety. I work as an expert witness in clinical neuropsychology and have completed assessments of capacity with people regarding a number of decisions and provide neuropsychological opinion to inform the Court regarding people’s neuropsychological functioning and rehabilitation needs in personal injury claims. To date, I have never had to attend Court, so I was definitely noticing the worrying thoughts and stomach flips when thinking about what it might feel like to be speaking in a courtroom to provide evidence. This certainly made me appreciate the thought, skill and composure of the legal professionals and the judges in considering all that was shared and heard in the room, without looking nervous. My mind tells me that they are human and that they too must experience some nerves in this scenario!

One of the things which really stood out for me was the rhythmic movements from considering the big picture to the details and vice versa, and the considerations given to a number of options in the hope of finding a workable solution for all involved. I enjoyed, despite the aforementioned nervous feelings, hearing the questions, discussions and debates between the judges and the solicitors providing evidence.  

One other thing which stood out to me was that there were four barristers, each making their client’s case to the judges, and that there was little interaction between them in the courtroom, except via the judges. I’m not sure why this stood out as I have seen enough courtroom dramas to know that this is how it works, but I guess as a clinical psychologist I am more used to sitting in a circle with people and sharing viewpoints together to mediate towards change, and instigating change felt like it was central to this case. 

This was a long (at least to me, as a new observer) hearing, running from 10am – 1pm and from 2pm – 5pm. I was incredibly impressed, particularly as a clinical neuropsychologist, by the attention, focus, working memory, memory and executive skills (reasoning, organisation and co-ordination) demonstrated by all involved over a prolonged period. It certainly provided me with enhanced respect for legal professionals.

Dr Cliodhna Carroll is a Consultant Clinical Neuropsychologist working with Allied Neuro Therapy Ltd providing community-based neurorehabilitation following acquired brain injuries. She has an interest in mental capacity, particularly related to the frontal lobe paradox. Her current NHS post is as a Specialist Paediatric Clinical Psychologist at Great Ormond Street Hospital, providing psychological interventions with young people with neurological conditions and their families. 

[1]

Unplanned disclosure and (still) no agreed ‘exit plan’: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44 continues
Still no exit plan and “we are some way away from the ideal scenario”: Re A (Covert medication: Closed Proceedings) [2022] EWCOP 44
Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings) [2022] EWCOP 44
Medical treatment, undue influence and delayed puberty: A baffling case

“Substantial disagreement” about whether P should return home 

By Daniel Clark, 6 May 2024

Mrs F has a diagnosis of schizophrenia, and has been detained under the Mental Health Act 1983 on a number of occasions. She is currently residing in a mental health hospital.  She is medically fit for discharge and subject to a standard authorisation under the Deprivation of Liberty Safeguards. The local authority wants her to move to a care home; her family want her to come home.

This case (COP 14229945) was heard before District Judge Davies, sitting remotely (via Cloud Video Platform) at Derby Family Court, on Friday 19th April 2024. 

The applicant local authority, Derbyshire County Council was represented by William Balmer.  Mrs F was represented by her son as her litigation friend. The NHS Trust was represented by Ben Troke of Weightmans. Mrs F’s husband also appeared as a litigant in person, and was added as a party to proceedings during this hearing. 

This hearing

Counsel for the local authority explained that Mrs F previously resided at home with a care package of 3 hours a day, and 10 hours of respite a month. From the point of view of the local authority, Mrs F is ready to be discharged from hospital. A move to a care home had been assessed as being in Mrs F’s best interests, and her social worker had identified one that was suitable. 

However, in a turn of events that sounded like it occurred in the run up to this hearing, the care home rescinded its offer. The social worker has identified two more potential care homes but, currently, “there is nowhere for [Mrs F] to go upon being discharged”. 

Why the local authority had come to the view that moving to a care home (rather than returning home) was in Mrs F’s best interests was not clear, though brief reference was made to previous strain on her husband, as well as some “factual dispute” about her previous care arrangements. 

On Mrs F’s behalf, her son submitted that it is in Mrs F’s best interests to return home: this is also the view of her husband. However, neither of them thinks that she is medically fit for discharge. 

To add a further level of complexity, in contrast to everybody else, Mrs F’s husband thinks that Mrs F might actually have the capacity to make decisions about her residence and care. 

The judge could not resolve any of the matters at this hearing. He was simply approving an Order that would allow the local authority to submit more evidence with regards to the other care homes, a balance sheet assessing their advantages and disadvantages, and a draft care and support plan. I know this because the judge, acknowledging that I hadn’t seen the order, asked Counsel for the local authority to go through all of the directions that the Order was making. 

Given the level of disagreement present at the moment, the local authority sought for the matter to be re-listed for a one-day hearing in June. The judge, however, was very clear his diary was such that he could not offer a full day hearing until October or November, which was clearly too far away: Mrs F cannot stay in hospital until then. 

The judge also seemed quite keen that Mrs F’s son and her husband should receive some formal legal advice. He pursued this line of thinking with Mrs F’s son in particular – but he did not seem very enthusiastic about this. The exchange went a little like this:

Judge: The one question I have of you is whether you intend on seeking legal advice on behalf of your mother. I think I know that an order was made allowing the Official Solicitor to be made litigation friend. Have you thought about that? There may well be legal aid to assist you putting forward your mother’s voice.

Son: I haven’t participated in engaging with that but I may take that up.

Judge: I think it’s a good idea. Mr Balmer [Counsel for Local Authority], you will know firms. You could share them.

Counsel for Local Authority: That’s already been done Judge.

I’ve never seen an exchange quite like this before, but I’m told that it’s not particularly unusual for family members to decline offers of legal representation (either for themselves or for P). Litigants in person sometimes believe that they can do a better job than lawyers at representing family members – because they know them best, because (unlike lawyers who are ‘hired guns’) they truly care, or because they feel disappointed and let down by lawyers in the past. 

It might also feel as though the only way to ensure your mother’s voice is truly heard is by representing her yourself. As we know, such as in Laura Wareham’s case, the Official Solicitor sometimes takes a position that is contrary to the expressed wishes of the protected party. 

On the other hand, the court process can be confusing and intimidating, despite the adjustments made by legal teams and the judge (see the Equal Treatment Bench Book). “Anna” has explained that being joined as a party helped her mum’s case “to be conducted in a positive spirit”.  

However, acting as a litigant in person for oneself is very different to acting as a litigant in person as litigation friend for a protected party. There is a risk, which I think is what the judge was getting at, that Mrs F’s best interests may be hard to discern or advocate for in the absence of legal advice. 

These type of difficulties are precisely why the Open Justice Court of Protection Project is keen to support many different people who want to observe hearings, including those who are acting (or who may be acting soon) as litigants in person. It’s very helpful to see the court in action before you’re thrust into its limelight. 

I aim to observe this hearing when it returns to court in June.                       

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.

Final considerations for a s21a challenge: Questions about truth-telling to someone with dementia and, yet again, issues with the Transparency Order

By Daniel Clark, 2nd May 2024

Mrs B has a diagnosis of dementia and has lived in a care home for over a year. She does not want to live in a care home; she wants to return home and can see no reason why she can’t. However, her home has been sold and she doesn’t know about it.

This case (COP 14152805) was heard before District Judge Christopher Taylor, who was sitting remotely (via MS Teams) at Bristol Civil & Family Justice Centre. The hearing I observed, on Thursday 11th April 2024 at 11:00am, marked the conclusion of these proceedings, which had been constituted as a s.21a challenge to Mrs B’s deprivation of  liberty.

Representing the parties were Counsel for Mrs B, Emma Harrison of Butler & Co Solicitors, instructed by Mrs B’s Accredited Legal Representative, and Counsel for Bristol City Council, Kate Meller. Mrs B’s sons have been involved in the proceedings, and had contributed their opinions throughout, but they were not present at the hearing. 

When proceedings had first begun, Mrs B spent much of her time in her bedroom and did not engage with any activities. Now, she often eats in the dining room and enjoys taking part in some of the activities on offer. 

Given this change, the court is satisfied that it is the best interests of Mrs B to remain in her current care home. However, there were a few matters to deal with. This blog will discuss them, and then discuss the Transparency Order.  

Should Mrs B be told her house has sold?

The first matter for the court to deal with was whether Mrs B should be told that her house has been sold. While there is no dispute that she lacks capacity in relation to her care, residence, and finances, there was a question about whether being told her house had been sold may assist in her understanding that remaining in a care home is the only option (notwithstanding the fact that she has been assessed as requiring 24-hour care). 

Counsel for Mrs B explained that there were three options available: to not tell Mrs B, to tell her once, or to tell her regularly. Counsel explained that her “family were very clear they didn’t want mother to know they had sold her house, and the care home were clear that she would forget very quickly and it would be very distressing”. 

Given that they could not take instructions from Mrs B, her Accredited Legal Representative was neutral on the matter. On the other hand, Counsel for the local authority endorsed the assessment of Mrs B’s social worker. This led to the conclusion that it was in Mrs B’s best interests to not be told about the sale of her house at any point. 

This is because being told may, in the words of the judge, cause “agitation and distress and cause difficulties”; in particular, it may put a strain on the relationship with her sons and the care staff. This may only be short-term if Mrs B forgets but there was also a risk that she would not forget, making the strain more long-term. 

The judge saw this potential for distress as the predominant factor in formulating this best interests decisions, and declared that it was in Mrs B’s best interests to not be told. Instead, the care home should carry on as they are, which is distracting and diverting when Mrs B asks about her house.

Despite the fact that, of course, I haven’t met Mrs B, I found this really quite remarkable. A person can only be said to lack capacity if they cannot understand, retain, use, or weigh, the relevant information, or communicate a decision. However, if someone is denied access to some of the relevant information, their capacity surely cannot be adequately assessed.

By not telling Mrs B  – even once –  that her house has sold and that she therefore cannot return to it, the court is endorsing a situation where Mrs B does not hold all of the relevant information. How can she expected to understand, retain, and weigh-up this information if she has not been given it?

There is also a considerable literature on the ethics of “lying” to people living with dementia. The Alzheimer’s Society employ the example of a person asking for a deceased family member: how should a carer react? Typically, it would be quite distressing for a person to be reminded that their mother has died. 

However, it can also be distressing for the question to be ignored. Here, perhaps it is better to lie by omission (such as distracting them), which is the approach the court is endorsing in Mrs B’s case. In my experience as a paid carer, it’s much easier to think about distracting somebody than actually doing so. If you desperately wanted to see a family member, would you accept someone trying to distract you with a cup of tea or a walk in the garden? 

Some researchers have problematised the idea of “therapeutic lying”; the term employed when carers lie because they think it is the kindest way to avoid distress. Given that we accept truth-telling as a moral good, why would it be morally acceptable to take lying to be a standard part of care for those living with dementia? This can lead to the dehumanisation of the person. The fact remains, however, that truth-telling can be extremely distressing.

“Anna” has explained that part of the process of her mum’s s21a challenge was that her family had to tell their mum that her house had been sold. They hadn’t done this before because they wanted to protect her feelings; they knew it would upset her and they were right. “Anna” writes that telling her mum was “a moment I will never forget. When I told her, mum told me she hated me and would never forgive me. She even told me that she didn’t love me anymore and not to go to her funeral. She was very upset and distressed and obviously I was too”.

This is a stark reminder that there are very real consequences of a radical approach to truth-telling: it can be distressing not only to the person but also to their family. Not one of us can predict whether we’ll develop a dementia and we certainly can’t predict how we’ll react to being told distressing information. However, there are some steps we could take.

Researchers who asked people living with dementia what they think about lying discovered a complex picture. In sum, whether somebody wanted to be lied to depended on the personal views of the person. Interestingly, nobody who thought lying is “always wrong” thought that avoidance of potentially upsetting topics was lying. 

In that research, the researchers suggested that “advanced directives” could “be a fruitful way of identifying people’s preferences towards truth-telling, informing their future care”. In the United Kingdom, this could be included in an Advance Care Plan and is, I think, the best solution open to us (at the moment). 

A potential costs application

Another matter requiring a conclusion was that when she was a patient in hospital, just prior to her move to the care home, Mrs B was very clear that she wanted to return home. This was ignored, and no proceedings in the Court of Protection were commenced. 

Her Accredited Legal Representative therefore wanted a costs Order to be made, which would allow the Official Solicitor to investigate whether it is proportionate to bring a claim under the Human Rights Act on Mrs B’s behalf. 

In effect, this Order would recognise it as lawful for Mrs B’s Lasting Power of Attorney to release funds so as to cover the costs incurred by the Official Solicitor while she investigates this claim. 

The judge was theoretically happy with this Order. However. Mrs B’s LPA for financial decisions is one of her sons, and it was not clear that he had been made aware of this application. The judge was therefore not happy to make the order sought because he wanted to allow him time to make representations. The judge will deal with the matter on the papers, “provided I am satisfied they’re aware of it and have had sufficient time to respond”. Alternatively, he will list the matter to be brought back before him. 

Unusually, I got to see the draft Order under discussion because the judge had not received it, and so asked Counsel for Mrs B to share her screen. This was a great moment for open justice, even though it did only happen because an email was taking too long to be delivered.

It is so much easier to be able to follow the discussions about an Order when we can actually see it. As far as I am aware, only one Court of Protection judge (Hayden J) routinely asks for his screen to be shared so that observers can see the documents, including witness statements, that he is looking at. It would be great if more judges started doing this (and not just because they were experiencing tech issues!)

What will Mrs B be told? 

Mrs B was a social worker, and as such she was quite aware of certain processes: namely, detention under the Mental Health Act 1983. Her Counsel explained that she often asks, “Why am I here, I’m not under section”. The idea that she might be, or that she is being held by virtue of a mistake, was understandably distressing. 

The court was therefore asked to consider whether it should send a short letter or short judgment to Mrs B, explaining that it has been found to be in her best interests to remain in the care home. It did not seem to me that the judge even had to think twice about this: he expressed that he was “more than happy to draft a letter setting out the position”, and for this to be sent out on court-headed notepaper with his signature. 

This is fairly common in Family Court cases, and is (thankfully) starting to find its way into the Court of Protection. For example, Mr Justice Poole detailed in one judgment ([2024] EWCOP 5) that he would write a letter to the protected party explaining the decisions he had made. Similarly, so that P will continue to trust his family and treating teams, John McKendrick KC (sitting as a judge in the High Court) explained in a judgment([2023] EWCOP 51) that he sent a letter to a protected party explaining that the court, and nobody else, was responsible for authorising surgery to which he was not consenting. 

In my view, this is a very encouraging way of ensuring that a protected party is treated as more than just a case number: it ensures that they are recognised as a person whose views and wishes are respected even when they cannot be accepted. 

The Transparency Order

I received the Transparency Order for this case prior to the hearing and, upon reading it, was dismayed to find that it prohibited identification of the local authority 

This is quite unusual: a local authority is a public body, funded by the taxpayer and therefore accountable to her or him. However, it cannot be accountable if the taxpayer does not know what it is doing. For this restriction to be justified there would need to be a fairly compelling reason why the identification of a local authority would (or could) lead to the identification of P. 

At this stage, I knew nothing about this case. However, as a matter of principle, I wrote an email for the attention of the judge. Here is some of it:

This can be quite a scary thing to do but I’ve done this before, including before a High Court judge. I’m therefore “used to it” in a way that can only come from practice (practice that, really, I shouldn’t have ever needed to have!)

The judge dealt with this matter at the start of the hearing. Counsel, who had also been sent my email, did not see a reason why identifying the local authority should be prohibited. They were however conscious of the fact that Mrs B’s children have had strong views throughout proceedings but they were not present and therefore not able to express what they thought about my application. 

The judge, however, did not feel the need to hear from Mrs B’s children before making a decision. After all, this was an “issue of transparency” but I was not proposing that Mrs B should be identified. Clearly, the judge did not think that identifying Bristol City Council would somehow lead to an identification of Mrs B. 

While I was happy that the judge agreed to vary the Transparency Order, I was also dismayed that I needed to apply for this in the first place. At some stage, a lawyer had drafted the Order and a judge had approved it. If there was no compelling reason why identifying Bristol City Council would identify Mrs B, how did this prohibition find its way into the Transparency Order in the first place? 

A few months ago, I observed a case before District Judge Geddes and an almost identical situation with the Transparency Order was played out. In this instance, the judge said of routinely anonymising public bodies, “just stop doing it […] there’s much more important things to be thinking about including the actual facts of this case.”

Clearly, more lawyers need to hear this.

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.

Challenges relating to capacity to engage in sexual relations

By ‘Anna’, 30 April 2024

I want to learn more about capacity, how capacity assessments are done and how Court of Protection judges determine whether somebody has capacity to make decisions. So, when I saw the following hearing listed on the Open Justice Court of Protection Project Twitter (X) page, it sounded an interesting hearing to observe as the case involved various different decisions about capacity: 

Although the hearing was listed for 2 hours, it actually only lasted for about 30 minutes. 

Having read the position statements from both the local authority, East Sussex County Council, (the applicant) and the Official Solicitor (OS) (representing P, the first respondent) before the hearing, I knew that a lot of work had gone on behind the scenes to ensure that the parties were in agreement about a way forward. But even though the hearing was short, I learned a lot from it, including the role of expert witnesses and about the process of capacity assessments. I was able to do this not only from observing the hearing but from receiving the position statements (PS) in advance so I thank the parties’ representatives for allowing me to have them. 

The PS from the OS was particularly useful because it was 22 pages long and included a lot of detail about the law relating to capacity.  It also included an annex at the end which detailed a summary of the expert witness’s conclusions and reasoning of the various capacity assessments she was being asked to make, over a number of different areas. I will start by setting out the background to the hearing, before describing the hearing itself and then reflecting on what I have learned from it, including about the role of expert witnesses, the role of family and how I experienced open justice. 

Background

P, the protected party in this case, is a young woman with complex needs arising from a brain injury acquired when she was 7 years old.  She lives with her mother and siblings. P currently has a boyfriend (T) who is under the age of 18, T. P wishes to be in a relationship with T, and engage in sexual relations with him. It is also reported that she wishes to have children. She doesn’t agree with some of the restrictions in place, including those which affect her freedom and ability to spend time with T, unsupervised. She does not disagree with all of the support in place for her, though, and she wants to remain living in the family home with her mother. 

The LA first applied to the court in January 2023, wanting declarations regarding P’s capacity to make decisions in various domains.  They also applied for an ‘authorisation of deprivation of liberty in her best interests’. Since that time there have been various case management orders made through previous hearings, round table meetings and discussions with the parties, interested persons[1] and the joint expert, Dr Lilley[2], who had been appointed to conduct the capacity assessments. 

The case had now reached a hearing on 6th March 2024, 14 months after the initial application. The PS for the OS outlined the issues before the court, which were whether P has capacity to make decisions about: 

a) her residence

b) her care

c) contact with close family members

d) her contact with others (excluding close family members)

e) contact with a person with whom she may wish to engage in sexual relations

f) decisions about the support she requires when having contact with a person with whom she may wish to engage in sexual relations

g) engaging in sexual relations

h) her use of the internet and social media 

and about her capacity to: 

i) conduct the legal proceedings

The court was also being asked to determine best interests for P in relation to her care arrangements and whether the restrictions that amount to a deprivation of liberty are necessary and proportionate to the risk and likelihood of harm for P. The final issues for the court were what evidence and plans were required to determine P’s best interests in relation to arrangements for contact with T, arrangements for contact with other persons with whom P may wish to engage in sexual relations[3] and finally P’s use of the internet and social media. 

I reflected on reading this that 14 months is a long time in a young adult’s life, especially one who wanted to spend time with a boyfriend, and that there were a lot of issues before the court. One sentence in the PS for the LA particularly struck me: “it is not in P’s best interests for the proceedings to drag on indefinitely nor for them to be a vehicle to micro-manage all aspects of P’s welfare.”

Assessment of P’s capacity to make decisions in the various domains was conducted by Dr Lilley, who wrote four reports. According to the local authority, “her opinions on capacity remained consistent apart from in one area: consent to sexual relations.” It seems as though there had been a lot of debate around this specific domain, and in particular around a difference between P’s capacity to engage in sexual relations with T, and engage in sexual relations with non-specific others. Dr Lilley’s initial conclusions were that P lacked capacity to engage in sexual relations, then that she lacked capacity to engage in sexual relations for anyone other than a person such as her boyfriend T.  A meeting was held in late January 2024 between Dr Lilley and all the interested parties.  Following that, Dr Lilley wrote a fourth and final report, with that recent view being that P does have capacity to engage in sexual relations. As all parties are now in agreement, it was deemed that it was not necessary for Dr Lilley to attend the hearing. 

The agreed position between the parties now being put forward to the court was that P lacks capacity to conduct the proceedings, make decisions about her care, make decisions about her contact with others, except for contact with close family members she knows well, and to make decisions about using the internet and social media. 

She does, however, have capacity to engage in sexual relations and make decisions about her residence. 

The reason for the hearing was that the court was being asked to make final declarations as to these assessments of capacity and the best interests decisions on behalf of P outlined above. 

The hearing on 6th March 2024[4]

The hearing started at 11.20 am and finished at 11.50 am. Judge Lusty was in a physical courtroom but everybody else was appearing remotely. On logging on, I had added the label “public observer” to my name and I was glad I did because on joining the hearing Judge Lusty asked Lindsay Johnson, Counsel for the LA, to introduce everybody. Judge Lusty also asked me to confirm that I had received, read and understood the TO and I confirmed that I had. 

The other people in court included Counsel for the OS Gemma Daly, solicitors for both the OS and the LA, P’s case manager at the care provider, a privately instructed Clinical Psychologist, a member of the social work team and a representative of P’s Property and Affairs deputy. It struck me that everybody attending the hearing was a professional involved in the case. P was not present and neither were the other two respondents to the case, nor any other friend or family member. 

There was no summary of the case (so it wasn’t best practice in accordance with guidance from the former Vice-President of the Court of Protection, Mr Justice Hayden). But as I had received the parties’ position statements in advance it was probably thought unnecessary, which – as I believe I was the only observer –  it would have been. 

Counsel for the applicant local authority

Lindsay Johnson set out the latest developments. He started by saying that Dr Lilley had updated her report following the very useful meeting on the 31st January. It had clarified views and there was now an agreed position as to P’s capacity across a number of domains, which were included in the draft order (and as I have set out above). He stated that her capacity to make decisions with regards to residence was that she could choose between two different options but that was not an imminent issue. He was asking the judge to make final declarations, to build on interim court orders. But there had been a major change in Dr Lilley’s views on P’s capacity to engage in sexual relations, from the original view of no capacity, to a modified view of capacity to engage in sexual relations with T, to now being assessed as having relations to engage in sexual relations. This meant that capacity issues had been agreed. 

Best interests decisions now needed to be made, but at present the judge did not have all the evidence before her.  A draft plan of contact was in the order, including plans for unsupervised contact between P and T, where there was general agreement. There would be a return to the court if more restrictive measures were proposed. In essence what remained to be determined was a plan for P to have contact with other people, the so called TZ N°2 plan. The social worker was going to prepare that, which would then be agreed with the OS. 

The best interests of P with regards to use of the internet and social media was also outstanding. Mirroring software that allowed for proportionate monitoring of social media was the restriction currently in place. It was proposed that the draft care plan should include everything with regards to best interests before the court, namely the TZ N°2 plan and methods for monitoring social media and internet use. 

Lindsay Johnson also raised the fact that P’s mother should be given an opportunity to provide a statement to the court if she wished to. She had not taken an active role in proceedings to date and had not chosen to file evidence. He said that he wanted her to have a voice in the proceedings, although he was in no way suggesting that she didn’t want to be involved in P’s care. He proposed a round table meeting and /or an advocates meeting. 

At the final hearing, the arrangements for care, via the care plan, will be presented. The judge will have to decide if the proposed plans posed proportionate restrictions to P’s liberty.  

Counsel for P (via her litigation friend the Official Solicitor)

Gemma Daly stated that the OS accepted the conclusions of the order. With regards to capacity, the judge could make s.15 final declarations on the matters in the order. The concerns about Dr Lilley’s evidence had now been resolved now that she had changed her position. The connected concern about contact with others had also been resolved. Contact with close family was now a separate issue and it was deemed that P does have capacity in that domain, as a distinction to “contact with others”. Dr Lilley’s view was that P could gain capacity when she gets to know somebody over time. The difficulty in this case was the distinction between capacity to engage in sexual relations with somebody (which she was deemed to have) but the fact that she lacks capacity to make decisions about contact with others. 

Gemma Daly referred to a paragraph in Dr Lilley’s most recent report which reads. “I now consider that P does have capacity to make decisions about sexual relations with others generally, not just with T. She does understand and retain the relevant information and she is capable of using and weighing it and communicating to make decisions about engaging in sexual relations”.  With regards to contact with others, “P lacks capacity to make decisions about contact with others, with the exception of close family members she knows well and has known for many years. This should be subject to review”. 

Gemma Daly stated that logically there was a distinction between capacity to engage in sexual relations and capacity to make decisions about contact with others in this case. She went on to say that there was not a longitudinal approach to capacity in this case and the judge was not being asked to make an order as to this as it would be contentious. She went on to outline that the “causative nexus”, the cause of the lack of capacity, was a mental disorder and was not due to P’s age or maturity. However, because of her age and maturity, her capacity would have to be kept under review. 

In terms of capacity for decisions as to the use of the internet and social media, Dr Lilley had not had the opportunity to assess whether she has capacity. (The report states that she lacks capacity but that “this should be subject to review, particularly as restrictions are reduced and more information about her current functioning becomes available.” P had not been able to hold information in mind because of her impulsive behaviour. Education has helped, but she still lacks capacity. The order asks for review periods to be added to the care plans.  

In terms of best interests, Gemma Daly referred to §33 of her PS, stating that P’s capacity to “engage in sexual relations with others would be restricted somewhat by best interests regarding her contact and the support she requires”. She referenced Mr Justice Hayden’s comment in Manchester CC v LC & KR [2018] EWCOP 30 that “It has been canvassed that if the court is to restrict LC either in part or, potentially, fully in such a sphere (i.e. where she has capacity) the court ought to only consider such measures under the parens patriae jurisdiction of the High Court.” (I understood by this that if P wanted to engage in sexual relations with somebody other than T but was restricted because she was not deemed to have capacity to have contact with them and a judge would have to decide whether it was in her best interests for contact, then that would have to be heard in the High Court. At present it isn’t a situation that has arisen.) 

Summing up

The judge then summed up. She said that things have moved on since they were all together and she didn’t underestimate the effort that had been put in, especially by Dr Lilley. She was satisfied that she could make s.15 final declarations in the draft order which had been read by Mr Johnson. She appreciated that Dr Lilley’s views had changed but the evidence had made it clear why they had changed. She was not in a position to approve a final order because it was necessary to continue interim restrictions. However, there were sensible directions to hopefully take the case to the point of concluding, to the benefit of everybody.   The final hearing is listed for 2pm – 4pm 28th May 2024. 

The judge finished by asking that her thanks be sent to Dr Lilley and by saying that “everyone’s approach has been conciliatory which has been very helpful”. 

Reflections 

This hearing underscores the importance of an expert witness to decisions about capacity. Clearly a lot of work had gone on behind the scenes and I thought it was interesting to hear about a case where an expert witness had changed their opinion, and to be given an insight into the process that led to that. This hearing underlines that people can have (or lack) capacity for different things and at different times and that there is no such blanket term as ‘having capacity’, which I think lay people like myself can sometimes assume. 

As a family member involved in a COP case myself, and keen to be involved, I wondered why neither P nor any family member was at the hearing. I was pleased to note that Lyndsey Johnson was keen for the family’s voice to be heard. This case highlights that, sadly, anybody at any time can become a P in a COP case through an unexpected injury, and any family can find themselves involved too. That’s why open justice is so important in increasing understanding and awareness of the Court of Protection. 

Finally, the process of gaining access to be able to observe the hearing was an exemplary instance of open justice.  I sent a standard email to the court, requesting the video link, the transparency order (TO) and the position statements (PS) at 7am the morning of the 6th March. I received the TO at 7.35am, from the administration officer of the SE court hub. I then received the link to the hearing from the clerk to HHJ Lusty at 8.30am. I was then surprised to receive another email from the administration officer at about 9.50am, saying that Judge Lusty had informed her that “Counsel for the OS is just waiting for instructions from her solicitors about the disclosure of their position statement”. And then at 10.10 am I received both PSs, a full 50 minutes before the hearing was due to start, giving me a good amount of time to read them. This was the first time I could recall being sent the PSs before the hearing. I have sometimes been sent them when I have requested them again after a hearing but I would say that more often than not I am not sent them. 

So, in this case I was able to really appreciate what was covered in the hearing. The PS was redacted so that P could not be identified, nor the other two parties. This was in line with the TO. It was so useful to me to have read both of these before the hearing started. 

‘Anna’ is the pseudonym of a woman whose mother was a P in a Court of Protection s.21A (challenge to a Deprivation of Liberty) application. She is a core team member of the Open Justice Court of Protection Project. She is particularly interested in family experiences of the Court of Protection and increasing understanding of the Court of Protection for families. Anna is not using her real name because she is subject to a transparency order from her mother’s case. She is hoping to change this. She has written about her family’s experience: ‘Deprived of her liberty’: My experience of the court procedure for my mum

[1] These included P’s Property and Affairs deputy, her case manager, and a psychologist, who were all present at the hearing I observed. A social worker was also present. 

[2] I have been unable to identify who exactly Dr Lilley is, as she was not named in full in either the court documents or during the hearing 

[3] This was identified in the LA PS as a TZ-style plan, after TZ (N°2) [2014] EWHC 973. Daniel Clarke has blogged recently about another case involving a TZ-style plan here

[4] It is forbidden to record any part of a hearing and I don’t touch type so my notes will not be 100% accurate.  

“For now, it’s a ‘no'”: Court considers access to Grand Theft Auto

By Gill Loomes-Quinn, 28 April 2024

Grand Theft Auto – a series of action-adventure games – was at the centre of this hearing.  The protected party (C ) doesn’t want restrictions on his liberty to play the video games – but is (his carers say) “unable to cope with the emotional impact” of them. Gaming “leads him to try and copy in real life what he sees happen in some games as the boundaries between fantasy and reality blur for him”.  This includes assault and threats of physical and sexual violence against both his carers and/or the public. Work to increase C’s self-awareness of these issues has not been wholly successful.

And so the case (COP 12521181) was in court on Monday, 3rd April 2024 before District Judge Wylie, sitting in Lancaster.  It was a case, about which judgments have previously been published (A Local Authority v C & Ors [2021] EWCOP 26; Re C [2021] EWCA Civ 1527) – which is what stimulated our interest in watching the hearing – but the issues facing the court in today’s hearing were entirely different to those addressed in the published judgment. 

The protected party, C, is 30 and has Klinefelter syndrome and autism.  He is said to enjoy sports, music and history. The application from the local authority was for a further 12 months authorisation of his continued deprivation of liberty relating to residence and care, following an objection by his Rule 1.2 representative. 

Having read the previous judgments, it was really great to hear from C’s senior social worker, via Ben McCormack, counsel for C (by his litigation friend, his Rule 1.2 representative) about how successful the support arrangements were proving – thanks largely to the “fantastic job”[1] being done by his care provider according to an “unusually detailed care plan”; and of how settled and “improved” C’s quality of life had become, following a period between 2014 and 2017 of residence in a secure hospital with “very limited options”. 

This hearing served as an important reminder to me that ‘life goes on’ for protected parties following a hearing or the publishing of a judgment; and that for many disabled people, the influence of the MCA 2005 legal framework, and often the Court of Protection, is long-term, and can cover a broad range of facets of a person’s life.

THE HEARING

Access

Having emailed the court with my request for the hearing link at 22:58 the evening prior, I spent the morning of 3rd April checking my email periodically to see if the request had been successful. I always find this process fraught and anxiety-provoking due to the opacity and seeming randomness underpinning it. On this occasion, however, being in contact with Celia alerted me to the fact that she had been successful and had received the link before me. She was also able to provide me with an alternative email to contact (for a court in Blackpool, for some reason). Following a protracted period of email exchange with a court administrator in Blackpool, I received both the link and the Transparency Order by lunch time and was ready for the hearing.

Transparency

The hearing started at 3:05pm with a discussion regarding the Transparency Order. Counsel for C via his litigation friend and Rule 1.2 representative (Ben McCormack) argued for amendments to the Order to bring it in line with the terms of the restrictions in operation in previous proceedings concerning P before the Court of Appeal in 2021. The proposed amendment would increase the scope of the restrictions to include: the identity of C’s litigation friend at the time and now (both of whose specific geographical location could potentially serve as a means of identifying C); the identity of the Local Authority; the names of P’s social worker, healthcare professionals and other carers; P’s age; and the name of any hospital in which he had received treatment. Ben McCormack argued that there had been no material changes in P’s life since 2021 to suggest that different restrictions would be appropriate now, and care needs to be taken to ensure P’s care package is maintained without disruption – particularly in view of the high profile previous judgments. These amendments were endorsed as ‘sensible’ by counsel for the Local Authority (Roger Hillman) and were approved by the judge. 

Celia Kitzinger raised two questions relating to reporting the hearing and the risks of identification of the protected party: (1) whether it would be acceptable to refer to P’s age as “in his twenties/thirties” – in answer to which it transpired that his exact age of 27 was previously included in the Court of Appeal judgment from 2021. The information was therefore already in the public domain and so it could continue to be reported in these terms; and (2) whether reporting that the case was being heard before District Judge Wylie in Lancaster was identificatory (this was agreed not to be the case). 

Celia asked her questions by turning on her camera and mike (observers usually have these turned off during proceedings) and speaking at an appropriate point in the proceedings (i.e., while no one else was speaking but before the hearing moved away from the theme of ‘transparency’ issues).

It’s self-evident that the role of members of the public present during a hearing is simply to observe, and to refrain from taking any active part or exerting any influence on the substantive proceedings   Sometimes, however, especially in the absence of journalists in court, we have a role in ensuring the practical implementation of open justice.  Celia’s intervention provided an example of how this role can assist the court in clarifying the scope and detail of the Order – thereby supporting the court’s policy commitment to open justice. This is increasingly common as observers gain the knowledge, skills and confidence to perform this role. For examples of observers’ engaging actively with the contents of the Transparency Order to ensure that both Article 8 (P’s right to privacy) and Article 10 (the public right to information) are appropriately balanced see: Daniel Clark’s blogs: “When P’s best interests aren’t in a Council’s financial interests”; “Judge approves P’s conveyance (against his wishes) to a care home – and tells lawyers to “just stop!” routinely anonymising public bodies in draft Transparency Orders“; and Claire Martin’s, “A most distinguished man”).

Issues before the court

After the discussion of ‘transparency’, Roger Hillman (counsel for the applicant local authority) opened with a proposed outline of today’s hearing. He suggested that after a short summary of the current situation from him, there would be a break in the hearing for the judge to speak (remotely) with C while everyone except C’s litigation friend and solicitor left the call. We would then rejoin at a prearranged time for any judgment to be handed down. This was accepted by the judge.

In the opening summary, I learned that a “commendable achievement” had taken place regarding C’s care since the placement commenced in 2017, following a period between 2014 and 2017 when C had been in a secure hospital placement with “very limited options”. Challenges attributed to C’s autism and learning disability, particularly his emotional dysregulation, have apparently been addressed via a detailed care plan “which is quite a volume in its own right”, and which focuses on “working with C to achieve outcomes for him and to involve him in identifying solutions”. C’s care provider was commended for doing “a fantastic job”.

Two ongoing issues in C’s case related to his objections to decisions restricting his access to the computer game Grand Theft Auto (GTA) (because of its apparent disruptive impact on his emotional wellbeing); and to his consumption of fat-intensive foods and sugary drinks (because of concerns regarding his weight). An amended care plan had been sent through and a Positive Behaviour Support (PBS) Plan is to be filed as well. This is to include recommendations about how to manage the implementation of the best interests decision concerning P’s food and drink intake, and what to do when P challenges this. Subject to this document being filed in 3 weeks’ time, Hillman asked that the court approve the care plan in its amended form (along with the restrictions), as appropriate, necessary, and proportionate; and to renew the standard authorisation (of the DoLS) for the next 12 months. He added that the current litigation friend could continue to be Rule 1.2 representative in the run-up to the next review in 12 months. He then invited Ben McCormack (counsel for C)  to tell the judge something of the “preoccupations” of C and the subjects of his complaint. This was to assist the judge in her upcoming meeting with C.

McCormack began by indicating that, for C, this was a hearing where the court was going to decide whether or not he would be able to play GTA. Apparently “we know he wants to play GTA” but there is a “sophisticated analysis and justification” as to why this is not in his best interests as “it’s a game that triggered lots of disruption to the carefully calibrated care plan he’s got”.

The parties, including C’s litigation friend, agree that GTA is not in C’s best interests – so  access to GTA is “not an issue between the parties” and “there isn’t a dispute between the parties to the litigation”.  By contrast, however, C himself very much wants to play GTA: that’s “his preoccupation and likely to be what he wants to talk to you about”.

We then heard about why the care plan in a broader sense was said to be in C’s best interests. As background context, McCormack reminded the court (and informed any observers unfamiliar with the case) that C had been in hospital for three years; adding that it was “rare” to find someone with his sort of history to be now discharged and “living successfully in the community” with a “sophisticated and knowledgeable team” who “really understand what makes him tick”. C is “consulted” and “helps to design” systems that assist him to “navigate the difficult parts of his life”. The position of C’s litigation friend is that the care package is working well and although C is deprived of his liberty, this is in his best interests. The “tidying up of documents” [following today’s hearing] is not going to affect materially this position, and it is thought unlikely that any other hearings will be necessary. Referring to his position statement, McCormack suggested that “we think it would benefit P to feel that this was an end to the case”, and that if the judge were to agree that no further oral hearings would be necessary and that the care package is working well, “it would be helpful if you could make sure C is aware of it”. He concluded by asking if he could assist the court with “any further groundwork” for the judge’s meeting with P. 

There followed some discussion between Ben McCormack and the judge, beginning with the judge enquiring as to the detail of C’s “food issues’” It turns out that P reportedly wants to lose weight but isn’t managing to do so [N.B., there is relevant literature indicating that “weight and body composition variations” are associated with Klinefelter syndrome, although this was not referenced in the hearing]. A referral to an NHS dietitian is apparently ongoing but currently subject to a waiting list. It is envisaged that the PBS plan will cover what staff should do when C “goes behind those rules” aimed at supporting weight management. However, counsel considers it unlikely that C will want to discuss this issue much with the judge.

In relation to the game C is prohibited from playing, the court heard that GTA is “not some backstreet, under-the-counter game – it’s a huge part of popular culture, one of the best-selling video games in the world”. C would have been able to see people talking about it and watch clips of people playing it on YouTube (emphasising to me the potential for social exclusion and marginalisation to result from seemingly intensely individual best interests decisions made in the Court of Protection). Then, before the court was cleared ahead of the judge’s meeting with P there was a brief exchange about how P had managed his previous interaction with a judge – in the hearing before Mr Justice Hayden reported here. Addressing the judge, counsel said that, when preparing for the current proceedings, P said he “rather hoped you were as good as the last judge he had”!

We were then asked to leave the video-platform  while the judge met with P.  We were told we would be sent an email when the judicial visit was finished and it was time to return.

Submission from the Local Authority

When we returned to court, Roger Hillman made his submission on behalf of the Local Authority. They are keen to see this “successful” placement continue and thrive, but note that life is not always “plain sailing or easy for C” as he has “mental health problems and problems with managing his emotions if they get the better of him” – including when he “mixes up reality with fiction or make believe as appears on the video screen”. It is for this reason that the Local Authority wants the court to rule that the ban on C’s playing of GTA continues. He conceded that “C may disagree and have his own opinion on that”, adding that “nothing is forever” and the decision “can be reviewed” in future, but as things stand, he hoped the court would say the care plan is a “reasonable and proportionate approach”. He therefore asked the court to approve that restriction in the care plan. This was followed by some brief discussion of the procedural formalities concerning the filing of the care plan and PBS Plan with the court and the judge’s authorisation of the deprivation of C’s liberty for the following 12 months. 

Submission for C (via his litigation friend)

McCormack made his submissions on behalf of  C, which echoed many of the points made by Hillman: C has an “ongoing interest” in accessing GTA and “nobody’s ruling it out forever”, but currently this can’t “be effectively managed” and is therefore a proper restriction of his liberty. Further, considering C’s care plan more generally, the position of C’s litigation friend was that while C ’s life is “tightly controlled in many respects”, when read as a whole, the court should approve the deprivation of his liberty as appropriately within the scope of Article 5 of the European Convention of Human Rights.

Judicial Decisions

After more discussion about the procedural formalities to follow today’s hearing, the judge concluded by saying that she would adopt McCormack’s proposal that a COP 9 form with either a final order or a request for a further hearing (in the event that an order could not be agreed by the parties) should be filed with the court, with deadlines of 24th April for the PBS plan and 8th May for the COP 9 or request for a further hearing being confirmed. She explained that she “had considered very carefully the detailed care plan”; adding that P “has a level of insight” into the issues caused for him by playing GTA – although “he said to me it was the fault of the staff rather than the impact of the game”. The judge’s view was that this is “proportionate and necessary” and can be recorded on the face of the order. She was “entirely satisfied it’s in P’s interests that the care plan should be approved and he shouldn’t have access to GTA, knowing he will be very disappointed” but “for now, it’s a no”. 

Reflections

Today’s hearing was a reminder for me that the lives of the Ps we read about in the (relatively few) published judgments to come out of the Court of Protection continue beyond the proceedings that produce those judgments[2]. As in this case, a ‘P’ may find themselves the subject of court proceedings multiple times over the course of many years; and this caused me to reflect on how for many disabled adults, the socio-legal framework of mental capacity legislation can enmesh itself into their lives across a broad range of issues and domains over the course of a lifetime. In such instances, while a hearing such as this may function as a ‘snapshot’ into a person’s life,  a longitudinal, holistic view of the law’s impact on life is also crucial. 

Throughout the hearing I noted the juxtaposition of the technical, legal, somewhat ‘abstract’ framework of the Deprivation of Liberty Safeguards (DoLS) authorisation alongside the more ‘real world’ concern with access to the GTA game that was exercising P, described as the “point” of the hearing from his perspective. And it was certainly novel, to me, to see the court taken up with the question of access to a computer game

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

[1] Care has been taken to be as accurate as possible in quoting. However, as recording of court proceedings is prohibited, quotes cannot be guaranteed to be verbatim.

[2] See also:  “The immediate steps in the aftermath of that judgment”: Increasing concerns, a TZ care plan, and judicial continuity 

When P’s best interests aren’t in a Council’s financial interests

by Daniel Clark, 21st April 2024

The court has previously found that it is in the best interests of Mr B to remain in his current care home. However, unless he obtains Continuing Healthcare funding, he will have to move because the local authority aren’t able to meet the high cost of the care home. To add insult to injury, the Transparency Order prohibits me from identifying which local authority is involved in this case. 

This case (COP 13978955) was back in court on Wednesday 13th March 2024. It was heard before District Judge Parker, who was sitting remotely (via MS Teams) at Birmingham Family Court. Varsha Jagadesham, of No5 Barristers Chambers, represented Mr B via his litigation friend, the Official Solicitor. Unfortunately, I can’t tell you who represented the respondent local authority because she is employed by that local authority.

I will first explain the issues with the Transparency Order, and then detail what happened during this hearing. 

Transparency matters? 

I received the link for this hearing very late. The case was listed to start at 12noon but another observer and I didn’t receive the link until 12:15. When we joined the link, the judge seemed confused by our absence and I think it’s fair to say that this was an administrative issue rather than a conscious attempt to exclude us.

We hadn’t received the Transparency Order but the judge explained that it was in the usual terms. I took that to mean that it prohibits the publication of information that identifies, or is likely to identify, P or where he lives, or any of his family. 

However, when I requested the Official Solicitor’s position statement I also asked for a copy of the Transparency Order. This was simply so I could provide Celia Kitzinger, our blog editor, with a copy: after all, she is also bound by the Injunction but can’t comply with its terms if she doesn’t see it. 

I was surprised to see, in the section that details the Information covered by the Injunction, that I cannot publish “any material or information that identifies or is likely to identify that […] A Local Authority is a party to these proceedings”. This also means that I can’t identify the ICB because to identify the ICB would mean someone could reasonably identify the local authority. The ICB are no longer a party but are nevertheless very involved in this case. 

These are not the usual terms of a Transparency Order. A Transparency Order should protect P’s identity and it is very rare indeed for the identification of a local authority to make it possible to identify P. I was confident, having had the benefit of already attending the hearing and reading the Official Solicitor’s statement, that risk was so small as to be almost non-existent. 

I therefore wrote an email to the judge asking for the Transparency Order to be varied. I believe that the name of the public bodies are of legitimate public interest for two reasons. First, as I will explain, its finances are of real importance in this case. Second, public bodies are funded by our taxes, and the public have a right to know how that money is being spent (or not spent). 

The judge responded reasonably quickly, asking the parties to seek instructions. He explained that, if there was no objection, the Order would be amended. If an objection was received, submissions would need to be made and the matter dealt with at the next hearing.

Unfortunately, I have heard nothing since. I have delayed writing this blog in the hope that an amended Transparency Order would find its way into my inbox. It has not but, with the next hearing only a couple of weeks away, I have made the decision that this blog should be published without the identity of the local authority and ICB.  I will update it (assuming I am allowed to do so) with the names of the public bodies when I hear back from the judge.

Improving Mr B’s quality of life 

Mr B has a diagnosis of a progressive neurological disorder which is the cause of his lacking capacity to make his own decisions about where he lives and receives care.  He has challenged his deprivation of liberty (at a care home) under s21a of the Mental Capacity Act 2005. At a hearing in December 2023, which we have not observed, the court found that it was in Mr B’s best interests to stay at his current home due to risks associated with falls and choking. 

In the words of the judge at the start of this hearing, “this decision didn’t go down too well”. The Official Solicitor’s position statement explains this in more detail. Mr B was very upset with the decision, and had (out of character) been verbally and physically aggressive towards carers. He has reported being low in mood, is communicating needs rather than having a conversation, and hasn’t engaged in any group activities (which he previously did). 

Part of the focus of this hearing was to look at what could be done to improve Mr B’s current situation.  The judge was clear that Mr B simply cannot be coerced to be out and about; “he needs to get back into the pilot seat”. 

Given his love of football and the cinema, there will be further assessments on how visits to both of these can be accommodated, as well as how he could visit family. The judge also mentioned that he understands that Mr B’s Netflix subscription has lapsed, and he wondered whether that could be sorted too. This will mean Mr B can watch his favourite film series. 

Overall, I was very impressed with how familiar the judge was with Mr B’s likes and interests. Clearly, he wanted to ensure that Mr B’s quality of life could be improved as much as possible, and took an active role during the hearing to ensure that nothing was missed. 

Finances 

Mr B’s stay at his placement was being funded by an ICB, which had been a party to proceedings. However, following a Continuing Healthcare funding review, he was assessed as being no longer eligible for this. 

While his sisters are appealing the funding decision, the team in charge of the review are very busy and it will take some time. To offset these delays, the social worker has submitted a new CHC checklist (by which claims are assessed) but this could also take some time. 

The local authority is funding the care home but, because of its high costs, they are not willing to do this indefinitely. They may withdraw their funding before any appeal or new assessment is complete. Another potential care home has been identified but this is less than desirable. The judge put the situation like this:  “I appreciate the local authority are trying to continue the funding but they cannot continue it ad infinitum. Suffice to say, in December I made a best interests decision on the basis that Mr B remains in his current home. It would add insult to serious injury if, having made that decision, he then is moved away from a place where he has been for a significant period of time, which is local to his family, which the other home isn’t…There’s a tipping point [for people, especially given] all the adversity and difficulties he’s coming to terms with. That’s really worrying.”

This is a truly intolerable situation. It is not the fault of individual actors, all of whom are focussed on Mr B’s best interests. It does, however, speak to the financial management of a certain Council. It also speaks to the decision-making processes of a certain ICB: how can somebody with a progressive disorder be assessed as eligible for CHC funding only for this decision to be revoked? 

There’s an awful lot to be said here. This case raises questions about the conflict between P’s best interests and a local authority’s financial interests. It also raises questions that I can’t actually ask in this blog because to ask them would probably lead to someone being able to identify the local authority. 

Hopefully, by the time of the next blog, the Transparency Order will have been varied so that this case can be reported fully. 

This case will return to court on Friday 10th May 2024. 

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132

A contested capacity hearing

By Nell Robson and Claire Martin, 19 April 2024

We observed a hearing (COP 14181752) in Derby before District Judge Lubega on the 12th April 2024. It was listed like this on CourtServe: 

My (Nell’s) interest in this hearing was piqued because I am a sixth form student currently completing an EPQ (Extended Project Qualification) about capacity and best interests for pregnant and birthing women. So, I have been looking out for cases where capacity is an issue (and finding cases that specifically relate to pregnancy and birth decisions is hard because the listings often do not say what they are about in that amount of detail). 

We were really pleased to be sent the link – and the Transparency Order – for this hearing in plenty of time and the court staff joined us early to check that we could hear and see. Thank you! 

The Context (Claire) 

The application was from Sheffield City Council and the respondent is P’s father and 1.2 Rule Representative. 

We learned (in a very helpful summary, invited by DJ Lubega, from Navpreeth Gihair, counsel for the Local Authority) that P is a 19 year-old woman who has diagnoses of autism and pathological demand avoidance disorder (PDA). She has been living in a care home (which she chose from options available) since December 2022 and is said to be happy there. Counsel for the Local Authority said that P has ‘chosen to be mute since February 2020’. We didn’t learn the context for this situation or how P currently communicates her wishes and feelings. 

The issues for this hearing were:

  • The authorisation of current restrictions for P on the internet and computer games – it was reported that P will ‘self-neglect and will prioritise gaming over everything’. So, at the moment, the internet is turned off overnight so that gaming is prevented, as well as at specific times through the day to enable certain activities, such as eating. 
  • P’s capacity for deciding where she lives – and although this is not a current issue (P is happy where she is, as is her father), there is a dispute between the Local Authority and P’s father about her capacity to make this decision. 
  • Who is authorised to take P out of her home. 

Not much was discussed in relation to the restrictions currently in place – we think that the judge agreed to the draft court order to continue with those restrictions in the care plan (Judge: “I am content with the care plan”). 

In relation to the other two issues, P’s father said: 

“[P’s] regime currently is appropriate – better than for years, she has a good routine. The care provider needs to be CQC registered: that’s down to them. The only issue really is [P] needs to be able to decide where to live, but that’s not something on the table so [….] As far as free to leave goes, she wouldn’t go anywhere on her own anyway. Where she lives, there’s no parks etc., she always needs somebody to support her [talked about needing a car to get anywhere at all]. The issue here is, they were stipulating a group of people who weren’t able to help her, and excluding a group of people who were able to help.”

It seemed that only the current care home staff were allowed to take P out, but P does not have as good a relationship with them as with staff from another care agency or with her father (and other family members), who – we think – are the ‘excluded’ group of people that P’s father refers to. She won’t go out with the ‘stipulated’ group of people, meaning, in other words, that she doesn’t get to go out. 

It was agreed that a recital in the court order would ensure the current restrictions are changed such that “[P] would need to be accompanied by someone appropriate to look after her” (judge). 

The final issue before the court was whether or not P has the capacity to decide where she lives. In September 2022, P’s social worker assessed her as lacking capacity for this decision. P’s father disagrees with this but is concerned that pursuing an up-to-date capacity assessment might be distressing for her – given that where she lives is not a live issue at present. He said “She is forming relationships with the psychiatrist and I wouldn’t want to see that go backwards”. 

Counsel for the Local Authority said, in relation to outstanding issues for the court: 

“The only factor is regarding whether she has capacity or not. That was raised by [P’s father]. He is still saying to court that P can make these decisions, and the Local Authority is saying the contrary. These proceedings are to approve the deprivation of liberty. It’s whether there is an active challenge to the capacity evidence. That is of concern. If he is saying ‘she can make these decisions for herself’, then the entire court procedure is predicated on fact that she lacks capacity. So, I would be hesitant to end proceedings today if [P’s father] is saying that she has capacity.”

The judge confirmed “I don’t think I had in mind a final order today” and proceeded to think about whether and how P’s capacity might best be determined, including appointing an ALR (Accredited Legal Representative) and commissioning a Section 49 report.

Different Views on Capacity (Nell)

Since this was the first time I have ever observed a hearing, and didn’t know what to expect, or know anything about the case, it was extremely useful that counsel gave a summary of the case at the start of the hearing (as I’m told was recommended by the former Vice President).  It allowed me to think about the matters at hand during the hearing rather than being concerned with trying to work out the facts of the case. If that had not been provided I can imagine I would have found it much harder to understand what was happening and what was being decided in the hearing. I could focus on the proceedings to help me to see how capacity is approached.

The current support network surrounding P is based on the findings that she lacks capacity for a multitude of things, however this was (partly) disputed by P’s father. This highlighted how a perceived lack of capacity should not be assumed – different people have differing opinions on whether P has capacity. And even though a social worker had assessed P to lack capacity to decide where to live, this is not set in stone and challenges can be made to such decisions. I learned that a section 49 report may be requested from people caring for P, to help the court understand and decide P’s capacity for certain decisions. In this blog it explains:

“A common scenario when a section 49 report might be considered is when P’s capacity is in question. In such a case, the parties might seek an order requiring the NHS Trust to arrange for a  consultant psychiatrist to assess P’s capacity and produce a report. Depending on the particular circumstances, the appointed clinician might also be asked to consider additional, specific areas of capacity and to make recommendations regarding the management of P’s condition and best interests more generally.”

In the hearing it was also interesting to see the court balancing the potential need for a renewed capacity assessment, whilst also considering how undertaking the assessment might destabilise P. The father highlighted his worry that undertaking a new capacity assessment could cause P to backtrack in the progress she has made. He also showed a nuanced understanding of capacity in stating how P may not have capacity to sign a tenancy agreement but does have the capacity to decide where she should live: 

Father: The only other thing is being entitled to decide where to live. In my opinion, she’s the only person who’s made sensible decisions about where to live. Including where she lives now. Whether she should be signing a tenancy agreement is another thing, we have no grounds to prove [talked about P not making poor decisions in the past and knowing where she likes to live]

I thought this was an important point: he uses past evidence of good decision making to suggest that this demonstrates capacity for future decision making in the same domain. This is an important aspect of looking at capacity: just because someone lacks the capacity for one decision it does not automatically mean they lose capacity for other decisions. 

Concerning the development and completion of my EPQ, it was useful to see how capacity was considered in a hearing where opinions differed about whether or not P had capacity. I can imagine opinions often differ around whether someone has capacity or not and it is important that if a person is assessed as lacking capacity for a decision, the judgment that they lack that capacity must be certain and based on clear evidence. If the evidence was not ascertained correctly, then that opens the potential for the right to autonomous decision-making being taken from a capacitous person. I think that would be a dreadful situation. 

In regard to medical decisions, it can mean the difference between whether someone can choose their own medical care or not. In my EPQ this is whether a woman is able to autonomously able to refuse medical interventions such as a caesarean section, or if it can be decided that she must endure one against her wishes as she has been assessed to lack mental capacity to make that decision. Assessments of capacity, by others, control whether people are able to make autonomous decisions or not, which restricts their freedom and control of their own life. It really highlighted to me the importance of making the correct judgement and what a difficult job judges must have.

The Outcome (Claire and Nell)

DJ Lubega agreed the final wording for the court orders, which included the appointment of an ALR and the importance of stating that anyone ‘appropriate’ to accompany P outside of her home was permitted. The judge was clear that, although P was not currently stating she wished to move out of her current home, the existing court authorised restrictions that she is subject to, do amount to a deprivation of liberty, and would continue to amount to a deprivation of liberty even with a wider pool of people taking P out. Addressing P’s father the judge said: 

“If you’re saying she has capacity to make the decision for herself, if she turned around next week to say I want to live somewhere else, then this needs to be bottomed out. It needs to be done in a lawful way and needs further consideration from the court. My question is [….] given the concerns both parties have expressed about the impact on P, what process should take effect. Is the entire process needed? Can it be streamlined?”

Counsel for the Local Authority confirmed: “There is scope for it to streamlined. It may be that when the ALR is involved, there is a different way. The work with P by the psychologist will continue in any event. We are all alert to concerns about further distress and need to build a relationship carefully. Simply, that if we need further capacity evidence … the psychologist has said that if we need one then it needs to be done very carefully. We need to understand how that can be better approached in her best interests. We don’t know how at this stage.”

We didn’t learn very much at all about P as a person in this hearing – there have been several hearings in the case, so this is perhaps not surprising. We wondered why P had not spoken since 2020 and how she communicated her wishes and feelings – and it sounded like she was able to do so. P’s father, as well as P herself, seemed to be very happy with the care she receives where she is living now, and all parties were concerned about disrupting her relationships and stability by subjecting her to a capacity assessment; an assessment that is needed for the Court of Protection to have jurisdiction in relation to decision making about where P lives, both now and in future. 

Given that P is not expressing any desire to leave her current home, and everyone was worried about the psychological impact of more assessments, we were unsure why proceedings could not be brought to a close without a determination about capacity for that decision. Then, if and when P did express a wish to move home, a capacity assessment could be carried out at that time. 

A ”short, final hearing” (judge) is planned for 27th June 2024. 

Nell Robson is a sixth-form student completing an Extended Personal Qualification entitled: “What are the challenges in making best interests decisions for pregnant/birthing women?”

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

“A most distinguished man” 

By Claire Martin, 15th April 2024

A hearing before HHJ Beckley on 18th March 2024 (COP 1347207T) started off with counsel for P (Alison Harvey) describing the person at the centre of the case as “a most distinguished man’”. He is used to living in Kensington & Chelsea and wants to go back there to live. 

I am able to name the Royal Borough of Kensington & Chelsea (RKBC) because – although the Transparency Order (TO) that observers are served originally stated that RBKC could not be named – I emailed the judge before the hearing started and asked him to consider changing (‘varying’) the injunction. 

At the start of the hearing, HHJ Beckley said that this issue had been “helpfully raised” and that “ … the TO unusually, and in my view erroneously, says RBKC shouldn’t be identified. There’s no reason that RBKC shouldn’t be identified. That will be taken out of the order“.

We have found that (as this case illustrates) it is much easier to vary a Transparency Order before or during a hearing than afterwards. So, it really helps to be sent the TO prior to a hearing. 

The Hearing

P (I am not sure how old he is) was a professional man in the STEM sector. He has lived where he currently resides since 2020.

From 2010 he is said to have experienced depression and alcoholism and then in 2013 he had a brain injury that has affected his short-term memory and has left him with seizures, which have led to further injuries. Up until some time in the mid-late 2010s he lived with his mother, but she moved out because she felt unsafe. Then he was evicted from the family property and had a further seizure in 2018 which eventually led to him living where he lives now. 

P is the applicant in this case, via his ALR (who kindly shared their Position Statement so that I could better understand the current situation). The application was to challenge the authorisation of P’s deprivation of liberty at the place where he currently lives. The respondent is the Royal Borough of Kensington & Chelsea. Two family members, his niece and his sister, were also (remotely) at the hearing, but they are not (yet) parties in the case. 

P really does not want to be living where he is now. He has consistently stated this. Counsel for P said that “proceedings have been DOGGED by delay. By the last hearing we reached a state of considerable vexation from his ALR” (her emphasis). The proceedings have been ongoing since March 2022 and “we have no tangible progress to show for it for [P] in terms of getting back to the area where he wants to live”. 

P had been assessed by various care homes, and had repeatedly been turned down for a place to live. However, on the morning of the hearing, a company (which had previously declined to offer a place) had come forward with a place for P. 

This was presented as an opportunity for P. He hadn’t yet seen it though, and had “turned his nose up” at it, being in a ‘less smart area of Kensington and Chelsea’. His counsel said “we hope that when he visits it he will feel more positive about it”. 

However, it transpired that P’s family was somewhat concerned about the proposed move. The court was told that “they are involved at every step. Ultimately they are consulted and involved rather than having power to force the court to complete options“. Alison Harvey, Counsel for P, proposed a plan: “… an initial transition meeting, an opportunity for the family to see [the care home] so they can take a view, and then a transition plan which would include provision for [P] to visit the placement. Advice would be sought as to how to present that to him, make it as positive as possible. See if we can reach agreement on a transition plan. We are dependent on [P] wanting to go. That remains a question for all of us.”

Other options would be considered in parallel, in case it didn’t work out. The relief in P’s counsel’s voice was palpable when she said “having been through a very rocky period we have achieved for the first time a concrete option to explore within Kensington & Chelsea, and that’s very exciting for everybody“.

Counsel for RBKC (Catherine Rowlands) and P’s family seemed less excited about the developments. 

Catherine Rowlands said, “Your Honour, the proposal that [P] should go to [the care home] is not set in stone. He has at the moment said that he’s not even willing to look at it“.

RBKC would place P on the waiting list for a council property (which would require a care agency for independent living) and the social worker was to do that. This was a “fallback” (said the judge) and “this isn’t going to magic a property rapidly“.

The judge then addressed P’s family. P’s sister spoke first. She said  that she was concerned about P moving out of the place where he is now because of a potential reduction in support. She mentioned that he currently receives psychological support from a psychotherapist and that he has epileptic fits and is concerned about whether he will receive 24/7 support. A further concern is access to alcohol and potential trouble with the police. 

P’s niece (who is a doctor) expressed pleasure that progress had been made, though she had reservations. She was concerned that the place being proposed now had, only the previous week, said that their care home was not appropriate for P, “so we’ve done a 180“. She also said that, despite being told that they would receive communications about the case, the family received everything “last minute” and that she felt this was “being pushed through … it feels like due diligence isn’t being done”. She outlined significant care concerns: “The website [of the proposed care home] mentions offenders and ex-offenders. My uncle is very vulnerable. With my healthcare hat on … he needs a consultant neurologist like he has in [current residence]. Who’s going to do that? Timing is my big concern – the neuropsychologist has concerns about [GP and hospital appointments].”

Counsel for RBKC and (I think) P’s social worker, who was also at the hearing, both tried to reassure the family that “transition planning is going to be thorough“.

The judge, similarly, stated: “Again, just to set [sister and niece’s] minds at rest. It’s not proposed that [P] will move before the next hearing. This is a best interests decision. […] [It has been] absolutely clear throughout the proceedings with [P] … he wants to be in RBKC. I do take into that view, his family’s views.”

So, that was the plan. P was to be encouraged and supported to go to look at the new proposed place to live, P’s social worker was to be authorised to make an application for social housing in RBKC as a ‘fallback’ and the family was to be involved in considerations. 

At the end, P’s niece spoke up:  “One request I would have, in front of everybody, if documents are being submitted please can we have them in plenty of time? The cynic in me says: do we get them late so we can’t have a voice? You will hear my voice! I ask court that everyone sticks to time and we have two weeks”.

She explained that time is needed to translate and discuss the proposals with P’s mother, whose first language is not English. The judge engaged with this request, suggesting that the Local Authority’s evidence should be received a month before the hearing. 

Reflections

This case had clearly been long and arduous for all concerned. It was clear that there is not a preponderance of specialist places to live for P, that can meet his needs and that are in his preferred area to live. Finding the balance between those two things has clearly been challenging. 

There was dispute between P’s counsel/ALR and the Local Authority about who should be doing what and paying for it. For example, at one point, searching for potential properties to buy was raised as an option, but counsel for the Local Authority was clear that “It is not the case where we intend to go and look for somewhere in the property market. It is not the job of RKBC”. Who should make the application for social housing was a further issue. Counsel for P was firm:  “May I say … the legal aid agency wouldn’t fund [ALR] to fill out any of those forms. There’s no way they’d pay him“. The judge confirmed that this was authorised to be the Social Worker’s role. 

This case seems beset with issues, not only by finding an appropriate place for P to live, but also with budgets and who will do what, when. This is the way of things, I understand. I know from my own experience that it is the same in the NHS. People get lost in the melee though – and, even when professionals try their best, delays inevitably happen. Such has been the impact on P’s life here, it seems. 

I thought some of the language used was interesting. P was presented as “a very distinguished man”, which made my ears prick up. I am reminded of medical letters that often start off “I had the pleasure of meeting this delightful lady….’” or some such accolade. What about people who are not “distinguished” or “delightful”? Are those adjectives relevant? Maybe they are. We were told that, although where P was living was a specialist placement and it has rehabilitated him: “…. it is not where he wants to be. He identifies very strongly with Kensington & Chelsea. The borough is central to his identity, as a resident of Kensington & Chelsea, and as a very smart man of a very smart suburb“.

Perhaps that is the case. Maybe I am being a bit picky here. I wondered why that way of describing him was chosen, rather than, say, that P previously lived in Kensington & Chelsea and this is where he feels at home and would prefer to live. P was also very keen to be registered with his previous GP, with whom it seemed he had a good relationship. This was presented as follows:  “If he is in the borough, the surgery which he is very fixated on is more likely to accept him as a patient.” It made me wonder whether the rest of us, when thinking about things that matter to us and that we can autonomously pursue, would consider ourselves to be “fixated” on those things? 

These are just little words, here and there. I think, though, that they might be more readily applied to others, rather than how we would choose to describe ourselves, when we speak for ourselves. 

The next hearing for this case is planned for Wednesday 5th June at 10.30am. 

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